Here are some signs of impairment that can help alert you that someone you know may be at risk.

• Not returning phone calls to clients and opposing counsel.
• Not available when clients or opposing counsel attempt to reach lawyer at the office.
• The voicemail has a message that says it is full.
• The lawyer doesn’t follow through in delivering work product, answers, or return calls as promised.
• Contact with the lawyer leaves impression of distractibility, difficulty tracking conversation, or other indications of cognitive difficulty such as slurred or halting speech.
• Lawyer may be abusing alcohol or drugs and now exhibits disheveled appearance or poor personal hygiene, alcohol on breath or exuded from pores.
• Lawyer’s behavior has changed dramatically. Edginess, agitation, hair-trigger angry outbursts are often dismissed as “just having a bad time lately.”
• The lawyer seems to disappear for periods of time that is unexplained.
• The lawyer has missed deadlines and court appearances.
• The lawyer’s personal finances are in bad shape: loans and credit cards and other accounts in collections and is dodging evictions.
• The lawyer, if working for a firm, is in trouble for chronic absenteeism or “flakiness” or has recently been fired or subject to an abrupt “mutual parting of the ways.”
• The lawyer has recently moved to an executive office suite or virtual office but is never there when you check with the receptionist.
• There may be multiple “attempted delivery” tags taped to the door or a pile of mail can be seen through the mail slot in the door.
• The lawyer doesn’t come to the door though you can hear sounds of someone in the office.
• The lawyer begins to vanish or self isolate a few months before he or she finally commits suicide.
Resources:
National Suicide Prevention Lifeline 1-800-273-TALK (8255)
ABA Commission of Lawyers Assistance Programs (CoLAP)
Directory of State Lawyer Assistance Programs
For further information, I highly recommend you download and listen to the following provided as a free service to ABA members. What Lawyers Need to Know About Suicide During a Recession: Prevention, Identity and Law Firm Responsibility (Free MP3 Audio Download)Co-sponsored by the ABA Commission of Lawyer Assistance Programs.

Let me say that “Earned on Receipt” fees have been troubling legal fees because many lawyers want to designate them as “Nonrefundable.” If you didn’t do the work bargained for, then to hang onto the fee would be collecting a ‘clearly excessive fee,” putting you in violation of Rule 1.5. Now the rule has been amended and if you charge earned on receipt fees you will want to review this amendment so that you can comply:
Rule 1.5 Fees

“…(c) A lawyer shall not enter into an arrangement for, charge or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of spousal or child support or a property settlement;
(2) a contingent fee for representing a defendant in a criminal case;
(3) a fee denominated as “earned on receipt,” “nonrefundable” or in similar terms unless it is pursuant to a written agreement signed by the client which explains that:
(i) the funds will not be deposited into the lawyer trust account, and
(ii) the client may discharge the lawyer at any time and in that event may be entitled to a refund of all or part of the fee if the services for which the fee was paid are not completed.”

Make certain that you following the guidelines and have a written agreement signed by your client that properly explains this type of fee arrangement. Be prudent: use the actual language of the rule in your written agreement.

Rule 1.15-1 Safekeeping Property
“…(c) A lawyer shall deposit into a lawyer trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred, unless the fee is denominated as “earned on receipt,” “nonrefundable” or similar terms and complies with Rule 1.5(c) (3).

Make certain that you put fees that are designated “earned on receipt,” or “nonrefundanble” or other similar terms into your general account – not into your trust account.

Rule 3.3 Candor Toward the Tribunal
“(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including if [necessary] permitted, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false;
(4) conceal or fail to disclose to a tribunal that which the lawyer is required by law to reveal; or
(5) engage in other illegal conduct or conduct contrary to these Rules.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if [ necessary ] permitted, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, [unless compliance ] but in no event require[s] disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. “

Be careful when reading the Rules. When in doubt, be sure to call the Oregon State Bar General Counsel, Helen Hierschbiel for help with interpreting the application of our Rules to your situation and for any ethics advice at extension # 361 at the OSB (503) 620-0222 or toll free in Oregon at 1-(800)-452-8260. If you can’t reach Helen, you can call Chris Mullmann, Assistant General General Counsel and Client Assistance Officer Manager at extension # 392.

Conventional wisdom is it takes three years to successfully launch a new business. Three years can be a scary long time when the clients aren’t coming to you fast enough. How can you stay the course?

Consider doing some contract lawyering or contract paralegal work in addition to working on your own client matters. The PLF has some helpful materials under “Contract Lawyering” in their Practice Aids and Forms category online at www.osbplf.org and there is a helpful CLE titled “Practical Contract Lawyering” that gives you a total of 4.0 MCLE credits – .75 general, 2.5 general or practical skills, and .75 ethics. Helpful, free… what could be better than this? Call the PLF and ask to speak to one of us practice management advisors! 503-639-6911 or toll free in Oregon at 1-800-452-1639 and ask for me, Dee, Beverly. We’re here to help you stay the course.

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

First things first: find someone, perferably another attorney you trust, to close your practice in the unfortunate event of your incapacity or impairment, disability or death. The business of law is like no other. Another attorney is most apt to understand the various issues of the attorney-client relationship and ethical duties involved.

1. Have a signed written agreement. This agreement should include the following provisions to authorize your Assisting Attorney to:
a.) contact your clients to get instructions on transferring their files to other attorneys;
b.) contact the court and opposing counsel for extentions of time on litigation matters;
c.) contact all relevant people with notice that your law practice is being closed;
d.) arrange for someone to become an Authorized Signer on your lawyer trust account, preferably someone other than your Assisting Attorney to provide checks and balances and check with your bank that your special power of attorney form will be acceptable;
e.) wind down your office financial affairs, collect fees earned and pay expenses owed;
f.) provide your client with a final accounting and statement of money held in your lawyer’s trust account, payments made, and amount to be refunded or transferred to their new attorney’s lawyer trust account; and
g.) liquidate or sell your practice in accordance with your wishes.

To help you with creating an agreement and other forms and letters, the Professional Liability Fund provides a helpful publication, “Planning Ahead: A Guide to Protecting Your Clients’ Interests in the Event of Your Disability or Death” one free to any Oregon lawyer who requests it. Out-of-state lawyers may purchase a copy at $15 per handbook. (503) 639-6911. The useful handbook contains sample forms including this agreement to assist in closing a law practice, a power of attorney that will give specific authority for the limited purpose of handling the lawyer trust account and bank accounts, a form for a specimen signature of attorney-in-fact, and letter of understanding to give a different person the direction to hold the power of attorney until conditions of the lawyer’s impairment require delivering it to person named as the attorney-in-fact. The forms in this publication can be downloaded from the PLF website www.osbplf.org under Loss Prevention, Practice Aids & Forms in the Closing Your Law Office category.

I want to underscore the obvious: you are careful to put money belonging to your client into your lawyer trust account, fulfilling your ethical and fiduciary duty to your client. Therein lies the rub if you are a sole practitioner and the only signer on the lawyer trust account.

How will your client be refunded money held in your trust account in order to go to another lawyer to finish the work? If you become incapacitated, likely there will need to be a court protective proceeding (conservatorship) to appoint someone to have authority to sign a check to refund the client’s money. If the lawyer is dead, likely there will need to be a court probate proceeding to appoint a personal representative to have authority to sign a check to refund the client’s money.

Stop for a moment and imagine what is the client’s reaction to this news. Clients usually go to lawyers in great distress with big problems. Finding out that the retainer that was so hard to come up with is now frozen in a deceased lawyer’s trust account makes a client very distressed and faced with a new big problem. Compound this problem of no access to the lawyer trust account with poorly kept trust account records or excellent trust account records and no means to access them on a password protected computer, and you will see that there is a critical need to plan ahead.

A lawyer’s duty of competent representation includes making advanced arrangements to safeguard the clients’ interests in the unfortunate event of the lawyer’s disability, impairment, incapacity or death. See the ABA Formal Opinion 92-369. In Oregon, the Oregon State Bar Formal Ethic’s Opinion 2005-129 points to the need to plan ahead to protect one’s clients.

Please plan ahead today.

I spoke to one lawyer who shared that his elderly client would listen thoughtfully, stroking his chin and say, “hmmm, that’s a good point.” The gentleman turned out to have dementia and didn’t understand what the lawyer was talking about but wanted to appear to understand to be polite. Hopefully, your client does not suffer from dementia and will understand if you explain things simply and slowly. Here are some tips for managing your client’s expections.

Start with clarity up front. Discuss key things at the initial client meeting:
1. the client’s objective in getting a lawyer for the situation;
2. the legal process you will need to go through;
3. the range of possible outcomes with any risks affecting success;
4. the information that still needs to be gathered;
5. the method of charging and billing for your services; and
6. your realistic estimate of how long the process and how much the legal fees and costs based upon the present facts as you understand them.

Clarity up front. Use a written fee agreement that includes the scope of representation signed by you and your client.
Your client will always be in favor of being well informed. Many lawyers think that their client does not want to have a multi-page written fee agreement that includes the scope of representation, the procedure and frequency of communication, along with the procedure and frequency of billing statements and payment.

Communication goes both ways. Be sure to include the responsibilities of the client to inform the lawyer promptly about new facts, new contact information, or upcoming periods of unavailability. Otherwise you may find your client’s phone has been changed with no new number or discover your client’s plan to visit family in another country is an unwelcome 11th hour discovery as you prepare for an imminent deposition, court appearance or decision to be made.

Clarity up front. Use a scope of representation letter signed by you and your client if not incorporated into your fee agreement.
This is for your protection against misunderstandings which can lead to a very poor lawyer-client relationship, resulting in an ethics complaint or malpractice claim.

Clarity throughout your representation. Provide adequate written communication about what is happening and how it affects the outcome: result, time, and cost.
Status updates are woefully underutilized and easy to provide. The number one complaint clients have about their lawyers is a lack of communication: I don’t know what’s going on with my case! This is a complaint that is avoidable. Have form letter status updates that you can quickly customize to provide personal information. For example, personal injury cases require request for medical records. A status update letter can inform the client of which records have been received and which are still necessary. When clients find out which medical provided hasn’t responded or provided requested records, these clients frequently call to express how important it is to them, prompting the office to get the records out by the end of the day to avoid losing a patient.

Managing your client’s expectations requires communicating needed information at the beginning and throughout representation. It also requires understanding that if you provide your client with a range of time for returning phone calls or delivering documents, your client will focus on the earliest time. The payment should come in two or four days. Anyone who has ever called the pediatrician worried about a sick child, upon being told the doctor will call you right back usually waited by the phone.

It is human nature to focus intently on our problems and needs and believe that those we pay to help us with these problems do too. We hear and remember what we wanted to hear. If you start with these premises, you will naturally know how to respond to your client.

It is better to under promise and over perform.
A good adage to adopt as your client-service orientation. Tell your client you will call back by 5 p.m. and plan to call by 4 p.m.; that you will have the will done by next Friday and plan to have it done by Wednesday. If something comes up delaying you, you will still meet the deadline given to your client. Your client will be very pleased. No client ever complained about a lawyer who called back sooner or who delivered work before deadlines. Happy clients have their expectations met. By managing your client’s expectations, you will find them easier to meet.

Despite heat from a hot day or from frantic activity to get everything done so you can generate cash flow to pay expenses, pay attention to securing the information you are entrusted with to avoid the painful, too-late-now refrain: What was I thinking??! To help you shore up your defenses against scammers, here are five tips that can be put into action:

1. Security on your computer. Scary stories abound about malware like Trojans getting onto your computer. Earlier we were unnerved to hear about the Zeus Trojan which managed to steal one million dollars from UK bank accounts. How to protect yourself from malware? Get a good security program onto your computer and update it regularly and do recommended scans. Your bank’s online banking site may be protected but your computer is infected with a Trojan that is recording your information and sending it to a remote site. Make sure your computer’s security program is engaged – read the instructions and watch those symbols in your computer tray – you may discover your security program’s logo has a red “X” indicating that it is disabled. Here are CNET reviews of three popular programs that you may want to put onto your review list: 1. Kaspersky Internet Security 2010; McAfee Total Protection 2010; and Norton Internet Security 2010.

2. Watch what you download. Last month, Mozilla found out that there was an “unauthorized” Firefox application called “Mozilla Sniffer” that was downloaded 1,800 times at the site “addons.mozilla.org.” The “Mozilla Sniffer” intercepted log-in data and forwarded it to a remote server. One would assume that what is downloaded at “addons.mozilla.org” would be authorized and safe. Apparently not. Read the story on CNET here. Moral of the story: be careful and double-check what you download. You may be downloading something entirely different than what you’ve been “promised.”

3. Adopt safe passwords. We’re asked for so many passwords these days that some of us are becoming disengenious, using one password everywhere including as our ATM code. You should stop using the same password everywhere. Not all websites requesting passwords are adequately protected and there may be something lurking that captures your password and the history of the websites you’ve visited. Don’t make it easy for someone to have your single “Key to the Kingdom.” Get a password protection program. Password Safe, from Bruce Schneier a well-respected cryptography expert, is a free Windows password-storage tool: you only have to remember the one master password to access your personal password list. Download Password Safe 3.23 from CNET as well as read their editor’s review here.

My fellow PMA, Dee Crocker is a big fan of Robo Form’s new web-based password protector, RoboForm Online. You can download a free trial here. The license is $29.95 for your desktop or laptop, one license per computer. You can even allow RoboForm ahd many other password protection applications to generate random passwords for your various sites.

If you use more than one computer, you might want to invest in a USB password protector like YubiKey which can be found here. You can get it for $25 in black or white. I don’t care about the color; just send the key. I confess to being impressed that I can customize it to include two of the three options: 1. 44 character one time pass code; 2. OATH 6 or 8 digit one time password; or 3. 1-44 character static pass code.
3. Adopt a safe password. Have a “strong” easy to remember password or you might forget it. Depending on the site, you should follow directions to create a mix of upper and lower case letters, numbers, and symbols. Some people are having better luck remembering a “pass phrase” that is meaningful to them. Idea: “My billable rate is $250 per hour!” would translate to the following pass phrase: “Mbri$250!” and don’t forget to mix things up for other sites, like online retail sites – “I love to buy books for under $10 from Amazon.”

4. Think twice before engaging in online banking with your clients’ money in your lawyer trust account. Many of us enjoy online banking with our personal bank accounts and even our business accounts. Lawyers owe a fiduciary duty to their clients to protect the property they have been entrusted with: money held in the lawyer’s trust account on behalf of the client. Many banks do not allow online transactions involving a lawyer’s trust account. It may be time for a change in procedure otherwise.

5. Become aware of current scams such as counterfeit cashier’s checks. Difficult financial times have lulled some lawyers into letting down their guard when accepting new work from “unknown” clients. Typically a prospective client overseas seeking legal representation in a civil matter shortly before a legal holiday, sends a cashier’s check in excess of the anticipated fee and then hurries the lawyer to refund the overpayment. The lawyer finds out after the holiday that the cashier’s check is counterfeit and the overpayment refunded to the client has depleted funds belonging to the lawyer’s other clients. Watch for the next PLF InBrief newsletter for my article about these scams. Meanwhile, read Jim Calloway’s excellent article, “Why The Check is in the Mail” Isn’t Always a Good Thing” in the July/August issue of Law Practice Magazine here.