Written communications from lawyers to clients and prospective clients are very important to establish the expectations of clients. And engagement letters, in particular, are essential to establish the threshold of these expectations.
A recent article in the Los Angeles County Bar Association’s Update sets forth a number of matters that should be included in an engagement agreement. These elements include the following:
*Who the lawyer is representing
*The scope of the representation including, when appropriate, what the lawyer is not undertaking
*The fee to be charged and the manner in which the fee is to be calculated
*When the fee is to be paid
*The consequences of non-payment, including the right to withdraw
*The client’s responsibilities, including the obligation pay the lawyer’s fee in accordance with the terms of the agreement
*Ethical issues, if any, including potential conflicts of interest
I would add another element: Add a signature stamp in the margin of the agreement at every point where fees and payment schedules are discussed. Ask the client to initial each of these, indicating his understanding and agreement with the provision next to his initials.
This will go a long way to assuring prompt payment by the client.
Then, it is the responsibility of the lawyer to carefully monitor the client’s payment performance to be assured that the client is honoring his/her part of the bargain and to withdraw, if necessary, before the client owes the lawyer too much money, contrary to the parties understanding.
Delegation is the magic principle for successful small firms and perhaps best expressed by Teddy Roosevelt:
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Of 6 million annually reported car crashes, half are related to distracted driving, according to the American Automobile Association. The AAA suggests that it’s not the act of holding the device, but rather the discussion that causes accidents.
If you’re distracted by an intense conversation, and you’re using a headset , you could still get into an accident. Sometimes you’re not even seeing what’s in front of you because your mind is somewhere else.
A small but growing number of companies are publishing guidelines for cellphone use inside the office and the car, as some high-profile liability cases catch the eye of corporate America.
“It’s a hot liability topic,” said Kathryn Lusby- Treber, executive director of the Network of Employers for Traffic Safety in Vienna, Va. “The company is certainly at risk. If they have an employee who’s driving for business and they’re in a crash, the employer can be held responsible for the crash.”
Will these guidelines protect the company? Not necessarily.
In October 2004, Cooley Godward of San Francisco settled a $30 million lawsuit in the death of 15- year-old Naeun Yoon, who was struck and killed in 2000 on a busy highway outside Fairfax, Va., by one of its employees – a lawyer accused of making a business call on her cellphone while driving. After serving a year in jail and surrendering her law license, Jane Wagner was ordered to pay $2 million in damages to Yoon’s family by a circuit court jury in Loudoun County, Va. While the firm’s insurance company paid $92,500, according to its attorney, John McGavin of Fairfax, the firm was not held liable.
However, the case of Yoon v. Cooley Godward has broader implications. This decision suggests that employers could be “vicariously liable for the cellphone-induced distracted driving of their employees, even if phone calling is not within the scope of employment,” noted Ross Guberman, an adjunct professor at George Washington University Law School who has written about the case.
Perhaps the use of cell phones, Blackberries and other mobile technology should be reexamined to take advantage of their benefits while not exposing our law firms to damages and concomitant loss of reputation.
At the Managing Partners Forum being held in San Diego, CA, Larry Bodine of PM Forum, reports that Mary Cranston, chair of Pillsbury Winthrop in San Francisco, revealed how her firm grew from a California firm to an international firm.
What struck me about Larry’s comment is the governance or structure that Ms. Cranston described; she revealed that the firm thinks in multi-dimensions:
Practice groups think of new “products” and new solutions to sell.
Industry teams, which are cross-office and cross-practice, take the firm’s products and refine them for specific industries.
Client teams are the methods her firm uses to deliver the product to current clients.
This is sounding more and more like the corporate model where large corporations have R & D Departments, industry or product management leaders and client or customer account executives. Wow!
Look for more changes in the legal world that reflect our corporate culture.
Despite being called partnerships (or LLP’s or PC’s), the governance of large law firms has fallen to a very few in the organization (“the management committee”). And, the remaining “partners” have begun to look like, act like and think like employees, not owners.
The headline in the January 18th Los Angeles Times is: “U.S. Charges Law Partnership With Age Bias” … In a class-action suit, the EEOC says one of the nation’s oldest and largest (Sidley Austin Brown & Wood, based in Chicago, IL) law firms broke the age discrimination law by forcing out 32 older lawyers.
The EEOC’s class-action suit – the first of its kind against a law firm – alleges that Sidley Austin has maintained an illegal “age-based retirement policy” since at least 1978 and that the firm arbitrarily forced out 32 partners in 1999.
Sidley has 1,500 lawyers in a dozen cities, including Los Angeles, spread over three continents. It represents a number of large corporations, including Tribune Co., the parent company of the Los Angeles Times.
Historically, law firm partnerships have not been subject to discrimination laws because partners, as the co-owners of an enterprise, were considered employers. Sidley consistently has taken the position that all its partners were employers, and therefore not covered by age-discrimination law.
The EEOC alleges that the “retired”/”fired” lawyers were partners in name only because they had no voice in the firm’s management – including hiring, firing and salary decisions. Consequently, the lawyers were “employees” entitled to the protections of the Age Discrimination in Employment Act.
This is the traditional “form vs. substance” argument used by the Internal Revenue Service in tax cases. If it walks like a duck and talks like a duck, it must be a duck.” The article continues by quoting Kimberly Yuracko, who teaches employment law at Northwestern Law School in Chicago, saying that “… ultimately, the case will turn on the real way Sidley operated, not the titles the individual lawyers held.
The facts of this particular case are not so important as is the fact that large law firms are becoming … and are becoming viewed as … what they are: employers.
It’s always really tough to lower expectations of a client starting out and then over-deliver on a project. It’s hard to sell someone on the idea of doing anything but a superlative job, so we tend to outdo ourselves with rosy promises up front.
But the opposite is deadly — promising the moon and falling far short. We all end up doing that once, twice, or way too often.
Sometimes the best way to go, with a new initiative, is simply to limit yourself to very consistent, well-planned effort on ONE PROJECT ONLY until it’s complete. Some projects don’t lend themselves to this, it’s true. And financially, sometimes you simply MUST do several projects at once to make ends meet. But if there is any way at all to focus on one thing at a time, it always pays off.
And never feel afraid to turn down a new project (client) when it will clearly steal time from other things you care about more. That word “No” is highly underrated.
by Halley Suitt on Business as seen in Worthwhile Magazine
What will you say “no” to?
1. What strategies, initiatives and activities will you say no to?
2. What measurements will you not pay attention to?
3. What customers will you not target?
4. What people will you not keep?
5. What competitors will you not follow?
6. What will you remove from your web site?
7. What money will you not spend?
8. What meetings will you decline?
9. What trips will you not make?
10. What slides will you not create?
11. What will you not say?
12. What thoughts will you not entertain?
and as seen at the nonbillablehour web log
The importance of a comprehensive, thoughtful business plan cannot be overemphasized. Much hinges on it: outside funding, credit from suppliers, management of your operation and finances, promotion and marketing of your business, and achievement of your goals and objectives.
Despite the critical importance of a business plan, many entrepreneurs drag their feet when it comes to preparing a written document. They argue that their marketplace changes too fast for a business plan to be useful or that they just don’t have enough time. But just as a builder won’t begin construction without a blueprint, eager business owners shouldn’t rush into new ventures without a business plan.
The Small Business Administration advises that, before you begin writing your business plan, consider four core questions:
-What service or product does your business provide and what needs does it fill?
-Who are the potential customers for your product or service and why will they purchase it from you?
-How will you reach your potential customers?
-Where will you get the financial resources to start your business?
See The Business of Law and The Profitable Law Office Handbook specifically designed to help lawyers create a business plan.
A good way to start the new year, by cleaning out your old files.
Lawyers know they have to retain, indefinitely, the valuable property that belongs to clients where they are unable to return such property to the client.
The better approach, of course, is to return such property and not pay the storage costs in an escalating real estate market.
The best way to handle this, it seems to me, is to have a provision in one’s engagement agreement that allows the attorney to return the valuable documents and property to a last known address at the conclusion of a matter or by a date certain (e.g., in estate planning matters), whichever first occurs.
Valuable client property includes documents such as original notes or securities. This also includes original wills and settlement agreements.
There is another category of items, however, which is seldom discussed. That’s the notes of the attorney and related items used by the attorney to represent the client, though not matters of original origin. What are the rights of the attorney to destroy these items?
Massachusetts Bar Counsel states the conclusion as succinctly as any I’ve seen: “…a lawyer may dispose of those parts of the closed file which do not constitute ‘records of the receipt, maintenance, and disposition of [clients’] funds and other property’ and are likely to have no continuing value or future use to protect the client’s interests. Examples include copies of pleadings, correspondence, and other work papers…”
With real estate costs continuing to rise, it may well be worthwhile to cull old files to reduce required space for retaining old matters. Another approach being used by some is to image all old files and then destroy everything but original documents. One large firm in the Chicago area pays for its photocopy machine by the number of pages printed. However, the machine allows documents to be scanned without charge if paper is not used to print the image. And, the scanned documents are then stored on disks which are searchable … much easier than finding a “needle in a haystack!”
The cost of labor is offset by the reduced real estate storage costs! And, documents which had to be physically searched for in the past (and often depended on the memory of an attorney as to which file the desired item might be located) can now be searched for electronically at a much faster speed.
See more from the Massachusetts Bar Counsel.
Ed Poll was quoted in the Los Angeles Business Journal of December 6th to the effect that bonuses will vary upward while salaries will not be changed. Sullivan & Cromwell LLP, New York, started the move early by doling out larger than usual bonues for first year associates. Now the pressure is on other large firms to match that move or become otherwise creative to satisfy associates in their ranks.
Only time will tell what will be the ripple-down effect for other attorneys — and then to watch the continued pressure to raise fees to clients.
The American Bar Association recently asked leading members of the profession to prognosticate their perspective of the legal profession 20 years into the future, the year 2005. I was asked to participate. The results will be published in a forthcoming edition of Law Practice Today, the electronic publication of the Law Practice Management Section.
Following are my responses to the questions:
1. What will be most different about the practice of law twenty years from now? Why?Law firms have always mirrored their clients. As clients got larger, so did law firms in order to match the footprint and be available to serve the clients’ needs wherever they were/are. As law firms continue to get larger, because their clients are getting larger, and the process of mirroring continues, law firms will come to look more like the corporate model they represent.
Look at the corporate model today and you will see a semblance of the law firm of tomorrow.
The rules of professional conduct require that a lawyer be competent to handle a matter. The definition of competency is essentially based on a community standard. While never yet tested, I suspect the standard of competence for an urban lawyer may be different than that of a rural or country lawyer. Thus, in a large, metropolitan area, lawyers are technologically sophisticated. To be marketable, and to be deemed competent, then, the lawyer will have to invest many dollars in technology.
The more sophisticated an office is, technologically, the faster the lawyer can perform her/his service. The faster the service, the lower the revenue if based on an hourly billing basis. This assumes that, despite increased rates per hour, there is a competitive limit on hourly rates. With lower revenue (due to increased speed of production) and increased costs (due to increased technology investment), there is reduced profits … and even losses for the lawyer.
The only way around this would be to charge a fixed fee (value billing) which allows the lawyer to do the work and benefit from his/her increased efficiency without having to pass that increased efficiency on to the client (as is now the case).
For this to work to everyone’s best advantage, extensive communication is required and this is one of the skills that lawyers will have to enhance in order to be successful.
3. What will law firms look like in twenty years? Mega firms, virtual organizations, or what?There will be all manner of modalities. The very large firms will exist for the very large clients. There will be boutique firms to work in specific niches of practice that are not required by major corporations, but still provide important services. (Immigration is one example of this.) There will be the regional firms. And there will be the sole practitioners and small firms that will represent individuals and families in consumer matters such as family law and the like.
More will be done with technology; some believe that much of the law will be commoditized. I believe, however, that technology will permit lawyers to do the mundane quickly and then focus their energy on their real skill, problem solving and interpretation of the complexities our modern society presents in our daily living.
4. Will computers replace most of what lawyers do in twenty years? If so, how and what will be left for lawyers?Computers will never replace lawyers; they will merely make their jobs easier. Some services will become commoditized, but this will release the bulk of lawyers then to focus on the creative, problem-solving aspects of the law practice.
5. Will the trend toward internationalization of law firms increase over the next twenty years? Will it engulf even the small firms?
I suspect that communications will continue to improve and that everyone will be impacted by this movement. Despite, the outward look, legal matters will continue to have a local flavor.
The old concept of knowledge management was to look in your file cabinet and pull out the paperwork of your last deal or pleading. In the future, KM will mean that AND looking at the file cabinet (and internet) of other lawyers and their work product in order to create the solution to the challenge being faced by your client today in the fastest way and least expensive way possible.