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

 

 

Tiplet: Using Your iPhone as a Magnifier

I am certainly not the originator of this tip, but I am a fan.

If you need to find a serial number, read small text, or find other hard-to-see details use your iPhone!

The Magnifier setting is an accessibility accommodation that applies built-in filters to read and capture text and details. It uses your camera and its flash capability, but has greater zoom capacity.

To enable your Magnifier, go to:
Settings > General > Accessibility > Magnifier. Toggle to “On.”

Access the Magnifier by:
Triple-clicking the Home button for iPhone 8/8 Plus and earlier or
Triple-clicking the side button on iPhone X

Consider other Accessibility Settings

While enabling the Magnifier, consider other accessibility settings that may be useful. As Apple says, “The world’s most personal device was designed for every person. So a person who’s blind can take group selfies. A person who’s deaf can call Mom from overseas. And a person who can’t move from the neck down can send text messages to friends.” You can add closed captioning to media (where available), turn on an LED flash for alerts, modify the keyboard, or pair your iPhone with your hearing device.

All Rights Reserved 2018 Beverly Michaelis

 

The Case for Oregon eService

In the next issue of the Oregon State Bar Bulletin, I argue in favor of Oregon’s electronic service system – the “AndServe” of OJD eFileAndServe. Here are a few key excerpts modified for posting purposes.

State of the Art

OJD eFileAndServe is state of the art. When a document is filed, marked for service and accepted at the court, the system serves the selected service contacts by email. Included in the message is a hyperlink to the filed document. Filers receive proof of service via a service receipt/confirmation of filing acceptance and may also view the date and time a filing was opened by a service contact in the case.

Transmission of the email by the electronic filing system to selected service contacts constitutes service. Electronic service is complete when the system sends the email to the selected service contacts. UTCR 21.100(4) and (5).

Know the Rules! Written Consent to eService is Not Required

While using eService isn’t mandatory, making yourself available for eService is. UTCR 21.100(2)(a) requires entry of service contact information at the time of a filer’s first electronic filing in an action. Filers who appear in a case by eFiling documents which are accepted by the court are deemed to consent to electronic service. UTCR 21.100(1)(a). The only exception: documents that require personal service or service under ORCP 7. A written consent agreement between the parties is not required, a belief that some have promoted.

If you discover that an opponent has failed to enter his or her service contact information, make a phone call, write an email or send a letter. Keep in mind that approximately one-fifth of all respondents to a 2017 eCourt survey reported being unaware of the service contact requirements.

It Really is that Simple!

eService is accomplished in four easy steps:

  • Login to the system. From the “Filing Type” dropdown, select “eFileAndServe.”
  • Complete the filing details and save changes.
  • Select the parties you wish to serve from the Service Contacts box section.
  • Complete other data entry as needed and submit your filing.

The only difference between using eFile – which is mandatory for all Oregon lawyers – and eFileAndServe is a mouse click at login and selecting your service contacts. It really is that simple.

Prefer Service by Email?

There are important limitations on service by email – some practical, some rule-based. The forthcoming article contains a full discussion. But what about the fact that most lawyers serving by email are doing so contemporaneously with their filing submission? Does this matter?

When service is contemporaneous with filing, it means the other side is receiving a document that has not yet been accepted by the court. If acceptance is forthcoming, no harm no foul. If the document is rejected, the process must start over and a request for relation-back may be necessary.

A Better Approach

eService offers distinct advantages over service by email. Rather than sending large email attachments, lawyers who want to share information about a filing can forward the service receipt/confirmation of filing acceptance or copy the document hyperlink into a new message. This saves server space, provides proof of eFiling and eService, reduces the amount of material that must be saved to the client file and assures that parties are communicating only about accepted court filings. Document hyperlinks are active for 45 days and available 24/7 online. When retrieved, the link returns the official date-stamped document in the court register. These are just some of the features that make switching to eService worthwhile.

All Rights Reserved – 2018 – Beverly Michaelis

On Demand CLE Summer Sale

Looking for MCLE credits? Starting today through August 31, save 20% off on all orders over $40.  Use the code SUMMER at Oregon Law Practice Management On Demand CLE.

Choose from any of these programs:

How to apply the discount

Browse the CLEs and add 2 or more to your cart. When you’re done making CLE selections, choose the shopping cart icon at the top right of your screen and select Checkout. In the discount code field, enter SUMMER and select Apply to receive 20% off your order.

OSB accreditation

All programs are current and accredited by the Oregon State Bar.  Visit the online store for details.

Your on demand CLE purchase includes

  • MP4 download (combined audio and video file)
  • M4a download (audio only)
  • Written program materials, including presentation slides and resources
  • Answers to polling questions asked during the live CLE
  • MCLE Form 6 for self-reporting of MCLE credits

Instant digital delivery with options to save to the cloud or your mobile device

Links to digital files are delivered instantly at checkout with your purchase confirmation email.  Download, stream, save to your Dropbox account, or send files to your mobile device or desktop computer.

Free eBook!

If you visit my online store, be sure to download your free copy of Tips for Improving Client Relationships.

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When Opposing Counsel Doesn’t Respond

Quote

A recent post in NW Sidebar posed this interesting question.

While it is rare for opposing counsel to go MIA, it does happen. What steps should you take? Can you contact the adverse party directly?

Cut and dried rule

Oregon RPC 4.2 and Washington RPC 4.2 make no bones on this point. Direct contact with an adverse party is not permitted if you know the party is represented.  Exceptions are made in the case of consent, court order, if “authorized by law,” or when a notice must be sent directly to a party pursuant to a written agreement.

What to do

Post author Sandra Schilling makes some excellent recommendations:

  • Remember that non-communication from opposing counsel may be a deliberate strategy or delaying tactic. While lawyers have ethical duties of communication and due diligence toward clients, there is no specific rule requiring lawyers to respond to one another.
  • Make repeated efforts at contact. Warn opposing counsel of the consequence of continued nonresponse (you will contact the adverse party directly). Document your efforts.
  • Wait a reasonable amount of time.
  • Seek a court order if possible.
  • Otherwise, consider if the circumstances have abrogated your initial knowledge of representation. As Schilling points out, to “know” is to have “actual knowledge” under the rules. Your “actual knowledge” may be inferred from the changed circumstances (repeated attempts to contact, warnings to opposing counsel, and counsel’s nonresponse).
  • If you make direct contact with the adverse party, make sure you tell them to refer the communication to their attorney if they are still represented, and ask for documentation of termination if they say they aren’t.

I would add: at any point along the way feel free to use the Oregon Ethics Hotline: 
1-503-431-6475 or 1-800-452-8260.

All Rights Reserved 2018 Beverly Michaelis