How COVID-19 Will Change Solo and Mid-Size Law Firms


A recent report by Clio assessing the impacts of the coronavirus on the legal industry and consumers found that the virus has created a 40 percent drop in the number of new legal matters opened per week. Almost half of the polled consumers said that if they had a legal issue, they would delay seeking legal help until after the virus subsided. Further, 22 percent of consumers indicated they were under the impression that attorneys stopped working altogether because of COVID-19.

From our friends at NW Sidebar.

This post focuses on how COVID-19 is likely to affect small to mid-size law firms. I encourage you to read the full post. Here are some key points of interest:

Life is different and also the same. Clients expect you to cater to their needs. Put yourself in their shoes and you will do well.

All Rights Reserved 2020 Beverly Michaelis


Your Engagement Letter is Not a “One Size Fits All” Bucket

What a Good Engagement Letter Can Do

Engagement letters are an essential tool in the lawyer’s toolkit.  Done correctly, they set the stage for the lawyer-client relationship, provide clarity, and minimize misunderstandings.

The best engagement letters follow a predictable formula:

  • A specific description of the legal problems the lawyer will handle
  • A specific description of the legal problems the lawyer will not handle
  • Steps the lawyer has taken already on the prospective client’s behalf
  • Steps the lawyer will take, once engaged
  • Steps the clients must take for engagement to commence
  • Future or ongoing client responsibilities

Combine Your Fee Agreement and Engagement Letter for Maximum Effect

Ideally, the terms of engagement are wrapped into the lawyer’s fee agreement.  This simplifies the process – the client need only review a single document to know what the lawyer will do, how much it will cost, and what the client’s responsibilities are.

Create Templates for Efficiency

Practitioners can streamline the engagement process fairly easily. While some terms will vary, most of these letters contain enough boilerplate for a lawyer to benefit from creating forms or templates.  [Rewriting an engagement letter/fee agreement for each client is a real time-waster.]

Don’t Fall Into the “One Size Fits All” Bucket

Some lawyers attempt to use their engagement letter as a one size fits all bucket.  For inspiration, they look to every case where a transaction or engagement went awry and proceed to add disclaimers to ward off future problems.  For example, lawyers who handle matters where property valuation is an issue may add language to the initial engagement letter forewarning the client of the need to obtain an appraisal.

How Could this be a Bad Thing?

  • Multiple disclaimers make for longer, more complicated engagement letters and fee agreements.
  • The longer and more complicated your letters are, the more likely the client will miss the key points:  what you are going to do (or not do) and what it will cost.
  • In the end, it could all be for naught if the goal is to avoid a potential legal malpractice claim….

Which Approach is More Effective?

Lawyer 1 incorporates a disclaimer into his engagement letter forewarning the client: if property value becomes an issue in this case it will be client’s responsibility to obtain an appraisal.  Without an appraisal, client assumes the risk of under (or over) valuing said property.  Lawyer 1 proceeds with representation, relying on the disclaimer in his initial engagement letter.

Lawyer 2 limits her engagement letter to the usual points discussed at the beginning of this post.  When the value of property becomes an issue in the case, lawyer informs the client of client’s responsibility to obtain an appraisal and the risks of failing to do so.

Keep it Contemporaneous

This is a no-brainer.  Disclaimers given at the beginning of representation don’t have the same value as disclaimers given contemporaneously.  Clients need context to make sense of your warning.  At the beginning of the case, there is no context.  Even if the client nods and understands, the disclaimer in your engagement letter will be long forgotten by the time the property issue arises.

Parting Thoughts

A well-written engagement letter and fee agreement is all about balance.  Include sufficient information about the scope of your work, division of responsibilities, and what your services will cost, but don’t fall into the trap of trying to disclaim or forewarn of everything that could ever go wrong.  If helpful, consider developing a client handout that addresses common issues or questions that arise.  Give specific disclaimers and warnings contemporaneously when the client can put the information into context.

[All Rights Reserved 2015 Beverly Michaelis]



The Ethics of Unbundling

Call it what you will: unbundling, discrete task representation, or limited-scope representation – the ethical and malpractice issues are the same.  Newly published OSB Formal Opinion No. 2011-183 solidifies the bar’s position on the subject. 

Here is what you need to know:

Oregon RPC 1.2(b) expressly permits unbundling provided:

  • The limitation is reasonable under the circumstances and
  • The client gives informed consent to the limited-scope representation

When is Limited Scope Representation “Reasonable?”

To answer this question, OSB Formal Opinion No. 2011-183 points to commentary from the ABA model rule.  Factors include:

  • The client’s objectives (limited to securing general information about the law?)
  • The nature of the legal problem (common situation, typically uncomplicated?)
  • The time allotted (is it sufficient to yield advice upon which the client could rely?)

What About Informed Consent?

  • Explain the risks of discrete task representation with an eye toward the complexity of the matter and the client’s ability to identify, appreciate or address the critical issues that may arise
  • Review the limits of Oregon RPC 4.2 (communication with represented parties).  Existence of a limited-scope representation agreement may not invoke this rule.  Therefore, if the client “wants the protection of communication only through the lawyer on some or all issues, then the lawyer should be sure to communicate clearly to opposing counsel the scope of the limited representation and the extent to which communications are to be directed through the lawyer.”  OSB Formal Opinion No. 2011-183. (See Footnote 6.)
  • State as fully as possible what you will not do for the client
  • Offer “reasonably available alternatives” such as having a lawyer involved “in each material aspect of the legal matter.”  OSB Formal Opinion No. 2011-183.
  • Get it in writing!   Obtaining the client’s written consent is not required by Oregon RPC 1.2(b), but it is strongly encouraged and will help avoid potential misunderstandings later.  (Remember – certain fee arrangements must be in writing.  Contingent and earned-upon-receipt fees come to mind.)

Are There Any Other Considerations?

Limiting the scope of representation does not limit the scope of your ethical duties to your client.  Lawyers who unbundle services must still provide competent representation, communicate adequately with their clients, avoid neglecting matters entrusted to them, and screen for conflicts of interest.

In addition, lawyers who provide unbundled services must conform with applicable law or procedural requirements, such as submitting a Certificate of Document Preparation pursuant to UTCR 2.010(7) when  necessary.

What is My Malpractice Exposure?

For an overview of the malpractice risks involved in unbundling legal services in a virtual practice setting, read my post.  For a complete discussion of the subject, see Unbundling in the 21st Century: How to Reduce Malpractice Exposure While Meeting Client Needs.

Copyright 2011 Beverly Michaelis