Go Rural, Young Lawyer!

by Eric Cooperstein on June 27, 2014

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In tough economic times like these, some new lawyers may want to open their minds to a different type of risk and go west — or north, or south, or east — to find a job beyond their urban dreams.

I met with a lawyer a couple of weeks ago in a small town about two hours outside of the Twin Cities. Our conversation turned to operating a law firm in a small town and the lawyer told me two things I probably knew but did not really appreciate. One was a complaint about how difficult it is to attract new lawyers to join law firms in rural areas. The other was the lawyer’s prediction that in the next ten years, half the lawyers in her quarter of the state were going to retire from the practice of law.

RelatedNew Graduate taking over an existing [rural] law firm

That prediction probably is not unique to Minnesota. New lawyers unable to find a job in a major American city may want to broaden their job searches beyond their local beltways.

There are many benefits to practicing in a smaller community. First off, there is plenty of work to do. All those farms you pass as you drive that two-lane road into the country? That farmland is worth several thousand dollars an acre in many areas. Those farm families need estate plans, contracts, and business advice. There are teachers, small business owners, bankers, and other professionals as well. The folk in small towns sometimes get divorced, commit the occasional DWI, and get in car accidents. They need local lawyers and they do not want to pay for some lawyer from the city to drive out to the rural courthouse to represent them. They need trusted advisors they can form life-long professional relationships with. That could be you.

Not sure what area of practice is best for you? In small towns, many lawyers are generalists. They take a variety of cases and get experience in multiple areas. Eager to get inside a courtroom? You may get more opportunities in a small town than you would as an associate in the big city.

The economics can work as well. The cost of housing may be less than half of what you would find in a major city. Your mortgage could be so small that even with your law school debt you would have less overall debt than you would have living in the city.

I know, you could never give up the city. You would miss the theater, even though you only go once or twice a year. Where would you shop? (Although you do most of your shopping online nowadays.) A small town only has one movie theater! (Of course, you stream most of the movies you see through Netflix.) These fears of cultural isolation may be just that — fears. The lawyer I met with told me that she and her colleagues are simply more intentional about going to the city for entertainment and probably do so more than city-folk. Many people in the city think nothing of traveling three hours each way in the summer to go up to the family cabin; rural residents just do a “reverse commute” to attend sporting events, concerts, and other big city attractions. I have a client who lives 2½ hours from Minneapolis and has seasons tickets to the Minnesota Twins.

Granted, there are some impediments. If you are single, it may be harder to find a mate in a smaller community. Even if you are married, your spouse may not be able to find suitable work in the same area.  But rural lawyers love to tell you how nice it is to raise children in a small town, where they can ride their bikes to every friend’s house and you know the parents of all of their playmates.

Quite frankly, rural lawyers probably do not want you to just show up for two or three years and then pack your bags and go back to the city. But there is always the possibility that once you get out to the country, you might like it and stay. There is risk in any venture, whether it is joining a big firm or starting your own practice. In tough economic times like these, some new lawyers may want to open their minds to a different type of risk and go west — or north, or south, or east — to find a job beyond their urban dreams.

This was originally published on September 7, 2010, but it seems equally relevant in 2014.

Featured image: “Main Street and Old Common Road sign in autumn” from Shutterstock.

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This Post is Privileged and Confidential

by Eric Cooperstein on February 20, 2014

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But you started reading it anyway.

We’re all so inundated with disclaimers and license agreements at every turn that we barely flinch anymore when we see the words privileged and confidential — or worse, long paragraphs in small fonts portending doom for the unwitting recipient of a misdirected email or the surfer of a law firm website. Disclaimers seem to have spread like a consensual virus — a lawyer sees another lawyer using a disclaimer, figures it must be a good idea, and includes it in his own materials.

Website Disclaimers

Website disclaimers are fairly inoffensive. These disclaimers generally warn visitors that the information on the website is not meant to provide legal advice about the visitor’s individual legal problem and caution the visitor not to disclose confidential information in an email or contact form sent to the law firm until the firm has agreed to enter into an attorney-client relationship. Lawyers are concerned, of course, that an opposing or related party to one of the firm’s existing clients might provide confidential information that would conflict the lawyer out of its already existing representation.

There do not appear to be any reported cases that have disqualified a law firm from representing a client because the firm received unsolicited confidential information from a non-client. The Virginia State Bar Committee on Legal Ethics did issue an opinion that compared websites to advertisements in the Yellow Pages. Just as a prospective client who obtains a lawyer’s phone number from a Yellow Pages ad should have no expectation of confidentiality when leaving a voicemail message for a lawyer, the Virginia Bar reasoned that there ordinarily should be no expectation of confidentiality in an email message sent from a website. The opinion recommends, but does not require, that Virginia lawyers include such a disclaimer on their websites and cautions that lawyers may create a duty of confidentiality through sites that offer  a “free evaluation” of a prospective client’s case and invite web visitors to provide the lawyer with information about their situations.

Website disclaimers are designed to address the exact same situation repeatedly: stranger v. law firm. No disclosure of an existing client’s confidential information is involved, and whether the stranger reads the disclaimer or heeds its warning is of no consequence to the law firm, which has discharged its duty to itself (protect against claims of reliance on alleged legal advice) and to its existing clients (prevent being disqualified from existing representations).

Email disclaimers, however, are a different and dangerous breed.

Email Disclaimers

They probably have their roots in that antiquated technology: the facsimile transmission (which our ancestors colloquially referred to as a fax).  Right after the first lawyer sent a fax to opposing counsel when it was meant for the client‘s eyes only, that lawyer starting putting a disclaimer on the fax cover sheet. That way, the next time it happened the blame for the mistake could be shifted from the lawyer to the accidental recipient, who had no business reading that fax in the first place. When lawyers started using email, it must have seemed only logical to try to remedy the predictable calamity of the future misdirected email with a warning to those who receive messages that were not intended for them.

Now, probably 80% or more of the emails I receive from lawyers contain some form of disclaimer. Nearly all appear after the signature block; in longer messages they don’t even appear on the screen until I scroll down further. Some simply declare that the email is “privileged and confidential;” most suggest that the email “may” be privileged and confidential (how I should determine whether it is or not is not explained), and either ask or demand that I notify the sender, and destroy the email and any paper copies I may have printed.

There are several problems with these disclaimers, aside from cluttering up email threads. For one, attorney-client privilege and confidentiality are not the same thing.  Without digressing too much, suffice it to say that while all attorney-client privileged communications are confidential, only a small portion of the client information lawyers are required to treat as confidential is also privileged. Another incongruity is that an email intentionally sent from a lawyer to almost anyone except a client will not be confidential or privileged at all (setting aside agents or experts the lawyer may be contacting on the client’s behalf or negotiations subject to a confidentiality agreement or rule).  So for the vast majority of emails that lawyers send — to colleagues, to witnesses, to vendors, to friends, to listservs, etc. — the disclaimer is meaningless.

Undermining Disclaimers Through Overuse

Which brings us to the real problem with these disclaimers. By overusing them, lawyers may be undermining the effectiveness of disclaimers in protecting the confidential or privileged nature of the information in the email in the (hopefully) rare event that an email is misdirected (or inadvertently produced in discovery).

In Scott v. Beth Israel Medical Center Inc., 847 N.Y.S.2d 436, 444 (2007), the court refused to find that a series of emails were privileged just because they contained a disclaimer that was found in every email sent by the plaintiff. Moreover, by overusing disclaimers and privilege warnings, lawyers are training the world to ignore them — which is precisely what we don’t want people to do.

Using Disclaimers Appropriately

Appropriately used, disclaimers may allow lawyers to rescue misdirected emails that were sent to other parties and preserve the client’s confidentiality, particularly in close cases in which the confidential or privileged nature of the email is not clearly apparent on the face of the email.  Those disclaimers should be sparingly used, appear at the beginning rather than the end of the email,  and state that information in the email is confidential or privileged only when it really is. That way, unintended recipients might really sit up and take notice when they see privileged and confidential declared in an email.

This was originally published on November 17, 2008. It was (lightly) revised and re-published on February 21, 2014.

Featured image: “confidentiality” from Shutterstock.

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Ninety-Five

September 3, 2013

OLYMPUS DIGITAL CAMERAWe have talked about the problems with bar associations, wondered whether they are still useful, and suggested ways for them to stay relevant. This is one bar association president’s answer.

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The introverted lawyer is at risk of malpractice as well as slow intake.

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The More Things Change, the More Hourly Billing Will Stay the Same

August 4, 2010

Hourly billing is not going anywhere, despite the latest blawg buzz—and here’s why.

The More Things Change, the More Hourly Billing Will Stay the Same is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.

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Minnesota Lawyers Board Annual Stats

July 29, 2010

Each year in early July the Minnesota Office of Lawyers Professional Responsibility (OLPR) and the Minnesota Lawyers Professional Responsibility Board (LPRB) publish an annual report summarizing the Year in Discipline, as it were. Not the type of reading typically picked up by anyone other than ethics wonks and insomniacs, but here are some of the […]

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Birth of a Blawg

July 27, 2010

With the upgrade of my website to WordPress (by my webmaster, Karin Conroy of Conroy Consults), I get to venture into the blawgosphere first hand. I have been blogging on a semi-regular basis for the past two years on Lawyerist and plan to continue to post there. I am also on Twitter, which I have used […]

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