Are You Checking Your LinkedIn Endorsements?

At its last quarterly meeting, the Ethics Committee adopted a proposed opinion about the propriety of making and accepting both invitations to connect and endorsements on LinkedIn.  The proposed opinion first holds that an attorney may ordinarily accept an invitation to connect from a judge.  The opinion warns that if the attorney is currently in proceedings before the judge at the time of the invitation, however, the Rules of Professional Conduct may require the lawyer to decline the invitation at that time.  The lawyer must at the time of the invitation determine whether acceptance of the invitation during the pendency of a case will impair the lawyer’s ability to comply with the Rules against ex parte communications (Rule 3.5) and prohibiting conduct that is prejudicial to the administration of justice (Rule 8.4), among others.  Ultimately, the opinion directs lawyers to be mindful of their obligation to protect the integrity of the judicial system and to avoid creating an appearance of judicial partiality.  The same criteria apply when deciding whether to send an invitation to a judge to connect.

Although there does not appear to be a hard and fast rule prohibiting it, my advice, based upon this proposed opinion, is to wait to connect with a judge until you are not appearing before that judge, if possible.

The next part of the opinion dealing with endorsements was an education for me.  I didn’t really know how the LinkedIn endorsements worked.  Apparently, you have an option to display your “skills & expertise” on your profile page.  Your connections can then endorse a skill or expertise for you.  Then you will get a notification of the endorsement.  If you do nothing, and the endorsement is for a skill you have selected to show, then that endorsement automatically will appear on your profile page.  You may also edit the “skills & endorsements” section to “hide” selected endorsements or skills.  Why is all of this important?  The proposed ethics opinion says that it is OK to endorse a judge for skills or expertise (assuming you are not currently appearing before them).  Likely, this is permitted because it is really no different than sponsoring a judicial campaign or being listed publicly as a donor.  The proposed opinion goes on to say that an attorney may not, under any circumstances or at any time, accept an endorsement from a judge.  Further, if a person that you had previously accepted an endorsement from then becomes a judge, you are required to remove the endorsement from your profile.  And, this prohibition applies to any social media website that allows public displays of endorsements or recommendations.

Ack!  I’m not checking my LinkedIn for people that I have connected with who may have become judges and might have endorsed me at one time! Perhaps I should know or remember which of my connections have become judges, but heck, I sometimes have trouble remembering what I ate for breakfast.  Before you panic, know that this opinion is being published for comments which if received by the Bar, will be considered by the Ethics Committee at its next meeting in October 2014.  If the opinion does become final as is, hopefully you don’t have too many endorsements to check.  This can be one time that I count myself lucky not to know very many people.

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Disbursements Against Cashier’s Checks – You’ve Got to Know When to Hold ‘Em

Have you ever received an email from a potential client asking you to collect a debt owed to them by an ex-spouse, a corporation, or other person or entity?  Did the email offer to pay you a hefty percentage of the amount collected?  Many of us have received similar emails.  More often than not, such requests are scams which involve fraudulent cashier’s checks.  Some emails are easily identifiable as scams due to spelling and grammatical errors, but some are fairly sophisticated.  Cashier’s checks have had the reputation of being reliable in the past, but these schemes are making attorneys a bit more wary of immediately distributing against them, and rightfully so.

RPC 191 permits attorneys to immediately disburse funds from a trust account upon the deposit of a financial instrument specified in the Good Funds Settlement Act (“Act”) (N.C. Gen. Stat. Chapter 45A).  Certified checks, cashier’s checks, teller’s checks, and official bank checks drawn on an FDIC insured bank are all listed under the Act.  Attorneys are allowed to immediately disburse against the provisional credit extended to these kinds of instruments because they are considered extremely reliable and have a low risk of noncollectibility.  Due to the increasing scams involving cashier’s checks and the NC Court of Appeals decision in Lawyers Mutual v. Mako, should attorneys still be allowed to immediately disburse against these instruments?

In Lawyers Mutual v. Mako, a firm received an email from a prospective client asking for assistance in collecting $350,000 owed by his former employer in a workers’ compensation matter. 756 S.E.2d 809 (2014). The firm agreed to accept the case on a contingent fee basis of 20%.  The firm received the first cashier’s check for $175,000 and deposited it into the trust account, but the firm was unable to wire the client his money or collect the contingent fee due to an error in the account information provided.  The firm then received a second cashier’s check for $175,000, deposited it into the trust account, immediately wired $140,000 to the Japanese account and retained the $35,000 contingent fee.  The bank later notified the firm that both checks were dishonored.  Id. at 810-11.

The firm made a claim under its policy with Lawyers Mutual.  Lawyers Mutual denied the claim stating that pursuant to the language of the policy, it was not obligated to cover losses for instruments that were not irrevocably credited to the trust account.  Defendants argued that the “irrevocably credited” language of the insurance policy was ambiguous.  They stated that they understood this term to mean that losses from forged cashier’s checks would be covered, as such checks are irrevocably credited upon deposit.  Lawyers Mutual ultimately brought an action for declaratory judgment asserting that the cashier’s checks were not irrevocably credited, and it was not required to provide coverage.  Id.

The Wake County Superior Court granted summary judgment on behalf of Lawyer’s Mutual and the Court of Appeals affirmed the decision.  The opinion explained that “pursuant to N.C.G.S. § 25-3-104(f), a cashier’s check is treated the same as a traditional check.  A traditional check cannot be deemed fully credited until its provisional settlement period has elapsed without action by the bank to reject the check; the same is true for a cashier’s check.  Therefore, the provisional settlement period that accompanies traditional checks must also apply to cashier’s checks.”  Id. at 811-12.

The purpose of allowing attorneys to disburse against the instruments listed in the Act is to avoid delay and inconvenience, but is the inconvenience worth it?  It is likely much more inconvenient to replace the amount of any failed deposit which is required under RPC 191.  The safer course of action may be to ensure that any funds received have been irrevocably credited before distributing, even though the rules may permit otherwise.

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Case Results on Your Website? The Line Between Creating Unjustified Expectations and Good Marketing

Under the Rules of Professional Conduct, a law firm’s website is considered a form of advertisement and is regulated by the State Bar.  Most attorneys are mindful of this, but as with everything, the devil is in the details. For example, you have just obtained an exceptional and hard-won settlement for your client. Can you use this result on your website and other social media to market your legal skills to potential clients?

You can and you should because potential clients are using the internet to research products and services; law firms are judged and selected by their online presence.  However, the Rules provide, “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” N.C. Rules of Prof’l Conduct, Rule 7.1 (2003).  Further, a communication is considered false or misleading if it “is likely to create an unjustified expectation about results the lawyer can achieve…” N.C. Rules of Prof’l Conduct, Rule 7.1(a)(2) (2003). 

The State Bar Ethics Committee has determined that advertising specific settlements and verdicts can create unjustified expectations about the results attorneys can achieve.  How then do you avoid creating these “unjustified expectations” about the results you can achieve for potential clients?  In the past, the State Bar required that the lawyer list both favorable and unfavorable results on their websites.  However, the Bar now permits a lawyer to advertise that he or she has argued and won numerous cases before a specific court or has successfully handled cases in a specific area of law, without noting any unsuccessful cases or losses.

In 2009 FEO 16, the N.C. State Bar specifically addresses favorable case results:  The opinion rules a website may include successful verdicts and settlements as long as it is factually accurate and contains an appropriate and “prominently displayed” disclaimer:

…The disclaimer must be sufficiently tailored to address the information presented in the case summary section. The disclaimer must be displayed on the website in such a manner that it is reasonable to expect that anyone who reads the case summary section will also read the disclaimer. Depending on the information contained in the case summary section, an appropriate disclaimer should point out that the cases mentioned on the site are illustrative of the matters handled by the firm; that case results depend upon a variety of factors unique to each case; that not all results are provided; and that prior results do not guarantee a similar outcome.

The opinion provides that an appropriate disclaimer would preclude a finding by the Bar that the website is likely to lead to unjustified expectations that the same results can be obtained for a potential client.

The use of websites, including case results, to attract potential clients is a wise and essential use of marketing dollars; just make sure you are not overstepping the line between unjustified expectations and good marketing.  Likewise, keep abreast of ethical developments in the rapidly changing arena of online marketing and advertising to avoid potential grievances from the Bar.

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Social Media Ethics: Part 2

At its last quarterly meeting, the State Bar Ethics Committee decided that competent representation includes advice about a client’s social media postings to the extent they are relevant and material to the representation.  Proposed 2014 FEO 5.  The opinion goes on to say that a lawyer may have a duty to advise a client about social media and its possible effect on litigation both before and after a lawsuit is filed, may advise the client to change privacy settings on social media sites, and may only instruct a client to remove postings so long as it does not amount to spoliation or otherwise violate the law.

If removing postings does not constitute spoliation and is not otherwise illegal or a violation of a court order, the lawyer may instruct the client to remove existing postings on social media. If the lawyer advises the client to take down postings on social media, where there is a potential that destruction of the postings would constitute spoliation, the lawyer must also advise the client to preserve the postings by printing the material, or saving the material to a memory stick, compact disc, DVD, or other technology, including web-based technology, used to save documents, audio, and video. The lawyer may also take possession of the material for purposes of preserving the same. Advice should be given before and after the law suit is filed.

Proposed 2014 FEO 5.  This result is intuitive as e-discovery is commonplace these days. But there are other social media-type discovery questions that remain unanswered.  In the last blog, we posed three of those questions.  The first is whether an attorney can view publicly available portions of social media to gain information about the opposing party for litigation.  The answer is yes, as there is no ethical impediment to gathering information about the opposing party through publicly available sources.

The second question is whether an attorney may “friend” an opposing party to gain access to non-public information.   Although there is no opinion in NC on this issue, I believe that this is problematic, at least where the opposing party is represented by counsel.  Under that circumstance, Rule 4.2 prohibits communications with a represented person “about the subject of the representation.”  There is no question that sending an invitation to “friend” someone on Facebook is a communication, but is it “about the subject of the representation.”  A good argument can be made that it is not, without more, because it does not touch upon the subject of the representation, or any subject at all.  As long as the attorney makes the request under his actual name, does not communicate any false or misleading information, and does not try to elicit any information from the opposing party through social media, should this be a problem under the Rules of Professional Conduct?  My guess is that because the attorney’s motivation for making the friend request is to find information about the opposing party which would relate to the representation and is not otherwise in the public domain, there is also the argument that the communication is ostensibly “about the subject of the representation.”  Even a “friend” request to an unrepresented party may be problematic, as Rule 4.3(b) requires that when the lawyer reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer has the obligation to try to correct the misunderstanding. Keep in mind that the Ethics Committee has not opined on this issue, so I would be careful and seek ethics advice before proceeding in this fashion.

The third question is whether the attorney can direct another person, perhaps his firm administrator or a relative for example, to “friend” the individual to gain access on the attorney’s behalf.  In this situation, it is more likely the opposing party may not recognize the name of the person making the friend request.  In addition to the Rule 4.2 issue, I have more trouble with this, as the entire purpose of asking a third person to make the “friend” request is the hope that the opposing party won’t know from whom they are receiving the request, and would not view the person as a threat.  This approach could be considered misleading under the Rules, and a likely violation of Rule 8.4(c).

Bottom Line:  To be safe, if you want to view non-public portions of an opposing party’s Facebook page, represented or not, use ordinary discovery methods, or ask the State Bar first.  It might be time for the Bar to look at this issue and weigh in on it.

 

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Social Media Ethics: Part I

Although it began as a tragic personal injury case where a concrete truck crossed the center line and tipped over the car of a newly married 25-year-old woman, the case effectively ended the career of Mathew Murray, a Virginia lawyer and managing partner in one of the largest personal injury firms in Virginia.  So what went so wrong to end the career of this experienced and prominent attorney?

The case, Isaiah Lester, Individually and as Administrator of the Estate of Jessica Lynn Scott Lester v. Allied Concrete Company, et al., involved a personal injury action where Mr. Murray represented Isaiah Lester, the husband of the woman who died in the crash with the Allied Concrete truck.  Mr. Murray’s problems began after he received a discovery request from Allied Concrete, the defendant. Through an email from his paralegal, Mr. Murray instructed Mr. Lester to “clean up” his Facebook page after Allied Concrete’s attorneys sought Facebook screenshots, pictures, profile, message board, status updates and messages.  Following his lawyer’s advice, Mr. Lester deleted sixteen photos including one where he wore a T-shirt exclaiming “I (heart) hot moms” while holding a beer can. Mr. Murray also instructed Mr. Lester to deactivate his Facebook accounts so that he could respond to the discovery request that no such account existed.

Ultimately, the judge in the personal injury case ordered Mr. Murray and Mr. Lester to pay $722,000 in sanctions where the judge found an “extensive pattern of deceptive and obstructionist conduct.”  Mr. Murray was further disciplined by the Virginia State Bar and received a five year suspension for violating ethics rules that govern candor toward the tribunal, fairness to opposing party and counsel, and misconduct.  There are also reports that Mr. Murray resigned from the firm and is retiring from practicing law.

There is no doubt social media evidence will become more prevalent in the future. To provide competent representation, lawyers likely already have a duty to address social media evidence as it can be a powerful investigative tool.  However, social media can also be a minefield of ethical issues.  As the Lester case illustrates, lawyers need to be cognizant of how they counsel their clients regarding social media evidence.

Clearly, the advice to turn off or deactivate Facebook, so that the the lawyer could deny the existence of such an account in discovery violates Rule 3.3(a)(1) (making a false statement to the tribunal) and Rule 8.4(c) (engaging in conduct involving dishonesty or misrepresentation).  But even a casual statement to a client to “clean up” their social media accounts or profiles, whether discovery is pending or not, is insufficient direction to the client.  A lawyer must anticipate when social media will be relevant in the client’s case, and must be careful not to suggest that the client do anything to their social media account that would amount to spoliation of evidence.

In the firm’s next blog, Deanna will address social media discovery, highlighting the new State Bar proposed opinion on this issue, and discuss other social media ethical questions including: (1) May an attorney view the publicly available portions of social media to gain information; (2) May an attorney “friend” an individual to gain access to non-public information; (3) May the attorney direct a third party to gain access on their behalf- whose name the non-client may not recognize-by requesting the third party “friend” the individual.

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The Ethics of Ghost Blogging and Astroturfing

In today’s marketplace, having a strong social media presence is essential. For example, in addition to a firm website and blog, our firm has a  presence on LinkedIn, Google +, Twitter, and Facebook. While an on-line presence can translate into positive business development, it also means more ethical considerations. Two trends in online marketing, which seem to be particularly problematic for attorneys, recently caught my attention: ghost blogging and astroturfing.

Ghost Blogging. Ghost blogs are created by writers who are hired to pen content for their client’s blog anonymously. Although many different professions and markets utilize ghost bloggers in an effort to increase their credibility and market development, lawyers, because of our advertising rules, should tread carefully.  Although the Rules do not specifically prohibit ghost blogging, the Rules do prohibit false and misleading and deceptive communications to the public about our legal services. Rule 7.1. The Ethics Committee has opined that similar conduct is misleading and therefore prohibited if, at the heart of it, you are hiring someone to pretend to be you, or are simply buying legal content to publish under your name.  2008 Formal Ethics Opinion 14, Opinion #6. Less clear is what level of collaboration on a blog would be permissible in the eyes of the State Bar or under what circumstances the inclusion of an appropriate disclaimer may be enough.

Astroturfing. Astroturfing is defined as “the act of trying to boost one’s image online with fake comments, paid-for reviews, made-up claims and testimonials.”  Although it may be tempting to have an employee post a positive or flattering review or testimonial of your legal services, and there are many companies who will do this for hire, you should never post false reviews.  For example, Yelp, an online business review site, sued a San Diego law firm for allegedly causing false postings regarding their legal services to be posted to the Yelp site. Yelp alleged the positive reviews were actually posted by employees of the firm. And in New York, following “Operation Clean Turf,” the Attorney General announced 19 companies were heavily fined for writing fake online reviews to promote products and services where the companies were hiring employees to post positive online reviews for their clients.

Although I have not yet seen any astroturfing cases with the N.C. State Bar, there is no doubt this practice is unethical for attorneys (Rules 7.1 and 8.4(c)) and could lead to a grievance. As Gyi Tsakalakis in his Lawyerist article states: “Many of the rules governing what attorneys can and can’t do are vague, confusing and unduly restrictive. But this one’s pretty reasonable and clear: Don’t mislead potential clients with false testimonials, endorsements, reviews, etc.”

One last point: Some lawyers may want to leave their social media presence in the hands of others for reasons including a lack of time or expertise.  However, lawyers still have an ethical duty to supervise the non-attorneys who provide content on their social media to ensure the content complies with the Rules.  Regardless of whether an attorney approved of the social media message related to the legal services he or she is providing, the Bar can ultimately hold the attorney responsible if there is a violation of the Rules.

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What Now? – Handling the Uncertainty of Personal Injury Lien Disbursements

My colleague Brooke Ottesen and I recently presented a CLE on trust account disbursement at Elon University School of Law.  The participants asked many wonderful questions regarding this subject.  Several of these questions were from personal injury attorneys and focused on how to handle certain types of liens.  I previously practiced in this area, and I recall facing the same issues and having the same questions.  Medicare liens, in particular, can be onerous and confusing.  I presented the scenarios below to Deanna Brocker of our firm for her advice and comment:

Scenario 1:          The client has Medicare and the claim has been reported.  Medicare Secondary Payer Recovery Contractor (MSPRC) has sent a conditional payment letter itemizing the claims Medicare has paid and listing the potential lien amount.  The case is settled and the proceeds are deposited into the attorneys’ trust account.

(1)    Can the attorney hold Medicare’s conditional payment amount in trust and distribute the remainder of the funds even though Medicare’s final demand letter has not been issued?

(2)    What if Medicare’s final demand amount is greater than the conditional payment amount?  Can the attorney seek the difference from the client?

Answer:               The attorney is required to hold in trust the amount he believes will cover the final demand.  Clearly, the attorney cannot know exactly what that amount will be; however, he should make an educated guess based upon the information he possesses.  If the amount of the final demand is more than the amount held in trust, the attorney may either (a) make up the difference in the trust account first, pay the final amount to Medicare, and seek reimbursement from the client OR (b) if there is time, seek reimbursement from the client, deposit those funds into the trust account, and make the disbursement to Medicare.  The attorney is not required to seek reimbursement from the client for any shortfall, and may decide to absorb that cost.

Scenario 2:          Insurance Company A contracts with numerous subrogation companies to collect liens it may have on client settlements.  Often, the insurance company cannot tell the attorney which of the subrogation companies has the lien or they provide the name of the incorrect company to the attorney.  Sometimes, Insurance Company A informs the attorney there is no lien and then sends a letter claiming a lien after funds have been disbursed.

Answer:               The attorney is required to perform due diligence to determine whether there is a lien on the proceeds of a client’s settlement.  If a lien is discovered after the case has settled, the attorney may seek payment from the client or he or she may decide to pay the lien from his funds first and then decide whether to seek reimbursement from the client.  Under this latter scenario, there are no funds in trust, so if the attorney elects to pay the lien, the attorney may do so from funds in his operating account and place any funds reimbursed by the client back into the operating account.  The attorney must be careful, however, to create a paper trail documenting where the funds are going and what they are for.

Dealing with liens is certainly frustrating.  It is wise to be proactive and have clients sign a statement at your initial meeting divulging any benefits they may receive that could potentially result in a lien.  Knowing what agencies and insurance companies you need to contact at the outset can save both time and money.

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Clarity is Key

As lawyers, we like to think we excel in communicating our thoughts, ideas and arguments to others.  Yet sometimes, we forget that it is important to be direct, concise, and clear when describing ourselves in advertising, when communicating with potential clients, and when communicating with clients.  Here are some ways lack of clarity can get you in trouble:

Violation of Advertising Rules

If we are not precise when describing ourselves, our experience, or our services in advertising, we may run afoul of the advertising rules.  For example, many attorneys advertise, “You pay no fee unless you recover.”  The intent may be to say that you do not pay an attorney fee, but you may still be responsible for costs.  The problem here is that “fee” is undefined, and the average client is not going to understand that they still may be responsible for costs even if they lose their case.  2004 FEO 8 requires that an attorney say “no attorney fee unless you recover” so that it is clear.  Keep in mind that certain other statements, such as any statement about results, must include appropriate and conspicuous disclaimer language as well.

The Accidental Client

Suppose you regularly represent a corporation, but on some occasions, the officers come to you with legal questions, and you provide answers. Or suppose someone asks you a legal question, on-line through social media, and you provide a general response.  In either situation, you likely have created an attorney client relationship. I would recommend not undertaking to provide legal advice to anyone under any circumstances unless you are prepared to engage in an attorney-client relationship.  Even if you don’t provide specific advice, the person who is consulting with you may believe that you are their attorney.  If you accidentally create an attorney-client relationship, keep in mind that you owe that person duties under the Rules, including confidentiality, loyalty and communication.  You may also inadvertently conflict yourself out of a matter or raise liability issues if you are not vigilant.

Confused Client

A confused client is more likely to file a grievance against his or her attorney.  Make sure you clearly define the scope of representation and fee for services. If you charge a flat fee just to prepare a simple will, make sure the client understands that additional legal documents will be extra. Be clear about how your fee is determined and when payment is due.  If you are not retained until paid, then say so. In addition, a contingent fee agreement must be in writing and must also include an explanation about how the fee will be calculated. Rule 1.5. Also, let your client know when the relationship has terminated. If the client only paid you for a consultation, but did not ultimately retain you to represent them, make sure they understand (1) you do not represent them, (2) they need to consult with other counsel, and (3) when the statute of limitations runs.

As always, we recommend that you put everything in writing when possible.  Even a confirming e-mail is better than nothing.  And remember, clarity is key.

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Avoiding a State Bar Grievance: Client Fee Disputes

Fee disputes, including a lawyer’s attempt to collect a fee, are a common source of client complaints to the State Bar. To help avoid a grievance, not only with fee disputes but with any area of law practice, it is beneficial to periodically read the Rules and assess if you are implementing them in your practice. Specifically, Rule 1.5 provides a lawyer having a dispute with a client regarding a fee must make reasonable efforts to advise the client of the existence of the State Bar’s Fee Dispute Resolution Program at least 30 days prior to initiating legal proceedings to collect the disputed fee. While it is optional for the client to participate in the fee dispute resolution process, it is mandatory for the lawyer to participate if the client makes the request.  The Comments to the Rule provide that client notification must occur not only when there is a specific issue in dispute, but also when the client simply fails to pay. (Note, however, when the client expressly acknowledges liability for the specific amount of the bill but states that he or she cannot presently pay the bill, the fee is not disputed and client notification is not required but likely still is a good idea.)

For example, if your fee agreement provides for a 30% contingent fee, you can take the entire fee out of the trust account and move to the operating account once the settlement check is deposited and cleared. However, if your client argues that you are only entitled to a 20% fee, for instance, then the 20% that you and the client agree has been earned must promptly be removed from the trust account.  However, the disputed amount, the remaining 10% fee, must remain in trust until the dispute is resolved by agreement or court order.

But what happens if the client notifies you that he disputes the fee, but then he fails to file a fee dispute petition or to initiate legal action to recover the disputed funds? The effect of the Rules alone would force you to hold the disputed funds in trust indefinitely.  To avoid this result, Ethics Opinion 2006 FEO 16 provides the lawyer may transfer the disputed fee from the trust account to the operating account under the following circumstances:

1)      The lawyer has given the client 30-days written notice of the fee dispute program required under Rule 1.5(f);

2)      The client fails to elect fee dispute resolution;

3)      The funds held in the trust account are for services rendered and are not clearly excessive;

4)      After the 30 days has expired with no fee petition filed by the client, the lawyer gives the client a second written notice that the funds will be transferred to the operating account unless the client initiates legal action within 30 days. (If, at any point during the 30 days, the client elects to participate in the fee dispute program or initiates legal action to recover the funds, the lawyer must, at that point, hold the funds in trust pending resolution of the dispute); and

5)      Expiration of the second 30-day time period.

Once that second 30 days is up, you may transfer the disputed funds into your operating account.  Knowing and utilizing the Rules can go a long way in avoiding State Bar grievances and other costly disputes with clients.

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Are You a Good Boss?

One of the fundamental principles in running a successful law practice is being a good leader.  Have you ever asked yourself, “Am I a good boss?”  How to be a good employer is not something ordinarily taught in law school.  If you’ve ever worked for someone who was not a good boss, then you know how important it is to be one.

Many lawyers who run their own practice wish they could just get down to the business of practicing law.  But if you want to keep your practice running, then it is important that you wear many hats: you’ve got to be an effective manager, delegator, organizer, advisor and mentor.  If you are truly a solo practitioner—with no employees or staff–you may ask why you should care.  It is likely that at some point in your practice, you will need help.  No lawyer is an island, so even if you are not someone’s boss right now, you may become one.  Here are some tips for running a tight ship that stays afloat and doesn’t run aground:

1)      Hire the right person for the job.  Consider employing a headhunter.  You shouldn’t be spending your time doing background checks, doing the initial review of resumes, etc.  The right head hunter can vet candidates and present you with a smaller pool from which to choose based upon the criteria you have set.

2)      Hire only the staff you need.   Ask yourself, “Do I need full time or part time staff?”  “What will this person be doing?”  “Do I really need a certified paralegal if the person would also be handling lots of administrative work?”  Don’t hire a full time paralegal when that person may only be doing occasional paralegal work.  If you hire someone who is overqualified for the job they are doing, they may become quickly dissatisfied.

3)      Once you hire, train, train, train.  Your new hire needs to understand not only the work that is expected, but also the Rules of Professional Conduct and your firm’s policies.  Training doesn’t necessarily end once the person settles in.  Rules change and policies change.  Periodically reassess and see if you need to have a meeting to remind your staff of older policies or rules that may be overlooked or to educate your staff on changes to the rules and policies of the firm.

4)      Oversight is paramount. Attorneys get into trouble with staff in two primary ways:  a) over-delegation and b) lack of appropriate supervision.  For example, it’s no problem to delegate daily trust accounting to staff, but make sure you are reviewing the reconciliations and spot checking source documents.

5)      Clearly set expectations.   Don’t expect your staff to know what you want.  If it is important that everyone arrive by 8:30am each morning, or that business casual is OK only on Fridays, then say so.

6)      Give praise where praise is due.  Your employees need to feel appreciated.  Recognizing them for a job well done goes a long way in keeping staff morale up.

7)      Constructive criticism is important.   Do a mid-year and/or year-end review.  Never criticize an employee in front of others.  Make sure the review includes both strengths and areas of improvement if necessary.

8)      Set goals and an action plan for achieving those goals.  These may be individual goals or firm goals.  Firm goals can be used to create a team atmosphere within the firm, where everyone is working together toward a common goal.  If the firm is doing well, consider across the board bonuses.

9)      Ask for your employees’ input on ways to improve. This would include how the practice can improve and (here’s the hard part) how you can improve as an employer. It is important that you ask for and accept feedback not only so that you can address problems that employees identify, but also, so that the employees understand that their opinions are valued.

10)   Recognize the balance between work and a personal life.  Offer flex-time or personal days.  Find out the situation before you ask an employee to work longer hours.

If you are a good boss, it is more likely that you will have good, productive, happy employees.  For those of you who have lawyer and/or non-lawyer staff, you know we rely upon them tremendously in our practices. Employee dissatisfaction or low morale can affect the success of your firm. Take some time this year to assess how you are doing as leader of your firm.  It could make all the difference.

This was originally published in the Law Practice Management Newsletter, NCBA, February 2014.

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