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Eric Cooperstein

Minnesota Lawyers Board Annual Stats

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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 highlights:

  • Budget surplus growing. Yes, you read that correctly. The Office has a reserve of $2.7 million, almost equal to its entire annual budget, which is projected to grow by roughly $100,000 a year. Although OLPR is funded almost entirely by the registration fees lawyers pay each year ($122 of the current annual fee), they have been subject to the same salary freeze as the rest of the judicial branch for the past two years and will continue to be frozen for at least the next two years. Water, water everywhere . . .

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Lawyerist.com: Wash That Client Right Out of Your Hair

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Many of the posts on Lawyerist focus on how to get good clients; we spend very little time talking about how to get rid of bad clients. As a general rule, the goal is to keep the clients around once they hire you. Nevertheless, for some clients, the lawyer’s advice should be limited to “don’t let the door hit you on the way out.”

Read this article over at Lawyerist.com >

Wash That Client Right Out of Your Hair

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Many of the posts on Lawyerist focus on how to get good clients; we spend very little time talking about how to get rid of bad clients. As a general rule, the goal is to keep the clients around once they hire you. Nevertheless, for some clients, the lawyer’s advice should be limited to “don’t let the door hit you on the way out.”

Lawyers are typically reluctant to withdraw from representing clients. Several of the most important principles of lawyer ethics —confidentiality, avoidance of conflicts, holding funds in trust— are built on the idea of loyalty to the client. Many old school lawyers believe that once you agree to represent a client, you stick with them until the bitter end, even if you are the one left with the sour taste in your mouth.

The Model Rules of Professional Conduct, however, do not require a lawyer to go down with the client’s ship. To the contrary, Rule 1.16(b), which has been adopted by most jurisdictions, says that a lawyer may withdraw from representing a client if the “withdrawal can be accomplished without material adverse effect on the client.” Note that the rule does not require that there be no adverse effect on the client at all, just that the effect not be material. Presumably, every withdrawal before a matter is completed will have some adverse effect on a client – the hassle of finding a new lawyer, getting that lawyer up to speed, some additional cost to the client, etc.

Often, by the time the lawyer gets to the point of wanting to withdraw, the matter will have progressed far enough that there will be some material adverse effect on the client. In those cases, the lawyer must to look to the other subparts of Rule 1.16(b) to see if the lawyer‘s reason for withdrawing is sufficient to overcome the material prejudice to the client (and, of course to determine whether any presiding court will allow the lawyer to get out). Conflicts of interest, client fraud, and the client’s refusal to cooperate with the lawyer may fall into this category. But there are many cases in which a lawyer has discretion to decide that his or her time would be better spent elsewhere. Here are a few examples:

Do you hear that barking sound? When that car accident case came in, it sounded great. Your injured client was the breadwinner in the family, the other driver was clearly at fault, and there was lots of insurance coverage to go around. As you started gathering information, however, you learned about the client’s pre-existing medical conditions, spotty work history, faulty recollection, and fondness for the drink.

Sure, you could stick with the client and try to get the best deal that you can under the circumstances, assuming that you can readjust the client’s expectations from a high six-figure recovery to something less than the cost of a new car. It is not unusual though to see a lawyer avoid a tough conversation with the client, hope that the client’s injuries will “mature” (a real consideration in some cases, less so in others), and let the file collect dust in a remote corner of the office. These are the types of files that turn into ethics complaints for neglect or non-communication. Instead, if the case is pre-suit and not close to a statute of limitations deadline, you can withdraw.

Sorry, I forgot my checkbook. The first few months of the attorney-client relationship are critical for figuring out whether the client is going to pay the lawyer’s bills. Human beings are remarkably consistent creatures. Clients who pay their bills within a week or two of when they get them are likely to keep doing so. Clients who need three written reminders and a phone call, or who promise to pay and do not follow through, will maintain that pattern throughout your representation. When clients fall behind on their bills, lawyers may become frustrated or angry and cross some ethical line in trying to collect their fees.  Let the next lawyer be the one who ends up representing your client for free. Get out before the receivables start aging.

Talk to the hand. You (hopefully) have several dozen clients. Your client has one lawyer. Some clients are oblivious to this imbalance. Combine that with the high emotions of a custody battle and you may get a client who calls you multiple times a day, demanding action against an estranged spouse. Emotional, needy clients not only eat away at your time but they drain the energy of your staff and may even be abusive when they do not get what they want. Sure, there are ways to manage your client communications. Some clients though are so demanding that they will overwhelm you. Withdraw from representing the problem clients and save your energy for the rest of your docket.

If you do decide to withdraw, keep the explanation simple. Avoid the urge to provide the client with a laundry list of his or her faults. And be generous in refunding fees. That way you look less like the stereotypical greedy lawyer and the client has some funds to try to find a new lawyer, likely one who is less savvy than you are about choosing which clients to represent.

Wash That Client Right Out of Your Hair 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.

Planning For What You Did Last Summer

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Beachball1 Planning For What You Did Last SummerAt some point in our educational careers, we have all returned to school in September and been directed to write an essay titled “What I Did Last Summer.� And we have all had the same first thought: Nothing. I did nothing all summer.

If you are a first or second-year law student, you cannot afford to return to school in September without a long list of the things you did this summer to better position yourself to ultimately get a job in this tough economy. Even when times were good, 1Ls could not typically expect to find paid legal work over the summer; now many 2Ls are caught in the same position. But that doesn’t mean you should spend the summer sleeping in, taking Facebook surveys, and watching Hulu.

Get thee to a law office

One way or another, you are going to want to spend some time in law office. If you cannot get paid work in an office, then volunteering is your best bet. Most nonprofits, like the Legal Aid Society, cannot handle an unlimited number of volunteers but you would be surprised how few people try to volunteer outside of a paid internship (unpaid internships at for-profit law offices may be more trouble than they are worth). To make yourself useful to the nonprofit, you will need to commit to a certain number of hours per week, perhaps 20, and agree to show up on regular days and times. Don’t be surprised if you are not busy the first week you are there; it typically takes attorneys a few days to figure out what tasks can be delegated to the volunteers.

Because law students also need to make money in the summer, try to find paid work during nights and weekends. If you find yourself whining about having to work two jobs in the summer, go hang out with some unemployed 3Ls who are studying for the bar exam.

Join the bar association and a legal listserv

Many bar associations steeply discount their rates for students. Summer is a good time to join the bar, become familiar with its services, and perhaps participate in some bar activities. Sections and committees may meet less frequently in the summer but they may also have summer sports and networking events through which you can meet attorneys and learn more about the practice. Summer is also a good time to join a listserv and learn about the types of questions lawyers ask each other without becoming too distracted from your coursework.

Focus

There are few lawyers who operate general practices any more – specialization has been the trend for many years. One edge students have now that they did not have five or ten years ago is that there are blogs in every practice area, easily accessible, announcing and analyzing the latest decisions and trends in that area. Find and follow the legal blogs in the areas of practice that interest you and start yourself down the road to specialization. At the very least, you may discover that the practice area you were so hot about before law school is less interesting to you that watching paint dry.

Skip summer school

Many prospectively unemployed students decide to take a course or two in the summer, figuring they can lighten their load during the regular school year. Feh. Law school is an intense, competitive place, often divorced from the real world. Students need a break. Plus, taking summer school is, well, boring. Does nothing for your resume. I vote for working two jobs over summer school.

Read

Forget the trashy novels. In addition to blawgs and listservs, there are two types of books you should read over the summer. First, you may not have a legal job, but you can read about the law: famous cases, supreme court biographies, Louis Nizer (who?), etc. If you are going to practice law for the next 30 or 40 years, you might as well learn something about its history or famous litigators.

Second, read good novels or nonfiction, anything that is either well-written or opens you up to new ideas and experiences. Why? Because hopefully sometime soon you are going to have an interview for a legal job you really want. A good book will provide an interesting topic for conversation and could save you from the dreaded “Tell me about yourself� interview question. If nothing else, at least you will be able to say what you did last summer.

lawyeristlab banner Planning For What You Did Last Summer

Planning For What You Did Last Summer is a post from the law firm marketing blog, Lawyerist.com

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Lawyerist.com: Pssst, Buddy—Wanna Buy a Client?

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Running a successful law practice is all about getting clients. One way is by building a referral network, a frequent topic on Lawyerist. Another way is by advertising, such as in the yellow pages.

As traditional advertising methods wane, lawyers are getting excited by new methods of attracting clients through the internet. All those potential clients out there, yearning to find the lawyer of their dreams — all they need is a little encouragement. A little channelling. A system of connecting clients with lawyers. And lawyers will be eager to pay to have pre-screened clients sent their way – as long as they do not violate any ethics rules.

Read this article over at Lawyerist.com >

Pssst, Buddy—Wanna Buy a Client?

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Dark Alley Pssst, Buddy—Wanna Buy a Client?Running a successful law practice is all about getting clients. One way is by building a referral network, a frequent topic on Lawyerist. Another way is by advertising, such as in the yellow pages.

As traditional advertising methods wane, lawyers are getting excited by new methods of attracting clients through the internet. All those potential clients out there, yearning to find the lawyer of their dreams — all they need is a little encouragement. A little channelling. A system of connecting clients with lawyers. And lawyers will be eager to pay to have pre-screened clients sent their way – as long as they do not violate any ethics rules.

The general ethics rule is that a lawyer can not pay someone for referring a particular client or case. In fact, not only is a lawyer prohibited from paying but in most jurisdictions a lawyer cannot give “anything of valueâ€� to someone who recommends a lawyer’s services. No tickets to the Superbowl, no bottles of single-malt, not even a Starbucks gift card.

So unseemly. As draconian as that sounds, the practice of law has actually come a long way in its attitudes about advertising. Old school lawyers abhorred advertising as beneath the dignity of the profession. When SCOTUS declared in Bates v. Arizona (1977) that lawyers had a First Amendment right to advertise, then yellow pages ads, billboards, television commercials, local newspaper ads, little league jerseys, etc., all became fair game. None of these traditional advertising methods violates any rules on paying for clients because the advertisement is not targeted at a particular person with a specific legal problem. The fee is paid to the advertiser regardless of whether anyone ever reads the ad or contacts the lawyer. In short, the connection between the payment for the ad and the contact with a prospective client is attenuated at best.

Click here. Pay-per-click advertising, such as Google Adwords, presents a slightly more difficult question. In its simplest form, with Adwords an advertiser (such as a lawyer)  targets the words that consumers might search for using Google (e.g. “ethics lawyerâ€�). When someone searches using those words, the lawyer’s 4-line advertisement may show up above or to the right of the search results. The lawyer does not pay for the ad to appear but does pay when someone clicks on the lawyer’s ad and then is whisked away to the lawyer’s website.

So, the lawyer pays for clicks. Sounds pretty close to paying for each referral. But Google has no idea whether the clicker needs legal services, is just curious, or is bored at the office. Nor does Google guarantee a certain number of clicks or that the clickers will actually turn into paying clients. In the end, it looks more like targeted advertising than paying for clients.

Total Trouble? Several websites take targeting one step further and actually try to connect individual lawyers with individual clients. These on-line referral services, like Legal Match and Total Attorneys, invite prospective clients to submit information about their legal issues and then make that information available to lawyers who practice in the client’s geographical area. The lawyers pay for having access to these referrals.

Each service tries to avoid the ban on paying for referrals in its own way. With Legal Match, prospective client (PC) inquiries are routed to lawyer subscribers based on the lawyer’s practice area and location. The lawyer pays a flat subscription fee for the service. Presumably there are serveral lawyers for each location and practice area, so multiple lawyers are likely competing to respond to the same PCs (if there was only one lawyer, that would seem a lot more like paying for referrals). Several jurisdictions permit this type of service — Legal Match provides links to several ethics opinions.

Total Attorneys comes even closer to the line. Their referral program promises “geographical exclusivity� (only one attorney per practice area in a specific location) and “pay for performance� (the lawyer pays when Total Attorneys “produces results,� not a flat fee). The “performance� the lawyer pays for appears to be tied to new client contacts, not actual agreements to represent clients. Their scheme offended at least one gadfly who allegedly filed complaints against Total Attorneys lawyers in 47 jurisdictions for violating the rule against paying for referrals.  So far, it appears that the complaints in about a half-dozen of those jurisdictions have been dismissed, with Connecticut being the most recent. Whether we will ever find out the dispositions of the other 40+ complaints remains to be seen.

A final oddity in this area is that many states’ ethics rules allow nonprofits, such as bar associations, to operate referral services which charge attorneys directly for taking cases referred to them or require the lawyers to share the fees they receive with the bar association. Apparently, when a nonprofit is paid for a referral, it’s a public service; when anyone else receives a payment, it’s a pox upon the public interest.

As technology continues to change our lives, lawyer advertising will likely continue to change as well. If you’re thinking of being the first on your block to try a new method of attracting clients through the internet, make sure you are buying advertising, not clients.

lawyeristlab banner Pssst, Buddy—Wanna Buy a Client?

Pssst, Buddy—Wanna Buy a Client? is a post from the law firm marketing blog, Lawyerist.com

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Pssst, Buddy—Wanna Buy a Client?

by

Running a successful law practice is all about getting clients. One way is by building a referral network, a frequent topic on Lawyerist. Another way is by advertising, such as in the yellow pages.

As traditional advertising methods wane, lawyers are getting excited by new methods of attracting clients through the internet. All those potential clients out there, yearning to find the lawyer of their dreams — all they need is a little encouragement. A little channelling. A system of connecting clients with lawyers. And lawyers will be eager to pay to have pre-screened clients sent their way – as long as they do not violate any ethics rules.

The general ethics rule is that a lawyer can not pay someone for referring a particular client or case. In fact, not only is a lawyer prohibited from paying but in most jurisdictions a lawyer cannot give “anything of value” to someone who recommends a lawyer’s services. No tickets to the Superbowl, no bottles of single-malt, not even a Starbucks gift card.

So unseemly. As draconian as that sounds, the practice of law has actually come a long way in its attitudes about advertising. Old school lawyers abhorred advertising as beneath the dignity of the profession. When SCOTUS declared in Bates v. Arizona (1977) that lawyers had a First Amendment right to advertise, then yellow pages ads, billboards, television commercials, local newspaper ads, little league jerseys, etc., all became fair game. None of these traditional advertising methods violates any rules on paying for clients because the advertisement is not targeted at a particular person with a specific legal problem. The fee is paid to the advertiser regardless of whether anyone ever reads the ad or contacts the lawyer. In short, the connection between the payment for the ad and the contact with a prospective client is attenuated at best.

Click here. Pay-per-click advertising, such as Google Adwords, presents a slightly more difficult question. In its simplest form, with Adwords an advertiser (such as a lawyer)  targets the words that consumers might search for using Google (e.g. “ethics lawyer”). When someone searches using those words, the lawyer’s 4-line advertisement may show up above or to the right of the search results. The lawyer does not pay for the ad to appear but does pay when someone clicks on the lawyer’s ad and then is whisked away to the lawyer’s website.

So, the lawyer pays for clicks. Sounds pretty close to paying for each referral. But Google has no idea whether the clicker needs legal services, is just curious, or is bored at the office. Nor does Google guarantee a certain number of clicks or that the clickers will actually turn into paying clients. In the end, it looks more like targeted advertising than paying for clients.

Total Trouble? Several websites take targeting one step further and actually try to connect individual lawyers with individual clients. These on-line referral services, like Legal Match and Total Attorneys, invite prospective clients to submit information about their legal issues and then make that information available to lawyers who practice in the client’s geographical area. The lawyers pay for having access to these referrals.

Each service tries to avoid the ban on paying for referrals in its own way. With Legal Match, prospective client (PC) inquiries are routed to lawyer subscribers based on the lawyer’s practice area and location. The lawyer pays a flat subscription fee for the service. Presumably there are serveral lawyers for each location and practice area, so multiple lawyers are likely competing to respond to the same PCs (if there was only one lawyer, that would seem a lot more like paying for referrals). Several jurisdictions permit this type of service — Legal Match provides links to several ethics opinions.

Total Attorneys comes even closer to the line. Their referral program promises “geographical exclusivity” (only one attorney per practice area in a specific location) and “pay for performance” (the lawyer pays when Total Attorneys “produces results,” not a flat fee). The “performance” the lawyer pays for appears to be tied to new client contacts, not actual agreements to represent clients. Their scheme offended at least one gadfly who allegedly filed complaints against Total Attorneys lawyers in 47 jurisdictions for violating the rule against paying for referrals.  So far, it appears that the complaints in about a half-dozen of those jurisdictions have been dismissed, with Connecticut being the most recent. Whether we will ever find out the dispositions of the other 40+ complaints remains to be seen.

A final oddity in this area is that many states’ ethics rules allow nonprofits, such as bar associations, to operate referral services which charge attorneys directly for taking cases referred to them or require the lawyers to share the fees they receive with the bar association. Apparently, when a nonprofit is paid for a referral, it’s a public service; when anyone else receives a payment, it’s a pox upon the public interest.

As technology continues to change our lives, lawyer advertising will likely continue to change as well. If you’re thinking of being the first on your block to try a new method of attracting clients through the internet, make sure you are buying advertising, not clients.

Pssst, Buddy—Wanna Buy a Client? was originally published on Lawyerist.com.

Lawyerist.com: A family and friends plan for your law firm

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A family member or close friend calls you one day with a “quick” question. Seems she has a dispute with a neighbor or she just got denied a promotion or she needs to tell the renter of her duplex to stop smoking in his unit. She knows you are really busy but was wondering if you would mind looking into it or just writing a letter or making a phone call for her. She hates to bother you but she does not know any other attorneys and really needs some help with this problem.

Read this article over at Lawyerist.com >

A Family and Friends Plan for Your Law Firm

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family dinner11 A Family and Friends Plan for Your Law FirmA family member or close friend calls you one day with a “quick” question. Seems she has a dispute with a neighbor or she just got denied a promotion or she needs to tell the renter of her duplex to stop smoking in his unit. She knows you are really busy but was wondering if you would mind looking into it or just writing a letter or making a phone call for her. She hates to bother you but she does not know any other attorneys and really needs some help with this problem.

So, do you agree to help? The answer differs for each attorney. Some swear against representing friends and family on the theory that no good deed goes unpunished. If the case turns sour, you lose the friendship or become a persona non grata at family get-togethers. Plead ignorance as to that area of the law, refer the matter out, and keep your nose clean.

Some lawyers, on the other hand, feel it is their obligation to help out a family member or friend. Remember when Joe helped you re-roof the garage? How about when Stacey brought your family meals for a week when your spouse was hospitalized? And you are unwilling to write a simple letter? Loser.

Basics. Let us say you decide to help this person. Keep in mind that regardless of whether she is going to pay you, she is your client. In fact, she probably became your client during the first phone call or the conversation in the family room during Thanksgiving dinner. She asked for legal advice and provided you with confidential information, you listened, nodded your head, made some noncommittal remarks, and did not give her any sign she should stop talking. She’s a client. Make sure you treat her like one.

Representation agreements. In most jurisdictions, ethics rules require representation agreements only for contingent fee matters or advance payment of availability or flat fees that will not be placed in a trust account. Nevertheless, a representation agreement is a good idea for all client engagements, including those you may do for free. Legal Aid and other pro bono lawyers always have their clients sign representation agreements. Even where no money is being paid, the client should understand the scope of the representation, what obligations the client has to cooperate with the lawyer, and how the client or lawyer may end the representation. This is no less applicable to friends and family (F/F) than it is to other clients. Signing a representation agreement also shows that you are taking the matter seriously and you expect the same from your clients.

Fees. If you do not charge the F/F a fee, you risk that if the matter becomes more complicated than you anticipated, you may become resentful that you are working for free, do a poor job, or let the case “mature” under a pile of files that do generate fees. Charging a fee, however, may give the impression that you are greedy and deserve to be the butt of lawyer jokes. See paragraph three, above.

One compromise is to agree with the F/F that you will provide them with several hours of legal services for free. After that first two or four or whatever hours, you will expect them to pay your bills. If your rate is $250 an hour, that is like giving them $500 or $1,000 right off the bat. Difficult for them to later say you did not treat them fairly when you gave them that much in free services.

You could be more elaborate and say that after the first four hours free, you will bill at one-half your rate for the next X hours, and then the full rate after that. However it is done, the idea is to convey to the F/F that your time is valuable, that they have to participate as well, and that you do not intend to make their very irritating case your life’s work unless they are willing to pay for it. Even if you would have felt guilty about charging your best friend for legal work, you are likely to feel less guilty after you have put in a number of hours free. The invoices also provide a permanent record of what work you did for them, which may help avoid recriminations later.

Getting out. Having an exit strategy is a particularly good idea when representing friends and family. Your personal relationship may lead you to get in deeper than you anticipated, with no good way to extract yourself once you are up to your hips in your client’s stuff. The time to think about getting out is at the beginning, when you are drafting the representation agreement. Think carefully about what the scope of your services will be and how to define when you will be done.

Confidentiality. Remember, no matter what happens, all of the information you receive during the representation of friends or family is confidential. No matter how badly it blows up, or how you are maligned in your circle of friends, or who whispers about you in grandma’s pantry, keep your mouth shut. No name-clearing, no setting the record straight.

Hopefully, if you take some of the steps outlined above, you will maintain long and happy relationships with your family and friends. At least that’s the plan.

(photo: toastforbrekkie)

lawyeristlab banner A Family and Friends Plan for Your Law Firm

A Family and Friends Plan for Your Law Firm is a post from the law firm marketing blog, Lawyerist.com

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ERIC T. COOPERSTEIN, PLLC

Eric T. Cooperstein

etc@ethicsmaven.com
612-436-2299 (work / cell)

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