NYSBA Crowdfunding Ethics Opinion

In January and April I blogged about the ethics of crowdfunding. In May, when I co-authored Tread Carefully: Crowdfunding Your Law Practice with Amber Hollister, we reported:

No jurisdiction, including Oregon, has published an ethics opinion or other formal guidance on the propriety of crowdfunding. As with all legal applications of new technologies, the ethics law can be slow to catch up with modern-day practice. Nevertheless, a preliminary look at crowdfunding suggests that it is not per se prohibited by the Oregon Rules of Professional Conduct. As with any novel approach to practicing law, whether crowdfunding is permissible depends on the type of funding model used by the lawyer and the specifics of how the lawyer implements the fund-raising campaign. Wise lawyers will proceed with extreme caution.

This changed in late June, when the NYSBA issued Ethics Opinion 1062.  The opinion digest states:

A law firm may engage in certain types of crowdfunding but not others.  Any form of fundraising that gives the investor an interest in a law firm or a share of its revenue would be prohibited.  However, in some circumstances a law firm may give the funding source some kind of reward. For example, a law firm may send a funder non-confidential memoranda discussing legal issues (provided the law firm complies with any applicable advertising rules), or may agree that the law firm will provide pro bono legal services to certain charitable organizations, provided that the lawyer complies with Rule 1.1 regarding competence and the representation does not involve conflicts in violation of Rule 1.7 or Rule 1.9.

The NYSBA opinion is the first of its kind in the nation.  It addressed the issues of competence and conflicts head-on, but did not touch on some other points that my co-author and I raised relating to trust accounting, third-party payment, fees, advertising/promotion, use of disclaimers, and taxation.  Lawyers interested in crowdfunding would be well-advised to give our article a second look.

Windows 10 – Must-Change Default Settings

In my last post I discussed specifications and compatibility issues relating to Windows 10.  This week the focus is default settings.  Before you click away, consider the following:

  • During installation, “express settings” permits Microsoft to collect data about you
  • By default, Windows 10 shares private Wi-Fi passwords with your Outlook, Skype, and Facebook contacts
  • Microsoft Edge and Cortana collect data on you and your relationships with others
  • Apps can access your name, photo, and other account information unless this setting is toggled off
  • Windows Updates are on a “share to download” basis, which could cause some users to exceed data usage limits

To change these default settings, check out this excellent post on Techlicious.  Want to stop Microsoft from looking over your shoulder?  Consider the DoNotSpy10 app or switch from Microsoft Edge to Firefox.  Did your computer stop working after Windows 10 automatically updated your device drivers?  Maybe you want to turn that setting off.

Worried about what else Windows 10 might have in store?

Keep your eye on Your IT Consultant Information Technology Blog.  If there is a security issue – or solution – John Simek will find it.

All Rights Reserved [2015] Beverly Michaelis


Windows 10 – Specs and Compatibility Issues

Eager to upgrade to Windows 10?  Take five and learn about specifications and compatibility before upgrading your OS.  In future posts I’ll cover default settings you may want to change and cool new features.


Not sure whether you can upgrade?  System requirements and additional requirements to use certain features can be found here.


Verify with your software provider that key programs are compatible or check the Microsoft Compatibility Center.  Consider these issues:

  • The DC version of Acrobat is Windows 10 compatible.  Acrobat XI hasn’t been tested on Windows 10 yet.  Will Adobe release an update?  Maybe.
  • Kaspersky is recommending users download the new version of their product before downloading Windows 10.  If you use another antivirus program, check with your provider!
  • SnagIt and Jing, the popular screen and video capture programs, are not fully compatible.
  • Quicken 2015 users report no issues with Windows 10; Intuit promises compatibility when the 2016 version is released.  Using an earlier version?  All you can do is try – but back up your data file(s) first.
  • QuickBooks seems to (mostly) work on Windows 10 if you have versions 2012-2015.  A notable exception is the 2014 Enterprise Edition, which crashes.

If you decide you don’t like Windows 10, you have 30 days to revert back.

All Rights Reserved [2015] Beverly Michaelis


Laptop Note Taking: Lost in Translation?

As I long suspected, using a laptop or tablet for note taking is not what it’s cracked up to be:

Mueller and Oppenheimer conducted three different studies, each addressing the question: Is laptop note taking detrimental to overall conceptual understanding and retention of new information?

The students’ scores differed immensely between longhand and laptop note takers. While participants using laptops were found to take lengthier “transcription-like” notes during the film, results showed that longhand note takers still scored significantly higher on conceptually-based questions. Mueller and Oppenheimer predicted that the decrease in retention appeared to be due to “verbatim transcription.”

But, they predicted that the detriments of laptop note taking went beyond the fact that those with computers were trying to get every word down. In their second study, Mueller and Oppenheimer instructed a new group of laptop note takers to write without transcribing the lecture verbatim. They told the subjects: “Take notes in your own words and don’t just write down word-for-word what the speaker is saying.

They found that their request for non-verbatim note taking was “completely ineffective,” and the laptop users continued to take notes in a “transcription like” manner rather than in their own words. “The overall relationship between verbatim content and negative performance [still] held,” said the researchers.”  What You Miss When You Take Notes on Your Laptop.  

The takeaway: if you want to transcribe, use technology. If you want to understand, use paper and pen.  Need more incentive to stick with your legal pad?  Using your laptop or tablet during client meetings can be off-putting.  

Everyone looks down when taking notes. But keyboarders – especially those who use touch screens – barely look up.  Clients need to know you are present in the conversation – listening, absorbing, and understanding their story.  When you fail to make eye contact, you fail to engage.  I witness this each time I speak to law students, all of whom bow their heads to “transcribe” (but not understand) my words. 

This is also reminiscent of the results that suggest working paperlessly may not be the most optimal way to read, comprehend, and understand client file materials. 

The original article appears at the Harvard Business Review online. You can read the full post here

Oregon Civil Procedure – Amendments Coming to UTCR 5.100

Out-of-cycle amendments are coming to UTCR 5.100, which governs submission of proposed orders and judgments.  The amendments will affect conventional filers and eFilers, but are designed to address the following concerns raised by judges who sign proposed orders and judgments using the new eCourt system:

  • It is difficult, if not impossible, to know whether proposed orders or judgments are ready for judicial signature;
  • A sufficient and uniform time period to object to proposed orders or judgments is presently lacking;
  • Opposing parties need clear instructions on how to object to proposed orders or judgments; and
  • Protocols are necessary to ensure that parties work to resolve objections before submitting disputed orders and judgments.

For clarity, the proposal to amend UTCR 5.100 breaks the rule up into three parts:


“As amended, the service component … requires service on the opposing party, and an opportunity for objection, as to any proposed order or judgment unless an exception applies. The rule is no longer limited to only those proposed orders and judgments submitted “in response to a ruling of the court.” The purpose of the updated wording is to ensure that the opposing party has a reasonable opportunity to object. The service component also sets out specific notice requirements and lengthens the time between service and submission.”  Read more here.


The objection component is new and requires service of a written, dated, and signed objection within 7 days of the date that the proposed order or judgment was sent to the opposing party.  If an objection is served by the opposing party, the drafting party must make a reasonable effort to resolve the objection before submitting the proposed order or judgment to the court. However, opposing parties are also permitted to file objections directly with the court.

Practice Tip:  Opposing parties who file an objection directly with the court are required to include in the caption “Objection to Proposed [Order/Judgment]” and must describe the nature of the proposed order or judgment.  If the opposing party requests oral argument, the request must be stated in the caption.

More details are available here.


The submission component:

  • Retains the Certificate of Service requirement
  • Adds a “Certificate of Readiness” requirement
  • Clarifies that a proposed order or judgment may be submitted sooner than the 7-day period for objection, if:
    • the opposing party has stipulated to or approved the order or judgment, or
    • the opposing party has objected and the objections are resolved or ready for resolution.

The “Certificate of Readiness” certifies that the proposed order or judgment is ready for judicial signature or that objections are ready for resolution, and provides the “readiness” reason.  It will eliminate the need for judges to access multiple documents in the eCourt system to ensure that a proposed order or judgment is ready for signature.

Practice Tip:  UTCR 5.100(3)(c) sets out the language to be used in a “Certificate of Readiness.”  Filers are required to use substantially the same form.  When the rule is adopted, maximize efficiency by copying and pasting the “Certificate of Readiness” language into a template that you can re-use each time you submit a proposed Order or Judgment.

Read more here.

This is the second go-around in the proposed amendment process for UTCR 5.100.  Public comment on proposed revisions will be accepted until August 17.  Since the intention is to amend the rule out-of-cycle, expect an effective date around or before September 1.

[All Rights Reserved Beverly Michaelis 2015]

Oregon eCourt – Where are we now?

Judging by the numbers, Oregon eCourt is a success.  In February, March, and April of this year an average of 65,666 documents were filed electronically using the Odyssey eFile and Serve system:  efilings 2015Easy-Peasy or a Bumpy Ride?

The transition from paper-based filing to eFiling hasn’t been easy.

A record number of Oregon lawyers went inactive or resigned from the bar in December 2014/January 2015, leading some to speculate that mandatory eFiling drove veteran members to retire sooner than originally planned.

Why might that be?  eFiling requires an investment of time and money. To succeed, eFilers need to know the rules, understand the technology, subscribe to OJIN/OJCIN, and buy a decent scanner and PDF conversion software.

Rejection Rates

For those who persevered, kudos to you!   Of the 197,000 filings in February, March, and April of this year, less than 10% were rejected.  Bottom line: Oregon lawyers [or their staff] are getting it right.

New Policy and Standards for Acceptance of Electronic Filings

Effective July 1, 2015 Chief Justice Balmer signed Chief Justice Order 15–026, which adopts the OJD Policy and Standards for Acceptance of Electronic Filings in the Oregon Circuit Courts [dated May 22, 2015]:

Statewide standards for the acceptance of electronic filings are intended to provide clear consistent guidance to practitioners and courts on the proper use of the OJD eFiling system (File and Serve). The standards are grouped into two broad categories: (1) how to properly use the system from a technical perspective to ensure acceptance of eFiled documents, and (2) compliance with Uniform Trial Court Rules (UTCR) Chapter 21 or ORCP 9E.

These standards will help educate eFilers on the correct usage of File and Serve to provide them with a high quality experience, support consistent statewide messages to accompany returned electronic filings with instructions on how to cure the error, and allow the Oregon Judicial Department (OJD) and eFilers to achieve the full benefits of an electronic filing system.

The policy and standards are available here.

New Supplemental User Guide for eCourt

OJD has also released a new Supplemental User Guide.  This document provides descriptions of the most common mistakes made by eFilers and step-by-step directions for fixing them.  It is a must-read for all lawyers and staff who use the Odyssey eFile and Serve system.

Free Training for Odyssey eFile and Serve

You can still sign up for free training Webinars with Odyssey eFile and Serve. Tyler Technologies, the vendor for Odyssey eFile and Serve, offers both recorded and live sessions here.

UTCR Amendments Coming

Next week, I will review the proposed amendments to UTCR 5.100, which affect orders and judgments.

[All Rights Reserved Beverly Michaelis 2015]

Track changes: Display for review options (Word 2010 and 2013)


Track changes can be incredibly useful or drive you batty if you don’t understand option settings. Get smart by following CompuSavvy’s helpful hints.

Originally posted on CompuSavvy's Word & WordPerfect Tips:

People who use Track Changes sometimes find the Display for Review options confusing.  For one thing, some users don’t realize that changing the Display for Review option to “Final” (or, in Word 2013, “No Markup”) doesn’t actually remove the revision marks – for insertions, deletions, formatting changes, moves, etc. – from the document.  Rather, it merely lets you preview the document as it would look if you accepted all of the changes.[1]

For another thing, the wording of the options isn’t particularly easy to understand.  And the wording has changed between Word 2010 and Word 2013, but remains somewhat obscure.

This post is intended to help clarify the various Display for Review options available in Word 2010 and Word 2013.

Display for Review Options in Word 2010

In Word 2010, the Display for Review options are as follows:


This option shows the document as it appeared before any insertions, deletions, moves…

View original 812 more words

Avoiding a #PrimeDayFail With Your Clients

Online retailer Amazon touted last week’s Prime Day as “Black Friday” in July.  Judging by the sales, it was a success.  At the same time, Prime Day was also a huge let-down, leaving many customers angry and frustrated.

The snark was running at full steam on Twitter and other social media sites, generating the trending hashtag: #PrimeDayFail.

What Lesson Can Lawyers Learn From #PrimeDayFail?

Amazon Prime customers were ticked because the sale didn’t match the hype.  Common complaints included:

The end result?  Amazon sold enough Tupperware to turn a profit but also damaged its reputation.

The lesson for lawyers can be summed up pretty simply: control expectations, keep your word – don’t offer a deal you can’t deliver, and remember that appearances matter.  Raising a price on Prime Day doesn’t make Amazon evil, but it doesn’t look good either.  Here are your marching orders:

Manage Client Expectations

  • Assess cases realistically and present them to clients that way.
  • Explain clearly, and confirm in writing, exactly what your legal services will consist of and exactly how the fee will be determined.
  • Confirm all advice in writing, particularly if the client chooses not to follow your advice.  Explain alternatives and their ramifications, and then let your client decide.

Don’t Promise What You Can’t Deliver

  • Complete work as promised, or let the client know why if it cannot be done.
  • Keep the client informed of the progress of his or her case by sending copies of pleadings, correspondence, etc., as well as occasional status reports.

Perception is King – Strive to be Responsive, Timely, Accurate, and Empathetic

  • Keep client appointments promptly.
  • Establish a standard time for returning client calls and responding to email.  Communicate your practices to clients and keep your promise.  The PLF offers administrative brochures and other client relation materials that describe these kinds of policies so clients know what to expect.  Visit our site, select Practice Management, then Forms, and choose the category Client Relations.  If you are unavailable for an extended period, let clients know.
  • Take measures to produce professional work product.  Clients are forgiving of the occasional mistake, but frequent billing errors, typos, and other clerical snafus can cause the client to question your fees, your work, and your integrity.
  • Treat clients with empathy and practice good listening skills.  Often the most important client need you can meet is the need to be heard and understood.  Clients who feel “well taken care of” rarely file a bar complaint or legal malpractice claim.

[All Rights Reserved 2015 Beverly Michaelis]

Not Wired to go Paperless?

Is it possible we’re not wired to run a paperless law office?

There is no doubt that digital archiving is the way to go.  Done right, scanning closed client files is both convenient and cost effective.  But does it automatically follow that lawyers should adopt a completely paperless work flow for active files?

Goldy has a longer attention span than you

We already know that the lowly goldfish has a longer attention span than humans thanks to our increasingly digital lifestyle.  What about processing data?  Is our ability to absorb and retain information equivalent in the digital and paper worlds?  What does the science say?

This is your brain on paper [and it works better]

Evidence suggests that absorption, understanding, and retention suffer when we attempt to digest information digitally:

Consider this excerpt from Ferris Jabr, The Reading Brain in the Digital Age: The Science of Paper versus ScreensScientific American [2013].

Even so, evidence from laboratory experiments, polls and consumer reports indicates that modern screens and e-readers fail to adequately recreate certain tactile experiences of reading on paper that many people miss and, more importantly, prevent people from navigating long texts in an intuitive and satisfying way. In turn, such navigational difficulties may subtly inhibit reading comprehension. Compared with paper, screens may also drain more of our mental resources while we are reading and make it a little harder to remember what we read when we are done. A parallel line of research focuses on people’s attitudes toward different kinds of media. Whether they realize it or not, many people approach computers and tablets with a state of mind less conducive to learning than the one they bring to paper.

If you are still with me: what does this mean for you and your law practice?

If you’ve gone completely paperless – accessing, reading, and digesting information digitally – and feel you are getting good results, why not continue?  You likely made some adaptations along the way that were perfectly natural and work well for you.  Keep up the good work!

For everyone else, the most optimal approach seems to be the following:

  1. Go paperless at the end of a file’s life cycle.  Scan your file.  Return original client documents.  Shred the paper file OR provide it to the client.  Only keep paper if required.  For a refresher on that subject, review our File Retention & Destruction Guidelines, available on the PLF website.
  2. During the course of a case, use paper whenever it works best for you: notes, correspondence, paper-based discovery, materials received from the client.
  3. Strive to keep information that you create or receive digitally in digital form (pleading documents, memos, emails).
  4. Whenever you need to print digital information for review and markup, don’t hesitate to do so.

[All Rights Reserved 2015 Beverly Michaelis]