About beverlym

As a law practice management consultant and educator, my goal is to help Oregon attorneys improve their office practices and procedures. With over 35 years in the profession, I possess the problem-solving skills to help you make your law practice more efficient, effective, and profitable. Learn more here: http://www.oregonlawpracticemanagement.org/about/. My complete biography can be viewed at http://www.linkedin.com/in/beverlymichaelis.

Tiplet: Proposed Judgments and Orders

Questions about submitting proposed judgments and orders under UTCR 5.100? Wondering what notice you have to give to the other side?  Here is a handy-dandy reference from Multnomah County’s Family Law Court, published by the Professional Liability Fund.

While this was written with family law practitioners in mind, it’s a useful resource for any practitioner.  Here are a few highlights:

What does UTCR 5.100 require?

With few exceptions, you must provide notice to the other party before submitting a proposed order or judgment. If the other party is self-represented, you must also include notice of the timeframe that party has to object. If you receive objections, you must attempt to resolve them.  Additionally, every proposed order and judgment must contain a Certificate of Readiness telling the Judge why the document is ready for judicial signature and setting out the status of any objections received.

Why do we need UTCR 5.100?

There are three main reasons why proposed orders and judgments must be processed according to this rule:

  1. Documents requiring judicial signature are routed separately through the court’s electronic case management system.  Segregating proposed orders and judgments is efficient and speeds up the signing process.
  2. There is no system which allows the court to “hold” documents waiting for time periods to pass prior to judicial signature.
  3. Pro se litigants need proper notice.

What is the notice period under UTCR 5.100?

“When the other side is represented, the drafter must wait 3 days, plus an additional 3, before submitting the document to court. When the other side is self-represented, the drafter must wait 7 days, plus an additional 3. The “3 extra days” requirement derives from ORCP 10B, which was modified by the 2015 Oregon Legislature to apply the 3-day extension to service by email, fax, and electronic service instead of just posted mail. UTCR 1.130 applies ORCP 10 to time periods set by the UTCRs.”

Other FAQs

Four pages of answers await here for practitioners.  Get answers to questions like:

  • What are the situations where a statute or rule authorizes submission [of a proposed order] without notice?
  • Can I combine my Certificate of Readiness with a Certificate of Service?
  • Is the Certificate of Readiness filed as a separate document, or somehow incorporated into my proposed order of judgment?
  • Does my Certificate of Readiness have to set out the address at which I served the other party with the copy of the proposed order/judgment?
  • Does this rule apply to Motions to Postpone?

Keep in mind that in some instances UTCR 5.100 is either unclear or does not explicitly address all situations.  This makes the FAQ re UTCR 5.100 in Multnomah County Family Court a very valuable reference.

All Rights Reserved – Beverly Michaelis – 2018

 

 

Asked and Answered: Oregon eService Questions

Last Wednesday’s Oregon eService CLE generated a lively discussion and some interesting questions. Here are a few that might interest you:

What is my date of filing?

  • The court considers a document submitted for an electronic filing when the electronic filing system receives the document.
  • If the court accepts the document for filing, the date and time of filing entered in the register relate back to the date and time the electronic filing system received the document. When the court accepts the document, the electronic filing system will affix the date and time of submission on the document.

For example: Assume you have a statute of limitations that runs on Wednesday, June 6, 2018.  You eFile on Wednesday, June 6, 2018.  Your document is received by the system on Wednesday, June 6, 2018.  On Monday, June 11, 2018 the court clerk reviews your filing and ACCEPTS it.  Your filing date is June 6, 2018.  The delay in processing your filing is disregarded.  Thanks to relation back, your filing is timely under UTCR 21.080(3)-(4).

Where do I find the entry date in the Register of Actions?

When interpreting the Register of Actions, refer to UTCR 21.060(3):

The following apply whether or not a document is electronically filed with the court:

(a) For the purpose of ORS 7.020(1) and (2), the date that a document was filed displays in the date column of the register of actions for the case in the court’s electronic case management system.

(b) For the purpose of ORS 7.020(2), entry occurs on the date an event is created in the register of actions. (Emphasis supplied.)

The entry date is what matters.  Always refer to the CREATED DATE field.

How does the 3-day rule in ORCP 10 apply to eCourt cases?

Thanks to Donna Van Eaton, paralegal extraordinaire with the Law Offices of Melinda M. Brown, we know that nothing has changed.

The 3-day count should start on the date your document was eFiled or submitted, i.e., the date on your Certificate of Service.  Here is the background:

ORCP 10 was last updated by the Council on Court Procedures (CCP) in 2014. The first draft of the amended rule did not refer to electronic service (January 29, 2014).  Five versions later, it was explicitly added (September 6, 2014).  The drafts and final amended rule are available to view here.

The CCP staff comments accompanying this change point out the intention – which was to treat all forms of service equally and continue current practices:

The amendment of section C continues the allowance of three additional days in computing the time in which to respond following service of a document by mail or by facsimile service without the intention to change the previous practice under Rule 9 F (facsimile service) and this section.  The same three-day extension is now made applicable to documents served by e‐mail and by the newly available electronic service, providing equal treatment of these forms of service and specifying that treatment in one provision.  The description of the additional time in section C is amended to improve clarity without the intention to change the rule’s meaning or operation.  With the establishment of eCourt, the word “paper,” appearing twice in section C, is replaced with “document.”

The 3-day computation starts on the date of submission (date of filing), not the court clerk’s acceptance date.  Keep in mind the goal of the amendment: to equalize the methods of service, preserve operation of the rule, and maintain existing practices. Historically, the 3-day extension provided by ORCP 10 was meant to compensate for possible delays when serving by mail. Extending the same benefit to service by email, fax, or eService may not be necessary, but the rule provides for it explicitly.

Withdrawing as attorney of record in the eCourt era

If you withdraw or the party you represent is dismissed from an action, UTCR 21.100(2)(a) states you “must remove (your) name and service email address as a designated service contact for a party.”  Obtaining a court order permitting your withdrawal will not automatically remove you as a service contact in the Odyssey eFileandServe system.

If you are unsure how to remove yourself as a service contact, get in touch withTyler Technologies:

If you weren’t able to attend Oregon eService, a copy of the program is available to purchase here at a cost of $25 (same as the registration fee).  Your purchase includes a video recording, audio recording, program and supplemental materials, and answers to poll questions. Apply for MCLE credit of 1.25 PS/general MCLE credits by submitting the providing MCLE 6 form.

All Rights Reserved – Beverly Michaelis – 2018

With a special thank you Donna Van Eaton at the Law Offices of Melinda M. Brown.  As Stacy D. Fawver said, “right on.”

 

 

Final Call – Oregon eService CLE

This is your final call for
Oregon eService – happening this Wednesday, June 6, 2018 from 10:00 a.m. to 11:15 a.m., PDT.

This live, online webinar is for experts and novices alike. An opportunity to polish skills and apply tips straight from the courthouse or understand eService from the ground up.

Topics include:

Using eService

  • How to eServe in four easy steps
  • Service of process in the eFiling world: UTCR 21.100
  • Six compelling reasons to use eService

Identifying eService Exceptions

  • To eServe or not to eServe

Responding to Service Contact Issues

  • Requirements of UTCR 21.100(2)(a)
  • Pursuing sanctions under UTCR 1.090(2)
  • Best practice recommendations

Deliberating the Case of: eService vs. Service by Email

  • UTCR 21.100(4) vs. ORCP 9G
  • Pros, cons, and myths of service by email
  • Best practice recommendations

Drawing on Courthouse Wisdom: Do’s and Don’ts

  • How to use the “filing on behalf of” field
  • Should you or shouldn’t you serve yourself?
  • Multiple service methods
  • How to copy firm members on filings
  • Proper Certificates of Service
  • And more!

Getting Help and Improving eFile & Serve

  • Get assistance and give your input

Registration Closes One Hour Before the Live Program!
$25 – Visit the Upcoming CLE page or choose the registration link below. Secure payment processing powered by Eventbrite. Visa, MasterCard, Discover, and American Express accepted. Program materials included in the registration price. Registration closes at 9:00 a.m. on June 6.  Program start time is 10:00 a.m.

REGISTER NOW
Oregon eService CLE

 FAQs

Are group discounts available?
Yes.  Discounts are available to firms who register 5 or more attendees.
To receive a discount code, contact me before you register: 
beverly@oregonlawpracticemanagement.org.
Requests for discount codes must be received by Tuesday, June 5 at 1:00 p.m.

Do the Programs Include Written Materials? 
Yes. Written materials are distributed electronically to attendees.

Are questions welcome?
Absolutely. Questions may be submitted any time during the live event or afterward via email. Attendees are also encouraged to participate in live, anonymous polling.

Where is the program being held?
This program is a live, online webinar.

MCLE Credits
1.25 practical skills/general MCLE credits have been issued by the Oregon State Bar.

Can’t Attend?
Video and audio recordings will be available to download along with the program materials shortly after the live program event.  Price: $25. Contact me or visit my online CLE store to place an order.

Credit Card Surcharges Revisited

Remember the Payment Card Interchange Fee Settlement?

Processing credit card payments is a fact of life for today’s law firm. So are costly surcharges – the fee assessed by your bank or credit card processor for the privilege of accepting this form of payment.

In 2015 – 2016, some Oregon law firms took the position that the Payment Card Interchange Fee Settlement (PCIFS) permitted them to pass on credit card surcharges to clients.  As a reminder, the PCIFS was a class action settlement among merchants, Visa, MasterCard, and other defendants. American Express and Discover were not part of the litigation.  Applying the conditions of the settlement to a service-based industry like the legal profession was always tenuous at best.

Regardless, using the PCIFS as a justification for passing on credit card surcharges became moot in mid-2016 when the Second Circuit Court of Appeals reversed and remanded approval of the settlement.

The Post-PCIFS Era

If you’ve read my blog before, you know I’m an ardent advocate of absorbing credit card surcharges as a cost of doing business. This doesn’t mean watching money fly out the door without recourse.  It does mean you shouldn’t pass on surcharges as a separate cost item to the client.  Consider:

  • Assessing surcharges (or crediting clients for the net amount less fees) involves extra administrative and bookkeeping steps.  If you get the math wrong and the transaction involves trust account funds, you could face disciplinary action.
  • Firms who want to charge for credit cards often bill clients for postage, faxing, scanning, and photocopying.  These items already rate high on the client annoyance scale.  Pass on surcharges and that scale may tip.
  • Ethically, clients are not obliged to pay any cost to which they did not agree.  If you did not include the right to assess surcharges in your fee agreement, you cannot unilaterally pass on the cost after the fact.  Granted, you can fix this by modifying your fee agreement – but it isn’t necessarily advisable and may not be successful.  See OSB Formal Opinion 2005-97.
  • Fees can be adjusted to reflect this, and other, costs of doing business.
  • Surcharges are outright illegal in some states and capped in others.
  • Passing on surcharges may trigger compliance with Regulation Z of the Truth in Lending Act:

Passing the merchant fee on to the client or crediting the client for the net amount of the transaction only … may implicate Regulation Z of the Truth in Lending Act, 12 CFR §226.  As a result, you may be compelled to offer cash discounts to all clients and make specified disclosures to your clients who pay by credit card.  See CONSUMER LAW IN OREGON ch 14 (Oregon CLE 1996 & Supp 2000).  OSB Legal Ethics Opinion No. 2005-172.

As Before: Proceed at Your Own Risk

If you want to assess surcharges, do your own research and proceed at your own risk.

I leave you with these words of wisdom from LawPay, a popular credit card processor serving the legal profession:

While your state may allow you to pass on transaction fees to clients, think carefully before doing so. Potential clients will not expect a higher fee simply because they use a different form of payment. In today’s market the best practice may be to simply absorb these fees yourself as the cost of doing business.

All Rights Reserved 2018 Beverly Michaelis

Digital File Retention

 

If your answer to the poll was “yes,” or “I should,” give yourself a pat on the back.

If you don’t have a digital file retention policy, or more specifically, don’t believe you need a policy, please consider the following:

The more data you store, the more you must protect, and it isn’t free

Data protection is costly and doesn’t end with buying a server. If your firm stores digital files in-house, you must maintain your investment.  This means replacing obsolete storage media, preserving and testing backups, purchasing cybersecurity coverage, investing in and updating security software, budgeting for internal or outsourced IT services, and recovering from data theft, data breach, or system crashes if they occur. Cloud storage may alleviate some of this, although best practices dictate that cloud storage should be secondary to keeping on-premise copies of your data.

The duty to safeguard

Protection isn’t just a matter of out-of-pocket expenses, it has real ethical significance:

Taken together, Rule 1.6(c) and Rule
5.3 require a lawyer to take steps to prevent
disclosure of client information
through the misuse of technology, by
themselves or by any technology vendor
on which the lawyer relies. A lawyer’s
reasonable efforts to protect client data
might include reviewing a third-party
vendor’s terms of service to ensure that
they comply with industry standards relating
to confidentiality and security, and
that those standards are consistent with
the lawyer’s own professional obligations.

Mark Johnson Roberts, “Electronic Competence: As Technology Advances, So Must a Lawyer’s Understanding of It,” OSB Bulletin (June 2017).

If you place no limitations on digital file storage and something bad happens, more client data is exposed. Why would you want to take that risk?

Keep it and retrieve it

If you get into the perpetual storage business, be prepared to retrieve what you keep. Adhering to file retention recommendations and ethical requirements is one thing. Digging up records from 20, 30, or 40 years ago because you’ve chosen not to enforce a destruction policy is something else.

Setting reasonable digital file retention policies

For guidance on file retention, contact your local ethics hotline or professional liability carrier.  In Oregon, the following resources are available from the Professional Liability Fund. Select Practice Management > Forms.

  • Checklist for Scanning Client Files
  • File Retention and Destruction Guidelines
  • Production of Client File
  • Retention of Electronic Records

Mid-size and larger firms should consider a membership in ARMA, the Association of Records Managers and Administrators.  Another good resource is AIIM, the global community of information professionals.

All Rights Reserved 2018 Beverly Michaelis