Using Contract Lawyers

Contract lawyers can play an essential role in managing workflow. Here are five quick tips from Law Practice Today on using freelancers effectively:

  • Get client consent.
  • Decide whether the contract lawyer will have client contact (if so, this affects the contract lawyer’s liability coverage status in Oregon).
  • Supervise! Overseeing the work of a contract lawyer is your ethical duty. Outsourcing lawyers should also be sensitive to the impression the contract lawyer makes on the client, particularly if they engage in client communication.
  • Beware of potential unauthorized practice of law. Ensure the contract lawyer is licensed to deliver services in the state of the client’s legal issue.
  • Don’t hesitate to bill for the contract lawyer’s services at prevailing market rates. I would add: include this cost (or fee) in your client engagement letter.

If you are considering hiring a contract lawyer (or want to offer your services on a contract basis), check out the following resources from the Professional Liability Fund:

  • Contract Lawyers Checklist
  • Contract Project – Letter of Understanding
  • Contract Project Intake Sheet
  • Independent Contractors or Employees
  • Letter Declining Contract Project

From the PLF home page, select Practice Management > Forms > Contract Lawyering. A number of CLEs are also available under the CLE > Past CLE heading:

  • Contract Lawyers CLE: Conflicts
  • Contract Attorneys: Managing Expectations and Getting Paid
  • Practical Contract Lawyering

To learn about Oregon malpractice coverage for contract lawyers and qualifying for a “supervised attorney” exemption, contact the PLF at 503.639.6911 or 800.452.1639 and ask for Jeff Crawford or Emilee Preble.

The Oregon Women Lawyers operate a Contract Lawyers Listserve for members. To join or use the service, visit the OWLS website.

All Rights Reserved – 2018 – Beverly Michaelis

Legal News and Upcoming Events

Is Mandatory Malpractice Coverage Coming to Washington?

Mandatory malpractice coverage is well known by Oregon lawyers and may be coming soon to members of the Washington bar (WSBA).

In July, the WSBA Mandatory Malpractice Insurance Task Force presented a tentative recommendation to the Board of Governors (BOG) to mandate malpractice insurance for Washington-licensed lawyers. The task force expects to present a final report to the BOG in four short months.

Next steps include:

  1. Considering feedback from the Board of Governors;
  2. Ramping up information efforts among WSBA members, and obtaining and considering additional comments received;
  3. Detailing the recommended malpractice insurance mandate, including the specific
    required coverage minimums;
  4. Identifying in detail the recommended exemptions from the professional liability
    insurance requirement; and
  5. Drafting a proposed Court Rule for the Board of Governor’s consideration

Members may submit comments to insurancetaskforce@wsba.org. The task force continues to meet monthly through the end of the year. Read the interim report here.

Free Access to PACER

This past week, the ABA Journal reported a potential end to PACER fees:

A new bill before the U.S House of Representatives would prohibit the federal courts from charging for public documents. The Electronic Court Records Reform Act would require that documents downloaded from the PACER database be free. Currently, the repository for federal court documents charges up to 10 cents a page.

The article notes that PACER has become a reliable money-maker for federal courts, pulling in $150 million in fees in 2015 alone.

Of further interest to federal court practitioners, the proposed bill would require documents to be posted to PACER within five days of being filed in federal court in a manner that allows for easy searching and linking from external websites.

Additionally, it would require consolidation of the Case Management/Electronic Case Files (CM/ECF) system, allowing for one-stop shopping when searching for federal court cases. Presently, each court operates its own separate CM/ECF system.

Free Data Breach CLEs in Bend and Medford

The Professional Liability Fund is offering two free data breach CLES in October:

These CLEs will explain data breach, what you can do to protect your client’s information, your ethical duties, and what to do if a breach occurs. For more information, follow the links above. Register for the Bend CLE by emailing DeAnna Shields at deannas@osbplf.org. Register for the Medford CLE by emailing Eric B. Mitton at eric.mitton@cityofmedford.org.

All Rights Reserved – 2018 – Beverly Michaelis

Nonlawyer Ownership of Law Firms

A financial planner, a CPA, and a lawyer walk into a bar … to form a law firm. A joke, right? Two years from now, some version of this could be happening for real in California.

A state task force headed by a former law professor is expected to produce proposals in 2019. Presently, Rule of Professional Conduct 5.4 prohibits nonlawyers from acting as partners, corporate officers, or directors of a law firm. The same rule strictly regulates fee sharing and forbids nonlawyers from directing or controlling a lawyer’s professional judgment.

Why consider nonlawyer ownership?

Some view nonlawyer ownership as a means of boosting productivity, reducing costs, and improving access to justice. Others herald the benefits of outside investment and potential for greater innovation in the corporate legal market.

What we can expect from California

Your opinion may differ, but I believe the State Bar of California is ready to make this change. The purpose of the Task Force is to work out the issues.  I predict:

  • California will be the first state to allow nonlawyer ownership of a law firm.
  • Nonlawyer owners will be prohibited from controlling or directing the professional judgment of a lawyer in the course of providing professional services to a client.
  • Nonlawyer owners will be allowed to control or direct business affairs of the firm.
  • Fee sharing will be authorized, provided: (a) clients give informed consent in writing; and (b) the sharing of legal fees does not affect the lawyer’s professional judgment.
  • Receiving referral fees from nonlawyers will be permissible.
  • Disclaimers or disclosures may be required in firm advertising, marketing, engagement agreements, websites, etc.
  • Lawyers will be permitted to reveal confidential client information to nonlawyer owners and their staff in order to carry out representation.
  • Conflict of interest rules will expand to include nonlawyers as “members” of the firm – a conflict for one is a conflict for all.

Operational concerns

Anyone pondering formation of a future lawyer/nonlawyer union should think long and hard about all the issues involved in business formation. A business plan, mission statement, and written ownership agreement will be an absolute must. Thorough insurance coverage, including professional liability, will be a necessity.  Prepare to integrate office systems, record retention, and nonlawyer staff. This includes training!  If nonlawyer partners are beholden to regulatory agencies, know the ins and outs for your sake, but don’t fall into the trap of advising nonlawyer owners. Lastly, have a plan for departure. When a law partner leaves you high and dry, the repercussions aren’t pretty. But at least you can temporarily cover your partner’s legal cases. This isn’t likely to be true with a nonlawyer partner who has an area of expertise (and perhaps licensure) that you lack.

All Rights Reserved – Beverly Michaelis – 2018

Starting Your Own For Profit Referral Service

Have you ever thought about starting your own for-profit lawyer referral service? Using staff to screen incoming calls and match potential clients to lawyers?

OSB Formal Ethics Op No 2005-168, revised June 2018, contemplates exactly this scenario. While permitted, there are restrictions. Read on.

Can I own a for-profit lawyer referral service?

Yes! However: lawyers are not permitted to use other businesses (such as a lawyer referral service) for in-person solicitation of legal work. Nor may lawyers misrepresent the nature of services provided. OSB Formal Ethics Op No 2005-10; OSB Formal Ethics Op No 2005-106 (rev 2016); OSB Formal Ethics Op No 2005-108 (rev 2015).

Can I manage a for-profit lawyer referral service?

Yes! General management and administration of a lawyer referral service is ethical. This includes duties such as hiring staff or supervising operations.

May I operate my for-profit lawyer referral service at the same premises as my law practice?

Yes! Since lawyers are allowed to office share with non-lawyers, there is no ethical barrier to operating a referral service at the same physical location as your law practice.

What ethical issues might arise in operating a for-profit lawyer referral service?

Lawyer-owners should avoid participating in the actual screening of incoming inquiries (potential clients). This eliminates two risks.

  • Receiving confidential information which could create a conflict of interest
  • Creating a lawyer-client relationship

Lawyer-owned and operated referral services must be separate independent incorporated entities – not merely DBAs (assumed business names) registered to the lawyer. See In re Fellows, 9 DB Rptr 197, 199-200 (1995).

Do not give legal advice through your lawyer referral service! As OSB Formal Ethics Op No 2005-168 explains, “a referral service is not licensed to practice law and a lawyer may not assist a nonlawyer in the unlawful practice of law.”

In my opinion

If you decide to operate a lawyer referral service, consider taking these extra steps to minimize your liability.

  • Create your referral service with the same formality as you would an independent business for one of your clients. This isn’t the time for shortcuts. Have a business plan, mission statement, marketing plan, budget, financial projections, etc. If this is a co-venture among you and your lawyer friends, have a written “partnership” agreement or equivalent!
  • Keep independent records and books.
  • Set up the service in a separate physical location. Is it ethically necessary? No, but it’s smart. Keeping the businesses physically separate minimizes confusion and increases the appearance of neutrality. (The service isn’t there to feed clients to you – it exists to refer clients to others.)
  • Consider hiring separate staff for the referral service. This will offer further protection against potential conflict of interest arguments. If neither you nor your legal staff are involved in screening, you can’t possibly receive confidential information. Besides, your staff may not have the time to handle the additional workload. Referral services are busy. Do you want your paralegal or legal secretary to answer referral calls or get your work done? They may not be able to do both.
  • Train referral staff on unlawful practice of law issues and other concerns related to the service. For example, what should they do if a client comes to your referral business in person and wants to talk to a lawyer now!
  • Use disclaimers in your advertising, on your website, in online forms, or as part of a recorded greeting heard by all callers. See this language posted on the Oregon State Bar Lawyer Referral Service (OSB LRS) web page.
  • While the assertion of negligent referral is a rare thing, the right client in the right circumstance may make a claim. Be prepared and inquire into proper business insurance coverage. Don’t assume your professional liability extends to your independently owned and operated lawyer referral service.

All Rights Reserved 2018 Beverly Michaelis

 

 

Best Practices for Docketing, Conflicts, Disengagement, and File Retention

This is the last call for Best Practices for Docketing, Conflicts, Disengagement, and File Retention scheduled for April 11, 2018 from 10:00 a.m. to 11:00 a.m., PDT. This live, online webinar is the second in a two-part series on effective and ethical office systems.
Topics include:

Docketing

  • Learning the attributes of effective docketing systems
  • Appreciating the duty of due diligence
  • Docketing tips for eCourt practitioners: knowing where to go, forwarding notices, calculating deadlines, understanding the Register of Actions, enlisting proper email management

Conflicts

  • Recognizing ethical traps
  • Establishing system objectives: who to screen and when to screen
  • Comparing software applications
  • Streamlining conflict checking using forms, checklists, procedures, and letters
  • Recording conflict results

Disengagement and file retention

  • Meeting your ethical obligations under Oregon RPC 1.16
  • Simplifying disengagement with forms
  • Protecting clients and limiting liability exposure
  • Creating policies, procedures, and checklists
  • Accessing resources

Register Now
$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.

REGISTER NOW
Best Practices for Docketing, Conflicts, Disengagement, and File Retention

 FAQs

Are group discounts available?
Discounts are available to firms who register 5 or more attendees. Contact me for a discount code before you register beverly@oregonlawpracticemanagement.org.

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 are the programs being held?
This program will be a live, online webinar.

MCLE Credits
1.0 practical skills pending.

Can’t Attend?
Video and audio recordings of the April 11 CLE 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.