Last Chance to Register! Limiting Exposure to Conflicts

Join me for a CLE on Wednesday, October 25, 2017 about limiting exposure to conflicts.  Learn the ethical principles behind conflict management, avoiding common conflict traps, and how to select and operate an effective conflict system. Topics include:

Laying the ethical foundation

  • Who is the client?
  • What is the client’s status: prospect, current client, or former client?
  • Why does it matter?

Choosing a reliable system

  • The In Re Knappenberger standard
  • DIY vs. stand-alone vs. practice management software
  • How to choose the best system for your firm

Understanding conflict tracking

  • When to run a conflict check
  • How to use your system effectively
  • Parties to include in your conflict system

Avoiding common conflict traps

  • Former client conflicts
  • Acting in dual roles
  • Doing business with clients
  • Representing multiple clients in the same matter
  • Firm transitions
  • Acting as a contract lawyer
  • Office sharing arrangements

Date/Time/Location

Wednesday, October 25, 2017 from 10:00 a.m. to 11:00 a.m. Pacific Time. This is a live, online webinar. Watch from your desktop computer or mobile device. Connect to audio via telephone or computer/device speakers.

Who Should Attend?

Lawyers, office administrators, or staff – anyone interested in learning more about proper conflict system management.

Group Discounts

Discounts available to firms who wish to register 5 or more attendees. Contact organizer to arrange a discount code before registering: beverly@oregonlawpracticemanagement.org.

Does the Program Include Written Materials?

Yes. Written materials will be distributed electronically to all registered attendees prior to the event.

Ask Questions/Participate in Live Polling

Questions are welcome during the live event. Attendees are also encouraged to participate in live, anonymous polling.

Registration Fee

$25 – Visit the Upcoming CLE page, click here, or choose the Register button below. Secure payment processing powered by Eventbrite. Visa, MasterCard, Discover, and American Express accepted. Program materials included in the registration price.

Eventbrite - Limiting Exposure to Conflicts

MCLE Credits
.50 ethics .50 practical skills pending.

Can’t Attend?

Video and audio recordings of Limiting Exposure to Conflicts will be available to download along with the program materials following the October 25 CLE. Price: $25. Contact me or visit my online CLE store after October 25.

All Rights Reserved [2017] Beverly Michaelis

Failure to Check Spam Folder Leads to Missed Deadline

Court notices delivered via email are a known point of vulnerability for law firms: failure to timely check messages, accidental deletion of court notices, or haphazard review of spam folders.

Now The Researching Paralegal reports on the latest variation of this theme.

A trial court clerk in Florida served an order by email awarding a significant amount of attorney fees to the prevailing party (appellee).  The opponent/appellant claimed it did not receive the order, resulting in its failure to file an appeal.  What happened? The opponent/appellant’s email system automatically deleted the court’s email as spam.

The opponent/appellant asked the court to vacate the original order on the grounds of excusable neglect.  The trial court declined and Florida’s First District Court of Appeal affirmed. The Researching Paralegal cites these factors:

First, the review of the court clerk’s email logs confirmed that the email with the court’s order was served and received by the law firm’s server. Second, the law firm’s email configuration made it impossible to determine whether the firm’s server received the email. Third, the law firm’s former IT specialist’s advice against this configuration flaw was deliberately rejected by the law firm because its alternative cost more money.

The trial court concluded the law firm made a conscious decision to use a defective email configuration merely to save money, which was not “excusable neglect.”

Another nail in the coffin was testimony by the appellee’s attorney. His firm assigned a paralegal to check the court’s website every three weeks to safeguard that his firm would not miss any orders or deadlines.  The court held that the appellant had a duty to check the court’s electronic docket.

Emerald Coast Utilities Authority v. Bear Marcus Pointe, LLCCase No. 1D15-5714, Fla: Dist. Court of Appeals, 1st Dist (2017).

What can we learn from Emerald Coast?

  1. Whitelist important email. Set your spam or junk email filters to allow receipt of messages from approved senders or domains. Include courts, administrative agencies, key clients, opposing counsel, and any other senders whose email you don’t want to miss.
  2. Review spam quarantine summaries daily. Aggressive spam filters will occasionally block senders and domains you have added to your whitelist if the filter finds content in the email to be possible spam.  Addresses and domains may also change, causing new notices to be marked as spam.
  3. Don’t forget to look at your junk mail folder, another place where legitimate messages can land.
  4. Check online court dockets. Weekly will work for most firms; others may need to login daily, depending on case volume.
  5. Listen to your IT staff.  Here, the IT specialist argued against automatic deletion of junk and spam messages and recommended hiring a third-party vendor to handle spam filtering.  He also suggested investing in an online backup system, another idea rejected by the law firm.  Following either of these recommendations may have prevented the firm from missing the deadline.

A few more takeaways

  • It should be clear, but just in case:  everyone needs a backup system. If you can’t afford the cost of an online subscription, buy an external hard drive on sale and use the backup utility built into your operating system.  For backup protocols and additional backup options, see How to Backup Your Computer from the Professional Liability Fund (Practice Management > Forms > Technology).
  • Can’t afford a third-party vendor for spam filtering or another IT task?  Understandable, but the work itself still needs to get done. This may mean you, your partner, or your staff.  Technology is a tool, not a substitute for human judgment.

There are some other interesting twists and turns in Emerald Coast.  For examplethe law firm also refused to join in on a motion for a case management conference – a step that would have likely revealed the existence of the attorney fee award.  Additionally, automatic deletion of spam wasn’t the only email configuration procedure that caused problems for this office.  If you have a few moments, read the full opinion here.

Beverly Michaelis – All Rights Reserved 2017

Should You Take a Cue from Uber?

Getting your “side hustle” on is Uber’s way of suggesting that you join their team to earn extra money. Lawyers sometimes face this dilemma when first transitioning into private practice – giving up a regular paycheck is a high price to pay in exchange for the uncertainty of going solo.

For other lawyers, the practice of law is a second career.  Does this mean they are required to relinquish their first?

Not necessarily.  However, practicing on the side or in addition to another career, does raise some red flags.

Conflicts of Interest

Assuming your employer agrees to let you “moonlight” (and that’s a big assumption), you must address potential conflicts.  At first blush, you might think this concern applies only to lawyers who currently work in a law firm and wish to “work on the side” in a solo practice.  Not true!  If your other job is working as a real estate broker, mortgage broker, financial planner, psychologist, mediator, arbitrator, etc., you must also screen for conflicts.

In her article, Multidisciplinary practice: When Wearing Two Hats May Get You Burned  Helen Hierschbiel points out:

Recognizing and avoiding conflicts of interest is one of the more common concerns for lawyers who have side businesses, particularly when their clients do business with those other companies. Oregon RPC 1.7(a)(2) provides that a current conflict of interest exists if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer…” Thus, when there is a significant risk that a lawyer’s personal or other financial interests in a non-legal business will materially limit the lawyer’s responsibilities to a client, that lawyer has a conflict under RPC 1.7(a)(2).

In addition, when a lawyer’s side business is doing business with the lawyer’s client, consideration must be given to the limitations set forth in RPC 1.8(a), which provides more stringent requirements for obtaining client consent than those under RPC 1.7(b). RPC 1.8(a) provides:

A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

1. The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

2. The client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

3. The client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

Note:  Learn more about this issue and other common conflict traps by attending Limiting Exposure to Conflicts on October 25, 2017.

Other Ethical Concerns

A “side practice” coupled with another job also raises potential concerns about advertising, solicitation, and fee sharing.  Here are Helen’s comments:

Advertising
“Oregon RPC 7.1 generally provides that any communication about a lawyer may not be false or misleading. Determining whether a statement is false may be simple, but assessing whether it is misleading can be more difficult. The cautious approach in making that assessment requires considering how the statement is likely to be interpreted by an unsophisticated consumer. Thus, OSB Formal Op 2005-108 concludes that a lawyer who has an active mediation practice may advertise the practice under “counselors — marriage, family, child and individual” sections of the yellow pages as long as the advertisement reflects the lawyer’s status as a lawyer offering mediation services.”

Solicitation
“Lawyers should also take care to observe the ban on in-person solicitation of legal business when providing non-legal services. The non-legal business may not be used to solicit clients with legal needs in a manner that violates RPC 7.3… (L)awyers would be wise to exercise extra caution when confronted in their non-legal business with an individual who has legal needs as well.”

Fee Sharing
“… (L)awyers should be mindful when setting up an ancillary business, not to allow non-lawyers any control or influence over their law practice.”

Employment Law and Liability Implications

Before you set up a side practice, check your employer’s policy and personnel manuals.  Some employers prohibit moonlighting altogether, others require preapproval of “outside employment activities.”  If you are a contract lawyer and a true independent contractor you should be completely free to have your own solo practice and perform contract work for other lawyers.  Be sure the principal lawyers who hire you agree.  Contact the OSB Professional Liability Fund for more information on setting up a contract practice.

Query:  If a lawyer commits malpractice in the course and scope of his or her “side practice,” could the lawyer’s primary law firm employer be held vicariously liable?  (Food for thought…. as clients have attempted to hold firms responsible for the negligence of “sole practitioners” who were leasing space in the firm’s office suite.)

Professional Liability Coverage

Lawyers engaged in the private practice of law in the State of Oregon are required to carry professional liability coverage through the Oregon State Bar Professional Liability Fund.  This requirement applies equally to full-time and part-time practitioners.  In other words, if you are a lawyer in private practice in Oregon (as defined in the PLF plan), it does not matter whether you provide legal services 50 hours per week or 10 hours per week – coverage is required in either case – and the cost of coverage does not vary based on the hours worked.  With that said, liability coverage in Oregon is complex.  Your best bet is to contact the Professional Liability Fund for more information.

Is it Worth it?

It may not be.  If you are not an active member of the Oregon State Bar, it will be necessary to pay bar dues.  If you intend to engage in the private practice of law and require professional liability coverage, the cost is currently $3500 per year (assuming coverage is not prorated and no discounts apply).

To assess whether a “side practice” makes sense, go through all the steps you would normally follow to set up a full-time law practice.  This includes forming an entity (or not), naming your business, choosing a space option, developing a business plan and budget, opening appropriate bank accounts, consulting with a CPA, creating (and implementing) a marketing plan, and establishing office systems.  If it sounds like your proposed “side practice” is getting more complicated by the minute, it is.  Don’t assume setting up a “side practice” is any less work than committing to the full-time private practice of law.

All Rights Reserved 2017 Beverly Michaelis
Eventbrite - Limiting Exposure to Conflicts

Limiting Exposure to Conflicts

Join me for a CLE on Wednesday, October 25, 2017 about limiting exposure to conflicts.  Learn the ethical principles behind conflict management, avoiding common conflict traps, and how to select and operate an effective conflict system. Topics include:

Laying the ethical foundation

  • Who is the client?
  • What is the client’s status: prospect, current client, or former client?
  • Why does it matter?

Choosing a reliable system

  • The In Re Knappenberger standard
  • DIY vs. stand-alone vs. practice management software
  • How to choose the best system for your firm

Understanding conflict tracking

  • When to run a conflict check
  • How to use your system effectively
  • Parties to include in your conflict system

Avoiding common conflict traps

  • Former client conflicts
  • Acting in dual roles
  • Doing business with clients
  • Representing multiple clients in the same matter
  • Firm transitions
  • Acting as a contract lawyer
  • Office sharing arrangements

Date/Time/Location

Wednesday, October 25, 2017 from 10:00 a.m. to 11:00 a.m. Pacific Time. This is a live, online webinar. Watch from your desktop computer or mobile device. Connect to audio via telephone or computer/device speakers.

Who Should Attend?

Lawyers, office administrators, or staff – anyone interested in learning more about proper conflict system management.

Group Discounts

Discounts available to firms who wish to register 5 or more attendees. Contact organizer to arrange a discount code before registering: beverly@oregonlawpracticemanagement.org.

Does the Program Include Written Materials?

Yes. Written materials will be distributed electronically to all registered attendees prior to the event.

Ask Questions/Participate in Live Polling

Questions are welcome during the live event. Attendees are also encouraged to participate in live, anonymous polling.

Registration Fee

$25 – Visit the Upcoming CLE page, click here, or choose the Register button below. Secure payment processing powered by Eventbrite. Visa, MasterCard, Discover, and American Express accepted. Program materials included in the registration price.

Eventbrite - Limiting Exposure to Conflicts

MCLE Credits
.50 ethics .50 practical skills pending.

Can’t Attend?

Video and audio recordings of Limiting Exposure to Conflicts will be available to download along with the program materials following the October 25 CLE. Price: $25. Contact me or visit my online CLE store after October 25.

All Rights Reserved [2017] Beverly Michaelis

Negative Online Reviews

We all know that negative online reviews can be hurtful and maddening.  Last month I highlighted suggestions from the July Oregon State Bar Bulletin article by Linn Davis, with a few additions of my own.  Because I know this topic strikes a nerve, I wanted to share some further advice from our friends at NW Sidebar.

  • A reasonable and measured response is key. Blasting people who give you a negative review is not a good business model. You can try contacting the review site and asking for the review’s removal if you can prove the review is false, defamatory or written by a competitor. This, however, may not be successful, especially if the review is anonymous. See Thomson v. Jane Doe, 189 Wn. App. 45, 356 P.3d 727 (2015) , when the court refused to force disclosure of an anonymous online reviewer’s identity.
  • You can respond directly to the review on the site. Be courteous and explain that due to your duty of confidentiality, you can’t address the facts of the complaint, but that you do not believe it presents a fair and accurate portrayal of the events. Make clear that you are always available to meet with former clients and address any concerns they may have.
  • If possible, try to contact the reviewer directly and seek to ameliorate the situation or explain to them further why the representation unfolded as it did. If this is successful, don’t hesitate to ask for an updated review.
  • Try to avoid further negative reviews by soliciting client feedback directly as the representation continues and in exit interviews. Try to give your clients every opportunity to air their grievances with you and your firm directly so they don’t have the need to vent in public.
  • Lastly, the best antidote to a negative review is positive reviews. Keep your profile updated and facilitate the opportunity for your other clients to post their own satisfied reviews.

via Responding to Negative Online Reviews — NWSidebar

As I’ve said before, I am not a fan of engaging with the reviewer/client online.  However, the idea of soliciting client feedback during and after the course of representation is stellar.  As Sandra Schilling notes, this is about giving your clients the opportunity to vent so they don’t feel the need to blast you online.  I would add: it may also be preemptive. While there will always be clients who are perpetually unhappy, most people are reasonable.  If you learn about a client’s dissatisfaction early, you can intervene and repair the relationship.  The unappealing alternative is to allow the client’s bad feelings to fester – never a good solution.

All Rights Reserved 2017 Beverly Michaelis