Retaining Good Employees — Begins with You

A consistent question I receive from practice owners and professionals is, “How do I keep good associates?”  Lawyers and other professionals come and go, and no law firm or profession is immune from this trend.  Young professionals seem to hop from firm to firm, or want to strike out on their own, once they get a bit of experience under their belt.  When you are training new associates, ideally, you are training them to be experienced, self-reliant, and productive–in other words–the kind of professional that could leave your firm and start their own practice.  The attributes that you want your associates to have are the same attributes that make them ready to practice on their own.

So, how do you keep good attorneys or any employees for that matter?  There is no magic bullet or sure-fire way to retain talented employees, but there are things that you can do, beyond paying a fair salary, to encourage your employees to stay. 

1)            Open Communication and Teamwork – Let your associates know that they can come to you with anything.  Foster an environment of open communication and working as a team.  Make clear that they can come to you with concerns, problems, or even if they make a mistake.  You can work together to find a solution.

2)            Be a Mentor – In addition to imparting knowledge in your field of practice, instill your own core values in your employees.  Show them how you care about and value your clients and your employees.  Show, by example, your values of honesty, trust, dedication, and perseverance, or whatever your core values may be.  You can also encourage your associates to take on more responsibilities and try different tasks.  Then you can show them patience and trust when working with them in these new areas.

3)            Get Feedback – Ask your staff how you are doing as a boss and listen to what they have to say.  Value their input, because they are part of a team.  Then implement changes based upon their input.  If you foster an environment of trust, employees will be more likely to share this kind of constructive criticism. 

4)            Create a Positive Environment – Again, this positive environment starts with your positive outlook and attitude.  Have a bit of fun or show your sense of humor.  Show gratitude for and appreciation of your employees.  Bring in lunch or dessert once a month.  Celebrate employee birthdays or work anniversaries. Engage in team building activities.

5)            Talk about the Future – Many professionals are reluctant to follow this advice, but it is important.  If you don’t share enough about what you see as the future of the firm, and how that associate fits into that future, you will likely lose that employee to a better offer or their willingness to risk starting their own practice.  Don’t keep your staff wondering or guessing about the future.  Share your vision with them and let them know you would like them to be a part of it.

Finally, it all starts with hiring the right person, i.e., an associate who is a good fit for your firm. A person who is solely interested in making a buck is not likely the person who will stay and is not likely a person whom you would want to stay in your firm.   So, choose carefully.

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For the Civil Procedure Pocket of Your Utility Belt

I like to believe every attorney has an inner nerd who loves to pick up cool procedural tips.  Maybe it’s just me.  I squirrel them away because you never know which procedural tidbit will become the difference between winning and losing a case. 

The North Carolina Court of Appeals recently issued a published opinion that was a little gift to our inner nerds.  It was a question of how a voluntary dismissal without prejudice in another state, and expiration of the time to refile in that state, affected a later suit on the same claim in North Carolina.

In Barefoot v. Rule, No. COA18-1160 (N.C. Ct. App. May 21, 2019), plaintiff Sheena Barefoot filed a personal injury claim in Tennessee on June 28, 2016, against defendant Jacquelyn Patricia Rule.  The claim arose out of an auto accident that occurred in North Carolina on July 3, 2015, but both parties were Tennessee residents.  The Tennessee statute of limitations for personal injury claims is one year, while it is three years in North Carolina.

On November 16, 2016, the Tennessee trial court entered an order granting Plaintiff Barefoot a voluntary dismissal without prejudice under Tennessee’s rule 41.01, which is similar to North Carolina’s Rule 41(a)(1).  Both rules permit re-filing within one year after the first dismissal even if the limitations period has run on the original claim.  

After the statute of limitations ran in Tennessee for both the original personal injury claim and the one-year period to re-file the lawsuit, on April 5, 2018, Plaintiff Barefoot filed suit in North Carolina alleging essentially the same claims.  Although her claim was barred in Tennessee, the statute of limitations as to the original personal injury claim had not yet run in North Carolina.

In the North Carolina lawsuit, Defendant Rule argued the claim was barred by the doctrine of res judicata because the plaintiff had failed to re-file her action within the time allowed after her voluntary dismissal in the Tennessee lawsuit.  The defendant argued the Tennessee dismissal had become a final judgment with res judicata effect as to the suit in North Carolina.  The trial court agreed and granted judgment on the pleadings in favor of the defendant.

The Court of Appeals, however, disagreed.  The issue at the core of the appeal, as the Court saw it, was how a voluntary dismissal without prejudice operates between states.

The Court of Appeals reviewed both Tennessee and North Carolina case law interpreting the effect of a voluntary dismissal without prejudice.  In both states, a voluntary dismissal without prejudice returns the parties to their original positions, as though the first suit had never been filed.  This frees a plaintiff to switch from state court to federal court or to switch from one state’s courts to another state’s courts to file a new lawsuit, and the rules of the second court will govern the new lawsuit. 

In this case, after the plaintiff dismissed her lawsuit in Tennessee, she was left exactly where she was before her Tennessee lawsuit commenced – she was free to file her lawsuit in Tennessee or North Carolina as an entirely new claim.  The Court therefore concluded the Tennessee dismissal order did not have res judicata effect as to the lawsuit in North Carolina.  The trial court’s decision was reversed and the case remanded.

Stash this one away in the civil procedure pocket of your litigation utility belt.  You never know when it might come in handy. 

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Take a Lawyer to Lunch

When I first began practicing law in North Carolina, one of my primary mentors told me about a strict policy he followed concerning filing sanction motions against an opposing attorney. His practice was to invite an opposing lawyer to lunch before potentially filing a motion for sanctions against that attorney.  The primary reason for this procedure was to ensure that he had considered the position and other potential facts and circumstances from opposing counsel.   It was essentially a private principle of professionalism to make sure he had the rest of the story, and potentially preserve an important professional relationship, before filing any pleading that explicitly or at least implicitly accused another lawyer of improper conduct.

            In the many years since getting that excellent advice, I have followed it consistently and fortunately have never filed a motion for sanctions against an opposing attorney. However, I’ve also expanded the principal to include other types of communications.  For example, before sending a letter or email to opposing counsel that might suggest some sort of improper conduct, I’ve strived to speak with the attorney either in person or at least by phone.  While I can’t say that this prevented me from sending every adverse communication over the years, there have been many instances where I was very glad that I reached out to make that personal contact and, in many instances, never sent the letter, email or other communication.  In contrast, on the rare occasions where I have sent that type of accusatory communication without making personal contact, I typically regret it and wish that I had done so.

            While this principle is not perfect, I believe that if opposing lawyers would have more personal communications, including going to lunch or some other meeting, there would be much less acrimony and fewer unprofessional exchanges among lawyers. It is simply harder to file pleadings and send other communications making allegations against an attorney that you know personally. Additionally, understanding others’ positions and being empathetic is a critical part of being a successful attorney.

            I strive to be like some of my mentors, Ed Gaskins and Judge Franklin Dupree, who treated all lawyers and everyone else involved in the legal and judicial process with respect and professionalism. Taking a lawyer to lunch, or otherwise having direct personal communication, before making any professional accusation is certainly a good way to start. 

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We Passed!

Well, now I can say we’ve been audited by the State Bar! You may know that we called up Anne Parkin, the State Bar Auditor, and asked that our trust account be audited this quarter, since we weren’t lucky enough to be chosen randomly. The audit went very smoothly. Here are some takeaways:

  • Anne likes to see the quarterly reports being done on a monthly basis. When we showed her that we already did this, her eyes lit up.
  • She will look at all of your cancelled trust checks for the year, and will make sure the signatures are originals (no signature stamps), you have copies of the fronts and backs of all checks, the client matter name/number appears on the memo line, and the checks are the proper size.
  • She only reports consistent violations, not the occasional oversight, to the Office of Counsel.
  • If you have a large number of transactions in trust each month, Anne may pick a random transaction to review, and look at all of the supporting source documents (checks, deposit slips, receipts, wire transfer instructions) herself.
  • She reviews 12 months of records, including all source documents, starting with your current monthly reconciliation and going backwards.
  • For every audit she does, she prepares an audit report with a list of corrections, if any, and submits the report to the State Bar Trust Account Compliance Counsel for review.

According to Anne, things that will result in a referral to grievance include, consistent failure to reconcile (monthly or quarterly), very poor or woefully inadequate record keeping, a pattern of errors, especially where the errors are not documented and corrected within a quarter, and negative client balances that do not have sufficient explanation and have not been corrected within a quarter.

If Anne does note relatively minor errors/deficiencies in your record-keeping, she will prepare a Trust Corrections Request Form, noting the deficiencies. Then, you will be given 30 days to provide evidence of the correction to the State Bar Trust Account Compliance Counsel, Leanor Hodge.

If Anne finds no errors in her audit of your trust account, she will provide you a copy of her report, with the notation, “No follow up needed.” Woohoo, we passed! Although we were confident that we were following all the trust accounting rules, it is always nice when the State Bar agrees. We regularly assist attorneys in preparing for an upcoming trust audit, but it is a good idea not to wait until the State Bar comes knocking at your door. If your trust account needs a procedural check up, let us know. We’d be happy to take a look.

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Voluntary Trust Account Audit

The Tenth Judicial District was the lucky district selected for the State Bar’s random attorney trust account audit program this quarter. But I didn’t feel lucky–our trust account wasn’t chosen. I decided that I would no longer stand on the sidelines while others had all the fun. So, I called up the State Bar Auditor, Anne Parkin, and asked her to please, please audit our trust account, too. She obliged.

Lost my mind, you say? No, no, there is a method to my madness (and no doubt, some at my firm would call me crazy). I have been advising attorneys about trust accounting issues for 25 years now, including 10 years at the State Bar. I have helped attorneys come into compliance, defended disciplinary matters dealing with trust account issues, helped them prepare the necessary trust reports for State Bar compliance counsel, and performed trust account mini-audits. But, although I know what goes on in a State Bar audit, I have never sat through one myself.

I think this will be a great learning opportunity for me and for the attorneys in my firm who will be advising attorneys on trust accounting. And, yes, I am looking forward to this. Not to worry, I will keep you posted on the outcome. All I can say for now is…bring it on, Anne!

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Use Your Resources

You’re competent in the area of law you practice.  Of course you are!  But have you ever had some unusual circumstance occur in the middle of a perfectly “normal” case where, all of the sudden, you need to take some type of action or make a very quick decision?  You have never dealt with this particular issue before, and it is likely you never will again.  You immediately research this issue, but there is nothing on point and really no direction at all.  You are under pressure, and you need help.  This is not the time for your pride to get in the way.  You have to take care of your client.  Call that colleague you know can shed some light on this issue.  Competence doesn’t mean you know everything.  A very wise attorney recently told me, “Being a good lawyer means knowing when you use your resources.”  There are always resources.  Someone always knows someone who can give you direction.  If you cannot think of who to call first, start with your professional liability provider.  Most providers will provide this type of support.  And if a colleague contacts you and needs a little guidance, make some time to respond.  If you cannot help, you may know someone who can, and in turn become a resource yourself.

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It’s a New Year: Resolve to Reconcile

If you read the quarterly State Bar Journal disciplinary section, you know that ignoring the trust account can result in severe disciplinary action.  Do you know to whom every penny in your trust account belongs?  Can you provide a client an accounting promptly?  Are you maintaining all required records, including copies of both sides of negotiated checks?  A good rule of thumb is that every transaction into or out of the trust account must have a supporting document, and that supporting document must indicate the client whose funds are impacted.  What you want is a paper trail.  You also need to maintain a general ledger for the account, which is like a check book register.  It is your internal record for all the transactions in the account in date order with a running balance.  You need to be able to create a list of individual client balances as of a certain date each quarter, although looking at this list monthly would be better.  The list must always have positive client balances–see a negative balance, and you know there’s a problem.  You will need this general ledger, the list of client balances, your bank statement and the supporting transaction documents to do your quarterly reconciliation.  As an added precaution, we recommend that you do these reconciliations monthly, but that is not required by the rules.  On a monthly basis, you are only required to reconcile your bank statement to your general ledger.

At the end of a representation, you must also be able to create a ledger for any client showing where all of their money has gone.  The ledger should also reflect a running balance and an ending balance of zero.   If you hold client funds longer than a year, you are required to provide an accounting (ledger) to the client annually.  There is also a quarterly review report which requires you to pull three random client transactions and verify each transaction with the source documentation.

The State Bar has forms on their website for these monthly and quarterly reports, and we can also provide these reports to you.  We are now offering trust account procedural audits for a flat fee.  We can assess your trust account record-keeping, and note deficiencies.  We can also provide you a checklist to assist with your reconciliations in the future and may be able to suggest a better, or more efficient way, to handle the trust account.  Let us know if we can assist you.  It’s never a bad idea to have someone look over your shoulder.

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A Good Lesson

We all make mistakes and have bad days.  That’s, in part, what liability insurance is for.  But I recently had a good reminder not to trust your memory when communicating information to others including opposing counsel, the court, your client, and in my case, the State Bar.  I was on a conference call, communicating anecdotal information to a subcommittee of the State Bar regarding the licensure of one of our attorneys.  I was convinced that one of our attorneys was licensed in 2012 or later, when in fact, she was licensed much earlier.  I am not sure why I believed this–perhaps it is her youthful glow, or that she had not been practicing with our firm for very long.  In any case, I conveyed that information to the subcommittee as part of the example I was giving, and I was wrong.  Yikes!  Thanks to some quick fact-checking by State Bar staff, I was corrected on the conference call.  No big deal in this context, except that I was very embarrassed.  But, it was a good reminder that even when you think you know the facts, check first and verify before communicating the information to others.

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Wishing you a joyous holiday season

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Getting to “Nope!”

Like many young associates, when I first started practicing, I was eager to prove my worth, show the partners and senior associates at my firm that I deserved to hang with them, and that they could count on me to not only “get it done” but “do it well.”   The word “no” simply did not exist in my world;  it had been eviscerated from my vocabulary.  Anything that hit my desk would be handled with unmatched enthusiasm and legal acuity.  I received rave reviews from my superiors and they kept coming back to me for more help.  I never turned any project away.  I did it all.  I was a success.

I also gained 30 pounds and a sleep disorder that year, and I didn’t read a single book for pleasure.  Is that the picture of success?  In retrospect, I am not so sure.

Now, to be clear, I worked for kind, compassionate, brilliant lawyers.  That’s part of why I wanted to please them.  It’s part of why I dreaded saying “no” when they asked for help. It took me about three years to understand that they weren’t responsible for controlling my workload, I was.   I remember the first time I said “no” at work.  There was a lot of sweating, a lot of panic, and a little rehearsal.  But I did it.  And you know what?  Nothing bad happened and I still had a job.

Fast forward a few years to another challenge – parenthood.  Just as I wanted to be the perfect associate, I also want to be the perfect mother—showing up for every class party, being the first to volunteer for EVERYTHING, and NEVER forgetting to wipe down the grocery cart before the kid sits in it.   Just add another 30 pounds and a new kind of sleep disorder.  No problem, right?  I can handle it.

For some of us, learning to politely decline someone’s request, or letting an opportunity go, is a real challenge, especially for professionals with demanding careers.  This is especially true considering the heavy focus on our profession’s duties to others: our duties to colleagues, our duties to tribunals, and above all, our duties to our clients.  However, saying “no” is an extremely important skill.  And I call it a skill because for some of us, it is something that needs to be acquired.  (The next step is letting go of the guilt associated with saying “no,” but there is only so much I can tackle in one blog post!)

Rule 1.1—the very first rule of the Rules of Professional Conduct demands competence.  Although we tend to view “competence” in concrete terms such as “legal knowledge” and “skill,” also consider that when we are in high demand and over-extended, there is a corresponding risk that the quality of our work may suffer.  We may not be as thorough; we may not be as prepared.  We may not be fulfilling our duties to our clients.

Knowing your limits and finding the courage to enforce them are key to competence in the practice of law.  When we take care of ourselves, we are better equipped to care for others, whether they are our families, our colleagues, or our clients.

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