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 “ 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.”

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

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.

The More Things Change, the More Hourly Billing Will Stay the Same is a post from 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.

Stop Bashing BigLaw

Slingshot 280x30011 Stop Bashing BigLawAs I surf around the blawgosphere, I have noticed that it seems to be in vogue for solo and small firm attorneys to take potshots at large law firms. If one read only the solo blawgs, it would seem all large law firms are lumbering, inefficient, selfish behemoths, so knocked off balance by this recession that they are about to keel over and smash their marble conference room tables. Then all the solo munchkins would come out of their hiding places in brightly colored garb, sing songs of freedom, and sign up all of the large firms’  former clients.

I am a solo and if large law firms crash, I am going to end up covered in dust.

There is a healthy tension between large law firms (“biglaw�) and solo or small firms (collectively, the “smalls�). Yes, biglaw has a reputation for some qualities that give the law a bad name — high fees, leveraging associates to increase partner salaries, huge billable hour requirements, and lousy work / life balance, to name a few of the popular gripes. But biglaw suits some lawyers. Some lawyers would rather practice law full-time than be a part-time bookkeeper, part-time techie, part-time human resources manager, and occasional lawyer. There are practice areas that are best learned in large firms and major transactions and litigation that a lawyer is only likely to touch in a large firm.

The smalls, in contrast, love to tout their personalized attention to clients, reasonable fees, individual autonomy, and great work / life balance. But not all smalls are good at bringing together the myriad of skills it takes to run a law practice. Most smalls practice some form of “retail� law: criminal, family, personal injury, workers comp, small business, real estate. Often the clients are high maintenance and the income stream equally unstable.

Both types of law firms serve the public. The fee structure of a large law firm makes those firms unreachable for most individual clients; these folks need smalls. A large company with millions of dollars on the line looks for a brand name, the vetting of associates and partners, and the ability to quickly put together a team of lawyers to tackle major litigation or a huge transaction. It is not an accident that there are thousands of small firms and that there are big firms with over a thousand lawyers.

But we need each other. Biglaw needs smalls because the bigger they are, the more conflicts they have. Biglaw’s corporate clients are managed by people — who get divorced, have too much to drink before driving home, get into accidents, etc. Many of those matters need to be referred out. Smart lawyers refer clients to good lawyers they know who are reasonably priced and will treat the client well — like smalls. Biglaw attorneys also need mediators and arbitrators, and smalls are less likely to be conflicted out than neutrals at other large law firms.

Smalls need biglaw, too. Smalls simply do not have the brand recognition that biglaw has; smalls are constantly marketing and looking for referrals.  Biglaw attorneys are a great source of referrals for smalls. Also, when a case comes in that is to big for a small to handle, the small firm needs to bring in some muscle. Obscure questions may arise in a client’s case that need special expertise that can be found only at a large firm. Relationships with biglaw are a two-way street.

If all that is not enough, remember that when you serve on a bar committee and need to have a meeting, biglaw will often host and spring for lunch. We all need to eat, so stop bashing biglaw.

lawyeristlab banner Stop Bashing BigLaw

Stop Bashing BigLaw is a post from the law firm marketing blog,

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