Hot Prospects

For lawyers in private practice, the search for clients is a never-ending quest. Traditional advertising, Google AdWords, logo-emblazoned swag, direct mail campaigns, little league jerseys, conference displays, Elks Club meetings – it’s that Glengarry Glen Ross compulsion to get the new leads, hopefully without the profanity.[1]

For all the time lawyers spend trying to get the calls and website hits, it’s surprising that there is so much debate about what to do with prospective clients once you get them on the line or in your email. Drop by a bar association listserv, the Maximum Lawyer Facebook group, or some other forum, and you will find lawyers frequently trading tactics and techniques for reeling in new clients. How much information should you obtain in the first conversation? Should a lawyer or nonlawyer handle the call? When do you do the conflicts check? Free consults or paid? One size does not fit all.

Starting Point. Rule 1.18(a) of the Rules of Professional Conduct defines a “prospective client” as “A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.” That’s pretty broad. A “consultation” with a prospective client (PC) could occur anywhere, at any time. It could be in a Zoom breakout room or at a July 4th socially distanced picnic. It doesn’t matter that the PC has not yet paid you any money or signed a retainer.

The reason the Rules define a PC is to grant those tire-kickers and rate-shoppers limited confidentiality rights. Rule 1.18(b) says that the information you learn in “the consultation,” even if they never darken your door again, cannot be used or revealed except as otherwise permitted by the Rules. It is not clear from these two subparts alone what constitutes a “consultation” that qualifies for this protection. In classic lawyer style, the comments say that some interactions may not rise to the level of a consultation but it “depends on the circumstances.” Some types of contact are excluded. For example, people who unilaterally dump their TMI on you in an unsolicited e-mail or voicemail message have not had a “consultation.” But if you invite contact, say through a form on your website, it might be wise to warn PCs that there is no attorney-client relationship until you say there is.

The upshot of this requirement to protect PCs’ confidential information is that lawyers need to make sure that the names of PCs find their way into the lawyer’s conflicts database. If you’re conflict avoidant, that may sound a little daunting. But Rule 1.18(c) provides a limited safety valve. It says that if the information you receive from a PC would not be “significantly harmful” to the PC if you represented someone adverse to the PC, then you will not be conflicted out of representing a future adverse party.

Intakes vs. Consultations. Which brings us to the practical questions of how lawyers should handle conversations with PCs. At one end of the spectrum, you could have an “screening” process, which we’ll define here as a relatively brief contact in which the PC provides enough identifying information to perform a conflict check and a minimal synopsis of their situation that gives the lawyer some hints as to whether the lawyer might be interested in representing the PC. The information gathered is so minimal that you probably do not have to worry about whether you have had a “consultation” under Rule 1.18 because there is so little information to protect. The larger the firm, the more necessary it may be to conduct an “screening” as a prelude to a consultation.

Screening limits conflicts issues but the problem that remains is how you close the deal. You have got to convince the client that they should hire you. That likely requires a longer conversation in which the lawyer demonstrates their winning personality, their empathy for the client’s personal situation, and makes their sales pitch. After all, the leads are not worth much if you cannot convert them. There are some lawyers who advocate for keeping the client on the phone as long as possible because they find it leads to a higher conversion rate.[2] Obviously, the more information you gather, the greater the possibility of conflicting the firm out of a future representation even if the PC does not hire you.

Free vs. Paid. In some practice areas, lawyers have to sift through a high volume of PC calls. The path to converting those leads may be through free in-person or Zoom meetings, but long initial consultations collectively consume a tremendous amount of lawyer or staff time and they do not all convert: sometimes it turns out that the PC was really just looking for free advice. Or the opposite problem occurs: the lawyer schedules meetings but the clients do not show up.

One way to narrow the funnel to more serious PCs is to charge an initial consultation fee. The fee might be at or below your usual hourly rate, designed to get the PC’s buy-in and relieve you of feeling like a chump if you provide good advice during that consultation. Whether it works for your practice may turn on the type of law. Criminal law, personal injury, and workers compensation attorneys are not likely to charge for an initial consultation. Paid consultations can work for business clients, family law, and other areas in which the lawyer can both give advice and encourage the PC to retain them at the same time. Be flexible. You can offer paid consultations when you are busy and switch back to free when work slows down.

At the end of the day, just getting the new leads is not enough. Remember your ABCs: Always. Be. Closing.

(Originally published in the May 2021 issue of Hennepin Lawyer)

[1] David Mamet wrote the Pulitzer Prize winning play (1984) and the screenplay for Glengarry Glen Ross (1992), which was kind of a mash up of “Waiting for Godot” and a real estate sales agency. Truth be told, it’s one of the only movies I’ve ever walked out on.

[2] Arizona lawyer Billie Tarascio has an online “Intake Training Course” that teaches her philosophy of the lengthy intake or consultation. See https://modernlawpractice.com/course/intake-for-law-firms/ (last visited Mar. 31, 2021).

Sweat the Small Stuff

A friend once told me that he was not comfortable using computers because he could not really understand how they worked. Compare it to a car engine, he said. A person does not need to be a mechanic to understand that gasoline gets sprayed into a cylinder, then it explodes, then a piston moves, etc. But all those electrons flying through chips, motherboards, cables, servers – who really understands how any of that stuff works?

One could say the same about client files and information. When a lawyer has a paper file with the pages neatly clipped in place and she puts that file in alphabetical order in a drawer of a big, sturdy, metal file cabinet, she knows exactly where it is and who has access to it (some lawyers claim to know exactly where their files are amongst multiple vertical stacks of paper in their offices, much as squirrels know where their nuts are buried. But I digress). The paperless lawyer knows their files are . . . where exactly? In a cloud someplace? Would that be a cumulus or a nimbostratus cloud?

None of us should be surprised that when lawyers combine our human tendency to be cautious or fearful of what we do not understand with our sacred obligation to safeguard confidential client information, it produces an abundance of anxiety. This is what most ethics discussions about confidentiality seem to focus on lately. Big fears about hackers, data breaches, HIPAA, e-mail security, metadata, the dark web, temporal anomalies, worm holes! One slip and Mrs. Lipschitz’s confidential divorce settlement will go viral and your law license will be shredded in a very public way.

Not so much. Don’t get me wrong. Lawyers certainly have an obligation to protect their client’s confidential electronic information. There can be big consequences for failing to do so: IT costs to fix breaches, pure embarrassment, hours lost to implementing new protections, worry over distressed clients and the unknown impact of unauthorized disclosures, and time lost to restoring data or recreating files. Breaches can turn your world upside down for days or weeks afterwards.

From an ethics perspective, however, hacks and attacks are not the types of confidentiality failures that typically get lawyers in trouble. Your duty under the Rules of Professional Conduct, as interpreted through ethics opinions in numerous U.S. jurisdictions, is to take reasonable measures to prevent hacks. Perfection is not required. Yes, lawyers should definitely have security systems in place that are reviewed and upgraded when necessary. They should use two-factor authentication to access critical systems, use a VPN if they intend to use wifi outside the office, and educate their employees to recognize and avoid phishing, spear-phishing, whaling, and other maritime-themed social-engineering e-mail scams. You cannot likely make your practice bulletproof from cybercrime but by taking reasonable precautions your law license should not be at risk. In fact, although lawyers are often the targets of hackers, there are very few discipline cases that arise from breaches, outside of “Nigerian Prince” and other certified check scams, which are less about confidentiality than they are about pure con artistry.

Instead, when it comes to confidentiality, it’s the small stuff that leads to discipline. It’s the slip of the tongue, the boastful indiscretion, or confused loyalty that is all about being human but not at all about the hazards of technology. In one case, a lawyer’s client in a personal-injury case backed out of a settlement and then fired the lawyer. The lawyer e-mailed the claims adjuster to convey what had happened. Reading between the lines, one suspects that the lawyer was concerned about what the adjuster would think of the lawyer and whether it might affect the lawyer’s future relationship with that adjuster. Part of the e-mail stated, “I advised [client] that he already accepted [the settlement] and there’s no rescinding his acceptance.”[1] That one sentence, devoid of any earth-shattering revelations, disclosed attorney-client privileged information and violated Rule 1.6, MRPC. The Minnesota Supreme Court affirmed the private admonition that had been issued to the lawyer.

This is typical of the level of violations in other cases. Saying just a little too much to a reporter without the client’s authorization. Responding to a client’s attempt to convince a credit-card processor to reverse a fee payment and offering gratuitous information about the client’s attitude or personal issues (fee disputes with clients are fertile ground for inappropriate disclosures of confidential information). Replying to a client’s one-star online review of your services by “setting the record straight” regarding what happened in the case. Recognizing the need to withdraw because of a conflict but disclosing the name of one client to the other.[2] Sending to the person who referred a client to you a copy of your e-mail defending your position in a fee dispute. Each of these scenarios resulted in a private admonition.

These situations have a common theme: emotion. Anger, resentment, embarrassment, frustration, hubris, and guilt lead lawyers to make mistakes. Perhaps they do bear some relationship to phishing schemes, which take advantage of lawyers being rushed or busy or gullible enough to click a link too quickly. It’s not the hackers who are going to get you; you’re more likely to get yourself. Pay attention to the small stuff to keep yourself out of trouble.

(Originally published in the January 2021 issue of Hennepin Lawyer)

[1] In re Panel File No. 41310, 899 N.W.2d 821, 824 (Minn. 2017).
[2] E. Cleary, “Summary of Admonitions” Bench & Bar of Minnesota (March 2000).

You’re Not So Special

Years ago, I heard a sermon about the way people carry secrets around with them. Not Rule-1.6-client secrets. Personal secrets borne of living a life: crimes committed, large and small; flings and affairs; errors and omissions, and so on. Most of us, the sermon suggested, have secrets we protect from disclosure at all costs. People can hold, bury, and guard their secrets so well and for so long that at some point they may not even be aware they are doing it. But secrets ultimately eat away at us. It’s difficult to be a whole, healthy person when your brain is busy maintaining your emotional forcefields and anti-disclosure missile systems.

One of the humbling aspects of being an ethics lawyer is that attorneys share their secrets with me. Some come spilling out over trembling lips. Others must be coaxed, after establishing some trust. I’ve been surprised over the years how many lawyers say to me “Everything I tell you is confidential, right?” Of course it is. I’m your lawyer.

Spoiler alert: there are no spoilers here. I’m not sharing the secrets lawyers share with me. But in representing lawyers over the last dozen years, some common themes have emerged which may help others who tote a heavy bag of secrets around with them.

One is the relief that lawyers experience from merely saying out loud what they have been holding inside. This is true of everything from “simple” errors in handling a client’s case —a missed deadline, a misread statute, a file mislaid for too long — to more serious lapses of judgment. The embarrassment associated with ethical lapses can become it’s own kind of creature. A boggart from the Harry Potter series – the creature that peers into your mind, figures out what you fear most, and then appears as that thing. The incantation a lawyer needs to vanquish it is to describe it to someone else.

Even after the facts are on the table, anxiety runs high amongst my clients. It is somewhat ironic that the lawyers who have committed a minor offense or perhaps are being investigated despite no apparent violation at all display more anxiety than lawyers accused of more serious misconduct. Conscientious lawyers, despite their overall competence and success, may experience acute anxiety from the uncertainty involved in the investigation process, second-guessing their own abilities or practice methods, and questioning why they bother practicing law at all. This anxiety can become, even for otherwise healthy lawyers, debilitating. A healthy person should not hesitate to seek informal or formal assistance when he or she finds that anxiety is regularly distracting them from or interfering with work, family, or other commitments.

Lawyers who choose to share their own history of mental illness or substance abuse, as well as the traumas that underly their disorders, also have a lot in common. There is a standard fear that sharing with one person means the whole world will know, which of course is not the case, especially when sharing with a lawyer. More concerning is the fear that the lawyer will be disciplined more severely for having a disorder, when in fact the opposite is actually true, as long as the lawyer is willing to take steps to understand and seek treatment for their disorder. Closely related to this is a fear that the lawyer will be labelled as someone who is disabled or defective, thus bringing a rapid end to the lawyer’s ability to find clients. One of the great benefits of seeking help through Lawyers Concerned for Lawyers or a 12-Step program is that you meet people just like you who are successfully living with their illness.

Lastly, one of the most remarkable patterns I have noticed in private practice is how understanding and forgiving lawyers’ friends are. I regularly see people, lawyers and non-lawyers alike, who are able to get past the human errors that lawyers commit and stand by them. There are people out there waiting to help you, if you let them in on the secret.

 

(Originally posted in the September 2019 edition of Hennepin Lawyer)

How to Draft a Conflicts Waiver

Seven rules of the Minnesota Rules of Professional Conduct require that a lawyer obtain “informed consent, confirmed in writing” to proceed with a representation despite an actual or potential conflict of interest. The comments to the rules offer some guidance regarding what types of circumstances one might take into consideration when deciding whether a conflict exists or is waivable, but offer precious little in the way of guidance for actually drafting a conflicts waiver.

“Confirmed in writing,” as explained in the definitions section of the MRPC, means a writing that confirms what was discussed orally about a conflict.The client’s signature is not required, although once you’ve bothered to write something down and send it to the client, it should take little more effort to have the client acknowledge receipt and content by signing the writing or by return e-mail.

What to write is the question. Brevity could be a problem. Merely saying “You agree that we have discussed this conflict and you waived it” does little to preserve your conversation with the client. If the conflict does arise or become unmanageable, the disgruntled client is going to say “Well, she never told me that might happen.”

Some conflicts waivers are written as though the lawyer was being paid by the word, cutting-and-pasting the entirety of Rule 1.7 into a retainer agreement and then say, “you consent to any conflicts.” The client is not expected to understand the rule; the lawyer is supposed to explain it to them. Close behind, sometimes attached to retainer agreements, are generic statements of firm “policies.” Mostly these concern billing but they sometimes include a section in fine print that begins “If this matter involves the representation of more than one client or if we have identified a conflict of interest, you agree . . .”

If there’s one defining characteristic of a good conflicts waiver, it is probably that it bears little resemblance to the last one you drafted. That is because good conflicts waivers are fact-dependent. Sure, you use similar language for common situations such as representing a husband and wife in drafting joint estate plans or for representing multiple victims of a car accident. But most waivers will be tailored to the facts of the particular case. More facts, less filler.

Here are the steps you should take to draft a conflicts waiver:

  • Analyze the situation. Determine how the interests of your clients overlap or collide with each other. Identify the correct ethics rule. Figure out if there even is a conflict. If there’s no conflict, be careful about asking for a waiver when you don’t need one because if the client or former client says no, you’ve now planted an idea in their head. If you proceed anyway, you may draw a disqualification motion or ethics complaint. Even if the motion or complaint seems frivolous to you, it will still need to be defended. On the other hand, remember that some conflicts are not waivable, because no reasonable lawyer would think that you could conduct the representation while completely protecting confidences and acting with undivided loyalty.
  • Explain your analysis to the client. Start writing where you started, by identifying the parties and their relationship to each other. For example, “We represent your bank in real estate transactions. Another of our clients is seeking a line of credit for his business.” Or “One of the witnesses in your case happens to be a client of ours in another matter.”
  • Describe whether there’s already a conflict or not. Joint representations often start off harmoniously; the conflict may be latent. Alternatively, perhaps your joint clients have potential, but remote, cross-claims against each other. Citing an ethics rule number is not by itself important, unless the client is a lawyer and the rule number would help define the scope of the issue.
  • Even where it appears there is no conflict between joint clients, describe how things could go bad. Use your imagination. There’s no need for gloom and doom, but if you come up with a couple of examples of what could go wrong, it helps a client understand what you mean by a “conflict of interest.”
  • Let the client know that it’s on you, the lawyer, to watch out for when the situation has changed and you either need additional disclosure and consent to continue the representation or you will be unable to continue.
  • Lay out the consequences of the conflict ripening and starting to stink. Usually, you will want to warn the client that you will have to withdraw from representation. There could also be costs and delay.
  • Reassure the client that you’ve analyzed all these factors and that you believe it’s reasonable to proceed with the representation. Perhaps that is because the conflict is remote and the clients will save money by using one attorney. Maybe success in a summary judgment motion will make latent cross-claims or witness testimony unnecessary. Perhaps you will set up an ethics screen that assures the client that her confidential information will not be shared with the attorneys in the firm who are working on unrelated transactional matters for the opposing party.
  • Last, get the client’s signature. You’ve just done all this work, you might as well lock it down.

(This article was originally published in the July 2019 issue of Hennepin Lawyer)

The More Fee Agreements Change, the More they Stay the Same

In 1944, the Hennepin County Bar Association published its “Minimum Fee Schedule,” setting forth the permissible rates for various types of legal services. Although office consultations could be charged at the very reasonable rate of $10.00 per hour, minimum fees attached to lawyers’ charges, such as a minimum of $250 for appearing before the Minnesota Supreme Court, $100 minimum for preparing a bankruptcy petition and schedules, and 15% of the first $500 in a collection action. Estate planning, family law, and criminal matters are conspicuously absent from the schedule.

No “competent and conscientious lawyer” could go below the minimum fees without “incurring the temptation to slight his [sic] work . . . thus injuring his [sic] reputation” and “being unfair to his brother [sic] lawyers who are endeavoring to maintain proper standards of professional competency and diligence.”

Much about lawyers’ billing practices have changed in the last 75 years. Mostly gone are the days when a lawyer would send out an invoice listing fifteen or twenty tasks that had been accomplished in the past month, single-spaced with no paragraph breaks, followed by an apparently arbitrary dollar figure at the end. “Block billing,” as it is sometimes called, has been banned by insurers and corporate clients, even when all the tasks in question were completed on a single day. More common is that lawyers are expected to break out tasks and time separately or at least indicate within a paragraph of billing how much time has been devoted to each task.

And yet, despite the declaration in 1975 that fee schedules violated anti-trust laws,[1] few lawyers advertise their fees or attempt to compete with each other on price. Anecdotal evidence suggests that clients seeking to file a Chapter 7 bankruptcy or defend a DUI may price-shop by calling multiple lawyers, but one is hard-pressed to find an attorney’s website that states the lawyers’ hourly rates.

Flat fees. A 1994 Hennepin Lawyer article, titled “Is Hourly Billing Proper?” quoted a recent New York Times piece that declared “The billable hour as we know it is dead in the practice of law.”[2] Flat fees, contingent fees, and other alternatives would soon displace the odious hourly fee. Apparently, the future is not here quite yet. The Clio Legal Trends report for 2017,[3] which aggregated data on the tens of thousands of attorneys using Clio’s on-line practice-management software, showed that roughly 18% of lawyers used flat fees to bill clients, an amount that had not changed materially over the past five years. Flat fees tend to be used in the same areas of practice that have relied on flat fees for several decades: criminal law, estate planning, immigration, and bankruptcy work.

The problem here, if there is one, cannot be laid solely at the feet of lawyers. When pundits talk about how great flat fees are, they tend to overlook several factors. Hourly rates are a standard way of charging for time across our economy, from non-exempt hourly workers, to trades, to professional services. A large body of federal and state case law interpreting statutory attorney-fee provisions measures a lawyer’s work by the hour, with perhaps a lodestar applied to the hourly rate. Insurance companies have rigid rules for paying attorneys to defend cases, all based on hourly rates. The value of discharged attorney’s work in a quantum meruit claim on an attorney lien may be measured on an hourly basis.

At the same time, some lawyers are becoming more creative in designing fee structures to meet their client’s needs. These include blended hourly rates, fee collars, success fees, minimum fees, and fee caps. Contrary to popular belief, it is medium and large-sized firms, rather than solos and smalls, that have shown some of the greatest creativity in fee arrangements.

Costs. Photocopy and phone charges seem to have mostly disappeared from lawyers’ invoices. Charges for photocopies may be subject to sales and use taxes; few firms seem to want to go through the administrative burden of charging and reporting sales taxes for a few photocopies. The days of charging $1.00 / page for faxes printed on special thermal paper are, thankfully, long behind us.

Instead, one concerning trend is that some lawyers impose an “administrative fee,” typically between $100 and $250, to cover some of the photocopy, legal research, and other expenses they may incur but cannot otherwise recapture from clients. These administrative fees are fraught with ethical pitfalls. First, if the fee is intended as a flat fee that will not be placed in trust, then it probably must comply with Rule 1.5(b), MRPC, which means there must be a specific set of disclosures in the representation agreement. The Office of Lawyers Professional Responsibility strictly construes Rule 1.5(b), causing angst to many well-meaning lawyers. Second, if the representation ends prematurely, the unused balance will have to be refunded. It is not clear whether lawyers charging these administrative fees have contemplated how such a refund would be determined. Even if not clearly a violation of an ethics rule, I have seen questions about administrative fees prolong ethics investigations. The better practice is clearly to just incorporate any administrative costs into the lawyer’s hourly rate or flat fee for the representation, just like you do for the lights, the rent, Keurig cups, etc.

My prediction for 2044: attorneys will charge for their time pretty much the way they do right now.

(This article was originally published in the May 2019 issue of Hennepin Lawyer).

[1] See Goldfarb v. Virginia State Bar, 95 S.Ct. 2004 (1975).

[2] R. Curtin, “Is Hourly Billing Proper?” The Hennepin Lawyer 28 (May/June 1994).

[3] Available at https://www.clio.com/resources/legal-trends/2017-report/ (last visited Apr. 1, 2019).

Hey, Lawyer – Can You Spare a Dime?

Allie Avocat is representing Carl Clint in his claims arising out of a car accident in which he was seriously injured. Clint has been out of work for nine months. Liability has been conceded and all that remains is litigation over his damages. There is a defense offer of $150,000 but Avocat believes the case is worth well in excess of $750,000. Clint’s savings have been exhausted and he is two months behind on his rent. He is concerned that he and his two children will be evicted from his apartment. He asks Avocat if she can advance him $4,500 against his settlement to cover his rent for the next three months.

Sorry, Mr. Clint. Despite the fact that it is clear that you will get a substantial recovery on your case, your lawyer can not lend you a comparatively small amount to help you avoid eviction. In fact, she could not even give you $50 to fill your gas tank. The Minnesota Rules of Professional Conduct, specifically Rule 1.8(e), say that would be a conflict of interest. Huh?

Rule 1.8(e) prohibits lawyers from providing “financial assistance” to a client in “pending or contemplated litigation” except in three situations. If a client is indigent, the lawyer may pay court costs and expenses on behalf of the client. There is no limit to the amount which can be paid. A lawyer may also advance, on behalf of any client, court costs and expenses, and can opt that repayment of those expenses will be contingent on the outcome. Again, there is no dollar limit in the rule. The lawyer can advance thousands of dollars in expert fees, accident-reconstruction fees, deposition costs, jury consultant fees, etc. The lawyer can require that her attorneys fees and those expenses are paid before the client gets any money out of the case.

The third exception provides that a lawyer may guarantee a loan that is “reasonably needed” to help a client like Clint “withstand delay in litigation” so that the client’s financial situation does not pressure him to settle prematurely. Repayment of the loan cannot be contingent on the outcome of the case. So, the lawyer cannot lend the client money herself but she can sign a guarantee that essentially allocates the same risk to the lawyer as making a loan.

The philosophy behind the restriction on financial assistance is neither immediately obvious nor is it clarified by the comment to Rule 1.8.  Comment 10 states that “Lawyers may not subsidize lawsuits brought on behalf of their clients,” because doing so “would encourage clients to pursue lawsuits that might not otherwise be brought” and because the assistance would give the lawyer “too great a financial stake in the litigation.” Paying or advancing litigation expenses “are virtually indistinguishable from contingent fees” (although the rule does not limit the practice to contingent fees) and “help[s] ensure access to the courts.” So, advancing thousands of dollars in litigation expenses is okay, but $50 for gas or a couple of months of rent is forbidden.

Yeah, it doesn’t make any sense to me either.

Also, if it’s a transactional matter, no worries. A lawyer may lend a client money for any purpose as long as it’s not related to litigation. Rule 1.8(a) governs such transactions, which include that the terms must be fair and reasonable, that the client have the opportunity to consult with independent counsel about the transaction, and that the required disclosures be confirmed in writing.

It is not clear from Rule 1.8(e) or the comment why reasonableness, the opportunity to consult with independent counsel, and written disclosure are sufficient for other loans to clients, even multi-million dollar transactions, but not when litigation is involved. And why would guaranteeing a loan that must be repaid not cause a lawyer to have “too great a financial stake” in the case when the expenses advanced by the lawyer could easily be more substantial than a loan to the client for living expenses?

Where does this leave Mr. Clint? Well, if Avocat has a wealthy friend with a big heart, she can arrange for the friend to make a loan to Mr. Clint and guarantee it. That’s right – the rule doesn’t say the loan has to come from a bank or other financial institution.

If Avocat has no wealthy friends or connections, Mr. Clint can get a loan from a “litigation funding” company. These companies have spread like Creeping Charlie over the past ten years. They offer loans, contingent on the client recovering funds, at interest rates of 20%, 25%, or higher, and a few fees thrown in for good measure. Most lawyers discourage clients from taking these abusive loans but the decision ultimately belongs to the client. Who, as we know, may be facing eviction or other desperate circumstances.

The conflict of interest rules are usually designed to protect clients from overreaching by lawyers. With Rule 1.8(e), the rule may hurt clients more than it helps them.
(Originally published in the Hennepin Lawyer, March 2019)

Managing All the Paperless Pieces

Thanks to COVID-19, nearly every lawyer has had a taste of working “remotely,” i.e. physically severed from the credenzas, file cabinets, and rolling stacks of shelves that house their paper files. Suddenly, the “file” is everywhere: electronic documents that used to reside only on an office computer or server now may have been saved on a home laptop; letters to opposing counsel are mixed in with e-mails; and the few critical paper documents that have been scanned by your skeleton office staff and sent to you by e-mail seem to have since disappeared from your computer. Welcome to the deep end of the pool.

Not only are you having trouble keeping track of where all the pieces of your file are but, someday, a client is going to ask you for a complete copy of their file, which you are required to provide to them under Rules 1.15(c)(4) and 1.16(d) and (e), Minnesota Rules of Professional Conduct (MRPC). Failing to provide the client with a copy of their file is a very common basis for an ethics complaint. So, this seems like a good time to talk about how to manage an electronic client file, before a second or third wave of COVID-19 sends us all back home again.

File Naming. Electronic files need to be organized just like paper files. In an electronic file, every document gets a name, not unlike the “pleadings index” one might find in a litigator’s file. One of my biggest pet peeves is when a lawyer e-mails me a document titled “Scan0001,” the default name put on the document by the scanner. Not only is it impossible for me to figure out what the document is without opening it but the person who sent to me also cannot tell. A folder of documents titled “Scan0001,” “Scann0002,” and “Jones letter” is like a large random pile of documents sitting on the edge of a desk.

Unless you are using sophisticated document-management software, every file name should start with a client identifier, such as a file number, last name, etc. That way, when a document inevitably ends up in the wrong folder, you can still search your computer for all documents with that client identifier.

Next, I like to identify the type of document: ORD (order), PLD (pleading), LTR (letter), and so on. That way, documents of a similar type are grouped together when I look at the folder contents.

All documents should be dated, with the year first, e.g. 2020.0801. Use the whole year, not just the last two digits, at least until 2032. Avoid inserting the month first (e.g. 0801.2020), which will group all the July documents together over multiple years, making it more difficult to find what you are looking for. Similarly, if you write out the month (August 01.2020), then August documents will appear before January documents.

Putting it all together, a letter for client Smith might be named “123.SMI.LTR.2020.0801.FINAL.to E. Kagan re counteroffer.pdf.” Even if you later cannot recall what exactly you named the document, searching for “SMI.LTR.2020” should reveal all the letters you wrote this year for that client. Of course, you can come up with your own naming system but it should have these elements.

Drafts and Finals. In an ethics investigation focused on whether the lawyer communicated with the client, it is not very convincing for a lawyer to produce a copy of a Word document, unsigned, no letterhead, with the date field updated to the date the lawyer most recently printed the document. Think of all Word documents as drafts. Final documents, such as pleadings, letters, contracts, etc., have signatures on them and should be preserved as PDFs.[1]

Preserving emails. Two guidelines about preserving e-mails. First, always save attachments to a document folder, renaming them as above or using your own system. Hunting through old e-mails for a poorly-labeled attachment is mind numbing. Second, move client e-mails from your inbox to a dedicated client folder. At the end of the representation, save them all as either one large text file or as PDFs. If you are not sure how, ask the Googles.

File notes. Except for a few narrow situations, your handwritten or typewritten notes of your conversations with clients, opposing counsel, witnesses, etc., are part of the client file. See Rule 1.16(e). Yes, your notes may be privileged or work product but nearly always the client owns that privilege or work product. Preserve the notes at the end of the representation by either scanning them (if handwritten) or saving them to a text file or PDF if typewritten.

Invoices. It may seem obvious that invoices are part of the client’s file but often the invoices are maintained through software that is distinct from the lawyer’s document folder system. Routinely preserve PDFs of invoices and save them to the client’s folder.

The good news is that providing a client with an electronic version of their file is much faster and easier than spending half a day in front of a copy machine pulling out staples and clearing copier jams. Another bonus is that attorneys do not have an obligation to maintain paper copies of client files, except for original documents, as long as the client will not in any way be prejudiced by the lack of a paper file.[2]

By the time the third wave comes, you are going to wonder why you bothered with all those paper files for so long.

[1] This concept attributed to Sam Glover.

[2] See Virginia Legal Ethics Opinion 1818 (Sept. 30, 2005).

This article was originally published in the Hennepin Lawyer, July 2020, under the title “Managing All the Pieces.”

Facebook ethics: it’s not about Facebook

facebook11 Facebook ethics: it’s not about FacebookThere is a good deal of postulating in the blogosphere about the types of ethical trouble a lawyer can get into by using social media. The nattering nabobs of negativism warn us to be careful when using social media like Facebook or Twitter, lest we unwittingly disclose client confidences, improperly solicit new clients, or misrepresent facts or law.

Although there is precious little evidence that any lawyers have gotten themselves in ethical hot water using social media, the Philadelphia Bar Association recently gave its own example of the potential dangers when its Professional Guidance Committee issued Opinion 2009-02 (March 2009).

The premise for the opinion is straightforward: a lawyer wanted to know if he could have a non-lawyer assistant send a Facebook “friendâ€� request to a witness for the opposing party in a piece of litigation. The lawyer apparently thought there were juicy tidbits to be found on the witness’s Facebook  page (or at least information with impeachment value) but did not think the witness would accept a friend request directly from the lawyer (no surprise there—he had just recently taken her deposition). But the lawyer thought a friend request from an otherwise unknown assistant stood a good chance of being accepted.

The Philly opinion frowned on the lawyer’s proposal. It called it a “highly material fact� that the witness would be making a friend request without disclosing the real reason for the request. Inducing the witness to respond favorably without that important fact would be a deception traceable to the lawyer, violating several ethics rules.

Whether one agrees with the opinion or not ( I did a double-take the first time I read it), the opinion is not really about Facebook. It actually tackles a difficult subject in legal ethics known as “dissembling� or “pretexting� (which has nothing to do with sending text messages). The terms refer to situations in which a person, particularly a lawyer or the lawyer’s subordinate, pretends to be someone he or she is not for the purpose of obtaining information.

As noted in the Philly opinion, such conduct is permitted in many jurisdictions for the limited purposes of civil rights investigations (think fair-housing testers) or for patent infringement cases. Some jurisdictions, in contrast, have tried to outlaw pretexting entirely (see the authorities cited in the Philly bar opinion).

When one takes a step back from the Philly opinion and looks at it in the context of the larger legal issue, it becomes clearer that while it is certainly possible for a lawyer to violate an ethics rule while using social media, it is the lawyer’s conduct, not the medium, that will likely be at the heart of the issue. An unthinking lawyer who posts too quickly on Facebook or Twitter is not that unlike a lawyer who speaks too loudly about a client matter in a crowded elevator or puts an ad in the yellow pages that inflates the lawyer’s credentials.

The old maxim that one should think before he or she speaks (or tweets) applies no less to the internet than it applies to other forms of communication.

If you are new to social networking, check out our Facebook 101 post.

lawyeristlab banner Facebook ethics: it’s not about Facebook

Facebook ethics: it’s not about Facebook is a post from the law firm marketing blog, Lawyerist.com

 

Related posts: