Incubators may change the legal landscape
Medicine has residency; accounting has two year service requirement to become certified. Now law has incubators … not quite the same thing.
Medicine has residency; accounting has two year service requirement to become certified. Now law has incubators … not quite the same thing.
Years ago, seeking to address an RFP (request for proposal) of a large prospective client, I assembled a team of skilled specialists. I was flattered that they all said “yes” to joining me, knowing only me and the prospective client. None of us, individually, could have met the client’s needs. We trusted one another enough to work together and arrange the details of compensation, etc. at a later date. But, I never gave a thought to how our team would be managed for peak performance.
In the current issue of Harvard Business Review, the author suggests that “…many critical tasks are performed by teams created on the fly, but lack of stability can hinder their performance…It’s one thing to make yourself more efficient, quite another to make a team more efficient, and still another when that team’s membership is in constant flux…
To some degree, technology and pricing policies are creating practices of “teams on the fly” as well as “unbundled services.” With short-term teams assembled on the fly becoming increasingly common, the authors set out to investigate how fluid teams can work better.
From 2000 to 2007, over 42,000 legal malpractice lawsuits were reported to liability (malpractice) insurers, according to the American Bar Association Standing Committee on Lawyers Professional Liability. This committee segregated 21 root causes of negligence across all practice areas.
Only one such root cause accounted for over 10% of the total claims. “… This root cause is failure to know or apply the law…” This accounts for 11.3% of the total. As one pundit said, that’s an easy one to correct by “…sticking to your knitting…” Handle only matters you are competent to handle, even if the client’s money is on the table, tempting you.
Malpractice actions otherwise can be categorized as time – based issues, such as failing to calendar dates, failing to follow up on looming deadlines and failing to react appropriately to the calendar. These three together account for 17% of the total.
“Conflicts of interest,” amounts only to 5.3% of the claims in the ABA study. However, Rules of Professional Conduct 3–300 and 3-310 provide a larger trap for the unwary, whether at the beginning of a case or mid-stream.
“Collection policies” is a major speed bump for lawyers. Insurance companies and law schools will urge strongly that a lawyer never sue for unpaid fees because the following day, the same lawyer will be sued for negligence. There are a several ways to address this, including doing good work, regularly reviewing your accounts receivable to be sure the client pays under the terms of his or her signed engagement agreement and conducting a peer review of one’s own work before following through with a collection complaint. Failure to pay is seldom because of absence of funds; it is a symbol of dissatisfaction with the lawyer and the process of communication (or lack thereof) … and this must be addressed promptly.
Failure to act from fear of one’s own imperfections merely gives strength to one’s client and encourages the client to violate the agreement and the reason to be connected with the lawyer.
The practice of law is a business and must be operated under good business principles. Failure to do so creates tension and conflict between the client and lawyer at the time each needs the other the most.
Congratulations to Craig E. Holden, the new president of the State Bar of California. Among other attributes, Mr. Holden is a partner in the major law firm of Lewis Brisbois Bisgaard & Smith LLP, a person of color, a former member of the executive committee of the CalBar Law Practice Management & Technology Section, and the youngest person to be elected president of the California State Bar. Each of these attributes is sufficient to give Mr. Holden a sensitivity to the needs of the average lawyer. However, taken together, they provide an appropriate backdrop for one of his major goals during his tenure: to help lawyers succeed. Success in this context means helping lawyers be more effective in dealing with their clients, be more efficient and encounter less stress in their practice.
Not since Jim Heiting was president years ago as any California State Bar president suggested anything but a regulatory and enforcement goal for the State Bar. Mr. Holden is even suggesting that State Bar funds might be used to support this goal. He seeks to expand his concept by creating a system of mentorship for young lawyers. Personally, my hope is that he expands this idea to include all lawyers in the state of California.
Adopting Mr. Holden’s perspective can also be financially rewarding for the State Bar as well as its lawyer members. The current budget for the State Bar includes approximately 80%, or $32 million for disciplinary activities. If the education that Mr. Holden envisions enables lawyers to avoid future discipline, even if only to the extent of 50%, the State Bar will save $16 million. These funds could then be used to meet other goals of the State Bar.
“The proposed initiative is part of Holden’s broader goal to re-examine the State Bar’s mission of public protection. Ever since the Bar radically reformed its governance structure four years ago (in response to legislative mandate), many lawyers have come to believe that ‘all we do is regulate,’ he said…. ‘That is the core function… But I don’t agree that that’s all we do.’” He continued by saying that “‘… My ultimate goal is to broadly define our mission and what it means to protect the public… Our mission should be retooled… To ensure that public protection is not viewed myopically… As a punitive machine.’”
Mr. Holden clearly has his work cut out for him. As noted in my recent writings, the State Bar has wrapped itself in the cloak of regulation and punitive enforcement. While the recent vote in Scotland was to remain part of the United Kingdom, I am sure that a similar vote among California lawyers would not be so favorable; based on recent actions and non-actions of the State Bar, I am convinced the overwhelming vote of California lawyers would be to separate public protection activities from lawyer education and improvement. Perhaps Mr. Holden will persuade a sufficient number of Board members to see the world as he does. This will be a tough challenge and one that I heartily endorse.
The business cycle consists of three elements: marketing to get the new client and retain the old client; production to produce and deliver the legal service, advice and/or documents; and finance to collect your billings and operate your firm. The first two tend to be the focus of most lawyers. Billings and collections tend to be ignored or given short shrift or delegated to a staff member with less interest and skill.
One statistic shows that sole practitioners spend 40% of their time in non-billing tasks, such as marketing, billing, collections and other aspects of running the law practice. In firms of 11 to 20 lawyers, the percent falls dramatically to 8%. Hence, the larger firm earns more money. They produce more effort; they bill more; and, even with poor collection efforts, they will likely collect more revenue than their solo counterparts.
Perhaps you should engage personnel to deal with some of the non-billing tasks, whether internally or outsourced and/or perhaps you should consider practice management software as your assistant. Failure to attain the appropriate resources to enhance your production efforts and non-billing needs is cheating yourself. Coaching will help you understand how to address these issues.
In a recent case, the lawyer was successful in growing his practice. So much so that he engaged 30 staff; they met with clients and even provided legal advice in loan modification matters. The net result is that the attorney did not provide adequate supervision for his staff and allowed them to five legal advice. This was the unlawful practice of law. The attorney was guilty of violating the Rules of Professional Conduct and was suspended for two years. Punishment could have been more, but the lawyer made financial restitution to aggrieved clients and agreed to community service during his suspension.
Moral to the story: Grow your practice with appropriate supervision of unlicensed staff and technological support. Don’t allow unlicensed staff to provide legal advice. Coaching helps both with growing your practice and with operating your practice efficiently and within professional guidelines.
The larger one’s firm gets, the more management issues arise. Running a law practice is equivalent to running a professional service business and management principles are as important as being legally competent.
The conduct of lawyers, not just litigators, continues to go “south.” Why is this? Have the teachings of our mothers and fathers gone unheeded? Or, in this more litigious world, and the greater incidence of divorce (most of which is with great conflict), do manners, good taste and just plain “niceness” go out the window?
For many years, bar associations have been wringing their hands over how to improve the reputation of the legal community. Clearly, the lack of civil behavior does nothing to enhance our profession’s reputation or regard from among the lay public.
Recently, the State Bar of California modified the lawyer’s oath of office. It is a court rule (9.4), not a rule of professional conduct. And, there does not seem to be any consequences to a violation of the new oath that does not already exist with the judge in a given matter. The language, specifically, includes the words “dignity, courtesy and integrity.” As it stands now, this seems to be a subjective standard and does not increase the power of the court to impose sanctions on any lawyer activity.
When California Chrome did not win the Belmont Stakes this last weekend, its owner went berserk and complained that the race was not fair. He suggested that all horses run under the same rules. In other words, any horse eligible for the Triple Crown should be run in all three races, the Kentucky Derby, the the Preakness and the Belmont Stakes. Taken in the abstract, his criticism might be correct. The point, however, is where and how he said it. In other words, he didn’t play by the “rules” of genteel civility.
There may be other reasons why California Chrome did not win at Belmont. One such reason is that he appears to have stumbled coming out of the gate, injuring himself; another, his post position was not to the liking of his team. Whatever other reasons there may be, the ultimate conclusion is that California Chrome ran three races to the single race of the winner of Belmont. The words of the owner will be an asterisk or afterthought to the history of this horse. And, if the rules of horse racing are modified in the future, perhaps his outburst was appropriate.
When lawyers are uncivil, or lack civility, in dealing with one another, no one receives a benefit. Lack of civility is not seen as a strength, but merely as an annoyance. Civility does not make one weak. Nor, in most instances, do our clients appreciate the added expense that oftentimes results from having to overcome one’s adversaries’ lack of civility. Yes, there is a difference between horse racing and the practice of law. But, in both scenarios, as my mother used to say, “one can get more with honey than with vinegar.” Equally important for lawyers, our clients do not believe this is better lawyering. On the contrary, they tend to disrespect us for not being civil and causing them increased expense.
In a recent article, the writer describes a twist in medical fees. A specialist, in this case a cardiologist, is charging a premium retainer fee for accessibility. That’s access, not treatment! The levels of service created by the cardiologist are $7,500 per year for “concierge” service, $1,800 for “premier” status, and $500 for “select” status. The differences among the levels range from priority to get an appointment to 24/7 access by phone or email. Medicare or private insurance still pays (or doesn’t) for the actual service. But this doctor says that Medicare reduces his billing rate and this is a way to earn the money he can and wants. This is brutally frank. But, as in other areas, economics control.
Ed discusses the most important factors of starting a solo firm.
Dr. Oz, the popular television medic, recently said that high blood pressure is the "silent killer." Stress, he said, is one of the major causes of high blood pressure.
Lawyers I talk with almost universally tell me about the stress under which they labor. Because of this, I am on the lookout for ways that my advice about improving the lawyer’s operations may also have the impact of reducing his/her stress level. Thus, I am always viewing the practice from a holistic perspective, addressing revenue improvement, operations changes that impact profit, and stress reduction that improves both the professional and personal life of the lawyer. Just knowing that you now have an accountability partner (me as the coach) goes a long way to reduce the stress. For the first time, you really have someone to talk with who can be objective and with whom you can show vulnerability.
In the February 13th edition of the L.A. Times, an article featured a lawyer who clearly is a workaholic. But, she has a marvelous and somewhat unusual perspective of her workload. As the headline says, "stress can hinge on attitudes about work." In other words, if you love what you’re doing, it’s not work; if it’s not work, you may be exhausted at the end of the day, but you won’t be stressed out and unable to cope with your environment. Clearly, this lawyer enjoys what she does. Of course, the feature article didn’t hurt her publicity efforts either.
With this article, came a new word or label, at least for me: "engaged workaholic." Said differently, if you are engaged with what you’re doing, if you love what you do, then it’s not "work." It’s play … and how can you get too stressed when you’re playing.
Or, as my father used to say about his work, "… This is my hobby. This is what I love to do."
My hope for you (and therefore your clients) is that you love what you do … and enthusiastically show your clients how to successfully address the challenges they bring to you.