I Don’t Want to Create a Business Plan!

I get it.  I really do.  They involve work and you’re busy.  And if you’re not trying to sell someone on why they should give you money to start or grow your law practice, why would you bother?

Because, my friends, every once in a while you should be selfish and do something for yourself.

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Six Good Reasons Why Every Lawyer Can Benefit from a Business Plan

Everyone can benefit from the business planning process, especially startups.  But existing businesses need a vision too.  Creating a business plan will give you:

  • Clarity about what you want to do
  • Control over your own fate
  • A strategy for staying organized and on track
  • Accountability
  • A way to measure and monitor your progress
  • A path to help you move forward

For associates in law firms, creating an annual business plan is the only way to build a successful strategy for bringing in business – something all associates are expected to do sooner or later.

For partners, annual business planning is likely to be more about reflection: now that I’m an experienced lawyer with a book of business at XYZ Law Firm what do I want to do? If the answer is: make a lateral move, creating a business plan will likely be required.  If the answer is: something else entirely, then time spent reflecting and planning will help you ferret that out.

Why Lawyers Don’t Write Business Plans

Aside from the obvious excuse that creating a business plan is time consuming, you may also perceive it as too difficult.

But there is an even better reason not to write a business plan.  If you don’t put specific goals and objectives on paper you can’t fail.

Here’s What You’re Really Missing Out On

The problem with avoiding failure is that you also set yourself up not to succeed. And you miss out on the other benefits that go along with creating a business plan.

Create a Direction and Lower Your Stress

When you know what you want to do, where you want to go, and how you’re going to get there (the specific objectives included in your plan), it lowers your stress level. There is no more floundering or misdirection.  Having a plan means you’re back in control.

Doing What You Want to Do For People You Want to Work For Means Reduced Exposure to Liability and Ethics Complaints

There’s a huge difference between practicing door law because you’ve always done it versus purposefully choosing a niche.

The door law route exposes you to greater risk of malpractice claims and ethics complaints.  Keeping up with a few areas of law is hard enough.  Trying to keep up with five or ten is bordering on ridiculous.

Imagine instead that you are working in one area, or a handful of areas, that you know well or can master.  With a focus, you can target clients deliberately and work for a client base that you truly want to represent.

You’ll Also See Gains in Efficiency, Money, and Resources

You are a resource.  Your staff is a resource.  Spend your resources on meaningful, designed goals.  This is what creates efficiency.  And with efficiency you can’t help but save money.  Or at a minimum, experience a better return on your investment.  You know it, you can see it, you can measure it.

Business Plan Checklist and Resources

If I’ve convinced you, contact me.  I’m happy to send along my business plan checklist and a list of resources for creating a plan.  Do what you want to do.  I am.

All Rights Reserved Beverly Michaelis 2017

Practical Advice for Virtual Law Offices

Last week we discussed the ethical implications of WSBA Advisory Opinion 201601, “Ethical Practices of the Virtual Law Office.”  As the Committee on Professional Ethics noted, virtual practitioners must take care with supervision, confidentiality, avoiding misrepresentation, and conflicts of interest.  Understandable, but what exactly does that mean?  Here is some practical advice.

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Adequate supervision in a virtual workplace

In a virtual workplace lawyers and staff don’t work in proximity.  How do you ensure that remote workers receive “adequate supervision?”  The WSBA opinion mentions taking “additional measures,” but does not describe what those may be. Virtual employers should consider the following:

  1. Establish policies just as you would in a traditional office setting:  dedicated working hours when employees are expected to be within reach of their phones or computers; vacation allowance; sick leave policy; how you will measure performance; and so on.
  2. Create procedures for employees to follow.  Specifically, how will you distribute assignments and exchange completed work?  Technology is bound to be the solution, so see the discussion below about confidentiality.  Remember to address the “mundane” office tasks too: calendaring, accounting, conflict checking, etc.
  3. Require all remote workers to sign a confidentiality pledge or agreement.  The Professional Liability Fund has samples on its website.
  4. Get fully educated about legalities:  “In 2011, an Oregon appeals court found in favor of a J.C. Penney Co. Inc. home decorator who was injured after she tripped over her dog while working at home. Although the state workers’ compensation board had held her injuries were not work-related, the appeals court reversed, finding the employee had been working from her home as a term and condition of employment.”
    On-the-job injuries aren’t the only problem: be aware of Fair Labor Standards Act troubles, choice of jurisdiction, protecting proprietary information [forms bank, brief bank, customized practice management software], and the Americans with Disabilities Act.  The list doesn’t end there.
  5. Talk to an employment lawyer about securing your right to inspect employees’ remote workplaces and monitoring employees’ use of technology.
  6. Don’t neglect the need for face time. Management experts recommend regular web meetings and occasional in-person meetings for an optimal virtual workplace.
  7. Revisit your ethical responsibilities as a supervisor in Oregon.

Confidentiality

Advisory Opinion 201601 revisits the ethical requirements for cloud computing and email communication, the gist of which is:

  • A lawyer may use online data storage systems to store and back up client confidential information as long as the lawyer takes reasonable care to ensure that the information will remain confidential and the information is secure from risk of loss.
  • Email communication with clients is allowed, except lawyers must warn clients if they believe there is a significant risk of third party access.

Oregon takes a similar stance on cloud computing:  “Lawyer may store client materials on a third-party server as long as Lawyer complies with the duties of competence and confidentiality to reasonably keep the client’s information secure within a given situation.” OSB Formal Opinion No. 2011-188 [Revised 2015.]  For more details, see this post.  See Also OSB Formal Opinion No. 2016-191, “Client Property: Electronic-Only or “Paperless” Client Documents and Files,” which includes a further discussion about electronic client files.

As to email, Oregon lawyers are forewarned to:

  1. Use proper security measures in cases where information is “particularly sensitive or subject to a confidentiality agreement.”
  2. Avoid email entirely if a client requests it.
  3. Scrub for metadata.

See “Safeguarding Client Information in a Digital World,” and “Competency: Disclosure of Metadata,” OSB Formal Opinion No. 2011-187 [Revised 2015].

No mention is made about a duty to warn clients of third party access where the lawyer believes there is a significant risk.  However, it would be foolish not to do so.  Consider the example mentioned in the WSBA opinion: where the lawyer knows her client is using an employer-provided email account.

We’ve discussed this issue before. Your email may not be protected by lawyer-client privilege if your client is reading it at work.  Before you begin communicating by email, take note of the client’s address.  Does the domain correlate to their place of employment?  Don’t use it!  Even if the address is @gmail.com or a similar web-based service, don’t assume your client only reads and prints email at home.  Have a discussion about where, when, and how your client reads your confidential communications and follow the other advice mentioned here.

Another quick word about using the cloud

Virtual practices could not exist without the cloud, a VPN, or some means of hosting and exchanging client information.  Beyond the basics of taking reasonable care to protect confidentiality, implement policies and procedures as described above.  Focus on security and steps to take when a virtual employee stops working for you.  Remote workers can put your law practice at risk if they upload or exchange content that contains malware or ransomware. A study commissioned by a security firm in the UK and Germany found:

  • One in four employees admitted breaking security policies.
  • Nearly two in five said either they, or someone they know, have lost or had stolen a device in a public place.
  • Three-quarters of these devices – such as laptops, mobile phones and USB sticks – contained work-related data, including confidential emails (37%), confidential files (34%) and customer data (21%).
  • Approximately one in ten lost financial data or access details such as login and password information, exposing even more confidential information to the risk of breach.

It is equally important to have a checklist for departing staff that ensures revocation of login credentials, return of workplace property, and disposition of ongoing email or voice communications directed to someone who no longer works for you.

Consider talking to an employment law attorney, or as a starter, see the Professional Liability Fund’s (PLF’s) Checklist for Departing Staff.

Duty to avoid misrepresentation

Advisory Opinion 201601 warns that lawyers may not imply the existence of a physical office or formal law firm where none exists. Therefore, unless you’ve arranged for ready access to meeting spaces or the ability to see clients on a drop-in basis, don’t imply those resources exist.  Posting or implying that you are part of a firm on your website, social media, or elsewhere is also a no-no.  (The same is true for office sharers, an example given in the ethics opinion.)

Avoiding conflicts of interest

Advisory Opinion 201601 points out that virtual offices must ensure that the conflicts checking system is equally accessible to all members of the practice, lawyers and staff, and that such access is reliably maintained.  This only makes sense.

Be sure to add your calendaring system, billing system, client matter records, and everything else you need to operate virtually as a law practice.  All of it must be equally accessible and reliably maintained.

Will the cloud be your savior when it comes to accessibility and reliability?  Probably, but it can’t help you with issues like when to run a conflict check, how to run a conflict check, or the need to circulate a new client list to everyone in the office.  As noted above, procedures will be key!  For help, contact a friendly practice management expert, like myself or one of the advisors at the PLF. While you’re on the PLF site, check out the many publications, practice aids, and forms that will assist you with establishing office protocols.

All Rights Reserved Beverly Michaelis 2017

The Best Legal Blog Posts of 2016

2016-word-cloudIf you’ve followed my blog for a year or more, you know I generally publish a “Year in Review” post.  This December I thought I’d take a slightly different approach. Instead of a comprehensive list, I’m filtering it down to my personal favorites. And while it may be controversial, I’m calling this compilation The Best Legal Blog Posts of 2016.  There is plenty of good stuff out there, but this is the best that has appeared here.  Mostly my content, but also sourced from other great writers.

Client Relations

eCourt and court procedures

Finances

Marketing

Security

Staffing

Technology

Time Management

All Rights Reserved 2016 Beverly Michaelis

Starting Salaries for Legal Support Staff

Newly posted on the Multnomah Bar Association website: