The Importance of Keeping Complete Client files

Do you keep a complete copy of your client files?  If not, does your reasoning fall into one of the following categories:

 

Let’s consider these arguments individually.

Rationale: I don’t want to store the paper

Agreed!  I don’t blame you one bit.  Talk about inconvenient!

  • You could keep files at home, but no one wants to do that and some of us don’t have the space.
  • You could keep files in your office, but it can look like a clutter bomb went off.
  • This leaves the expensive option: keeping files off-site.

Solution: Scan your closed files

The easiest solution is to stop adding to the problem.  Resolve to scan your closed files starting this year.  Most practitioners will need a scanner for Oregon eCourt.  Put it to work as a file retention tool.

Rationale: Scanning is too time consuming

If your paper files aren’t “scanner” friendly, digitizing them at closing time can be tedious and time-consuming.

Solution: Make your life easier and scan as you go

Scanning paper as you receive it means all file materials are electronic from the start and the work is done automatically over the life of the file.  In fact, if you “scan as you go,” there is no reason not to simply be paperless.

After scanning, paper can be:

  1. Shredded
  2. Given to the client
  3. Kept for a designated amount of time in a general chron file
  4. Kept for a designated amount of time in simplified client file (e.g., dropped into an expanding file folder)

Exceptions may apply to certain types of originals.  See the PLF File Retention Guidelines, available on the PLF website.

Rationale: The court has all my pleadings

This is a specific example of the argument that if someone else has a copy of the documents stored in my file, I don’t need to retain my set.

Solution: Keep it real

No one else possesses your exact client file, as you gathered it, for the purpose you gathered it.

When you decide that it isn’t necessary to keep copies of the documents you filed in court, the medical records used to prove your client’s damages, or some other part of your file on the grounds that “someone else has a copy,” you are taking a huge risk.

Many a lawyer has regretted the decision not to keep records because “they were available elsewhere.”  For example, the lawyer who said he withdrew from a case long before a judgment was entered against his former client.  The lawyer claimed he withdrew, but had no documentation in his file.  The court’s Register of Actions showed receipt of a letter from the lawyer seeking to withdraw, but when a PDF of the court file was obtained, there was no letter.  Maybe the letter never made it into the paper file.  Or perhaps it was missed when the file was scanned.

Regardless, the moral of the story is pretty apparent: anyone (including a court clerk) can misplace, misfile, or lose a document.  Never rely on another person or entity to keep your records.  PLF claim files are replete with similar examples.

In the event of a legal malpractice claim, it may be crucial to prove what you did nor did not have in your file.  And while it may be possible to obtain duplicate records, doing so does not establish they were previously in your possession.

Additionally, defending the practice of discarding part of your file can be quite uncomfortable at deposition or in front of a jury.  Jurors hold lawyers to a high standard and often naturally have sympathy for the plaintiff bringing a claim.  If your testimony shows that you shredded part of your file, jurors may draw the wrong conclusion about your motives.  Play it safe and keep your complete file.

All Rights Reserved [2015] Beverly Michaelis

 

Practice Alerts for Oregon Lawyers

Professional Liability Fund Practice Alerts are a quick, easy way for Oregon lawyers to stay informed about developing legal news and practice management announcements.

With an RSS feed you can subscribe to alerts and receive new posts automatically in your browser or e-mail inbox  without the need to login or monitor the PLF website.  Examples of recent post topics include:

  • Are you eCourt Ready?
  • Temporary eFiling Restrictions Lifted
  • UTCR 21.140 Amended Out-of-Cycle
  • Office Productivity in the Cloud: Is Office 365 Right for You?
  • eCourt Service Status – Temporary eFiling Restrictions
  • eCourt Mandatory effective December 1, 2014

You can also follow the Professional Liability Fund on social media, including:

Social media accounts are used to share news, events, CLE announcements, job opportunities, discounts, and useful practice tips.

Stay in touch!

[All Rights Reserved – 2015 – Beverly Michaelis]

Submitting Your First eCourt Filing

Mandatory eCourt begins today for the eleven circuit courts that currently have the Oregon eCourt system.  In last week’s post, I described 10 steps to get ready for eFiling. Today I want to address how to manage the stress and anxiety of this transition.

Give Yourself Extra Time

I truly believe that once practitioners gain experience with eFiling, the transition will be embraced.  I appreciate that the road to gaining experience brings anxiety, especially since there is no way to “practice” with the Odyssey eFile & Serve system.

Knowing that the first filing or two might be a little nerve-wracking, please give yourself extra time.  You will become familiar with the process, but building familiarity and confidence takes time.  Don’t create extra pressure for yourself by waiting until the deadline date to file a document.  If your filing is rejected, you will need to seek relation back to cure the missed deadline.

If at all possible, file well in advance of the deadline.  If your filing is rejected, you will have time to breathe, fix the problem, and refile.

File During Business Hours When Support is Available

The Odyssey eFile & Serve system is available 24 hours a day, 7 days a week.  While it may be tempting to complete a filing at 10:00 p.m. Friday night, technical support staff are not available to assist you if something goes awry.

File during regular business hours, Monday through Friday, 7:00 a.m. to 9:00 p.m. Central Time when Tyler Technologies support staff can assist you.

Tyler Technologies support staff can walk you through:

  • Initiating a new filing
  • Filing into an existing case
  • eServing parties in a case

Tech support can also use “GoToAssist” to take control of your computer and help you complete an eFiling. Keep the support number handy: 1.800.297.5377 and don’t hesitate to use it.

Reach Out to Experienced Colleagues

If you know a colleague who has used the Odyssey eFile & Serve system system, ask for pointers.  There are practitioners in Yamhill, Crook, Jefferson, and a handful of other counties who have lived with eCourt for 18 months.  If you don’t know of someone personally who has used the system, posting to a listserv or contacting a Resource Lawyer through the Oregon State Bar Lawyer-to-Lawyer program may be an option.  (Note: eCourt is not a specific resource category in the Lawyer-to-Lawyer program, but Litigation is.)

[All Rights Reserved – 2014 – Beverly Michaelis]

 

The Nontraditional Law Practice

A nontraditional law practice can be anything a lawyer wants it to be:

  • Hybrid or alternative fee arrangements;
  • Unbundling;
  • Virtual law practice;
  • Home-based practice;
  • All the above; or
  • Something else entirely

Hybrid or Alternative Fee Agreements (AFAs)

As more clients push back against the hourly rate model, lawyers are looking for unconventional ways to price legal services.  One of the most popular?  The hybrid or alternative fee agreement (AFA).

Before you enthusiastically embrace this option, read this post and make sure your AFA satisfies the 5 “C’s” test:

  • Clarity
  • Completeness
  • Compliant
  • Common sense
  • Can’t be excessive

Hybrid or alternative fee agreements are often combined with other elements of a nontraditional practice.  Used correctly, they can be a huge asset.

Unbundling: Have it Your Way

With unbundling, clients pick and choose discrete services from a menu of available choices:

Providing limited legal services is not a new concept. Transactional lawyers have long served in the role of document reviewer or preparer. So how is unbundling different? It takes the idea one step further by employing a team approach in which the lawyer and client decide who will do what based on the legal services required by the client’s case. The client takes a much more active role in the matter and often assumes responsibility for pro se court filings and appearances.

Keep in mind that unbundling has its risks: Unbundling in the 21st Century: How to Reduce Malpractice Exposure While Meeting Client Needs and its ethical limitations.  See Unbundling Legal Services: Limiting the Scope of Representation and The Ethics of Unbundling:  How to Avoid the Land Mines of “Discrete Task Representation.”

Virtual Law Practice or Home Practice?

A virtual law practice or virtual law office (VLO) is a term of art referring to online delivery of legal services through a secure client portal.  If you are interested in creating a VLO, Stephanie Kimbro’s book Virtual Law Practice: How to Deliver Legal Services Online is a must.  [Available on the ABA Web store here. If you are not an ABA member, save money at checkout by using the Professional Liability Fund’s (PLF’s) discount code OSBPLF.]  Also see this post about click wrap or click through fee agreements.

VLOs aside, most lawyers who express an interest in practicing virtually mean they want to work from home – due to economic necessity, personal choice, or both.  In next week’s post, I’ll discuss the nine steps to establishing a successful home-based practice.

[All Rights Reserved 2014 Beverly Michaelis]

 

I Say Of Counsel You Say…

Of Counsel relationships remain a strong area of interest for lawyers who are drawn to the idea of creating a professional affiliation. In that quest, there are many misunderstandings about what an of counsel relationship is:

 

To better understand of counsel relationships, start here.  Also see this excellent post from Solo Practice University.

If you decide to pursue an of counsel relationship, enter into a written agreement to avoid misunderstandings.  See the American Bar Association publication, The Of Counsel Agreement, 4th EditionIf you are an Oregon lawyer, save money at checkout by using our ABA Books for Bars discount code, OSBPLF.

Of counsel arrangements may also implicate your professional liability coverage.  If you are an Oregon practitioner, please contact our coverage experts at 503.639.6911 or 800.452.1639 – particularly if you carry excess professional coverage liability with the PLF.

If you are forming an of counsel relationship and have any uncertainty whatsoever about how to craft a proper agreement, consult with outside counsel. Lastly, Don’t confuse being of counsel with being an independent contractor. See Mission Impossible? Working as an Independent Contractor in Oregon and this post.  [Pertaining to contract lawyers, but providing a good review of the issues surrounding independent contractor status.]

All Rights Reserved [2014] Beverly Michaelis

Cyber Security and Data Breach Response

lock“Cyber threat is one of the most serious economic and national security challenges we face as a nation.”  Barack Obama, President of the United States

The Identity Theft Resource Center has documented over 500 data breaches in 2014 through early September.  This represents a 26.2% increase over the same time period last year. The news isn’t any better for the legal profession.

The latest ABA Legal Technology Survey Report notes that “Nearly half of law firms were infected with viruses, spyware or malware last year.”  Fourteen percent of law firms “experienced a security breach last year in the form of a lost or stolen computer or smartphone, a hacker, a break-in or a website exploit.”

Where to Start

With such staggering numbers, it is easy to become overwhelmed.  If you are concerned about cyber security but don’t know where to start, begin here at the ABA Web site. If you are a prolific user of mobile devices, be sure to check out the ABA’s suggestions for Security on the Go.  To understand the state of security in US law firms, read this post by Bob Ambrogi.

Make Encryption Your Best Friend

Encryption is a powerful way to protect sensitive data belonging to you and your clients. The ABA post Playing it Safe provides a good overview.  Since TrueCyrpt is no longer available, check out the following reviews of encryption software: LIfehacker, GFI, PC World, and Gizmo.

You’ve Heard it Before: Use Strong Passwords

It seems we are reminding lawyers every other day about the importance of using strong passwords unique to each account or Web site.  See these recent posts on the ABA Law Technology Today blog:

Firewalls, Anti-Spam, Anti-Virus, Malware Protection

The best protection is comprehensive.  This excerpt from The 2014 Solo and Small Firm Technology Guide provides guidance.  Don’t be afraid to hire an IT expert to help.

Purchase Cyber Liability and Data Breach Coverage

The Professional Liability Fund (PLF) Excess Claims Made Plan automatically includes a cyber liability and data breach response endorsement with these features:

  • Forensic and legal assistance to determine compliance with applicable law
  • Notifications to individuals as required by law
  • 12 months credit monitoring to each notified client
  • Loss mitigation resources for law firms

If you aren’t eligible or don’t wish to purchase excess coverage through the PLF, contact a commercial carrier.

Protect Yourself Against Scams

The security measures outlined above are a good start toward protecting your firm and your clients from scams.  For more complete protection, get educated.  Order the free PLF CLE: “Protecting Your Firm and Your Client from Scams, Fraud, and Financial Loss,” and talk to your bank about fraud protection services.

[All Rights Reserved – 2014 – Beverly Michaelis]

 

 

Leaving Your Firm

Parting isn’t always such sweet sorrow.  In fact, it can be downright contentious.

If you are contemplating leaving your firm, do your research. Meeting your ethical obligations fulfills only part of your responsibilities.

IF YOU ARE A PARTNER

Conduct your partnership withdrawal in a manner that honors the contractual and fiduciary responsibilities owed to your fellow partners.  Contractual duties are controlled by your written partnership agreement.  Fiduciary duties are described in case law and codified by statute in Oregon’s Revised Partnership Act.

IF YOU ARE NOT A PARTNER

Review your employment contract, employment letter, office policies, office procedures, or any other applicable terms that may control the process for terminating your relationship with your current firm or your obligations upon departure.

ARE ISSUES LIKELY TO ARISE?

Consult outside counsel experienced in the areas of lawyer mobility, partnerships, fiduciary duties, lawyer separation, and law firm dissolution.

PUT CLIENTS ABOVE ALL ELSE

If you are making a lateral move to another firm or setting up your own practice, remember that the client’s freedom of choice in selection of counsel is paramount.  Always put the interests of your clients first.  Keep the transition as amicable, professional, and stress-free as possible.  Contentious withdrawals alienate clients and damage relationships.

GIVE NOTICE TO YOUR FIRM BEFORE YOU CONTACT CLIENTS

Inform the firm of your decision to leave before contacting any clients.  Failing to give adequate and timely notice to your firm or partners before you contact clients is a violation of the duty of loyalty owed by a lawyer to his or her firm based on their contractual or agency relationship.  It may also constitute conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Oregon RPC 8.4(a)(3).

RESOURCES

The Professional Liability Fund has extensive resources for Oregon lawyers who are departing a firm, withdrawing from a partnership, or dissolving a firm.  Visit our Web site for more information.

All rights reserved [2014] Beverly Michaelis.

 

 

Malpractice Claim Trends in Oregon [Infographic]

The 2013 Professional Liability Fund Annual Report is now available for Oregon lawyers on the PLF Web site.  The report reveals the following legal malpractice claim trends and data:

Number of claimsAverage Cost Per ClaimFrequency of Claims by Area of LawCost of Claims by Area of Law

 

 

Case Numbers are Not Unique – Oregon eCourt Week

This is the final post in my week-long series on Oregon eCourt. Today we take note of a small, but potentially important detail: case numbers are not unique in the eCourt system.

After logging on, eCourt users have an option to search case records, court calendars, or find judgments with money awards. If you elect to search Civil, Family and Probate Case Records, the following search screen appears:

search screenThe first option is to search by Case Number. Here is an actual search result that generated three listings in three different jurisdictions for the identical Case Number. Identifying information has been redacted for privacy reasons:

case numbers

Identical case numbers across judicial districts do not pose a problem so long as you are aware of the possibility.

Other Options when Searching Case Records

Searching by Case Number is the first option presented when searching case records. Users may also search by Party, Attorney, or Date Filed.

other search criteria

All Rights Reserved [2014] Beverly Michaelis.

 

Searching eCourt Calendars – Oregon eCourt Week

Today we explore how to search court calendars in the Oregon eCourt system.

There are two options for searching calendars. The first uses a publicly accessible link from the Oregon Judicial Department home page. The second approach requires logging in to the eCourt system. The search methods are identical regardless of the approach used.

The following search criteria are available when searching eCourt calendars:

  • Attorney
  • Case
  • Judicial Officer
  • Party or Defendant Name
  • Date Range

Search by Case is the default search method. To search by any other criteria, click the drop-down arrow.

When searching by Attorney, use the attorney’s last name and first name or bar number.

search by attorney

When searching by Judicial Officer, the search screen offers a pull-down menu of all judicial officers in the state in ascending order, beginning with Abar, Donald and ending with Zuver, Julie:

search by judicial officer

When searching by Date Range, you can filter your search by Case Category. Case categories include: Criminal, Family, Civil, and Probate/Mental Health. By default, all four are selected. De-select categories you do not wish to include in your search.

date range

Phonetic Searches Using Soundex

Phonetic searches are available when searching by Party or Defendant Name or by Attorney if using last name and first name criteria. Check the Soundex box in the upper right portion of the screen to retrieve calendar dates for search names that sound alike.

eCourt Calendar Searches Limited to 90 Days in the Future

When searching the calendar, date ranges cannot be more than 90 days in the future. If you attempt to search more than 90 days out, the following message will appear:

date range message

Searching OJIN Circuit Court Calendars

Search OJIN Circuit Court Calendars here. Search criteria are limited to Date, Party Name, and Attorney. Note these conditions:

The (OJIN Circuit) Court Calendar allows entering up to four identifiers to locate an event occurring on a specific court docket. A minimum of at least one identifier is required. Providing more information will result in more accurate search returns.

The Party Name and Attorney fields are case-insensitive and can be all or part of a name. For example, entering “John” in the Party Name field will give results of all the cases with “John,” “Johnson,” and “Van Johnson.”

Names are stored in the same manner as in the OJIN system “Last First Middle” with no commas and one space between names. For example, Michael Jay Smith is actually stored as “Smith Michael Jay.” Searching for “Michael Jay Smith” will not find any results; however, searching for “Smith Michael” or “Smith M” or “Smith Michael Jay” will include the desired results.

You can only search for the first plaintiff and defendant on a case. You can only search for the first three attorneys on a case, with the system first looking for attorneys on the scheduled event and then for active attorneys on the case. Search results will return the first 500 entries on the docket.

OJIN Online subscribers have access to more functionality.

Beverly Michaelis [2014] All Rights Reserved.