Your Online Reputation

The July issue of the Oregon State Bar Bulletin features an excellent article by Linn Davis entitled “Responding to Negative Online Reviews: Reputation Management.”  If you’ve ever received a negative review, or fear that negative content is inevitable, this post is for you.

While Davis’ article focuses on ethical dos and don’ts, it also contains solid practical advice.  The following excerpt describes what you cannot do, what you should not do, how to preempt negative reviews, and how to respond to a negative review. Also included are my two cents on best practice recommendations.

What You Cannot Do

  • Reveal information relating to the representation of a client
  • Post inaccurate content
  • Allow misleading information that creates false expectations regarding fees, results, or your firm’s resources
  • Use subterfuge (employees posing as satisfied clients offering glowing reviews)
  • Fail to promptly update information when it changes
  • Engage in real-time interactions that violate in-person solicitation rules

What You Should Not Do

  • Sue the source of the negative review for defamation
  • Attempt to restrict clients from posting negative reviews
  • Form an unintended attorney-client relationship in an online legal forum
  • Fail to screen for conflicts in an online legal forum
  • Offer incentives for a positive review without considering the ethical and legal implications. See Oregon RPC 1.8(a), and 16 CFR Part 255 relating to FTC regulation of endorsements.

How to Preempt Negative Reviews

  • Contribute accurate and valuable information regarding yourself and your firm
  • Use disclaimers when participating in online legal forums
  • Provide clients with professional and competent work product

How to Respond to a Negative Review

One possibility is to do nothing.  As Davis points out, “not every opinion (on the Internet) must be contested.”  If, however, you feel you must respond, Davis offers three ethically permissible approaches:

  • Encourage the client to contact you to resolve the concerns expressed (this could be done online or offline)
  • Post that you disagree with the client’s account but are prevented by your professional standards from responding in a public forum without the client’s consent
  • Direct readers to other forums where your representation is regarded more “fully, accurately, and favorably”

Best Practices – My Two Cents

If the negative review comes from a client:

Your best tactic is to encourage the client to contact you. I suggest doing this privately and leaving the online post alone.  Why?  Responding to a negative review in any fashion will cause it to rank higher in search results.  Remember: search engines use algorithms based on quantity and quality. The more online engagement surrounding a negative thread, the more prominent it will become.

The good news is that you can exploit the quantity/quality preference of search engines by contributing your own accurate and valuable information.  In addition to Davis’ suggestions about adding basic biographical data and a description of your services, list yourself on free online legal directories, blog, update your Website, post to social media, share photos, and reshare/repost content.  It will take time and effort, but your content can and will push the negative review below the first page of search results.

If the negative review comes from a non-client:

I’ve known many lawyers who received negative “reviews” from non-clients – either disgruntled opposing parties or those who are motivated to attack the lawyer because of her practice area or representation of a particular client. Examples include immigration law, debt collection, or defending a client accused of a crime. Other than overwhelming the negative review with your own positive content, there isn’t much you can do when a non-client complains. Responding will only spur on the commentor.

Parting Thoughts

While it is important to monitor what people are saying about you online, try to have a thick skin. I know that negative reviews can be hurtful and maddening – especially when the source is motivated to keep attacking.  However, and pardon my French, but most of us can spot a “whack job.” Therefore, if a potential client decides not to meet with you because of what he sees or reads on the Internet, it’s probably a good thing.

All Rights Reserved Beverly Michaelis 2017

Are Limited License Legal Technicians Coming to Oregon?

With the success of the Washington Limited License Legal Technician (LLLT) experiment, will Oregon finally dip its toe into paraprofessional licensing? The answer appears to be yes.

In June 2017 the OSB Futures Task Force submitted its report to the OSB Board of Governors. Among the recommendations: implementation of a paraprofessional licensing (LLLT) program in Oregon.

The task force recommended the BOG appoint a committee to develop a detailed implementation plan. The plan would include draft rules of admission, practice, and professional conduct for approval by the Supreme Court and adoption by the BOG. ORS Chapter 9 would be amended to provide for licensure of paraprofessionals who would be authorized to provide limited legal services, without attorney supervision, to self-represented litigants in family law and landlord-tenant proceedings. Consumer protection measures would also be enacted.

Why Do We Need LLLTs (Paraprofessionals)?

Short answer: access to justice. As detailed in the task force report, the number of self-represented litigants continues to grow. Legal Aid, pro bono services, and limited scope representation only meet a small part of the need.

Minimum Qualifications and Licensing

The task force report lays out a series of minimum qualifications for paraprofessionals or LLLTs. Licensing would include “liability insurance in an amount to be determined,” preferably through the Professional Liability Fund, and continuing legal education. To protect the public from confusion, LLLTs would be required to use written agreements with mandatory disclosures.

Scope of Services

“Licensees should be able to select, prepare, file, and serve forms
and other documents in an approved proceeding; provide information and advice relating to the proceeding; communicate and negotiate with another party; and provide emotional and administrative support to the client in court. Licensees should be prohibited from representing clients in depositions, in court, and in appeals.”

Proposed Expansion of Washington’s LLLT Program

BOG approval of a LLLT/paraprofessional program seems greater than 50-50. As we await the outcome in Oregon, Washington is seeking to update its program. Under draft amendments, the LLLT role would expand to permit:

  • Accompanying and assisting clients in specific court proceedings, mediation, settlement conferences, and arbitration proceedings.
  • Attending, but not participating in, depositions.
  • Communicating with opposing counsel and parties on procedural matters and negotiations.
  • Gathering information on the value and potential encumbrances on a home.
  • Presenting agreed, uncontested, and default court orders.
  • Assisting clients seeking nonparental custody or major modifications up to the point of the adequate cause hearing.
  • Dividing single-family residential dwellings which have no more than twice the homestead exemption in equity.

Washington bar members have until July 17 to submit comments.

Parting Thoughts

At its June meeting, the BOG accepted the OSB Futures Task Force report. As noted on the OSB website, “the board will be looking at those recommendations throughout the year and likely into 2018.” Comments are encouraged and may be submitted to president@osbar.org.

All Rights Reserved Beverly Michaelis 2017

Time Off and Avoiding Burnout

Feeling weary, fatigued, overwhelmed, or stressed?  Working continually without rest or relaxation leads to burnout.  And it takes more than the occasional three-day weekend for your mind and body to recuperate.

This is my annual reminder to get serious. Build vacation plans into your work schedule now – no excuses!  It will take a bit of effort and planning, but your body and mind will thank you.

I Can’t Afford It

2013-07-26 08.04.33“If I’m not at the office, I can’t bill.  If I can’t bill, I won’t get paid.”  True enough, but there is a solution:  budget for your vacation.  A bit of research and number crunching is in order here. First, calculate your vacation expenses. This should be relatively easy.  Next, quantify the lost revenue you need to replace during your time out of the office.  Now that you know how much you need, begin setting aside funds every week to meet your financial goal.  If necessary, find little ways to cut back that can really add up: like bringing your lunch to work, deferring your daily Starbucks fix, using public transportation, or telecommuting.  Saving weekly will keep you on track and help manage expectations. If you’re just getting started, then your plans this year may be more modest.  Next year, you can begin saving for your summer vacation in January.

I’m Too Busy

2013-12-23 20.09.48Work will never go away, but I guarantee that if you look ahead in your calendar you will find a block of time with no commitments.  Even if you haven’t made plans yet, block the time out now before your calendar fills up.  If you have a habit of backsliding, enlist your family as enforcers.  This time should be sacred.  If you need an extra incentive, consider non-refundable travel reservations.

Preparation is Key

If you’re a member of a firm, going on vacation is a matter of meeting with other lawyers who will be covering cases during your absence.

If you are a sole practitioner, use the buddy system.  Find a colleague who is experienced in your practice area and willing to cover for you.

This arrangement is usually reciprocal and is helpful if you have an unexpected absence from the office due to injury or a medical condition.

Get a game plan in place:

  • 2013-07-24 17.03.57Notify clients, opposing counsel, judges, or other appropriate parties that you will be out of the office;
  • Prep your files.  They should be well-organized and current, with status memos so your buddy can easily step in if needed;
  • Create a “Countdown Schedule.”  Identify what needs to be done when and whether certain tasks can wait until your return;
  • Allow for wind down.  As your vacation approaches, leave time in your schedule to finish up last minute work.  Reduce or refer out new matters;
  • Train staff.  Do they have a clear understanding of office procedures?  How will they screen client calls during your absence?  Give them parameters for contacting you or your buddy in the event of an emergency.
  • Resist constantly checking voice mail, e-mail, or text messages.  Technology is a God-send, but part of rejuvenation is taking a break from our instant Internet society. Checking in is okay, but stick to a schedule to avoid obsessing over what is going on back at the office.  Remember – you have an emergency plan in place.  If something happens, staff or your buddy will get a hold of you.
  • Avoid post-vacation overload.  Just as you blocked out dates to go on vacation, allow yourself time to get back up-to-speed.  Otherwise, you’re right back where you started.

Give yourself and your family a well-deserved break.  With a bit of organization, you can budget for (and enjoy) your time off.

All Rights Reserved 2017 Beverly Michaelis

Do Good Friends Make Good Partners?

The following is an update of “Thinking about Partnership?”

A potential partnership between lawyers sparks many issues – capitalization; entity formation; allocation of profits, losses, income, and expenses; restrictions on partnership authority; division of management duties; decision-making; withdrawal; and more.

But the most important consideration is often ignored: basic compatibility.

Do good friends make good partners?

Not necessarily. The interests or characteristics that draw two or more people together as friends do not always translate well to the business world.  This includes the practice of law.

Sometimes money gets in the way.  Or you could be polar opposites when it comes to work ethic or work style.

Perhaps you and your potential partner are “two peas in a pod,” sharing the same dislikes. While that may sound like a basis for bonding, it can also be a deadly combination.  The example that comes to mind is accounting.  Billing, recordkeeping, accounting, and reconciling can be outsourced, but should still be supervised.  As partners, the buck stops with you.  If neither of you has an interest in tending to law firm finances, you may quickly find yourself out of business.

How to size up a potential partner

For two lawyers considering a partnership, compatibility can be gauged best by joining forces as solos in an office share.  Each lawyer maintains his or her own practice, following the usual recommendations for an office sharing situation.  See the Professional Liability Fund (PLF) form/practice aid, “Office Sharing Guidelines” available on the PLF Website.  

In an office share you can assess your potential partner’s work ethic, work style, and work habits first hand.  You will also learn how your potential partner approaches division of responsibility and money when the time comes to allocate and pay office share expenses.  You have the option of collaborating on individual cases while maintaining your independence.  This will give you intimate knowledge of your potential partner’s capabilities as a lawyer.

If the office sharing arrangement is successful, and you can come to terms on partnership formation issues, you are likely to have a successful union.  If the office sharing arrangement is not successful, you can accept the experience as a “lesson learned” and terminate the office share without the mess of a formal partnership dissolution.

For those who are convinced they have a winning partnership

Occasionally I meet two lawyers who are absolutely convinced they will form the perfect partnership.  They forge ahead, without the benefit of an office share experience, and later regret their decision.

I don’t wish to dampen anyone’s enthusiasm, and sometimes folks are absolutely right in their assessment.  If you’ve known each other for years, and “just know” it will work please do this simple exercise first:

Schedule a time to get together with your potential partner.  Bring two legal pads and two pens.  Allow ten or fifteen minutes for each person to make a list of the goals he or she has for the partnership.  Each person should be able to answer: what do I hope to get out of this?  How will partnering up be a significant improvement over my current working situation?  Exchange lists.  What you learn may surprise you.

Obviously you can approach this exercise any way you like, but here are my suggested ground rules:

  1. Keep the process as spontaneous as possible. If the exercise is your idea, resist the temptation to work on your list in advance.
  2. Write down the first thoughts that come to mind.  Don’t edit yourself to please your potential partner or you defeat the whole purpose of the exercise.
  3. Keep it succinct.  The next ground rule should help with that.
  4. Stick to the time limit. If one or both of you can’t put your goals down in writing in ten or fifteen minutes, that alone should make you pause.
  5. Be open to whatever the other person has to say.

Why bother?

As a wise man named Lee Rosen once pointed out, “lawyers can be nasty.”  We are, after all, human beings.  If we don’t get along, odds are we will take it out on each other. Finding someone compatible to partner with is incredibly important.  The experience should be positive, rewarding, and gratifying.  Life is too short for anything less.

All Rights Reserved [2017] Beverly Michaelis

 

 

Choice of Entity for New Lawyers

coffee-cup-and-docs-bought-at-ssChoosing a legal structure and entity type for your law firm seems like an easy decision. But is it? Consider the following scenarios:

New lawyer establishes law practice with the goal of becoming an associate

If this is you, being a straight-up sole proprietor may be the best choice, assuming you have no employees.

A sole proprietorship is the simplest and most common structure chosen to start a business:

  • No formal action is required to start your business
  • It’s inexpensive
  • No papers to file
  • Nothing to dissolve
  • Simple tax preparation

When you’re ready to make the move from running your own practice to becoming an associate, the transition couldn’t be any easier.

On the downside, sole proprietorship means you have unlimited contractual liability and potentially higher taxes.

But how significant is the liability exposure?

Lenders, property managers, and others with whom you do business will typically require a personal guarantee for loans, leases, or other business transactions.  A personal guarantee means YOU are on the hook, even if you form a professional corporation or single-member limited liability company. As a result, contractual liability protection doesn’t count for much in evaluating whether to form an entity.

The real choice between sole proprietorship and forming a PC or single-member LLC comes down to taxes and the trade-off between potentially saving money (with entity formation) and simplicity (going with the sole proprietorship model).  Talk to a CPA so you can make an informed decision.

What if I’m planning to practice business law or intellectual property?

Why would your area of practice make a difference?  And didn’t we just say entity choice is driven by risk aversion – wreaking whatever benefit you can from contractual liability protection – and saving money – courtesy of a lower tax burden?  So what difference could practicing business and IP law possibly make?

If your goal is to help clients form entities and protect intellectual property, it could look a little odd that you haven’t followed the usual formalities in establishing your own business.

Fair or not, client perception counts.  So does marketing.  And part of marketing is how you brand your law firm.  Appending a PC or LLC designation to your business name may actually be an important part of how you choose to present yourself to potential clients.

If you plan to have employees …

This is an entirely different ballgame.  Without a doubt, form an entity. If you are a solo, choose a PC or single-member limited liability company (LLC).

Both entity types offer liability protection for non-professional torts committed by your employees.  The contractual liability protection discussed above will also kick in.  Talk to a CPA, but the likelihood is that forming an entity will also result in a noticeable tax savings.

If you plan to practice with others …

This is another occasion when forming an entity is a no brainer.  Do it for the avoidance of liability discussed in the preceding paragraph and for the limitation on vicarious liability.  The ideal structure may be to form a sole owner PC or single-member LLC that belongs to the firm’s entity. This may allow you, as the individual lawyer, to completely escape personal vicarious liability.

Multi-tier entities are complex, administratively messy, and no longer have the tax benefits they once enjoyed.  BUT avoiding vicarious liability is a big plus.  To learn more about this strategy, read Choice of Entity for a Legal Practice and Lawyers as PCs, LLCs, & LLPs in Oregon, referenced below.

Being fully informed in the premises

This post skates over some pretty significant content that deserves more in-depth thought.  Do your homework.  Recommended reading includes:

  • Sole Proprietorship as a business structure choice, courtesy of the Small Business Administration.  While you’re on the SBA site, poke around.  There is a ton of great content here.  And don’t forget about the help and resources available from the Small Business Development Center.
  • Law Firm Choice of Entity, from the ABA Young Lawyers Division.
  • Choice of Entity for a Legal Practice in Oregon, available on the PLF website. Select Practice Management > Forms > Entity Formation for Lawyers.
  • Lawyers as PCs, LLCs, & LLPs in Oregon, available on the PLF website.  Select Practice Management > Forms > Entity Formation for Lawyers.
  • Tax Considerations for Choice of Business Entity, Chapter 3 of the OSB CLE Seminar Handbook Broadbrush Taxation: Tax Law for the Nonspecialist (2015). Available in BarBooks behind the member login on the OSB website.

Most importantly

Talk with a CPA.  I can’t say this enough.  This is one of the best investments you can make in getting your practice up and running.  A CPA can help you determine whether forming an entity will result in tax savings.  He or she can also help you select an entity type – which is highly driven by tax considerations.

You’ll also learn about property tax, business income tax, business licensing, and other obligations you may not be familiar with – all of which are determined by where your business is located.

All Rights Reserved 2017 Beverly Michaelis