Save the date for “Getting Paid” – October 2 CLE

Join me for a CLE on Wednesday, October 2, 2019 and learn how to implement best practices for getting paid.

Topics include:

  • Communicating with clients about fees
  • Maintaining client relationships to avoid disputes
  • Modernizing billing and payment practices
  • Creating fee agreements to meet the needs of today’s clients
  • Collecting accounts – practical and ethical considerations

Date/Time/Location

Wednesday, October 2, 2019 from 10:00 a.m. to 11:30 a.m. Pacific Time. This is a live, online webinar.

Who Should Attend?

Lawyers, office administrators, and staff – anyone interested in exploring how to improve billing and collections.

How to Register

Registration will open soon. Watch this blog for the announcement. Cost: $25. Secure payment processing powered by Eventbrite. Visa, MasterCard, Discover, and American Express accepted. Program materials included in the registration price.

All Rights Reserved [2019] Beverly Michaelis

Reasons You Should Visit WSBA’s new Unbundled Legal Services Webpage

Whether you belong to the WSBA or not, I recommend you follow NW Sidebar – one of the best legal blogs out there. 

Here is a reblog of their recent post on unbundling.  For an Oregon perspective, see The Ethics of Unbundling and Unbundling Legal Services – The Latest Twist.

Here is the NW Sidebar post:

WSBA has a new Web page about unbundled legal services, and we have five great reasons why you should check it out.

http://nwsidebar.wsba.org/2015/10/30/friday-5-reasons-you-should-visit-wsbas-new-unbundled-legal-services-webpage/

The Nontraditional Law Practice

A nontraditional law practice can be anything a lawyer wants it to be:

  • Hybrid or alternative fee arrangements;
  • Unbundling;
  • Virtual law practice;
  • Home-based practice;
  • All the above; or
  • Something else entirely

Hybrid or Alternative Fee Agreements (AFAs)

As more clients push back against the hourly rate model, lawyers are looking for unconventional ways to price legal services.  One of the most popular?  The hybrid or alternative fee agreement (AFA).

Before you enthusiastically embrace this option, read this post and make sure your AFA satisfies the 5 “C’s” test:

  • Clarity
  • Completeness
  • Compliant
  • Common sense
  • Can’t be excessive

Hybrid or alternative fee agreements are often combined with other elements of a nontraditional practice.  Used correctly, they can be a huge asset.

Unbundling: Have it Your Way

With unbundling, clients pick and choose discrete services from a menu of available choices:

Providing limited legal services is not a new concept. Transactional lawyers have long served in the role of document reviewer or preparer. So how is unbundling different? It takes the idea one step further by employing a team approach in which the lawyer and client decide who will do what based on the legal services required by the client’s case. The client takes a much more active role in the matter and often assumes responsibility for pro se court filings and appearances.

Keep in mind that unbundling has its risks: Unbundling in the 21st Century: How to Reduce Malpractice Exposure While Meeting Client Needs and its ethical limitations.  See Unbundling Legal Services: Limiting the Scope of Representation and The Ethics of Unbundling:  How to Avoid the Land Mines of “Discrete Task Representation.”

Virtual Law Practice or Home Practice?

A virtual law practice or virtual law office (VLO) is a term of art referring to online delivery of legal services through a secure client portal.  If you are interested in creating a VLO, Stephanie Kimbro’s book Virtual Law Practice: How to Deliver Legal Services Online is a must.  [Available on the ABA Web store here. If you are not an ABA member, save money at checkout by using the Professional Liability Fund’s (PLF’s) discount code OSBPLF.]  Also see this post about click wrap or click through fee agreements.

VLOs aside, most lawyers who express an interest in practicing virtually mean they want to work from home – due to economic necessity, personal choice, or both.  In next week’s post, I’ll discuss the nine steps to establishing a successful home-based practice.

[All Rights Reserved 2014 Beverly Michaelis]

 

Unbundling Legal Services The Latest Twist

In recent years I have blogged about the ethical dilemmas and potential malpractice exposure for lawyers who choose to unbundle legal services. As interested readers know, some states have “bona fide office rules” which prohibit or greatly limit operation of a virtual law practice.  While unbundling and virtual practice are not the same, they are connected and frequently co-exist.

This leads me to a significant change that occurred this summer when the Oregon State Bar overhauled its lawyer referral policies.

Prior to July 1, 2012, the OSB LRS policy was clear:  Absent a physical office, lawyers practicing “virtually” were not eligible to receive referrals. The inability of virtual practitioners participate in the LRS referral system stemmed from both practice and policy – LRS clients were told to expect an “in-office” consultation; LRS Policy E(3) provided:

“No duplicate registrations shall be made outside of the city where the attorney maintains his or her practice unless: a) the attorney maintains a second physical location where attorney-client meetings may take place; or b) the attorney’s office is located within two (2) miles of the border between two locations.”

In other words, Oregon had a “bona fide office rule” – at least in the sense that virtual practitioners could not use the OSB LRS as a source for clients.

Three months ago, this all changed.

When the bar revamped the Lawyer Referral Service, it eliminated the physical location requirement.  In fact, the bar now permits statewide and territorial registration regardless of the lawyer’s physical office location.  Additionally, lawyers have tremendous flexibility in controlling exactly where and how they receive referrals:

  • Lawyers who register statewide can opt out of “entire territories;”
  • Lawyers who register for specific territories can opt out of particular counties, cities, or towns “within the territories” for which they are registered;
  • Lawyers can limit territories for each area of law (practice bankruptcy statewide, but limit criminal law referrals to a specific location)

Quite a development!  Along with Washington’s Limited Practice Rule for Limited License Legal Technicians (LLLTs) effective September 1, 2012, I’d say we’re in for some interesting times ahead.

Copyright 2012 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