How to Say No to Clients

 

Did you answer “yes” to one or more of these questions?  You are in good company!

As we discussed in 7 Steps to Building Better Client Relationships, lawyers often feel pressured to practice “door law.”  The source of the pressure may be economic:  I don’t really have a choice because I need the money.  Or it can be emotional: Family, friends, or former clients are depending on me.

Either way, saying no can be incredibly difficult, so here is some sage advice that first appeared in In Sight.  These tips apply no matter who is doing the asking: clients, friends, family, or neighbors.

Five steps to saying “no”

  • Be respectful.  Listen to the asker and don’t interrupt. Respect the request, then respect your right to decline the request.
  • Keep it simple.  You have the right to say “no.”  Elaborate justifications aren’t necessary [and may lead to backsliding, since many of us say “yes” to avoid feeling guilty].
  • Assign responsibility elsewhere:  “That sounds very nice; unfortunately, my
    calendar is booked solid.” Now it’s your calendar’s fault. Stand firm. Avoid engaging in discussion or negotiation.
  • Refer to others who might fill the opening well.
  • Say yes when there is a good reason to do so, it will benefit you, or the cause is one you believe in.  [Life is too short to take on a case or client you find repugnant.]

I encourage you to read the full article here.

Still need persuading? Time for tough love

You are not the only lawyer who can help your clients.
If money is an issue, there are other lawyers who participate in the OSB modest means program, offer sliding fee services, or take pro bono referrals.  If you continually give your time away to nonpaying clients, your practice will decline and you may need to close your doors.  If you close your practice, you aren’t available to help anyone.

If the case can’t be won, are you doing a service or a disservice by taking it?
Once a lawyer commits to a case, many clients assume the case CAN BE WON, no matter how you qualify your representation.  Not all clients have a legal remedy, for a variety of reasons. This can be a bitter pill to swallow, but the truth is better than false hope.  You can always suggest [and should suggest] a second opinion.

A good case and a paying client don’t necessarily mean the case is right for you.
Don’t let someone push you out of your comfort zone. Law is complex. Staying on top of your desired practice areas is hard enough. Straying into unfamiliar areas is stressful, time consuming, expensive (because of the learning curve), and more likely to result in a claim or bar complaint.

You are a lawyer, not a doctor.
Keeping clients who won’t follow your advice, don’t cooperate, and look to place blame anywhere but with themselves, is a pure misery.  This is not a situation you can cure, except by firing the client.

All Rights Reserved 2018 – Beverly Michaelis

 

Engagement Letters Are Your Friend

Today, I’d like to share a recent post from our friends at NW Sidebar about the importance of engagement letters.

In Cox v. Alliant Insurance Services, Inc., 2017 WL 4640452 (E.D. Wash. Sept. 19, 2017) (unpublished), the plaintiffs sought to disqualify the opposing law firm based on a conflict of interest. One of the plaintiffs argued that he was a former client of the firm on a substantially related matter, necessitating the law firm’s withdrawal.

The plaintiff’s contact with the firm was as a representative for a corporation.  In concluding that no attorney-client relationship existed between the plaintiff and the law firm, the court relied on two key points:

  • The law firm and corporation executed a written engagement agreement that identified the corporation (and not the individual) as the client in the matter.
  • The plaintiff failed to introduce contradictory evidence, i.e., he could not point to any communication or action by the firm which expanded the attorney-client relationship to include him individually as a client.

Read the full post here.

Lessons Learned

As we discussed in the CLE, Limiting Exposure to Conflicts, identifying your client and clarifying the client’s status (prospect, current client, or former client) is paramount to conflict screening and limiting your potential liability. The single best tool at your disposal? Written engagement, disengagement, and nonengagement letters – all of which are available at the Professional Liability Fund website.

But the law firm in Cox didn’t stop at the engagement letter. Firm members were also consistent in their actions toward the corporate representative. There was no evidence of emails, correspondence, or other communication supporting that the corporate representative was an individual client of the firm.

The moral of the story? A solid engagement letter is a small investment to make in the realm of thwarting conflicts and liability. Even better: maintaining consistency in your corporate communications.

All Rights Reserved 2018 – Beverly Michaelis

 

 

Reduce Work Hours and Meet Your Goals

Is it really possible to reduce your work hours and still accomplish what you need to get done?

Absolutely!  If you’re willing to reform your habits and work routine.

A new year offers the opportunity to step back and take a fresh look at how to run your practice.  As someone who likes the idea of starting over and trying something new I am here to encourage you.  Please read on.

business-office

Are you in a rut?

It’s human nature to follow a routine. And this isn’t necessarily a bad thing.  For example, following set procedures for responding to client email, docketing deadlines, or checking conflicts are helpful time management and malpractice avoidance techniques. The problem arises when we form work habits that are self-defeating or even life-threatening.

Working long hours can kill you

Several years ago I reported on a study from the Annals of Internal Medicine that found people “who work an average of 11 or more hours per day have a 67 percent higher risk of suffering a heart attack or dying from heart disease than people who work a standard seven- to eight-hour day.  Those who work between 10 and 11 hours per day have a 45 percent higher risk.”

For those of you who champion working hard and putting in long hours, these numbers are a sobering wakeup call.

Sitting is the new smoking

In 2016 came the admonition: get off your duff to improve your health.

While deadlines may sometimes dictate longer hours, sitting in your chair for 10 or 11 hours a day shouldn’t be the norm.  Long hours translate to physical stress, little or no time to exercise, and eating habits that are often less than stellar (like grabbing fast food on the way home.)

The truth is that none of us can maintain a “7-7-7 schedule” (7:00 am to 7:00 pm seven days a week) without suffering the consequences.  Even if you buy a treadmill or standing desk.

Resolve in 2018 to make changes

If I am describing you, stop.  You can do better, and you’ll be happier for it.  Here’s how to cut back the amount of time spent in the office and still accomplish what you need to get done.

Learn to say “goodbye” and “no.”

Two of my favorite words.  And they should be yours too.

Find it hard to turn people away?  I understand how you feel.  Lawyers face economic pressure: I don’t really have a choice.  I need the money.  And emotional pressure: Family, friends, or former clients are depending on me.  

Next time you want to say “no,” but are struggling, follow this simple advice.

Overwhelmed by the amount of work on your plate?

This is a good news/bad news scenario.

Let’s start with the “bad news” first.  You have too much to do and can’t get it done.  You may be paralyzed or depressed.  You don’t know where to start.  Call the attorney counselors at the Oregon Attorney Assistance Program (OAAP).  They provide free and confidential help with issues just like this.  They can also connect you to resources that can help relieve the pressure.

On the “good news” side, having too much to do means you can afford to be more picky about clients and cases.  Time to cull the herd:

What are your priorities?

What do you want to make a priority?  Create time that is sacrosanct to tackle what you want to get done by blocking out time on your calendar.  Treat this time as if it were a client appointment – take no calls, do not read email.  Stay off the Internet unless the task at hand involves being on the Internet.  Give the matter your undivided attention.

Multi-tasking is for the birds

Or rather, bird brains.  Literally.  It’s just about the worst thing you can try to do.

The idea that we can juggle ten things at once is a myth – we simply can’t do it.  Here is one of the better explanations I’ve read about why multi-tasking doesn’t work.  It was the inspiration for this post.  If you want to do something well, not start over ten times, remember it afterward, and get finished sooner, then single task!

You can control client expectations

Learn to shape and manage client expectations – from the very simple (availability by phone, ability to accommodate unscheduled appointments) to the more complex (meeting client deadlines).  The Professional Liability Fund (PLF) offers sample client brochures that explain office and billing practices.  Consider ordering the OSB-accredited webinar, Seven Steps to Building Better Client Relations.

Give yourself a break with this easy time management technique

Form a new habit for 2018.  Check your calendar first before making a time-related promise to a client.  If there is no “deadline” per se, determine when you can reasonably fit the project into your schedule.  You gain nothing by promising a quick turnaround if you can’t keep your word.

In a pickle? Triage!

If you’re in a pickle – a deadline is approaching and you know you can’t meet it – start triaging.  Call your client.  Call opposing counsel if necessary.  Negotiate a new due date.

I know facing up to deadlines is hard.  I also know many lawyers hesitate to call their clients or the other side because they fear being yelled at.  Know this: your clients and the other side are far more understanding than you give them credit for.  Everyone has been there.  They get it.  It turns out that waiting is not really that big of a problem ninety-nine percent of the time.  And if you need support making these kind of calls, just give a ring to the nice folks at the OAAP.

Get back in control

Getting help may be just the ticket to get your workflow back in control.  Consider temporary staff or a contract attorney.  Questions?  Call your friendly practice management advisor at the PLF for help.

Leaving early?  Good for you!

Last but not least, ditch the guilt of leaving early – it is your well-deserved reward for good planning and efficient work habits.

All Rights Reserved Beverly Michaelis 2018

Postscript

Have I given this advice before?  Absolutely.  But a reminder never hurts.  Especially if you know, as I do, that we all feel discouraged from time to time.  Never forget: you can start over and you can make a change.  Don’t let anyone tell you otherwise.

Tips from Your Local Courthouse about eCourt

The latest eCourt Open Hours held by Oregon’s Fourth Judicial District revealed some useful tips and reminders.  The session was recorded by the Professional Liability Fund and is available on the PLF website as eService for Criminal Filings. 

Whether you practice criminal or civil law, there are good lessons to be gleaned from this presentation:

Service

  • Adding yourself as a service contact is required: “At the time of preparing the filer’s first eFiling, a filer must enter in the electronic filing system the name and service email address of the filer, designated as a service contact on behalf of the party the filer represents.”  UTCR 21.100(2).  You must attach your service contact information to every case the first time you eFile into a matter.
  • Until the other side appears and adds itself as a service contact, you must use conventional methods of service. Reminder: you cannot add the opposing party as a service contact to accomplish eService.
  • In criminal cases, the defense may be the first side to “appear.”  If this is true, use conventional service methods until the district attorney eFiles into the case.  In some counties (Deschutes), the district attorney’s office may file a “Notice of Acceptance of eService” at inception.  In such cases, eService is permissible.
  • To accomplish service in the Tyler Odyssey system, change your selection from eFile (the default setting) to eFile & Serve. Avoid multiple methods of service – they are a waste of time.
  • It is permissible to use a generic Certificate of Service where you check a box indicating the method of service (eService, personal service, etc.)
  • For what to include in a Certificate of Service, see UTCR 2.020.  See the example below.  Other examples were shown during the eService for Criminal Filings presentation, recorded by the PLF.

CERTIFICATE OF SERVICE

I certify that I eServed the within (Name of Document) on the following person(s) at the party’s email address as recorded on the date of service in the eFiling system:

(Name of Person Served)
(Title of Party, such as Attorney for Plaintiff)

Dated: (Date)

(Insert signature line)

eFiling Tips

  • Complete the “filing on behalf of field” so court staff and others know which party filed the document.
  • File Certificates of Service with the document being served.  UTCR 21.040(2), requiring unified, single PDFs.
  • Reminder: the system does not automatically notify filers when a document is filed in a case.

Substitutions of Counsel

If you are substituting in for another attorney, file a Notice of Substitution not a mere Notice of Representation. Include:

  • The date of any scheduled trial or hearing
  • Serve the substitution on the current attorney and opposing party/attorney
  • Attach a Certificate of Service (filed with the notice as a single unified PDF)
  • Add yourself as a service contact in the case.  UTCR 3.140(1).

eCourt Notifications

Use the “admin copy” area of eFile & Serve to add email addresses for others in the firm who wish to be copied on documents filed in the case.

Technical Issues

The Microsoft Edge web browser may not be fully compatible with Odyssey eFile & Serve.  If you experience problems, try Chrome, Microsoft Explorer, or another browser.

All Rights Reserved 2017 Beverly Michaelis

 

Lawyer Transitions: Departing Your Firm

The days of spending an entire career at one firm are long gone.  By the end of three years, nearly half of all associates leave.  Partners bail out for many reasons – compensation, lifestyle choice, and conflicts with other partners – to name a few.

No matter who you are, tread lightly when you leave.  Departing lawyers have ethical, contractual, and legal responsibilities.

If you are a partner

Conduct your partnership withdrawal in a manner that honors the contractual and fiduciary responsibilities owed to your fellow partners.  Contractual duties are controlled by your written partnership agreement.  Fiduciary duties are described in case law and codified by statute in Oregon’s Revised Partnership Act.

If you are not a partner

Review your employment contract, employment letter, office policies, office procedures, or any other applicable terms that may control the process for terminating your relationship with your current firm or your obligations upon departure.

Are issues likely to arise?

Consult outside counsel experienced in the areas of lawyer mobility, partnerships, fiduciary duties, lawyer separation, and law firm dissolution.

Give notice before you contact clients

Inform the firm of your decision to leave before contacting any clients.  Failing to give adequate and timely notice to your firm or partners before you contact clients is a violation of the duty of loyalty owed by a lawyer to his or her firm based on their contractual or agency relationship.  It may also constitute conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Oregon RPC 8.4(a)(3).

Although there is no explicit rule requiring lawyers to be candid and fair with their partners or employers, such an obligation is implicit in the prohibition…against dishonesty, fraud, deceit, or misrepresentation. Moreover, such conduct is a violation of the duty of loyalty owed by a lawyer to his or her firm based on their contractual or agency relationship.” In re Complaint as to the Conduct of Murdock, 328 OR 18, 25 (1998), citing, In re Smith, 315 Or 260, 266 (1992). See also OSB Formal Op No 2005-70; ABA Formal Op No 99-414.

Assessing your client caseload

Undoubtedly there are clients you would like to take with you, but there may also be clients you prefer to leave behind.  Draft a client notification letter informing clients of your departure.  Schedule a meeting with your supervising partner or other appropriate member(s) of the firm.  Bring a printout of your current cases and your draft client letter.  This meeting must occur before you contact any clients.  [Note: more than one notification letter will be necessary if you intend to keep some clients and leave others behind.]

For clients transitioning to your new firm

Make arrangements to obtain trust funds, copy paper and digital records, and sign new fee agreements.  Checklists documenting the steps to take when leaving a firm are available from the OSB Professional Liability Fund.

For clients you are leaving behind

Properly document client files by preparing memos describing the status of each case and any upcoming deadlines.  If you are attorney of record, withdraw or confirm that a substitution of counsel has been filed where necessary.  Otherwise, you remain on the hook.  Check out the resources available from the OSB Professional Liability Fund describing a lawyer’s duties upon withdrawal and termination of representation.  If in doubt, contact the OSB General Counsel’s office or consult with outside counsel.

Transition don’ts

  • Misleading clients about their right to choose counsel
  • Contacting clients before speaking to your firm about your departure
  • Taking client files without the knowledge or consent of the firm
  • Taking client money without the knowledge or consent of the firm
  • Taking firm property, including forms, research, or other materials, without the consent of the firm

Transition Dos

  • Put clients first.  Whether you are making a lateral move to another firm or setting up your own practice, remember that the client’s freedom of choice in selection of counsel is paramount.
  • Keep the transition as amicable, professional, and stress-free as possible. Contentious withdrawals alienate clients and damage relationships.
  • Remember to take a list of clients with you so you can screen for conflicts at your new firm.

Handled properly, your departure should be smooth and uneventful.

 

All Rights Reserved 2017 Beverly Michaelis