Gifts Aplenty

Here in Oregon, new lawyers are beginning their professional life working with their new mentors according to the desired goals of Oregon’s New Lawyer Mentor Program. I have seen many of these new lawyers who are seeking help with launching their own law practice. Likely this is a situation being repeated in many states as more law school graduates take and pass their state but don’t find a position with a law firm or government agency or in-house counsel.

My advice to these new lawyers  is to get more mentors to work with. There is no “One-Size-Fits-All” mentor. But there are talented lawyers who are experts at closing statements, drafting clear contracts and compelling motions. Others have mastered the fine art of working the room at a networking event or meeting with a prospective client. Still others are excellent at numbers and managing law firm financials so that clients are served at the most reasonable rate at a reasonable profit to the firm.

Where to find these potential mentors? Begin asking other lawyers and judges and judicial clerks to name the five best family law attorneys or civil litigators or criminal defense lawyers or estate planning attorneys. Watch these recommended lawyers in court. Then begin deciding who you think you’d like to learn from. You will be surprised how often these lawyers will be willing to give you tips. I haven’t heard of any of them turn down meeting with a new lawyer. Part of being good at your game is being dedicated to the profession. Realizing that, it is easy to see that you are just as important to these lawyers as they are to you.  Consider them your team of mentors and begin getting gifts aplenty.

Battling Dragons as You Start Your Solo Practice

I see more lawyers these days who are launching their solo practice. Some line up office-sharing arrangements while others decide to go slow by initially working from home. An article I wrote for the Oregon Bar Bulletin, “Home Alone: Where to Hang Your Shingle” may give some ideas for lawyers thinking about this option.

An over-riding concern of lawyers starting up their solo practice is making sure that they don’t spend too much money all at once. For some, starting up on the proverbial shoestring seems to be the best they can do given the circumstances. Almost two years later, I still find my article “Law Office Start-Up: Law Office on a Shoestring” can help some lawyers think through their early budget. No matter how small, a budget is essential.

Starting up a law practice as a solo is starting up your professional life. Do it with at much thoughtful investigation as you can. Make a business plan and put it in writing. I remember the following adage: “Those who fail to plan, plan to fail” being drilled into my head early in the business world. It made me a planner! Sucessful ventures are usually accompanied by well-thought-out plans.

Not all of us are entrepreneurial. Not all successful solo lawyers are either. It is natural to feel nervous and even fearful starting up a business, especially a law practice. Some starting up now will be successful and some will hang it up before the year is up. The important thing is not to become paralyzed by fear wondering which will be your destiny. It’s not knowable today. Today, the task before is to take the first step. Summoning courage that carried you to this point, enables you to move forward or as Goethe urged, “to begin it.”

“Each indecision brings its own delays and days are lost lamenting over lost days…What you can do or think you can do, begin it. For boldness has Magic, Power, and Genius in it.” – Johann Wolfgang von Goethe

Lawyers Leaving Firms – Happy or Otherwise

Lawyers leaving their firms are on my mind today. Seems like stressful conditions financially are big contributor. There is more movement of lawyers from firm to firm. This raises issues of ethics and professionalism.

1. The Client is not property. The client gets to decide whether to leave the firm following the lawyer who has been doing the work or to leave the firm for a different firm or to stay. The implications of this are sometimes bitter: you have to let the client know that the lawyer who has been doing the work and being in contact with the client is leaving. Here in Oregon, following the ABA Model Rules, see ORPC Rule 1.4 Communication. Click here for a PDF of them which you might want to print them out to keep in a folder or save it on your computer for future frequent reference. It certainly is reasonable to keep your client informed about the status of his or her matter: “your attorney is leaving our firm at the end of the month.” Is the lawyer leaving to move to another state? Is the lawyer leaving to take a position practicing in a different area of law and will be unable to do this type of law? Is the lawyer leaving anyone behind at the firm who could competently continue to work on the client’s behalf? This seems eminently important information to be shared with a client “to permit the client to make informed decisions regarding the representation.”

2. All fees are subject to refund if the work is not performed. Avoid calling fees earned upon receipt “nonrefundable.” This designation may be misleading, if not false, a violation of ORPC 8.4 (a)(3), prohibiting conduct that involves “dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s fitness to practice law.” Wow. This flat fee earned upon receipt becomes a problem when the client chooses to leave with the attorney or to go to another firm. If the firm holds onto that fee, and has done little or no work, ORPC Rule 1.5 Fees prohibits doing so: “[a] lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee or clearly excessive amount for expenses.” How do you know it’s excessive? “A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee.” ORPC 1.5(b) goes on to innumerate eight factors to be considered as guides to determining the reasonableness. I don’t think you really need to read those factors to realize that unreasonableness of a flat fee earned upon receipt held out as “nonrefundable” to a client who want to leave with the attorney or go to another firm. This isn’t the time to try to assess fees for setting up a manila folder with a label and calling it legal work rendered. Sorry. Don’t keep money you haven’t earned.

3. Parting is not sweet sorrow. Giving notice to clients that the lawyer is leaving seems to be a big source of angst in many situations for the departing attorney and the firm. This is especially so when the separation generates hard feelings on either or both sides of the relationship. Our deputy general counsel for the Oregon State Bar, Helen Hierschbiel wrote “On the Move: Ethical duties when switching law firms” in the May 2007 issue of the Oregon State Bar Bulletin.

In a perfect world, one would do as Ms. Hierschbiel advises: “[t]he preferred method for providing notice to clients of a lawyer’s departure is by a joint letter from the managing partner and the departing lawyer to those client with whom the departing lawyer has had principal responsibility or significant contacts. The letter should provide information about the departing lawyer’s plans and indicate whether the firm is capable of and interested in continuing the representation. The letter must inform the clients that they may choose to keep their work with the firm or engage the departing lawyer. The letter should also inform clients, if they choose the latter option, what they need to do to terminate their relationship with the firm, including paying any outstanding fees or costs and how to get a copy of the file. This letter should be sent well enough in advance of the depature to give clients time to make their choices and lawyers time to take steps to effect any transfers of cases.”

However, relationships being what they are – between complicated humans who here happen to both be lawyers, a situation can develop where tempers are stoked and emotions are heated. In that event, Ms. Hierschbiel points out that “an unfriendly separation may make these best practices impossible. In such cases, separate letters may be sent. ABA Formal Op No 99-414 recommends that a letter from the departing lawyer should: 1) not urge the client to sever its relationship with the firm, but may indicate the lawyer’s willingness and ability to continue responsibility for matters upon which she currently is working; 2) make clear that the client has the ultimate right to decide who will finish the case and 3) not disparage the lawyer’s former firm. In addition, so long as the letter is sent only to those clients with whom the lawyer has a present professional relationship, the lawyer does not violate RPC 7.3(a). See OSB Formal Op No 2005-70.

“Upon separation, client files and property must be handled in accordance with the client’s direction. ABA Formal Op No 99-414; Oregon RPC 1.15(e) and 1.16(d). Generally, this means that if the client decides to go with the departing lawyer, the firm should surrender the client file [See OSB FOrmal Op No 2005-125 for discussion of what constitutes the "client file."] to the departing lawyer and transfer any unearned advance deposits to the departing lawyer’s new trust account. Where a case is being handled on a contingent fee basis, fees will have to be apportioned. The decision on how fees will be split does not need to comply with requirements of RPC 1.5(e).”

4. A lawyer may solicit his/her former clients. “Once the lawyer is established in her new practice she may solicit the clients that she represented at the former firm. See, e.g., Oregon RPC 7.2(a)(2) (allowing a lawyer to solicit personally former clients); and Oregon RPC 7.2(c) (requirement that written solicitation of a person known to be in need of legal services in a particular matter be labeled as an “advertisement” does not apply to persons specificied in 7.2(a)).” I glad that Ms. Hieschbiel included this point in her article. If both the departing lawyer and the firm can keep this in mind, contacting the clients will be viewed in the correct perspective and it will be easier to do what is right by the client.

Hopefully, if you have read this post, you can share it with either someone who is leaving their firm or someone who is being left. I hope you can take a few minutes to read–or re-read– the article from Helen Hierschbiel linked above. Most of all, I hope that both parties can get through this transition ethically and professionally so they can get back to the business of practicing law.

Attorney at Law not Dabbler at Law

There are many lawyers starting up their law practice these days. Some have become unemployed by larger firms downsizing as an economic survival tactic while others are newer lawyers who have decided to hedge their bet on getting an associate position. Whatever the push for opening up one’s own law practice, the attorney should take care to devote him- or her-self wholeheartedly to the clients who come seeking legal help. No dabbler’s in the law! You’d be horrified if a doctor set about to see a patient with a dabbler-in-medicine attitude. It is just as serious. What is dabbling? Though not a term of art, we all would agree that to dabble is to engage in something without the serious study and practice required of competent mastery.

Oregon Rule of Professional Conduct, Rule 1.1 Competence, based on the ABA Model Rules, states: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Four Quadrants of Competence: Unconscious Incompetence is a dangerous place for dabblers
You may have heard of the Four Quadrants of Competence: Unconscious Incompetence, Conscious Incompetence, Conscious Competence, and Unconscious Competence. Passing the State Bar Exam indicates you have minimum competence. The Bar Exam can’t test all areas of law practice or assess how well a candidate can deal with a specific issue facing a client. Herein lays the danger: you may not know what you do not know. This is the quadrant known as Unconscious Incompetence. Something you can’t forget if you are working by yourself without supervision by a more experienced lawyer.

Cure for Dabbling
If you have a mentor helping you, call. If not, you may want to contact the Oregon State Bar Lawyer to Lawyer Program which allows you to check in with a more experienced lawyer. You can reach the Lawyer to Lawyer Program by calling the Bar at 503-431-6408. If you want to help lawyers by participating in the rewarding program, download an application here. The Lawyer to Lawyer Program is especially helpful as more experienced lawyers find themselves feeling the need to practice out of their practice area in order to make overhead and cost of living expenses.

It takes time to move from Unconscious Incompetence to Conscious Incompetence – where you are aware that you don’t know something and seek advice. It takes years of practice, getting advice and guidance from senior attorneys, attending substantive area CLEs and studying to develop the mastery of a practice area with Conscious Competence where you are aware that you know it and are tuned into the process of doing the details with competence.

As you may recall, the fourth Quadrant is Unconscious Competence, where you just act with competence without being consciously aware of the many steps. You may see unconsciously competent attorneys seemingly engaging effortlessly in cross-examination of a witness. They are not just a natural giant in the courtroom; they have honed their skills over decades of hard work. Many of these members of the Bar are willing to serve as mentors. Ask around for who are the giants in a practice area; call on them for some mentoring. They can help you prevent dabbling in the law.

ABA Resources for a Prosperous New Year

I am a big fan of the resources that the ABA provides. I joined while in law school and am pleased to see that law students can still join for $25 and enjoy additional section membership free for 21 different sections, including the Law Practice Management Section which certainly helps me to help Oregon lawyers with marketing, managment, technology, and finance questions. Law students can join other sections very affordable at rates from $3 to $20. It is a great way to explore professional support opportunities in substantive areas of the law. If you are a law student who is interested in joining the ABA and exploring membership in various sections, click here.

What may not be widely known is that the ABA offers free membership to lawyers in their first year of original admission to the bar. What a boost to start your professional life. If you are in your first year of admission to the bar, click here.

At this time of year, lawyers are gearing up to pay their mandatory PLF assessment and Oregon State Bar dues. As an aside, please remember that you can pay your Oregon State Bar dues by credit or debit card online. Do not get confused and think this applies to the PLF: you cannot pay your PLF assessment by credit card or debit card or online. Get your PLF payment into the mail so that it is received by the due date.

Today it may not be difficult to join the ABA on top of these expenses. In fact, it could be free!
Today I received four ABA Membership Gift Cards that will give current non-members a complimentary six-month membership in the ABA through August 31, 2010. I only have four complimentary memberships to give away and I have to give them away by January 31, 2010. First four Oregon attorneys to contact me get one of these ABA Membership Gift Cards. Happy New Year.

Remembering the first year of law practice– a call to mentor our new lawyers.

When I was in my last year of McGeorge Law School in Sacramento, California, I decided to start my own law practice. Along with my law books, I toted Jay Foonberg’s “How to Start & Build a Law Practice,” getting myself ready to run my own show. Jay was my mentor. Then I moved to Oregon. Took and passed the bar and opened up my solo practice in Portland, Oregon. Luckily, I rented office space from a great group of attorneys who owned their building and were willing to rent out the small office at the top of the stairs. Thanks, Bob Demary, Mike Sandoval, Susan Teller, and Carol Westendorf! You each supplied a bit of mentoring on the fly and devoted time to just talk about how it was going or wasn’t going. Shortly after moving into my office, I joined the Multnomah Bar Association. Through the MBA’s formal mentor-mentee program, I got my mentor choice in elder law, Cynthia Barrett who let me come into her elder law office and see how to best handle everything from client intake to document signing. I remember Susan and Carol both encouraged me to keep a journal of my first year – that it was an important one. I was too busy to keep a journal, but I kept good memories. That first year went fast. Though I was a solo, I wasn’t alone.

Last night I got to do my second of two mini-classes for the Lewis & Clark School of Law Graduate Fellows Program for the 2009 graduates. Wonderful young attorneys eager to start their careers. Eager to learn last week about calendaring, docketing, and file tickling and last night, avoiding conflicts of interests and ethical pitfalls. The first year is a foundational year. Many of the faces were young and I expect they will still be practicing law in 30 and 40 years. In 30 to 40 years, I’ll be looking among their midsts for a good elder law attorney no doubt!

Next Wednesday, Thursday, and Friday the PLF does its annual “Learning the Ropes” program for newly admitted attorneys and others entering private practice. There will be young lawyers who hail from Lewis & Clark, Willamette, and University of Oregon, and likely others like me who came from law schools elsewhere. What is their first year as a lawyer going to be like? Many of them will be wondering that same question. I don’t know how many of them have landed jobs already.

I suspect this year will be lean for law jobs. It may not be an exaggeration that the majority of newly admitted Oregon lawyers likely have not yet landed jobs. Some may decide to hang their own shingle as a solo or gather together a few fellow law school graduates to start their own firm. How are they going to get mentored?

I put out a call to each of you to remember your first year as a lawyer. If you’re an alumni of one our law schools, Lewis & Clark, U of O, or Willamette, give your alumni office a call and reach out to a recent grad. If you come across a new lawyer, offer to get together for a cup of coffee to find out how it’s going or not going. A year goes fast.

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