Eric Cooperstein, Author at Eric Cooperstein

Going Really Paperless with iPad Pro and Apple Pencil

October 20, 2020February 13, 2017 by Eric Cooperstein

I’ve been operating a paperless office for nearly ten years, ever since I realized a couple of months into my solo practice that I did not want to fill my basement or garage with closed client files. My paperless workflow is simple: I scan all paper that comes into the office and keep most of it until I close a file, when all of the paper gets tossed.

But I have struggled to find a good system for managing my handwritten notes of phone calls, meetings, court appearances, etc. As I wrote on Lawyerist several years ago, taking notes is very important for keeping track of what information you have exchanged with clients and other parties, and it is critical for defending ethics and malpractice complaints.

What to Do with Your Notes

Some paperless lawyers may have shifted to taking notes on their computers but I prefer not to use a speaker phone all the time, and a laptop is cumbersome in meetings. Besides, some studies that show that your brain remembers more when you hand-write your notes.

So, what to do with all those pages of notes? Scanning notes after every phone call or meeting is inefficient because you have to name and save each note. I could scan them to the same file or create a notes file for each client but that, too, was tedious. So I would just stick the paper pages in a folder and scan them all at the end of a case before I trashed them. Relatively efficient, and it meant I didn’t have access to my notes when I was out of the office.

I also used the legal pads as a sort of reminder system to keep track of who had not called me back. This meant I would end up with several legal pads on my desk with notes of active matters. It was kind of a mess.

Then last summer I saw Paul Unger of Affinity Consulting use an iPad Pro and Apple Pencil to take notes right on his iPad. A chorus of angels started singing in my head! Scales fell from my eyes! My note-taking woes would be solved!

Using the Apple Pencil to Take Notes

The transition to taking notes on a screen was seamless. As soon as I started using the Pencil, I was hooked and I have literally not written on a legal pad since. The key feature is that when you are using the Pencil, which is powered by a rechargeable battery, the iPad recognizes its tip instead of your hand. This means you can just rest your hand right on the screen while you are writing, just like you would on a piece of paper (particularly useful for us lefties). The tip of the Pencil is pressure-sensitive, so lines vary in thickness as you write. Writing on glass turns out to be not much different than writing on paper.

GoodNotes 4, an inexpensive app, is loaded with features that make electronic note-taking better than the old-fashioned way. If are a sloppy writer like me, the undo button will wipe away a word you’ll never be able to figure out later. The eraser lets you fix things elsewhere on the page. The “shapes” button will help you draw a box with straight lines or an oval. Of course, you can change colors, line thickness, etc. There’s also a tool that allows you to move blocks of handwriting around on the page, which is great for rearranging notes of calls with your non-linear clients. Your doodles will improve measurably and then you can move them out of your notes so your clients will never see them.

If you write neatly enough the app can translate your handwriting into type with a couple of clicks. I find this not as helpful as I might have thought—if my writing is neat enough for the program to read, then I can read it too. But that same functionality allows the app to search for a handwritten word within a particular file. That’s right, all your handwritten notes—stored as PDFs—are permanently word-searchable.

GoodNotes 4 automatically backs up your files as PDFs to Dropbox, Box, Google Drive, and other programs. It will also back up files you haven’t named yet. It can search for file names within the app. You can import a Word document or PDF, take notes on the document, and then save it as a new PDF. Clients can sign their real signatures on your iPad, not just scrawl with their fingers. My only complaints about GoodNotes 4 is that it does not have an option for automatically numbering pages within a file and that the size of the thumbnails of your files cannot be adjusted.

Notability is another popular note-taking app. And Evernote and its alternatives, of course.

Choosing an iPad Pro

There are two sizes of iPad Pro: regular (the size of the original iPad), and full letter-page size (also known as Ginormous). I went with Ginormous. I’m glad I did, because more than 80% of the time I’m using it for taking notes and I like having the same full-size sheet of “paper” to work from that I’ve always been used to. But it’s a lot of screen space, and many apps don’t seem to know what to do with all that extra real estate.

The only downside for the iPad Pro and Apple Pencil is that the Pencil needs to be recharged periodically. You can stick it in the power jack for the iPad, but then you have this Pencil awkwardly sticking out from your iPad. I tend to use the very small, likely-to-get-lost-but-so-far-so-good power cord adapter. The only way to shut “off” the Pencil is to turn off the Bluetooth on the iPad, which I do at the end of the day so the batteries on both don’t run down. Recharging the Pencil is pretty fast and on a very busy note-taking day I might recharge it once in the afternoon.

… or Microsoft Surface?

In deference to Windows users, I need to acknowledge that I recently tried a client’s SurfacePro 4 with its powered stylus. The stylus is not as elegant as Apple’s (the Windows stylus looks and feels like an engineer’s mechanical pencil) but it is clearly more functional. The top of the stylus works as an eraser, it has a “right-click” button on it, and there is an embedded magnet that attaches it to the tablet. The contact with the screen is slightly different than on the iPad but you can achieve the same handwriting dexterity. Personally, the stylus alone would not motivate me to switch but it is a very good option for Windows users.

Conclusion

Despite the fact that the iPad Pro has been out since the spring of 2015, few lawyers seem to be using it. It’s often a conversation piece when I show up to meetings with it. But this is the best piece of technology I’ve bought since I purchased an iPhone. Now I can say my practice is truly paperless.

Going Really Paperless with iPad Pro and Apple Pencil was originally published on Lawyerist.com.

Go Rural, Young Lawyer!

October 15, 2019June 27, 2014 by Eric Cooperstein

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.

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.

How To Become A Small Town Lawyer

October 20, 2020June 27, 2014 by Eric Cooperstein

Go Rural, Young Lawyer! featured image

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.

The post How To Become A Small Town Lawyer appeared first on Lawyerist.com.

This Post is Privileged and Confidential

October 14, 2019February 20, 2014 by Eric Cooperstein

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.

Ninety-Five

September 3, 2013 by Eric Cooperstein

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These remarks by Eric Cooperstein were first given at the Hennepin County Bar Association‘s annual meeting in May, then printed in the July 2013 issue of The Hennepin Lawyer, member publication of the HCBA. I am re-publishing them here because we have talked about the problems with bar associations, wondered whether they are still useful, suggested ways for them to stay relevant, and more. This is one bar association president’s answer. — Ed.

When I meet lawyers and explain that my entire law practice is devoted to representing attorneys in ethics matters, I typically get one of two responses. Either they say “There must be a lot of unethical lawyers out there who need help,” or they say “I hope I never need to hire you.” I’m always a little taken aback. When people meet ophthalmologists, I doubt they say “I hope I never have glaucoma!”

Behind these comments there lies a hope that lawyers who have ethics issues are very different from the rest of us. In a very small percentage of cases—intentional thefts, felony convictions—that may be true. Those cases account for maybe one-tenth of one percent of all lawyers who are disciplined and often they are unrepresented in the discipline process.

For the most part, my clients are people very much like you. You might be surprised to hear that you have a lot in common with my clients. They are:

good lawyers;
often but not always solo and small firm lawyers;
they care deeply about their clients;
they are proud of the good work they do for clients;
they are typically in mid-career;
they tend to have busy practices; and
they have made some type of mistake.

One common mistake is accepting the representation of a client that the lawyer knew in her gut she should not have taken. Some mistakes are merely overlooking communications with the client or procrastinating on a file. Some mistakes are more significant than that: mistakes of judgment, mistakes of “perceived expediency.” A false statement, such as a lie to a client about whether the lawyer has worked on a matter. Good lawyers, like yourselves, are tortured by these kinds of mistakes.

I notice other patterns in the lawyers I represent. One that has been particularly striking to me is that oftentimes lawyers are isolated. This is a problem not just for solo lawyers, but also for lawyers who run small firms, and lawyers in larger firms. No matter what the practice setting, lawyers who are facing an ethics violation sometimes seem to have few other lawyers they can confide in. I have seen a similar pattern in lawyers who are marginalized within law firms for other reasons. It’s that sense of waking up one morning and not being quite sure who your friends are.

It seems also that the more serious the misconduct, the more isolated the lawyer is. In serious cases, there is an opportunity to offer character evidence to try to mitigate the disciplinary sanction. A recurring pattern is that my clients have difficulty identifying another lawyer in whom they have confided, who understands the respondent lawyer’s background and challenges, and can talk about the person behind the mistake.

On the other hand, I have also seen the power of true friendship. Lawyers who stand by their colleagues in spite of their mistakes. Those are the lawyers who are best able to get back up on their feet after they’ve taken a fall.

The practice of law is challenging, much more so than the public has any appreciation for. The deadlines, the trust clients place in us, the responsibility, the judgment calls, the multiple sets of rules, the pressure to generate business and collect fees—few other professions face such demands. Nobody understands a lawyer’s problems like another lawyer.

Despite how much we need each other, we have difficulty connecting. Increasingly, we spend our time in front of computer screens. Business development pushes us to spend our marketing time and dollars learning rain dances. And we love our “privacy.” Privacy, of course, was once described by Justice Brandeis as the “right to be let alone.”¹ In practice it has become the right to seclusion.

At one time, most lawyers practiced in small towns. Lawyers knew each other, they knew each others’ families, and they had cases with the same lawyers time after time. There was little room for sharp practice. As decades passed we moved to big cities and become used to a certain anonymity. It is easy to be nasty to opposing counsel when you figure that the chances of seeing her on another case are slim.

After hearing this, it should not come as a shock to any of you that I have become a bar association evangelist. A bar association, particularly a geographically-based bar association, has a critical role to play in connecting lawyers and fostering a healthy profession. But we need to make some adjustments to the way in which we view our bar association.

For many years now, one of the primary rationales for belonging to a bar association is for “networking.” There is nothing wrong with networking; we all need to eat and a network of referral sources is the way one builds a strong law practice. In fact, I would argue that lawyers whose practices are referral-based are likely to be healthier lawyers than lawyers whose business generation is driven by advertising—or worse—paying for lead generation.

But networking, as a paradigm or a rationale for belonging to an organization, has a somewhat Machiavellian spin to it. When a lawyer networks, the event—the coffee, the lunch, or the committee meeting—is in some sense only a means to an end. And the end is rather self-focused. What will this contact do for me? A network is a web that we use to snare future clients. If lawyers can build a better web without a bar association, they’re gone.

Networking will always play a role in the life of a bar association but the networking paradigm is failing us as an association. Because not all lawyers generate business through referrals from other lawyers, they think their time is better spent building client-snaring webs through other organizations. And with respect purely to generating business, they are probably correct.

The paradigm I prefer is community. When one is participating in and trying to build a community, the means and the end are the same. The means may be similar to networking—particularly good networking, which focuses on meaningful connections rather than handing out business cards—but the focus in a community is on building the relationship for the sake of the relationship. I’m not having lunch with you because the marketing guru at my firm told me I had to have lunch with X number of people per month; I’m having lunch with you because I want to be a part of a larger community. When we build relationships we are giving as well as receiving.

In my church we have a metaphor for the community. We say the community is like an ocean that embraces people and buoys them up when they need it. Most of the time we are part of the ocean. Our role most of the time is to help others. When we face difficulties, we turn to the ocean to support us.

When lawyers are beaten down by the difficulties of practicing law, when they are feeling isolated, they don’t need a network, they need an ocean. Lawyers who are in trouble because they made a mistake need an ocean, not a network. Young lawyers without jobs, hanging out shingles, struggling to figure out how to practice law, don’t so much need a network as they need an ocean.

I realize that some of this is semantics. Good networking and community building may look very similar. Going to lunch or coffee with someone you’re genuinely interested in getting to know serves both ends. But I want to challenge the way you think of the bar association.

A networker looks at an event like a section meeting or the Judges Social or this annual meeting and says “Who will I see at this event? Will it help me generate business in the long run?” When you see yourself as part of a community, you might instead say to yourself “Who might be at this event who needs to see me? Who might need my friendship, my advice, or my mentoring? Who might be suffering? Who might be helped by reconnecting with me?”

Now, I don’t expect you to save a life every time you go to the Bar Benefit or attend a CLE. But I believe that this bar association will thrive if we can recapture a sense of community we had back in the day, when the bar was smaller and 100 lawyers would show up every Tuesday for lunch at the bar association office, just to get together. That sense of community is important if we are ever going to put to rest the perennial hand-wringing over the lack of professionalism and collegiality amongst lawyers.

Our bar has grown since the days of the weekly lunch and our demographics have changed. We can no longer just let people know lunch is available and expect a crowd of lawyers to show up every week. But we will be working this year on providing more ways for lawyers to connect with each other through the bar association in ways that resonate with them.

Other bar associations have experienced tremendous success with affinity groups that are not limited to providing CLEs about the latest changes to the title standards or the Rules of Civil Procedure. Books clubs, running clubs, lawyers who brew their own beer—we are going to try to find ways to foster connections amongst lawyers through the interests they already have. Some of these new groups will launch as early as this fall; see the announcement in this issue (on page 35) and in the weekly e-newsletter.

I am just the 95th in a long line of lawyers who cared enough about our colleagues and the profession to want to become the chief evangelist of the bar association. Whether the HCBA prospers depends not on some clever program I come up with that will cement my place in bar association history, marvelous though that might be, but on whether you will join me in thinking of our association as a community that exists primarily because of how much we value the community itself. I am looking forward to connecting and working with you in the coming year. Thank you.

(image: http://www.flickr.com/photos/evaekeblad/632538407/)

Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). ↩

Networking Strategies for Introverted Lawyers

March 24, 2011 by Eric Cooperstein

Lawyerist readers are familiar with the mantra for building a law practice: networking, networking, networking. But there are lawyers out there who, despite their keen legal minds, are just painfully shy. For these lawyers, the idea of “working the room” at a cocktail party or calling someone that they hardly know to arrange a coffee or lunch meeting is not just undesirable, it actually could make them break into a cold sweat.

The risks of isolation

The introverted lawyer is not just at risk of being unable to develop a referral network that will generate business. In representing lawyers in discipline matters, I often see lawyers who are very isolated from other lawyers, whether it is by virtue of office location (working from home, renting an inexpensive office in a suburban office park, working in a rural area), a strong independence streak (“I will prove I can do this myself”), or, sometimes, not knowing how to get started networking. For some lawyers, isolation leads to bigger problems, such as not having colleagues to turn to when tough questions arise on files or not having anyone around to notice that the lawyer is showing signs of depression. It is troubling in a discipline case to represent a lawyer who cannot identify one or two friends with whom the lawyer has shared his or her problems and know the lawyer well enough to testify as a character witness.

Get in the game

Introverted lawyers should approach networking in ways that will minimize confrontation. For starters, become a joiner. Sign up for one or two bar committees, social organizations, or nonprofit boards that will have regular meetings. Small nonprofits, in particular, are eager to have lawyers serve on their boards. Through these meetings, over time, you will get to know your fellow participants and they will have the opportunity to get to know you.

These relationships may lead to a coffee or lunch date but it is not critical. You should find appropriate times—before meetings, during breaks, walking to the parking lot afterwards—to slip your elevator speech into the conversation. After you’ve served a two or three-year term, move on to another activity. Yes, this is a long-term strategy. But really, all networking is a long-term strategy and you will likely make deeper connections with people who actually work with you on projects than you would just by drinking a lot of coffee.

Go on-line

Introverts should also take the opportunity to participate in on-line discussion groups. Ask anyone who is active in a listserv and they will tell you that they get to know the personalities of their fellow participants just by reading their posts. More importantly, they develop trust in their colleagues and refer business to them. This is where an introverted lawyer can shine because often your strengths lie in deliberation and thoughtfulness (as opposed to your extroverted cousins, like me, who think while speaking, which occasionally has unintended consequences).

If your local bar association does not have an on-line discussion group or listserv, consider joining the ABA. No, it is not likely to generate referrals. Networking, however, is a skill. Like all skills, it needs to be practiced. After you get the hang of participating, perhaps you can be the one to introduce a listserv to your local bar.

Lastly, look for situations in which you can develop one-on-one relationships without the cold calling. Sign up for a mentoring program, for example. You put your name in, they contact you. Offer to visit or take meals to members of your religious community when they are ill. Join a book group. Just try to form relationships with people in environments that are suited to your personality.

Introversion is a personality type, not a disability. Everyone needs to play to their strengths, networking included.

Avoid Ethics Complaints by Taking Notes

November 23, 2010 by Eric Cooperstein

Despite lawyers’ efforts to get the best possible results for their clients, sometimes clients are dissatisfied. Their disappointment is often accompanied by finger-pointing; surely someone must be to blame for the outcome of the case besides the client or the opposing party. When the lawyer ends up in the path of that finger, the most common complaint is that the lawyer rarely, if ever, talked to the client and that on the few occasions the lawyer did talk to the client, the lawyer never let the client know what bad events were about to unfold.

For the lawyer who has tried to do everything right, defending against such allegations might be unpleasant but not threatening. Of course the lawyer talked to the client. Quite frequently, in fact. And yes, the lawyer is certain she warned the client about the possible outcome. The client was given the choice of how to proceed and, unfortunately, made a poor choice.

“Sounds great,” says the investigator from the attorney discipline office. “Can I see your notes of those conversations?” “Well, I’m not sure I have notes of every conversation . . . ”

Most of my practice is devoted to defending lawyers against allegations of unethical conduct. As a result, I often review my lawyer-clients’ files for the matters they have handled. This includes not just the substantive documents, such as pleadings, correspondence, financial documents, etc., but also the parts of the file that one typically does not see in the course of discovery, such as the client questionnaires, the e-mails, the time records, and –hopefully– the notes.

In the last few months, however, finding notes in my lawyer-clients’ files has become the exception rather than the rule. I do not doubt my clients when they assure me that there were multiple phone calls with the client and at least a couple of meetings, but there are no specific records of those contacts: when they took place, what was said, how long they lasted. The ethics investigation is suddenly at risk of being reduced to a battle between “Did not!” and “Did so!” The disgruntled client may be regarded as having a legitimate gripe.

Why bother taking notes?

The value of taking notes should not be underestimated. Beyond providing a first line of defense against a client’s ethics complaint, notes can be helpful in tracking previous conversations with a client. The client does not then have to repeat information or suspect that the lawyer cannot remember the client’s case. For clients who challenge a bill or later demand a copy of the file, the notes fill in the gaps between written contacts with the client and show how attentive the lawyer was to the client’s case (under most states’ ethics rules, your notes are part of your clients’ files and belong to them, so avoid excessive doodling and gratuitous comments about your clients’ mental health). Your notes will also provide the chronology of events on which you may need to rely when explaining your decision to withdraw to the client or the court.

Contingent and flat fee lawyers who eschew time keeping seem to be more prone to avoiding note-taking, perhaps a byproduct of their attempts to streamline their practices. Lawyers who do not keep time records are probably in greater need of good notes than lawyers who bill hourly and can use their timesheets to track very brief conversations with clients, some of which may be written-off. The inconvenience of taking notes while talking to clients from a cell phone while walking, driving, or waiting for some other appointment to begin may have led many busy lawyers to get out of the practice of taking notes. Whatever the reason, the time lawyers save on the front end can come back to bite them on the other.

Making record-making a habit

Note-taking should be a habit, hopefully one developed early in a law practice. Personally I think that hand-written notes are the most efficient way to make a record of a conversation with a client, but it doesn’t matter whether the notes are handwritten, entered into your practice management software, typed into a Word document, scrawled on your iPhone or iPad, or dictated to your legal assistant. The goal is to create a record of the date and time that you talked with the client and, even for short conversations, some indication of the subject matter that was discussed. Lawyers should do the same for conversations with opposing counsel, witnesses, court clerks, prospective clients, supervising lawyers, and so on. If you are talking, there should be a notepad or a keyboard in front of you.

In addition to the client’s name, the date, and at least some brief description of what the conversation, it is a good idea to note whatever advice or instructions the you gave the client. It is also wise to spend an extra few minutes after the conversation ends to fill in details you did not have time to record and clarify on paper the advice you orally gave the client. At the end of the conversation or meeting, I typically also record in the margin the length of the conversation, usually in tenths of an hour. This can help corroborate the fees you charged a client and refresh your recollection years later about the length of a conversation.

Taking notes is a lot like wearing a seat belt: 99% of the time it probably doesn’t matter whether you do it or not but it is the other 1% that you are preparing for. Take notes. The license you save may be your own.

(Photo: http://flic.kr/p/8HNqQi)

Opening the Door (Slightly) for Grads of Unaccredited Law Schools

August 24, 2010 by Eric Cooperstein

The Minnesota Supreme Court appears ready to open the bar admissions door just a little wider – at least enough for some graduates of unaccredited law schools, modifying the recommendations of a year-long study and report (9 MB) by the Minnesota Board of Law Examiners (MBLE).

Under the present rules, there are essentially two ways to get admitted to the bar in Minnesota: by taking and passing the bar exam or by practicing law in another jurisdiction for five of the past seven years (different rules may apply to in-house counsel). But these routes to admission are only open to graduates of ABA-accredited law schools. If you went to one of a handful of unaccredited law schools in the United States (mostly in California) or graduated from a law school in a foreign country, you cannot be admitted to the Minnesota bar unless you go to law school again at an ABA-accredited school. In fact, I know several foreign lawyers who had to do just that. Minnesota is in the minority of jurisdictions that adhere to this strict rule.

Judges May Speak More, But Not Too Much

August 18, 2010 by Eric Cooperstein

A recent decision of the Eighth Circuit and a pending prosecution by the Minnesota Board on Judicial Standards (BJS) encourage judges to speak more in some instances and less in others.

The Eighth Circuit case, Wersal v. Sexton (courtesy of Minnesota Lawyer’s blog), struck down several restrictions on candidates for judicial office, as set forth in Canon 4 of the Code of Judicial Conduct. The court rejected clauses that prevented judicial candidates from endorsing or opposing other candidates for public office and directly soliciting campaign contributions from non-lawyers, whether for the judicial candidate’s own campaign or some other candidate’s campaign.The clear theme of the opinion is that few, if any, restrictions on the political speech of judicial candidates will ever pass constitutional muster.

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

August 4, 2010 by Eric Cooperstein

Sphinx1 The More Things Change, the More Hourly Billing Will Stay the Same Tuning in to the live tweets last week from the opening of the Association of Continuing Legal Education conference in New York City (it may sound dull, but they are a hard partying group!), there was much talk at the plenary session about the allegedly irrevocable changes occurring in the legal profession because of the fallout from the Great Recession. Familiar themes: hourly billing is evil, the leveraged-associate model is on its way out, law firms will never be the same, etc. This has been the drumbeat of blawggers, consultants, and plenary speakers for at least two years now. I think they get a kick out of seeing the color drain from lawyers’ faces.

Fortunately, the old French saying remains true: The more things change, the more they stay the same. Seemingly huge upheavals often have less long-term impact than we expect. After 9/11, many people thought we would all be singing Kumbayah for at least a generation. Ten years later, the music has faded.

According to statistics published by the ABA, there are about 1.2 million lawyers in the country, about 74% of whom are in private practice. Of those 900,000 or so lawyers, 76% practice in firms of fewer than 20 lawyers, and the vast majority of those lawyers are in firms of five or fewer lawyers.

In what areas do most solo and small firm lawyers practice? By my own estimates: Family, criminal, personal injury, workers compensation, insurance defense, estate planning and probate, plaintiffs’ employment law, consumer, bankruptcy, and small business litigation and consulting. In other words, predominately individuals and small businesses.

The issues that large firms are facing—large corporate clients wising up to the abuses of the billable hour, competition from international mega-firms—are not likely to affect the vast majority of solo and small firm practitioners. For lawyers representing individuals, the law is local. Family and criminal law attorneys, for example, face little competition from lawyers outside their geographical area. Individuals in need of legal services tend to seek out lawyers in small firms that are close to their homes or businesses, where the cost structure is lower and where they get personal attention. That is not likely to change.

Regarding legal billing structures, personal injury and plaintiffs’ employment lawyers have had an “alternative” fee structure for decades: contingent fees. That is not likely to change. Criminal, bankruptcy, and many estate planning lawyers have been using flat fee billing for years. The concept is nothing new to them. It seems unlikely that their practices are headed for a revolution.

As for the solo and small firm attorneys charging on an hourly fee basis, particularly the litigators, their practices are unlikely to change either. Moving from an hourly fee to a flat fee billing structure requires a lawyer to take on risk. Family law clients often make their own problems and are unpredictable once a custody battle or other dispute gets underway. Even when the client is an angel, the opposing party or their counsel can unexpectedly drive up the costs of the matter. Why would lawyers want to assume the risk for their clients’ issues? My guess is most lawyers take on enough risk already when they agree to represent a client and will not offer to take a financial stake in the client’s problems.

The clients of solo and small firms also tend to be less subject to the abuses of the billable hour and therefore less likely to seek alternative fee arrangements. Many solo and small lawyers routinely write off the time for short phone calls and e-mails, discount travel time, and reduce bills for unproductive or administrative work. Smart lawyers include all that written-off time on their bills; the clients can see that they are paying for value (a common refrain by flat fee advocates), not to line the lawyer’s pockets. Associates in small firms are more often employed to help get the work done, often at a lower hourly rate, rather than to pad the bill.

There are other entrenched practices in the legal profession that will weigh against changes in the fee model for litigators. There is a substantial body of case law that requires attorney fee awards pursuant to statutes or fee shifting agreements in contracts to be calculated based on an hourly fee. Attorneys liens are typically determined on a quantum meruit (read: hourly) basis. The Rules of Professional Conduct identify the time spent on a matter as an important factor in assessing the reasonableness of a fee. Insurance companies often hire and reimburse lawyers for representing insureds based on hourly fees, except perhaps for the most routine matters. Some areas of practice have clearly changed—many corporations that hire outside lawyers for immigration and intellectual property matters have shifted to small firms and are requiring flat fees. But these tend to be project-based assignments with predictable time requirements and outcomes.

It is healthy to have a debate about the best practices for any industry. Some change in the legal industry will occur over time. But if you are sitting at a CLE plenary session about the practice of law and feel your head spinning, excuse yourself and go splash some water on your face. You need not worry that you will be out of a job by the time you get back to the session.

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