Tag Archives: Oregon law practice management

Balancing the Roles of Lawyer and Caregiver

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If you are balancing a law practice while caring for an adult family member, you are not alone:

  • 44.4 million Americans age 18 or older are providing unpaid care to an adult.
  • The average length of caregiving is 4.3 years, wcalthough some people spend many more years in a caregiving role.
  • Almost 60% of all caregivers either work or have worked while providing care.  Sixty-two percent have had to make adjustments to their work life.
  • Many caregivers fulfill multiple roles.  Most caregivers are married or living with a partner (62%), and most have worked and juggled caregiving at the same time (74%).
  • The most frequently reported unmet needs of caregivers are finding time for themselves (35%), managing emotional and physical stress (29%), and balancing work and family responsibilities (29%).

These sobering statistics are featured in the March issue of In Sight, published by the Oregon Attorney Assistance Program (OAAP).

How do Caregivers Cope? 

With information, help, and resources.  All three are addressed in the current issue of In Sight.  Articles include:

One of the best resources is the Oregon Attorney Assistance Program.  The OAAP provides free and confidential support to lawyers who are balancing work and caregiving.

Making Adjustments to Your Law Practice

Many years ago I met a lawyer who contacted the PLF for help after experiencing a series of legal malpractice claims.  The lawyer had missed deadlines, failed to appear in court, and made mistakes in document preparation.  During our meeting I learned he was caring for his elderly parents.  Nearly every day he was called out of the office to retrieve a prescription, take care of an incident at his parent’s home, or drive his mother or father to the doctor.  Keeping a regular work schedule in the midst of this chaos seemed impossible.  Winding down the practice was not an option – his family needed the income.  The solution?  He closed his office on Fridays.  New and existing clients were informed of the office hours.  The lawyer also explained his strategy to health providers, obtaining their cooperation in scheduling regular medical visits on Fridays.  He was fortunate to practice in a smaller legal community where colleagues, opposing counsel, and the court were understanding.  The final secret to his success was a full-time legal secretary.

Not all lawyers are as fortunate as the one described above.  You may practice in a large, sprawling community where few lawyers know one another and bench-bar relations are nonexistent.  Hiring a full-time legal secretary?  Sounds great, if you have the money.  No matter what the circumstances may be, there are always options.  If you are a lawyer in Oregon struggling with caregiving and lawyering, contact the OAAP and the PLF.  The OAAP can provide emotional support and personal assistance.  A practice management advisor can help you strategize about how to adjust the scope of your practice.  Both services are free and confidential.

All Rights Reserved 2013 Beverly Michaelis

Social Media Bill Passes Oregon Senate

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Today the Oregon Senate passed HB 2654B which would forbid employers from demanding access to potential employee’s social media accounts. Read the full story at KATU. Maryland started the trend, which has spread to other jurisdictions. Twenty eight states are entertaining similar legislation.

For a related discussion, see this post.

Are Private Lawyers Required to Bear the Cost of Communication Access?

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Accommodating actual or potential clients with hearing impairments is a misunderstood requirement of the Americans with Disabilities Act.

The National Association for the Deaf has this information to share:

Duties of Public Defenders and Other Government Lawyers

Public attorneys, such as public defenders (lawyers assigned to represent people charged with a crime) or other state or local government lawyers, may be unfamiliar with their obligations under the ADA. Public attorneys must ensure that communication with deaf or hard of hearing clients and members of the public are as effective as communications with others. A public attorney must provide appropriate accommodations when necessary to provide an equal opportunity to participate in and enjoy the benefits of the lawyer’s services. A public attorney must give primary consideration to the accommodation requested by the individual who is deaf or hard of hearing.

Duties of Private Lawyers

Private attorneys may be unfamiliar with their obligations under the ADA. Some private attorneys may be unwilling to provide and pay for the necessary communication access services. As a result, many deaf and hard of hearing people are unable to retain private attorneys for important legal matters, such as criminal proceedings, family law issues, and employment law matters. The ADA recognizes that private lawyers do not have to provide a specific type of auxiliary aid or service if they can demonstrate that doing so would be an undue burden (a significant difficulty or expense). To demonstrate an undue burden, lawyers must show that the cost to provide accommodations would significantly impact their practice and financial resources, which may be difficult for most law offices. When an undue burden can be shown, the lawyer must provide alternative communication access services that would, to the maximum extent possible, ensure effective communication.

Required Accommodations

The Americans with Disabilities Act (ADA) requires attorneys to provide equal access to their services by providing accommodations necessary to ensure effective communication with individuals who are deaf or hard of hearing. These accommodations include qualified interpreters, CART, and assistive listening devices.

Help with the Cost of Accommodation

The NAD advocates for improved access to legal services through the establishment of a communications access fund (CAF) in each state. The CAF would cover the cost of communication access services to ensure effective communication with private attorneys. The revenue source for each state’s CAF could be generated by assessing a small annual fee to be paid by each practicing attorney licensed in that state. Several states and local jurisdictions have established CAFs for legal services.

Liability Under the ADA

For a discussion of liability exposure for failing to comply with the ADA, see Providing for the Deaf, Hard of Hearing under the ADA. This post also contains useful practical tips for meeting your communication obligation.

Help for Oregon Lawyers

Oregon’s Deaf and Hard of Hearing Services provides resources and can answer questions about interpreter services in Oregon or other deaf and hard of hearing related information.

All Rights Reserved – Beverly Michaelis – 2013

The Art of Effective Communication

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imagesAre you a good communicator?  Or do you find yourself struggling to get your point across?  If you fall in the latter category, it could be that you are focused on your message to the exclusion of other important attributes of effective communication: listening skills, tone of voice, body language, and empathy.

In Effective Communication, Shari Gregory relates the following tips:

LISTENING

Good communication starts with the ability to listen. Effective listening means being present, keeping an open mind, and being respectful of others. The following suggestions are just a few ways to improve your listening skills:

  • Focus on what is being said.
  • Look directly at the person who is speaking.
  • Let the speaker finish before you speak.
  • Listen for the feelings behind the words and watch for nonverbal cues.
  • Give the speaker your full attention – focus on what the speaker is saying, not on how you are going to respond.
  • Be open to the speaker’s message.
  • Ask questions to clarify what you do not understand.
  • If you are uncertain about whether you correctly understood the speaker, explain what you understood to the speaker (paraphrase) and ask the speaker if you have understood correctly.

TONE OF VOICE AND BODY LANGUAGE

More than half of all human communication is nonverbal. When talking with another person, be aware of your tone of voice, eye contact, and body language. If you feel harried or anxious when you speak, you may sound short or abrupt. If you are not feeling patient or well-balanced, your tone of voice might sound condescending or angry. Your gestures, such as hands and arms moving frantically, may distract the listener from your intended message.

For listeners, a speaker’s facial expression is often the key determinant of the meaning they give to a speaker’s message. When you speak, your face communicates your attitudes, feelings, and emotions more clearly than any other part of your body. Eyes squinting or glaring, eyebrows furrowed, face flushed red, or a frowning mouth may communicate to the listener that he or she is at fault for your uncomfortable state. The listener may become insecure or defensive, making it likely that whatever you are trying to say is lost.

Listeners are more likely to judge your sincerity and credibility based on your nonverbal behavior and whether it is consistent with your words than on your words alone. If you are feeling anxious or upset, take a deep breath before you speak. Question yourself about your mood. Take an internal look at how you are feeling and why. This will give you a “mental time out” – enough time to reframe what you want to say and how you are going to say it, taking into consideration to whom you are speaking. Organize your thoughts so you can explain why you are upset.

EMPATHY

Empathy is the ability to connect with another person and to share in another person’s emotions or feelings. As lawyers we pride ourselves as wordsmiths, but at times, our emotion, enthusiasm, and passion may cause us to forget to consider our audience. Effective communicators recognize that differences in cultures, personality, status, education, or perception may become stumbling blocks to communication. Valuing differences and keeping them in mind can help people communicate more effectively.

PARTING THOUGHTS

Shari’s tips guide us on how to approach face-to-face communications with clients.  It is equally critical that we put proper effort into our written communications.  Too often lawyers (and clients) fire off an e-mail without stopping to consider: is this the best way to communicate?  Remember, e-mail is meant for:

  • Quick answers to straightforward, yes and no questions
  • Making or confirming appointments, court dates, or other calendar commitments
  • Transmitting documents
  • Distributing information quickly to many people
  • Short, simple communication!

Pick up the phone when:

  • You are unclear about the question being asked
  • The question is complicated and requires a detailed answer
  • The subject matter is sensitive and your words could be misinterpreted

You can always send a confirming e-mail or letter after the fact. 

For additional tips on effective communication, I invite you to listen to this podcast of my conversation with Vicki Voisin of The Paralegal Mentor.

All Rights Reserved (2013) Beverly Michaelis

Are You Using the New Model Contingent Fee Agreement Explanation?

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Effective January 1, 2013, Oregon RPC 1.8(e) was amended to follow the corresponding ABA Model Rule.  Lawyers are now expressly allowed to provide financial assistance in the form of advancing court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter.  Lawyers are also permitted to pay court costs and expenses on behalf of indigent clients.

Before the change, lawyers were required to state in their fee agreements that clients remained responsible for the costs and expenses of litigation regardless of the outcome of the case.  The Oregon State Bar approved Model Explanation of Contingent Fee Agreement – derived from ORS 20.340 – mirrored this requirement.

With the amendment to Oregon RPC 1.8(e), the Oregon State Bar revised the Model Explanation to allow for three alternatives that a lawyer may choose in undertaking representation of a contingent fee case:

  1. The client repays the costs regardless of the outcome of the matter;
  2. The client repays the costs only if the lawyer recovers money for the client; or
  3. The client does not repay the costs regardless of the outcome of the case.

 [See Item 7A of the February 22, 2013 BOG Agenda.]

The new Model Explanation, with an effective date of February 22, 2013, is available on the PLF Web site > Practice Aids and Forms > Engagement Letters and is attached to our sample PLF Contingent Fee Agreements.  The new Model Explanation may also be found on the Oregon State Bar Web site and will be added to the Fee Agreement Compendium in BarBooks. Here is a direct link:

Oregon State Bar Model Explanation of Contingent Fee Agreement

All Rights Reserved 2013 Beverly Michaelis

The Ethical Minefield of Using Social Media for Investigation

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imagesIn late February, the Oregon State Bar Board of Governors approved OSB Formal Opinion No. 2013-189.  Following in the footsteps of opinions about metadata (187) and cloud computing (188), the bar seeks to address the ethical minefield of using social media to investigate an opposing party, a witness, or a juror.

The scenario is as follows:

Lawyer wishes to investigate an opposing party, a witness, or a juror by accessing the person’s social networking website. While viewing the publicly available information on the website, Lawyer learns that there is additional information that the person has kept from public view through privacy settings and that is available by submitting a request through the person’s website.

  1. May Lawyer review a person’s publicly available information on a social networking website?
  2. May Lawyer, or an agent on behalf of Lawyer, request access to a person’s non-public information?
  3. May Lawyer, or an agent on behalf of Lawyer, use a computer username or other alias that does not identify Lawyer when requesting permission from the account holder to view non-public information?

Public Information is Up for Grabs

“Accessing the publicly available information on a person’s social networking website is not a “communication” prohibited by Oregon RPC 4.2. OSB Formal Opinion No. 2005-164 discusses the propriety of a lawyer accessing the public portions of an adversary’s website and concludes that doing so is not “communicating” with the site owner within the meaning of Oregon RPC 4.2. The Opinion compared accessing a website to reading a magazine article or purchasing a book written by an adversary. The same analysis applies to publicly available information on a person’s social networking web pages.”

Lawyers May Ethically “Friend” Non-Represented Parties

  • A lawyer may request access to a person’s non-public personal information provided the lawyer has no actual knowledge that the person is represented on the subject matter by counsel. OSB Formal Opinion 2004-164.
  • If the holder of the social networking account requests additional information to identify the lawyer, the lawyer must comply or withdraw the request.
  • If the lawyer has reason to believe the holder of the social networking account misunderstands the lawyers role, the lawyer must provide additional information or withdraw the request.

Lawyers May Not Ethically “Friend” Represented Parties

If the holder of a social networking account is represented, the “friend” or contact request must be made through the account holder’s counsel or with the counsel’s prior consent.  Oregon RPC 4.2.

Contacting Jurors

“Although a lawyer may review a juror’s publicly available information on social networking websites, communication with jurors before, during, and after a proceeding is generally prohibited. Accordingly, a lawyer may not send a request to a juror to access non-public personal information on a social networking website, nor may a lawyer ask an agent do to do so.”

The Rationale Behind “Friending” Non-Represented Parties

The opinion includes an interesting discussion about the rationale for allowing lawyers to contact non-represented parties.

On the one hand, Oregon RPC 4.3 prohibits a lawyer from stating or implying that the lawyer is disinterested when making contact with an unrepresented party.  Further, if the lawyer knows or reasonably should know the unrepresented party misunderstand’s the lawyer’s role, he or she is obliged to correct that misunderstanding.  [See the second and third bullet points above, under Lawyers May Ethically "Friend" Non-Represented Parties.]

The opinion acknowledges that sending a request for contact means the ”… lawyer is interested in the person’s social networking information.”  So how is it that contact is permitted under Oregon RPC 4.3?  Here is the explanation:

  • A Lawyer’s request for access to non-public information does not in and of itself make a representation about the Lawyer’s role.
  • The holder of the [social networking] account has full control over who views the information available on his or her pages.
  • The account holder can accept or reject requests for access.
  • The account holder’s failure to inquire further about the identity or purpose of unknown access requestors is not the equivalent of misunderstanding Lawyer’s role in the matter.

Deceptive Access to Non-Public Information

The opinion also addresses the use of subterfuge to shield the lawyer’s identity when making a request for access to non-public information.  Aliases or “fake” usernames are generally not permitted in this context, unless the “covert activity” exception applies.  See Oregon Formal Opinion No. 2005-173 for a full discussion.

What this Opinion Does NOT Address

Formal Opinion No. 2013-189 addresses the ethical implications of using social networking sites for investigation.  It does not discuss the Stored Communications Act (SCA).  For a very brief overview of the implications of the SCA, see this post.  If in doubt, research the applicability of SCA issues before proceeding with social networking investigation activities.  If you practice employment law, be aware of Traps for the Unwary Employer (using social networking and related digital resources to screen potential employees).

All Rights Reserved 2013 Beverly Michaelis

Document Naming in a Paperless Law Practice

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I am often asked for best practice recommendations in running a paperless practice. How should I organize my electronic files? How should I name documents that I create or scan?

There is no better source for answering these questions than Donna Neff and Natalie Sanna’s article in Law Practice TODAY, The Document Naming System in Our Paperless Office.

Donna and Natalie suggest the following protocols when naming a document:

Include the date – year, month, day
Add an abbreviation that describes what the document is (ltr for letter; rpt for report)
Add a brief description of the document contents
Specify whether the document was sent (generated by you) or received (and scanned into your system)
Optionally, add the initials of the staff person who created or scanned the document (if a question arises later you can go directly to the author or scanner)

A document named by Sam Lawyer using Donna and Natalie’s protocols would look like this:

2013 03 11 ltr re settlement offer SENT sl.pdf

Notice the file name does not include the client or matter. These could be added, but beware that your file names might become quite long.

Whatever you decide (include client/matter name or not) the only discretionary part of the file name is the description. Everything else, especially the abbreviation scheme describing the document type (ltr for letter, rpt for report, pld for pleading, etc.) should be written in stone. No file naming convention will work if it isn’t used consistently.

This same principle applies to naming client folders and sub folders: creating a set structure and sticking to it saves the day. Donna and Natalie refer to this as creating a folder template. See their article for specific directions and screen shots.

Law Practice TODAY is a free Webzine from the ABA syndicated by the PLF. Check out the latest issues of LPT on the PLF Web site > Practice Mgmt Advisors – Tips.

Acrobat XI: Tips and Features

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Still learning the ins and outs of Acrobat XI?  Here is yet another nifty post from Rick Borstein, author of the Acrolaw blog, explaining how you can change redaction properties in bulk via the Comments panel.  (If you have ever mistakenly marked text for redaction, then noticed that the fill color was not what you wanted you will appreciate this tip.)  In the same post, Rick teaches users how to unlock the Comments list so it can float as a separate window anywhere on your screen.

My favorite new feature of Acrobat XI is the improved Word converter.  Whether you are copying and pasting part of a PDF into Word or exporting the entire PDF to a Word document, the formatting comes across intact.  A video demo is available here.  Acrobat XI also supports conversion to Excel and PowerPoint.

Text editing is far more flexible too.  Want to insert text?  Just position your cursor and go.  Deleting is easy too.  In either case, the text reflows automatically.  This is a feature you probably won’t appreciate unless you have attempted to edit PDFs in the past.  With older versions of Acrobat, text editing was extremely limited.  Text did not reflow and content could only be manipulated on a word-by-word or line-by-line basis.  The results were often far from stellar.

While terrific, these new features could also result in unintended consequences.   If you don’t want the recipient of your document to edit the text or convert it from PDF to Word, change the document properties:  File > Properties… Security Tab.  In the Security Method drop-down, select Password Security.  Under Permissions, check the box “Restrict editing and printing of the document.  A password will be required in order to change these permission settings.”  Under Changes Allowed, select None.  Specify a password and choose OK.  Caution: Adobe expressly warns that third-party products may be able to defeat Acrobat security settings.

Happy PDFing!

Fraud Prevention CLE Coming May 16

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Mark your calendars folks!  The Professional Liability Fund is offering a fraud prevention CLE live and via Webcast on Thursday, May 16, 2013 at the Oregon State Bar Center.  Details will be available on our Web site in the coming weeks.  (Check Upcoming Seminars.)

We have secured speakers from the banking industry with expertise in fraud protection products and services.  We will also offer tips and advice from our practice management team on how to identify and avoid the most common scams.  Experts from the Professional Liability Fund coverage department will address your coverage questions as they relate to fraud protection and data breach.  We are also working to secure a speaker from the Oregon State Bar General Counsel’s office to address the ethical implications of falling prey to a trust account scam.

We believe this will be an informative CLE with ample opportunity to get your questions answered!  Learn how to protect money belonging to you and your clients by stopping scammers in their tracks.

Why You Should Build the Cost of Doing Business Into Your Fee

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Credit card merchant fees (“check out” fees) are back in the news with the recent preliminary class action settlement between retailers and credit card giants Visa and MasterCard. Lawyers who accept credit cards often ask whether they can pass these fees on to their clients.  It is unlikely the settlement will change the landscape for lawyers, but I’d like to set that discussion aside for a moment and focus on something more fundamental: how should lawyers treat costs not related to a specific client matter?

I have long believed that most overhead costs, including postage, photocopies, faxing, and even merchant fees should be built into the lawyer’s fee structure.  Bundling the cost of doing business into your hourly rate or flat fee just makes sense.

For the lawyer, cost accounting becomes significantly easier.  Say goodbye to:

  • Inputting client codes or making a log entry every time postage is used or a document is scanned
  • Totaling charges for each billing cycle and incorporating them into the client’s bill
  • Allocating client payments to costs and fees – in your books, the client’s account receivable, and on the client’s billing statement

Avoiding this time suck can make a world of difference in a solo’s life – especially if he or she has no staff.  Time spent tracking, totaling, billing, and allocating these costs can be used more profitably working on a client matter.

From the client’s perspective, receiving a statement with every stamp, copy, and fax itemized and billed can be very unpleasant.  Clients often feel these costs should be included in your fee, regardless of your billing practices. Ask yourself: would you rather pay one flat rate to fly from Portland, Oregon to Chicago, Illinois, or incur separate charges for airfare, fees, taxes, booking, baggage, and food?  If you are aggravated by the latter, it becomes easier to understand why clients don’t like it when lawyers pass on every penny of overhead costs in an itemized bill.

Getting back to the original subject – merchant or “check out” fees – consider the real-world effect of the preliminary Visa/MasterCard settlement:

“We have discussed the settlement with many, many merchants, and not a single merchant we have spoken to plans to surcharge,” Craig Shearman, spokesman for the National Retail Federation (NRF), said in a statement….

NBC News contacted some of the country’s largest retailers. Wal-Mart, Target, Sears and Home Depot said they have no plans to add a credit card surcharge.

“The bottom line is that … the vast majority don’t want to surcharge even if they could,” the NRF’s Shearman said.

Ed Mierzwinski, Director of Consumer Programs at U.S. PIRG agrees.

“In the brick-and-mortar world, no one who does any sort of volume business is going to want to surcharge because it will drive their customer crazy and slow down transactions,” Mierzwinski said.

Is there a lesson here for those who provide professional services?

Lawyers can charge “check out” fees to clients who pay by credit card, but it requires jumping through hurdles no one bothers with (a signed fee agreement with the client consenting to the charge accompanied by compliance with Regulation Z of the Truth-in-Lending Act.)  If it should become easier to charge clients “check out” fees in the future – as a result of this settlement (when finalized) or for other reasons – I would continue to advocate lawyers build this cost of doing business into their charge for services.  In the words of Susan Cartier Liebel, “Don’t Nickel and Dime Your Clients. Just Don’t.”

For an excellent discussion of the philosophy and practices involved in billing costs, see Billing Costs, “Fee Agreement Compendium” (Oregon State Bar 2007) available online in BarBooks.

Copyright 2013

Beverly Michaelis