Lawyers cannot put their thumb on the scale when weighing meat
The rules of professional conduct, when billing by the hour, prevent a lawyer from billing two clients for the same minute. Thus, you cannot bill one client for travel time and another client for reviewing documents, etc., while en route on the plane. Or, you cannot bill one client for the time waiting in court until his/her case is called and bill another client for other work during that same time.
How about billing clients for time not spent at all doing their work? As a young lawyer, when advised by my mentor, to be liberal with my time sheets, I took this to mean "put my thumb on the scale" when weighing meat in the butcher store. The ABA Journal tells us about a lawyer who did something similar.
Strategic planning is key to success
Adam Smith echoes my philosophy -- and discusses the importance of the intake procedure. Collecting Your Fee from Intake to Invoice further echoes the importance of the intake process. I maintain that you can tell at the beginning, from the intake interview, whether you will get paid at the end!
Lawyers should go where the business is
It's time to stop focusing on real estate, construction, banks, mortgage companies and airlines, according to Larry Bodine. Go where the money is: energy, steel, industrial metals, coal companies and railroads. See the 10 Best Performing Industries on MarketWatch.com.
This reminds me of the book written by Harvey MacKay, Dig Your Well Before You're Thirsty or the phrase "... fish where the bass are..."In other words, provide services that your clients need ... If your skills are no longer in hot demand, modify your practice area to adapt your skills to the needs of the clients. If you're in the larger firms, and are practicing real estate law currently, you might be better advised to learn bankruptcy or workouts to adapt your current skills to the needs of the clients. If you're in a small firm or sole practice, this might be more difficult to accomplish with less personal economic impact, but still possible.
The key is to either provide services the market needs ... or to have the capital to sustain the wait until the market comes back to your skills.
Law Firm Fees & Compensation
Michael Brychel, Senior Legal Auditor at Stuart Maue, headquartered in
He says, "For those who accept the premise that “law firms ARE businesses – get over it” this book will be an effective jump start to incorporating that perspective into useful practice."
Legal fees - Value is in the eyes of the beholder
Price and value are clearly not the same when it comes to legal fees. While both are time sensitive (as of any given moment in time), the former generally is set by the seller/lawyer and the latter is generally perceived by the buyer/client. Price can be value, in my opinion, when the client is involved in the setting of the legal fee and price is determined by the value perceived by the client. Some folks call this "value billing."
Will lawyers adopt to social networking?
There’s LinkedIn, Facebook, MySpace, Plaxo Pulse, and .... other social networks.
In a recent article by Larry Bodine, he cited the following statistics: Less than 8% surveyed believe social networking is important to them; 91% said they spend less than 25% of their online time working with social networks. Still, these are rather large numbers to be devoting to a networking process that is relatively new ... As with other technologies, we will have to wait and see if this takes hold.
Law Technology Trends
Walter Mossberg, “personal technology” writer for the Wall Street Journal, highlighted a very interesting trend to a small group of consultants where I was a participant. He was looking at the industry from the 50,000 foot level when he said that it is the consumer that is driving change in technology. The winners in the race will be those who can develop new techniques to make the consumer’s life easier – without being a tech wizard.
Continue Reading...Lawyers core competency - Must we specialize or be incompetent?
In a recent Los Angeles Times article, the headline read “Double-O: Better for Obama than Oprah.” The writers of the article cite a study by a Fordham University political science professor. He concluded that her popularity went from 74% before the endorsement to 56% and is currently at 46%. He suggests that Oprah’s endorsement for Obama was far more costly to her than might have been imagined.
Continue Reading...Billable h ours on the way out?
Don't bill for time spent by first year associates, increase dramatically the time spent on educating young associates and bill only by fixed or flat fees ... these are three different approaches to providing more value to clients and greater certainty to the cost of legal services for clients that are highlighted in a current article in the ABA Journal.
Does any or all of these new approaches increase the cost of doing business? Possibly. Do they increase satisfaction of your clients. Definitely. Do they increase your revenue? Quite probably.
These approaches are worth considering and perhaps adopting for your practice.
Succession for lawyers
Selling Your Law Practice: The Profitable Exit Strategy, is the catalyst for a number of calls to me about succession planning for small law firms.
Cash flow of lawyers is impacted by insurance proposal
Mike McKee, a reporter for the San Francisco Recorder once again underscores the hostility that California lawyers have against the current malpractice insurance disclosure proposal.
Still, the question I asked earlier in this series has yet to be answered by the Board of Governors! Why is it that shareholders of law professional corporations do not have to disclose that they do not have malpractice insurance? Or, at least meaningful malpractice insurance? All they need to do is sign a piece of paper saying that they will be responsible for the first $50,000 of a malpractice judgment. There is no financial statement required, no verification of financial ability and no insurance policy required under the current rules; nor is there any such requirement under the new proposed rule!
And why is this fair in the minds of the Governors supporting this proposal?
Is the billable hour a trap? A contrarian perspective.
In Law Firm Fees & Compensation: A LawBiz® Special Report, I discuss several formats for billing legal services. Jeff Bleich, President of the State Bar of California, discusses one of these formats, the billable hour in his April column of the California Bar Journal. He raises the specter of the “billable hour trap.” He maintains that the profession must change its fee structure and move away from the current policy of billing by time. He reflects the thinking of many lawyers who are feeling the pressure of working long hours.
Because of his comments, I began to think about this subject in a way different than I have ever done in the past. I want to share some of my revelations as, perhaps, a catalyst for your further consideration on what clearly is a very important issue.
LawBiz® Tips
The April 8th edition of LawBiz® Tips is now “on the stands” for review.
Solo lawyers and malpractice insurance debate
Sole and small firm practitioners have more at stake than insurance in the current debate at the California Board of Governors over mandatory disclosure of malpractice insurance coverage, much more! Their very existence is threatened. Perhaps that is an overstatement. What is clear, though, is that the economic well-being of this group, and the very survival of many individuals in this group, is being threatened.
Continue Reading...What do successful law firms have in common with successful basketball teams?
The season is over for 2 elite basketball programs. But, for neither, was this a losing season. Both won more than 30 games this year, against some very good teams ... and all of the Final Four teams, for the first time in NCAA history, were ranked #1 in their respective regions.
Are there any lessons to be learned from this excitement for lawyers and law firms?
LawBiz® Tips now posted
The current edition of LawBiz® Tips is now posted
Law Firm Fees & Compensation
Our new book is now available. See the comments of Carolyn Elefant, Allison Shields and Bruce MacEwen.
Learn why legal fees and compensation are integral components of the same dynamic!
Selling a law practice in Ohio is now legal
The Ohio Bar adopted a new rule of professional conduct, Rule 1.17, that allows the sale of a law practice as of February 1, 2007.
Continue Reading...Sales attorneys in the offing
Where there's smoke, they say there is usually fire. When people begin to talk about "sales attorneys," attorneys whose function is to sell the services of the law firm rather than perform legal work, the closer to reality that position will become.
Continue Reading..."The road to success is always under construction."
I was recently reminded of Lily Tomlin's sentiment. One of the greatest attributes of the legal profession, aside from its being a loving, caring profession, is that we continue to learn new things every day! I suppose that's one reason to call it a "practice."
But, when we continue to learn, we also know that there is a lot still to learn. This tends to impact one's self-esteem. In talking with several psychologists and organizational development experts, poor self-esteem is one of the greatest challenges to lawyers.
Recognizing that this is a lifelong journey may take the pressure off of current feelings about one's skills and self-esteem. That, also, may make one more sensitive to clients' needs and less aggressive with opposing counsel. Civility (a major Bar initiative) comes with self-confidence, which also tends to reduce costs for clients.
Law firm profitability - Lessons from basketball
Yesterday, I attended the West Regional NCAA basketball game between UCLA and Texas A & M. I also watched the Stanford / Marquette game that preceded the West Regional UCLA game. Both games were about as rough and close as basketball games can be. Both games featured some of the best college athletes playing today. One lesson to be learned from these young athletes is that the game is not over until over ... UCLA, for example, had mental toughness to stay in the game despite playing one of their worst games of the year. As a biased UCLA fan, I do not believe their performance was influenced that much by their opposition, notwithstanding that their opposition was excellent.
For me, this is reminiscent of the discussion I had recently with a client who asked me to do a profitability analysis of her firm She and her partner believed that the expenses of their small firm were too high My review of the data indicated that there were areas where reductions or revised characterization would be relevant. For example, several capital expenditures could be removed from the expense side of the profit and loss statement and recast as assets; a management fee could be removed or recast as a draw by one of the partners because such a fee is inappropriate for a small firm. However, the real focus for this firm should be on increasing its revenue. That would have the most dramatic impact on the performance of the firm. Recasting the expenses would not change the cash flow of the firm, but would help generate the mental toughness confidence that they are not in terrible shape, that they could succeed, and provide the mental toughness to continue seeking the appropriate client base to generate increased revenue.
Looking at the relevant data helps remove the fear of failure, engender confidence that small changes in one's own behavior can have large impact on one's success, and bring the realization that success is just around the corner.
Marketing fee stability
On a listserv recently, a lawyer requested comments about his proposed letter to his clients. He wants to "shout from the highest roof" (from an old Doris Day film) to his clients that he plans to maintain his current fee structure, that he will NOT raise his fee rates. I responded as follows:
Continue Reading...ABA Tech Show
At its annual technology fest in Chicago, the American Bar Association's Law Practice Management Section once again displays its value to the legal profession ... and its skill in throwing a great party.
As I walked around the Hilton Hotel, the new site for the show, I met many folks that I have known for years and some new folks as well. It is in these walks around the Exhibit Hall and elsewhere at the Show that I learn the most.
Once again, though, I realize that it's the people you know that is the most important element to growing one's business ... Competence is presumed. But, when people like and trust you, they will help you grow, they will teach you valuable lessons about your business ... and they make it a joy to attend conferences such as this. And, if they happen to be customers/clients of you, they will be loyal to you, you will be able to count on their business for your firm's growth.
Will you work for free?
If you are salaried staff and not paid by the hour, and if the 29th day of February falls on a weekday, are you working that day for free?
Once every four years, we receive the opportunity to make a gift to our employers. Do you think they appreciate it? <g>
The Red Zone of Your Career
Karen Mathis, immediate past chair of the American Bar Association, focused her year on developing a new awareness for the legal profession. She said recently that 400,000 lawyers will retire in the next 10 years. That’s the entire current membership of the
Open Letter to the American Bar Association
Most lawyers work on Main Street, not Wall Street. Yet all lawyers are impacted by the American Bar Association’s social and political efforts. In my opinion, the single most important power given to the President of the United States is the appointment of Supreme Court justices. It is unfortunate that this process is so tainted today by political ideology and so very fortunate that the ABA is there as an independent third party to challenge the process. That may be its most important function.
However, as the Executive Director of the ABA, Henry F. White, Jr., at the ABA’s Solo Caucus in Los Angeles’ Mid-Year meeting, February 10th, said, “At the end of the day, it’s all about money, despite the goodness.” He, and his fellow panelists, M. Joe Crosthwait, Jr. (moderator), Karen J. Mathis (ABA immediate past president), and H. Thomas Wells, Jr. (ABA president-elect), were preaching to the choir.
Continue Reading...Challenges facing sole practitioners
In a recent poll, the following areas were said to be the greatest concern for sole and small firm practitioners:
- Income fluctuations
- Managing the practice
- Lack of help in the practice
- Isolation from other attorneys
- Inability to discuss ideas with colleagues
Continue Reading...
Are you still in love with your business?
I love Andy's question, "It's Valentine's Day, Are You Still in Love With Your Business" (aka Practice)?
He gives us 3 steps to follow if we love our practice ... and 3 steps, if your answer is "no," to fall back in love with your business.
Professionalism vs Competence
In a survey reported in the February 6th edition of USA Today, Money Section B, the question was asked: "As long as they are good at their jobs, should rude and unprofessional co-workers be tolerated?"
Respondents said "yes" (15%), "no" (84%) and "don't know" (1%). It is clear that people are tired of bombastic behavior, at least in the workplace. Can this be translated into a more collegial, and team-oriented work environment?
Patrick Lamb, a leading proponent of "value billing" has certainly committed himself to the concept of team effort. He opened a new practice with two other partners in January 2008. Collegiality, outstanding client service and billing for value delivered (not time spent) gets promoted one step at a time. Patrick has taken that first step in his new firm. Congratulations and best wishes for his continued success.
As more lawyers succeed in this business model, perhaps others will follow. Then, perhaps, will civility in the profession be achieved.
As a side note, I'm currently reading (actually, listening) the recently published book about Lincoln and his leadership skills. I'm struck by the number of lawyers who were the leaders of our country and the large percentage of our representatives in government (House of Representatives, Senate, and State legislatures) who were lawyers. At one time, the balance substantially exceeded 50%. Contrast that to today when only around 25%, if that, of these bodies are lawyers. Perhaps the lack of civility in our society in general and the legal profession in particular, is the reason for the lack of faith in lawyers. I don't know the reason or the answer to this dilemma. But, I do know that many lawyers are stressed, are "burned out" and are unhappy with their chosen profession.
Given this history, I am quite surprised and pleased that 3 of the viable, now 2, Democratic candidates for President are lawyers.
Civility has no chance to succeed!
Civility is the new mantra for bar associations across the country. In California, last year, the then president of the State Bar created a task force to study the issue and develop a set of guidelines.
But, the legal profession merely reflects society at large. I just came across a 2007 book titled The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn't written by Robert I. Sutton, a Stanford professor. Great title!
How about these statistics:
- The number of homicides in the workplace is up
- "Boss-icide" has doubled in 10 the last 10 years
- Workers murder 3 to 4 supervisors each month, double the number of 10 years ago
- "Going postal" is more than the post office violence
- "Desk rage" is a new term
- 27% of workers experienced on-the-job mistreatment, according to a 2000 study
- One in 6 report persistent psychological abuse
- 36% of employees reported persistent hostility from coworkers and supervisors, according to a 2002 US Department of Veterans Affairs study
- 91% of nurses experienced verbal abuse that left t hem feeling attacked, devalued or humiliated, according to a 2003 study.
If our society is facing these issues, how can we expect lawyers to be more "civil" than others?
Fraud by lawyers
Massachusetts followed similar actions by Connecticut and Rhode Island. Insurance carriers are now required to send a notice to consumers whenever $5,000 or more is sent to attorneys to settle clients' claims. The objective is to prevent fraud by lawyers; some lawyers resolve clients' claims without the consent of their clients or endorse/forge the settlement checks and deposit the funds into their own accounts.
The theory is that knowledge by clients will prevent fraud. I've never known knowledge of such settlements preventing thievery. But, then, I've also never known clients who walk away just because a lawyer has one sentence in a fee agreement that they have no malpractice insurance.
First, there is a very small percentage of "bad apples" in the legal profession. Second, remedies such as the "disclosure" requirement are band-aids on a scab. They are not truly remedial of the cause of the problems. While the rubric is "client protection," the real protection will come from better education of lawyers, including practice management education, providing affordable malpractice insurance, and then requiring every lawyer to have malpractice insurance -- real insurance, not self-insurance!
Facebook for Lawyers
In a recent post, Joshua Fruchter cited several statistics that I find quite interesting:
- There are more than 63 million active users on Facebook
- Since 2007, Facebook grows by more than 250,000 per year
- There's been an average 3% growth annually since 2007
- Active users double every 6 months
One challenge, though, is how many of these professional and social networking entities can one participate in ... Consider, for example, LinkedIn, supposedly a primary business networking entity. And what about YouTube? One could spend an entire life in this new, virtual world ... and I'm not sure that would produce the best results. So, how does one choose?
Crisis management, and then some!
According to one source, crisis management statistics include causes that are outside of those traditionally thought about by law firms. But, in addition to Katrina, broken pipes, etc. think about the following:
About 53% of marketing executives responding to a recent survey by BtoB and Eric Mower and Associates, said they have experienced a business crisis that resulted in negative news coverage, declining sales or reduced profitability. About the same number (57%) reported that their company does not have a crisis response plan currently in place.
Of the 43% of companies that have developed a plan, 10% worry about their ability to carry it out, and only one-half have trained spokespersons ready.
Some 23% of respondents who went through a crisis said it took three months to a year for their brand to fully recover, while 13.3% said recovery took more than two years and 17.7% said they have not yet recovered after two years.
Causes for these companies' crises vary. A majority of survey respondents (55.7%) said layoffs, shutdowns or business foreclosures created the crisis. Some 45.2% blamed operational or services failures, 33% cited legal or ethical problems and 32.2% pointed to a competitive attack, such as negative word-of-mouth or messaging by others who have a vested interest in damaging the company.
Collecting Your Fee -- Sue As Last Resort
In my book, Collecting Your Fee: Getting Paid from Intake to Invoice, I maintain that your intake procedure is the most important step in the collection process; that an appropriate conversation with your client about payment of fees in the beginning of your relationship will almost certainly assure payment; and that a business-like approach to the pricing of legal services and collection of legal fees will assure collection of most, if not all, your outstanding billings.
However, where there is delayed payment, be sure it is not because of a legitimate complaint against you or the service provided. Given that, if the client has the ability but not the commitment to pay, you may want to consider filing suit against the former client.
You should review certain considerations before doing so:
Continue Reading...Dress is part of the Courtroom drama
Gretchen Neels, an etiquette and dress standards specialist (and friend), discusses in today's Wall Street Journal how important dress is both in the courtroom drama as well as in gaining the respect of clients.
Casual day (turned into casual all the time by many) really doesn't have a place in the minds of many traditional law firms. And we're seeing a move back to traditional dressing standards. Only in certain areas of practice is it appropriate to dress "down." Otherwise, what Mom told us, "dress for success," really is true.
Public Defenders Are Taken to Task - For Shame!
In the op-ed of the Los Angeles Daily Journal, January 29, 2008, R. Konrad Moore suggests that public defenders who choose to strike betray the constitutional rights and liberty of their clients.
Shame on you for thinking that public defenders owe more to society than other lawyers, public officials or average citizen. Mr. Moore seems to believe that becoming a government employee, a public defender, means that one's human and normal rights are checked at the door.
Yes, becoming a lawyer does mean that there are certain rights and responsibilities one takes on that are not required by others. However, I do not hear Mr. Moore suggesting that all lawyers owe a pro bono obligation to society, or that government officials are not entitled to seek increased compensation or that Corporate America has a social responsibility to its customers and a responsibility to its shareholders by keeping CEO compensation within reasonable boundaries or, for that matter, that the State Bar owes a duty to the public to require that all attorneys have malpractice insurance. And, I don't hear that the State Bar owes a duty of any kind to its members, let alone obtaining a program of low cost malpractice insurance so that attorneys could then better protect the public they serve. That would be spreading responsibilities too far. He's concerned only about limiting the compensation of public defenders.
Why then showed public defenders not be entitled to come together as any other group of employees in order to seek better conditions of work. Does Mr. Moore mean that the government can give any compensation, no matter how low, to public defenders and that the public defenders should be grateful to receive it? What about district attorneys? If they were to organize, as some have, does Mr. Moore likewise believe that there is a violation of the constitutional rights of citizens?
His argument is disingenuous and should be placed in its proper context. More to the point, why does Mr. Moore not argue that it is the responsibility of government and its citizens to make sure that defendants receive the best possible representation by compensating public defenders fairly and in accordance with compensation generally received in private law firms?
The Revolution is Coming -- Notes from the Corporate Side
Mike Roster, former chair of ACC, and Susan Hackett, current General Counsel of ACC, presented their thoughts at a recent meeting of the Los Angeles Chapter of Legal Marketing Association.
My earlier post summarized their comments and included a few of my challenges to their concepts.
Susan has given permission to include her notes from their Power Point presentation.
The discussion has been joined. Please email your thoughts to me. We all will have a hand in the shaping of the future of our profession.
The Revolution is Coming - Where Will Your Firm Be When It Arrives?
This was the title of a program offered today by the Los Angeles chapter of Legal Marketing Association, with panelists Susan Hackett, General Counsel of the Association of Corporate Counsel, and Michael Roster, former chairman of ACC, General Counsel of several major corporations, and managing partner of a major law firm.
ACC, at its annual meeting in Seattle, WA in October 2008 intends to roll out an effort to relate law firm billings to client perceptions of value. To some degree, the panelists suggest that they seek to roll back the clock 40 years, when there was a “professionalism” about billing, a stronger and more effective bridge of communication between the client and its relationship partner at t he law firm and less emphasis on increased profits per partner. ACC is not quite sure how they intend to get there nor what the “it” will look like. But, the discussions with stakeholders has begun. And the ride promises to be interesting, to say the least.
Ed Poll interviewed
Ed Poll was interviewed by Rob La Gatta of LexBlog.
You must supervise your staff
As a follow up to our last posting, see item #2 therein, about the need to supervise both your staff and all attorneys in your firm. This is a requirement that is being studied with greater intensity by the Bar throughout the country.
In furtherance of this issue, you may want to see Carolyn Elefant's commentary about a contract attorney who is being prosecuted by the Illinois Bar for overcharging.
My question takes a slightly different perspective: Why wasn’t the large law firm charged with breach of rules of professional conduct that require adequate supervision? Why only the contract attorney who overbilled? If the contract lawyer overbilled, the "supervising" attorney in the larger law firm is equally responsible as though the contract lawyer were in the same law firm, on the same payroll. After all, it is this latter principle that allows the larger law firm to bill at their normal hourly rate rather than at its cost for engaging the contract lawyer.
The death of a satirist - and more
Bill Strauss, the creator of Capitol Steps died at the young age of 60 years. Not only was he and his troop fabulous satirists, Bill was also an author who focused on generational differences. I first was introduced to the Capitol Steps at an ABA gathering in Washington, D.C. I couldn't remember when I had laughed so hard.
Without knowing his connection to the Capitol Steps, I invited him to be a keynote speaker at my Managing Partners Roundtable’s Diversity Conference in 2006. During his presentation, he talked about his theory of “5 generations.” Paraphrasing him, he said that every 4 (5?) generations repeats itself. The first generation creates a new world, the 2nd generation sustains this new world, the 3rd generation enhances or expands or grows the world, the 4th generation destroys the world and the 5th generation starts with a new world again. While my paraphrase clearly does not do Bill Strauss’ comments justice, the concept of “history repeating itself” is important. Bill said that one can trace and support this theory merely by looking at the history of the world.
With his theory, he drew certain conclusions about the differences among today’s generations, what we call the generation gap. His comments resonated well with the managing partners, the partners and the younger associates in our audience of more than 200 lawyers.
With increasing longevity, and therefore more generations co-existing than ever before, it’s essential that we understand these issues if we’re to cooperate and continue to grow as a society. With his death, we have lost an important contributor to this conversation.
Getting Paid to Complete the Cycle
The business cycle of practicing law includes getting the client, doing the work and, finally, getting paid.
David Leffler, in GPSolo Magazine (Oct/Nov 2007) suggests that there are five stages to paying a lawyer’s bill:
1. Denial – Client says this couldn’t be my bill, the charges are too high.
2. Anger – Client says lawyers are way too expensive for what they achieve.
3. Bargaining – Client seeks to negotiate a reduced fee with the lawyer.
4. Depression – Client doesn’t contact you and is unavailble for your calls.
5. Acceptance – When Client sends you a check that clears the bank.
David talks about the importance of the beginning of the lawyer-client relationship. I agree. The intake process is what essentially sets the tone of the relationship. In my opinion, your success in the intake process at the beginning will determine your success in collecting your fee at the end.
For more about suggestions about lawyers' collections efforts, see my book.
Succession planning is essential to success
What do we mean by success?
In my mind, whether your law firm can survive the departure of the firm’s leader is a critical element of success. The “leader” may be the primary rainmaker, the managing partner or the sole practitioner who has built significant goodwill over his/her years of practice.
One study shows that “...only about one-half of public and private corporate boards have CEO-succession plans...” Even fewer law firms have succession plans.
Stephen Miles, managing partner of a leadership consulting practice, said “‘Succession planning is often done looking at the rear-view mirror ... when it should be done looking out the front windshield.’” (WSJ, page B1, November 26, 2007)
When writing Disaster Preparedness & Recovery Planning for Law Firms, the executive directors in our group realized that our focus was on business continuity, not just recovery. And continuity requires succession planning ... In one event, the succession will come naturally by aging; and in another event, the succession will come suddenly, without warning! Will you be prepared in either event to continue your law firm into the next generation of leadership?
How to Stay Away From The State Bar
In a recent interview, Scott Drexel, Chief Trial Counsel for The State Bar of California, made the following suggestions to stay away from trouble with The State Bar:
1. Know the rules of professional conduct of your State. For example, in California, whenever there is a complaint against an attorney, he/she has a duty to cooperate with the investigating body. To me, this sounds like a violation of one’s Fifth Amendment rights; but, failure to cooperate is analogous “obstruction of justice” and is a separate violation of the rules. Also, settling a malpractice action cannot contain a provision for withdrawal of a State Bar complaint without becoming a separate complaint by itself. I think many attorneys would fail the quiz if these questions were on it.
2. Supervise your staff. Failure to supervise your staff properly has become a major issue in California. Too often, staff is deemed to have “practiced law” by their actions – a clear violation of the rules.
3. Create a law practice management plan. More than 50% of all complaints against attorneys have a connection to the management of the office. Failure to pay attention to The Business of Law® will cause much grief for the lawyer.
4. Communicate! Failure to respond to clients is still the number one complaint against lawyers. A 1994 Oregon Bar study showed that confidence in one’s lawyer as evidenced by their responsiveness is more important than the results achieved. Sounds like a good bed-side manner covers many ills.
5. Don't delegate. Contrary to the rule of delegating authority to perform tasks, one cannot delegate responsibility for your office, including trust accounts. Embezzlement occurs all too often because the lawyer failed to retain control. Despite the criminal action of a staff person, it is the lawyer who will be disciplined by the Bar, it is the lawyer who must make restitution, and it is the lawyer whose reputation will be sullied. From my perspective, this is a very sad way to end one’s career; it can be an economically disastrous way to end one’s career as well.
These are 5 lessons that should be learned well by every lawyer, irrespective of one’s State.
Retirement: Is this the new four letter word?
According to a recent study by Altman Weil, Inc., the closer to retirement a lawyer gets, the more likely he/she is to oppose mandatory retirement ages. Interviews with a number of aging lawyers suggests that they don’t want to retire, but they do want to work only part-time and they no longer (if they ever did) want to be responsible for rainmaking.
Self interest abounds in State Bar action
The President said that “the State Bar shouldn't base policies upon what will or won't be popular ... Ultimately, our responsibility is to do the right thing." With this remark, the President of the State Bar of California justifies requiring 30,000 mostly small firm and sole practitioners to disclose to clients when they do not have malpractice insurance.
I find this remark of particular interest because it is usually said by one who wants to justify an act that is opposed by the vast majority of his very own organization. It is also offensive because it fails to address the very issue at hand. This statement is like Mom's or Dad's "...just because ..." response to a kid's inquiry as to why he should or shouldn't do something.
In this case, the statement is used to justify an action that will prejudice an isolated group of lawyers who practice in the small firm environment. They need assistance from the Bar ... and they don’t get it. Instead, they get slapped in the face. We might just as well place yellow arm bands around these folks and say they are "bad" people. There is no empirical evidence that this group of lawyers is subject to more malpractice claims than others. There is no empirical evidence yet set forth that suggests any reason to isolate this group of lawyers and identify or punish them in this fashion.
Yet, this very same organization has not, to date, honored its earlier (2005 Board of Governors Retreat) stated commitment to its members to provide them with help in their businesses (The Business of Law®) because it might antagonize a few legislators or other special interest groups or cost a few dollars or place additional demands on the staff. Where is the Board when they're needed?
This attitude explains why members of the legal community, generally, have lost confidence in its governing body. Why the Board of Governors would anticipate that lawyers in this State would support it in any future disagreement with the State Legislature or with the Governor is beyond understanding. One can “turn one’s cheek” only so many times before the resentment rises to the point of action.
The perception amongst small firm attorneys that the State Bar is the enemy and not the friend clearly gains traction with actions such as taken now by this Board. John Dutton of the Board of Governors perhaps said it best. “Dutton argued that some county bar associations, a few State Bar committees and most of the members of the Conference of Delegates of California Bar Associations have joined critics in opposing disclosure. ‘And here we are,’ he said, ‘saying, 'We're going to jam it down your throat. We don't care what you think.’”
Of course, the very Governors voting on this issue also fail to disclose any personal financial interest they may have in this issue, and several do. They also fail to address more important issues for disclosure if we were truly interested in client protection. And, most importantly, they fail to create an affordable insurance program that would allow economically marginal (but very good) lawyers to buy the very product the Board is promoting! (Dare we remember that the State Bar obtains several million dollars each year from the insurance program it promotes?)
Do you want to grow? Then "outsource!"
Q: Ed, can Outsourcing really make a firm more productive and profitable?
Selling your law practice with a covenant not to compete
Where courts have refused to uphold a covenant not to compete given by one lawyer to another in the sale of a law practice, one of the primary arguments against validating the covenant is that clients have a right to counsel of their own choosing. And, the argument continues, saying that a lawyer cannot practice law in a given area for a reasonable period of time restricts that right.
Social Capital - How to invest
“J. A. Barnes in the 1950s defined a social network as ‘an association of people drawn together by family, work or hobby.’ In the digital age, social networking websites amplify opportunities to associate and grow our social (personal and/or professional) capital.”
Continue Reading...Does disclosure affect strategy or competence?
Did you see the Tuesday edition of Wall Street Journal, Health section? David Armstrong discusses the business interests of doctors -- and their ethical responsibility to disclose their personal financial interests in any business that benefits from their prescribed medical treatment, whether that treatment be medicine, equipment or otherwise.
The bottom line is that it is the patient's responsibility to ask the doctor if he/she has any financial connection to the recommended treatment. The suggestion is that if the answer is "yes," the patient should get a second opinion. Not bad advice, but still a matter of personal trust and interaction between the doctor and the patient.
If the doctor has a financial interest in a treatment modality, this may influence the doctor's prescribed treatment. Note that there is no movement here to demand that doctors disclose whether they have malpractice insurance. Perhaps because the existence of insurance is not likely to influence the treatment modality to be prescribed.
Why is it that some lawyers misguidedly believe it is important for lawyers? It's existence or absence does not affect the legal strategy advised or vigor or competence of legal representation. As a side note, however, it is interesting to note that most of the lawyers advocating that other lawyers make disclosure DO have a personal financial stake in the outcome of this discussion. Most represent insurance carriers who whose premium income might increase. Yet, there is no disclosure required by them in their discussions of this topic. Interesting, eh?