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

 

Family Leave for Solos and Small Firm Lawyers

How do solos and small firm lawyers plan for extended leave when a new member is about to join the family?  It can be hard enough to take a vacation!

Fortunately, there are some answers and good resources to draw upon.  (Jump to the end of this post.)  For now, let’s cover the basics.

Colleagues, Conflicts, and Staffing

The best coverage plan entails having a number of colleagues lined up who are willing to cover your cases.  Remember what your parents said?  Safety in numbers!  If one person can’t cover in an emergency, someone else can.  A team approach works best.

By necessity, any lawyers who might work on client matters must be screened for conflicts.  Clients need to be notified anyway about your upcoming leave.  Use this opportunity to get permission to share information for conflict and representation purposes.  (More on this below.)

If you have staff, great!  They are a huge help any time you are away from the office, more so during extended absences.  They will be a lifeline for everyday communication, including screening mail, email, and calls.  If you don’t have staff, consider getting a temp.  Having someone who can cover day-to-day operations brings peace of mind and ensures that nothing falls through the cracks.

How Do I Tell My Clients?

One option is to send a letter or email.  No surprise there.  But is it the best approach?

Most lawyers anticipating family leave have a number of colleagues in mind to assist in covering their cases.  This alone can make writing a letter or email complicated and confusing:  “I’m going to be out of the office, but you can choose from Lawyer A, Lawyer B, or Lawyer C.”  Huh?

Consider picking up the phone instead.  Call clients and tell them you are taking a medical leave and why.  (Of course, you can omit the “why” part – it is personal and technically no one’s business, but most lawyers taking family leave don’t mind sharing this news.)

Have a conversation with the client about what is happening.  Explain your plan, offer a name of a monitoring lawyer (or team of monitoring lawyers), then get consent to screen for potential conflicts and review the client’s case with the monitoring lawyer(s).  If everything is a “go,” make sure the client understands and agrees to temporary representation by the monitoring lawyer(s).  Don’t forget to discuss how the billing and payment piece will work.

If the client does not agree with your proposed arrangement, you may have to disengage and withdraw from the case.  The client will need to find a new lawyer of their choosing.

Confirming Arrangements in Writing

Assuming you call clients to review your plan, sending a confirming email becomes relatively easy:

“As we discussed, I will be out of the office on a medical leave of absence for ___________ (months/weeks).  During my leave, I propose that _______________ monitor your file.  You agree that I may share information with _____________ so (he/she) may screen for potential conflicts of interest. If no conflicts exist, you agree that I may disclose details of your case to ______________________ for purposes of monitoring your file and attending to any legal work that needs to be accomplished while I am out of the office.  If we discover a conflict that prohibits ___________________ from assisting you, I will contact you immediately.

You will receive a separate written confirmation from ___________________ (the monitoring lawyer) confirming the arrangements we have made.

(Describe next how the client will be billed.)

My assistant, _______________, will be available by phone and email should you have any questions while I am out of the office.  (Provide your assistant’s contact information.)

Rest assured I will stay informed regarding the status of your case.  I anticipate returning to the office on ___________.  If for any reason my return is delayed, I will inform you immediately.

(Optional:  Please reply to this email confirming your understanding and agreement to this arrangement.)

Fee Agreements and Paying the Monitoring Lawyer

If your existing fee agreement has a provision informing the client that you have made arrangements for someone to cover your practice in the event of illness or disability you have laid the necessary foundation for using a monitoring lawyer.  The PLF offers a number of fee agreements and engagement letters that incorporate “assisting attorney” language.  For samples, visit the PLF website.  Select Practice Management > Forms, then Engagement Letters.

If your existing fee agreement has a contract lawyering provision – meaning the client has consented to use of a contract lawyer at a specified rate – it is easy to have the monitoring lawyer step into the contract role.  You may bill the client for contract lawyering services according to your existing fee agreement.

Alternatively, clients can sign separate fee agreements with the monitoring lawyer.

More Answers and Good Resources

There are many excellent articles and resources for lawyers planning family leave:

[All Rights Reserved – 2015 – Beverly Michaelis]

Establishing a Successful Home-Based Practice

Shingle Style CottageWhat does it take to establish a successful home-based practice?  Are there hidden pitfalls to drafting legal documents in your spare bedroom?

Learn whether working from home would suit you by considering these nine criteria:

Dedicated Office Space

Do you have a bedroom, den, or other area you can dedicate to full-time work?  Practicing at the kitchen table is less than ideal if it means assembling and disassembling your “office” each day.

Family and Confidentiality

If you live with others, can you protect client confidentiality?  Take appropriate precautions to prevent access to client information (on computers and mobile devices as well as physical client papers).  A shared laptop is not suitable for your law practice.

Boundaries

Do you have the right focus and mindset to work from home?

Failing to set personal boundaries can result in one of two extremes: nothing gets done or all you do is work.

Several years ago I met a home-based lawyer who reached out for help with procrastination and time management.  During the work week the lawyer let family chores and home responsibilities rule. To meet client deadlines, the lawyer worked all weekend.  As you might imagine, the lawyer’s spouse was not happy with this arrangement.  I have also witnessed the opposite. Workaholic tendencies are amplified tenfold when your commute is just down the hall….

Isolation

Working from home usually means working alone.  Make a concerted effort to get up and out.  Set concrete goals to attend CLEs, networking events, bar committee meetings, or go to lunch with colleagues.  Make these contacts a regular part of your schedule.

Privacy and Professionalism – Your Address and Telephone Counts

Arrange for a business mailbox at the post office or UPS Store or sign up for an executive suite and get a dedicated business phone.  This can be your cell, Google Voice, a VoIP provider, a virtual receptionist, or anything else you can figure out.  Using your home address or home telephone allows clients, opposing parties, and opposing counsel unfettered access to your personal life.  It may also be irksome to those you live with.

Meeting with Clients

This is best done outside your home.  If you don’t have an executive suite, consider renting a conference room.  If this isn’t economically feasible, ask colleagues if they would be willing to let you use a spare office or meeting area in their firm.

If you pursue one of these options, keep one eye on confidentiality and the other on conflicts.  I am not saying that borrowing someone’s conference room makes you a “firm member” for conflict purposes, but I am asking that you remain attentive to how such arrangements may evolve.

Whatever you do, don’t use a coffee shop.  Aside from the obvious confidentiality concerns, these venues are loud, distracting, and not conducive to interviewing and note taking.

Home Office Permits

Projecting professionalism and protecting your privacy are the foremost reasons for not meeting clients at home, but if you need more, I am happy to oblige.

Most municipalities regulate home offices, which could – in the right circumstances – have a substantial impact on neighboring homes.  (Parking is the first issue that comes to mind.)

Do your research!  At a minimum, expect to complete an application and pay a fee.  You may also be required to notify neighbors and attend a neighborhood hearing on your permit application.  If neighbors object, your permit may be denied.

Premises Liability

The typical renter’s or homeowner’s policy covers risks associated with social invitees who slip and fall on your premises. It does not cover risks associated with business invitees who are injured on your premises [unless you purchase an appropriate rider or endorsement].  Of course, if you are uninsured you assume all the risk all the time.

Business License

If you live in a municipality that requires businesses to be licensed, this will be another step (and cost) in addition to obtaining a home office permit.

Parting Thoughts

For a comprehensive checklist on running a home-based law practice, visit the PLF Website.  Search for the form/practice aid “Home-Based Law Office.”

[All Rights Reserved 2014 Beverly Michaelis]

 

Running a Successful Law Practice

What does it take to run a successful law practice?  Sound financial management?  A detailed marketing plan?  Absolutely!  And if you want tips in these or related areas, see the links at the end of this post.

But for the law school class of 2012, this may not be the first concern that comes to mind.  For many the real question is: “How do I stay out of trouble?”

The answer?  Get organized!  Establish effective office systems and learn the ins and outs of handling client funds, managing deadlines, and tracking conflicts:

For more tips, see these posts:

Financial Management

Marketing, Networking, and Client Relations

Organization

Staffing

Technology

Some Other Favorites

Copyright 2011 Beverly Michaelis

Setting Up a Conflict System in Outlook 2010

I’ve blogged before about how to use Outlook 2007 to track conflictsOutlook 2010 isn’t terribly different.  In either case, the concept is identical: 

Create a new contact card in Outlook for every client/matter.  Enter the client’s name, address, and other contact information.  Use the Notes field to enter:

  • Conflict names and relationships
  • File number (if used)
  • Date file opened
  • Description of case

When you close a matter, enter:

  • Closed file number
  • Date file closed
  • Date of destruction (when destroyed)

When you search “All Contact Items,” Outlook automatically examines the first tab of every contact card in every subfolder.  If a match is found, Outlook automatically displays the matching card(s).

Get the Step-by-Step Instructions

Click here for step-by-step istructions on how to set up a conflict system in Outlook 2010.  As I’ve discussed before, there is an upside and a downside to using Outlook.  To enhance Outlook, and make it before more like a practice management program, consider using CredenzaSee my original blog post for more information.

Copyright 2011 Beverly Michaelis