Asked and Answered: Oregon eService Questions

Last Wednesday’s Oregon eService CLE generated a lively discussion and some interesting questions. Here are a few that might interest you:

What is my date of filing?

  • The court considers a document submitted for an electronic filing when the electronic filing system receives the document.
  • If the court accepts the document for filing, the date and time of filing entered in the register relate back to the date and time the electronic filing system received the document. When the court accepts the document, the electronic filing system will affix the date and time of submission on the document.

For example: Assume you have a statute of limitations that runs on Wednesday, June 6, 2018.  You eFile on Wednesday, June 6, 2018.  Your document is received by the system on Wednesday, June 6, 2018.  On Monday, June 11, 2018 the court clerk reviews your filing and ACCEPTS it.  Your filing date is June 6, 2018.  The delay in processing your filing is disregarded.  Thanks to relation back, your filing is timely under UTCR 21.080(3)-(4).

Where do I find the entry date in the Register of Actions?

When interpreting the Register of Actions, refer to UTCR 21.060(3):

The following apply whether or not a document is electronically filed with the court:

(a) For the purpose of ORS 7.020(1) and (2), the date that a document was filed displays in the date column of the register of actions for the case in the court’s electronic case management system.

(b) For the purpose of ORS 7.020(2), entry occurs on the date an event is created in the register of actions. (Emphasis supplied.)

The entry date is what matters.  Always refer to the CREATED DATE field.

How does the 3-day rule in ORCP 10 apply to eCourt cases?

Thanks to Donna Van Eaton, paralegal extraordinaire with the Law Offices of Melinda M. Brown, we know that nothing has changed.

The 3-day count should start on the date your document was eFiled or submitted, i.e., the date on your Certificate of Service.  Here is the background:

ORCP 10 was last updated by the Council on Court Procedures (CCP) in 2014. The first draft of the amended rule did not refer to electronic service (January 29, 2014).  Five versions later, it was explicitly added (September 6, 2014).  The drafts and final amended rule are available to view here.

The CCP staff comments accompanying this change point out the intention – which was to treat all forms of service equally and continue current practices:

The amendment of section C continues the allowance of three additional days in computing the time in which to respond following service of a document by mail or by facsimile service without the intention to change the previous practice under Rule 9 F (facsimile service) and this section.  The same three-day extension is now made applicable to documents served by e‐mail and by the newly available electronic service, providing equal treatment of these forms of service and specifying that treatment in one provision.  The description of the additional time in section C is amended to improve clarity without the intention to change the rule’s meaning or operation.  With the establishment of eCourt, the word “paper,” appearing twice in section C, is replaced with “document.”

The 3-day computation starts on the date of submission (date of filing), not the court clerk’s acceptance date.  Keep in mind the goal of the amendment: to equalize the methods of service, preserve operation of the rule, and maintain existing practices. Historically, the 3-day extension provided by ORCP 10 was meant to compensate for possible delays when serving by mail. Extending the same benefit to service by email, fax, or eService may not be necessary, but the rule provides for it explicitly.

Withdrawing as attorney of record in the eCourt era

If you withdraw or the party you represent is dismissed from an action, UTCR 21.100(2)(a) states you “must remove (your) name and service email address as a designated service contact for a party.”  Obtaining a court order permitting your withdrawal will not automatically remove you as a service contact in the Odyssey eFileandServe system.

If you are unsure how to remove yourself as a service contact, get in touch withTyler Technologies:

If you weren’t able to attend Oregon eService, a copy of the program is available to purchase here at a cost of $25 (same as the registration fee).  Your purchase includes a video recording, audio recording, program and supplemental materials, and answers to poll questions. Apply for MCLE credit of 1.25 PS/general MCLE credits by submitting the providing MCLE 6 form.

All Rights Reserved – Beverly Michaelis – 2018

With a special thank you Donna Van Eaton at the Law Offices of Melinda M. Brown.  As Stacy D. Fawver said, “right on.”

 

 

How to Treat Bad Clients

When you saw this post title, how did you react? Was your first thought: “Kick ’em to the curb” or “I wonder where this is going?” If it was the former, don’t feel bad – it’s my knee-jerk reaction too.

When we hear the words “bad client,” we instinctively cringe. It conjures up past experiences we would rather not relive. Frankly, nothing could be more unpleasant. So what should we do?

Remedies for bad clients

Want to weed out or eliminate bad clients? Nothing beats:

  1. Screening at intake;
  2. Controlling expectations; and
  3. Knowing when to say no.

Trouble is, most of us know these lessons.  So …

What if a bad client squeezes by?

If there is an irremediable breakdown in the lawyer-client relationship and withdrawal is viable, do it. At this stage, it isn’t going to get better. Yet, some lawyers refuse to do so.

Why would anyone hold on to a client who belittled and berated them? Denied that telephone conversations or email exchanges occurred? Refused to produce materials requested in discovery? Insisted the lawyer use unethical or illegal tactics? (All actual events that have happened to lawyers I know.)

Money is generally the explanation. The lawyer can’t afford to forego the fee (or jeopardize her job). There are other reasons too, like fear and intimidation.

I hope you never experience any of this. If you do, I hope you are strong enough to get out. If you want to talk it over with someone, consider calling one of the confidential attorney counselors at the Oregon Attorney Assistance Program (OAAP).

Is there another approach?

I was motivated to revisit this topic by blogger Celia Elwell. In a recent post, she took on lawyers and legal staff who retaliate against ill-tempered clients by putting the client’s work at the bottom of the stack. Since I’ve witnessed this too, I wanted to share this point made by Ms. Elwell:

Most people, as a rule, do not call an attorney’s office because they are having a good day. Before they became our clients, they realized they had a problem, tried to deal with it, were unsuccessful, stressed, and lost sleep. In short, we are not seeing them at their best.

Take good notes when your clients vent, rant, or repeat themselves. Because they are upset, they may be mistaken or confused. Let the client know that you are listening to them. Interrupt only when you need them to repeat something to make sure you get it right. Document the clients’ concerns, and tell your attorney they called and why.

While her remarks are directed toward staff, they are good reminders for us all.

If you didn’t spot it, notice I suggested above that withdrawal made sense if (a) it was viable and (b) there was an irremediable breakdown in the lawyer-client relationship.

What if you aren’t there yet? This is when Ms. Elwell’s advice comes in handy.

Do not under any circumstances intentionally retaliate by putting the client’s work at the bottom of the stack. At the least, it is unprofessional. It will also likely result in a bar complaint and/or legal malpractice claim. Instead, take the high ground:

  • Try to diagnose what went wrong. Is the client mad at you or someone else? Is the client mistaken or confused? Is this about money? How stressed is the client? Consider scheduling an in-person meeting to air out client concerns.
  • Go out of your way to be courteous and considerate. Instruct staff to do the same.
  • Do high quality work in a timely manner.

It’s easy to be resentful and decide that we’re going to give what we get. But if you go out of your way to appease the upset client, you remove all rational grounds for disputes, complaints, and claims. It’s better to remain professional, even if the “bad” client never appreciates it.

All Rights Reserved 2018 Beverly Michaelis

Postscript

For more tips on improving client relationships, check out this CLE:
7 Steps to Building Better Client Relationships.

 

Best Practices for Docketing, Conflicts, Disengagement, and File Retention

This is the last call for Best Practices for Docketing, Conflicts, Disengagement, and File Retention scheduled for April 11, 2018 from 10:00 a.m. to 11:00 a.m., PDT. This live, online webinar is the second in a two-part series on effective and ethical office systems.
Topics include:

Docketing

  • Learning the attributes of effective docketing systems
  • Appreciating the duty of due diligence
  • Docketing tips for eCourt practitioners: knowing where to go, forwarding notices, calculating deadlines, understanding the Register of Actions, enlisting proper email management

Conflicts

  • Recognizing ethical traps
  • Establishing system objectives: who to screen and when to screen
  • Comparing software applications
  • Streamlining conflict checking using forms, checklists, procedures, and letters
  • Recording conflict results

Disengagement and file retention

  • Meeting your ethical obligations under Oregon RPC 1.16
  • Simplifying disengagement with forms
  • Protecting clients and limiting liability exposure
  • Creating policies, procedures, and checklists
  • Accessing resources

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

REGISTER NOW
Best Practices for Docketing, Conflicts, Disengagement, and File Retention

 FAQs

Are group discounts available?
Discounts are available to firms who register 5 or more attendees. Contact me for a discount code before you register beverly@oregonlawpracticemanagement.org.

Do the Programs Include Written Materials? 
Yes. Written materials are distributed electronically to attendees.

Are questions welcome?
Absolutely. Questions may be submitted any time during the live event or afterward via email. Attendees are also encouraged to participate in live, anonymous polling.

Where are the programs being held?
This program will be a live, online webinar.

MCLE Credits
1.0 practical skills pending.

Can’t Attend?
Video and audio recordings of the April 11 CLE will be available to download along with the program materials shortly after the live program event.
Price: $25. Contact me or visit my online CLE store to place an order.

Engagement Letters Are Your Friend

Today, I’d like to share a recent post from our friends at NW Sidebar about the importance of engagement letters.

In Cox v. Alliant Insurance Services, Inc., 2017 WL 4640452 (E.D. Wash. Sept. 19, 2017) (unpublished), the plaintiffs sought to disqualify the opposing law firm based on a conflict of interest. One of the plaintiffs argued that he was a former client of the firm on a substantially related matter, necessitating the law firm’s withdrawal.

The plaintiff’s contact with the firm was as a representative for a corporation.  In concluding that no attorney-client relationship existed between the plaintiff and the law firm, the court relied on two key points:

  • The law firm and corporation executed a written engagement agreement that identified the corporation (and not the individual) as the client in the matter.
  • The plaintiff failed to introduce contradictory evidence, i.e., he could not point to any communication or action by the firm which expanded the attorney-client relationship to include him individually as a client.

Read the full post here.

Lessons Learned

As we discussed in the CLE, Limiting Exposure to Conflicts, identifying your client and clarifying the client’s status (prospect, current client, or former client) is paramount to conflict screening and limiting your potential liability. The single best tool at your disposal? Written engagement, disengagement, and nonengagement letters – all of which are available at the Professional Liability Fund website.

But the law firm in Cox didn’t stop at the engagement letter. Firm members were also consistent in their actions toward the corporate representative. There was no evidence of emails, correspondence, or other communication supporting that the corporate representative was an individual client of the firm.

The moral of the story? A solid engagement letter is a small investment to make in the realm of thwarting conflicts and liability. Even better: maintaining consistency in your corporate communications.

All Rights Reserved 2018 – Beverly Michaelis

 

 

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