LawBiz® Legal Pad: Trust Accounts

What responsibility does a lawyer have when a financial institution fails and a client’s trust money is held by the financial firm?
Ed Poll answers this question as he talks about Trust Accounts this week.

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CALBar annual conference in San Diego

I attended the CALBar annual conference this past weekend in San Diego.  Great learning and networking all in one place.  I was there for a meeting of the Law Practice Management & Technology Section of the CalBar, and since this was my last meeting with them, I was honored with kudos for my many years of service to the group.Ed Poll - Wife

Over the years of my involvement with this group, we have provided many education programs for the benefit of the lawyer in his/her client relations and law firm operations.  The section was responsible for a major writing effort and has thus far contributed significantly to two books, one on starting law practice and one on law firm operations.  Much has been accomplished and I am proud to have had a share.  A special cake was brought in with much hoopla ….

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7 Easy Steps to Getting Paid

You’ve worked hard to address the challenges brought to you by your client.  You’ve put other matters aside to deal with his or her crisis.  You‘ve achieved their desired results.  And now, they’ve become a slow payer or non-payer.  Why?  What could you have done to prevent this, to know from the very beginning that they would not pay you as agreed, and to assure that you will finally get paid?  Failure to get paid, or low realization rate, is the bane of most lawyers.

See Collecting Your Fee: Getting Paid from Intake to Invoice, written by Ed Poll at the request of the American Bar Association.  Learn what to do at the very beginning to assure you get paid, learn how to anticipate whether your client will pay in accord with your agreement and learn what you can do if the client suddenly becomes a slow payer.


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The police are never wrong!

Perhaps, if we want to stay safe, we should listen to the advice of a police officer who said “… just do what I tell you to do.”

In a recent  OpEd piece, Erwin Chemerinsky, noted legal scholar and Dean of the University of California, Irvine Law School, suggests that the police are, with rare exception, never held responsible for shooting a civilian, even if death results. The Court has said, “…a government officer can be held liable only if ‘every reasonable official’ would have known that his conduct was unlawful…” Likewise, the local government which employs the police is not liable for prosecutorial misconduct

In a different opinion, Chemerinsky suggests that civilian oversight is important.  In fact, since the Court seemingly will not protect our citizens, we need to change the culture and attitude of the police on the street and reduce the potential for wayward or negligent actions on their part. This can be done, but only if there is civilian oversight setting the rules, following the rules and enforcing the rules before any issue gets to the court.

In another type of matter, a well-known entertainment lawyer, Milton Everett Olin Jr., was riding his bike and hit by a Los Angeles County Sheriff’s car. The cyclist died. In California, it is illegal to drive and text at the same time. It seems, however, as noted above, that law enforcement personnel are governed by different standards. The officer was using his work computer rather than a personal electronic device, the Los Angeles County district attorney’s office has decided. Because he was using a work computer and was otherwise acting lawfully at the time, the District Attorney says he could not prove even the lesser charge of criminal negligence.

Full disclosure:  I am a cyclist.  The police motto, “to protect and serve,” has some holes in it when the enforcers can commit acts with impunity that, if committed by others, would result in harsh punishment. This is a civil event. What must the citizens of Ferguson think who know, that even if charged and convicted of a criminal offense, the officer involved will never be punished based on the Court’s rulings.

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Is the Bar Prosecutor Alleging Murder When Only Manslaughter Is Appropriate?

The state bar is overcharging its cases.” Thus started the commentary by Carol M Langford, in the newspaper, The Recorder, in San Francisco. Langford is a defense counsel and former chair of the State Bar’s Law Practice Management and Technology Section. She quotes the California Supreme Court to the effect that “bar matters are ‘quasi criminal’ in nature.” She asserts that respondents before the State Bar Court have none of the usual constitutional safeguards in a normal criminal proceeding.

She further asserts that the Chief Trial Counsel (Jayne Kim) commented that the bar had to be “tougher” as evidenced by the Supreme Court’s rejection of 24 stipulations in 2012. Ms. Kim responded to Langford’s August 28th Viewpoint column, claiming she was misquoted.

This sounds a bit like the classic prosecutor/defense counsel “difference” of opinion. Ms. Langford would obviously prefer more stipulations that favor respondent attorneys; Ms. Kim would obviously prefer that those attorneys being “charged” be locked in jail and the key thrown away. The bottom line is that the general fund of the State Bar of California is $64 million, 75 to 80% of which goes to fund the bar’s disciplinary system. That is a whopping $48 million, give or take, that is expended to discipline attorneys who allegedly violate the rules of professional conduct.

I have watched this scenario for more than 40 years. In that time, there is only one State Bar president who indicated that the goal of the State Bar was twofold, one to protect the public and two to educate lawyers in more effectively running their law practice. By doing the latter, we do achieve the former as well. But for Jim Heiting, the president who suggested this, the State Bar is now in an adversarial position with its members, lawyers.

Langford suggests that the State Bar should make “real offers to respondents to settle matters…”  A lawyer signs a stipulation still receives punishment. In none of the comments made by Langford did she suggest that the respondent lawyer not receive discipline. The focus is whether there be a stipulation without a trial (and the concomitant additional cost to both the State Bar and to the respondent) or whether all matters need to go to trial. Why does the State Bar trial department not focus its energies against lawyers who turned down good offers reflective of the misconduct at issue.

This is a good question and one that is not answered merely by suggesting that the current legislation in California mandates that the public be protected. “Cleaning out a backlog” by offering reasonable stipulations, educating lawyers (members of the bar) on client relations and economics of the practice of law and developing a mutually respectful relationship between the Bar and its members will go a long way toward reducing the cost of attorney discipline and (Heaven help us) reducing the cost of membership in the State Bar.

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Kill Switch – A Threat to Democracy?

Gov. Jerry Brown signed a bill last month that requires all smartphones sold in California to include a  “kill switch.” The purpose of this bill is to enable an owner who loses  his/her smart phone to, remotely, make a smartphone worthless to a thief.  By flipping a switch remotely, the owner of the phone can “kill” all the data that is on the phone. As one has put it, the phone will become a “brick” and nothing more.

However, the bill also contains a provision that allows the government to flip the kill switch as well.  One can only imagine the irony of this technology. As we have become  more democratic,, more of an open society, more easily  able to communicate with the far reaches of the world,, we now have a provision  that will enable our government to shut us down. Can you imagine what would have happened in the Soviet Union had Gorbachev  not been able to communicate with the outside world  in the  1990s? Can you imagine what would have happened in Ferguson,  Missouri had the local citizenry not been able to use their phones, iPads,, twitter accounts and other social media to describe what was happening there?  Now, all of a sudden, the state of California is able to close down smartphones that might protest against a given activity.

Although  theft of smartphones  is a serious issue, curtailing  Democratic action is far more serious.. Public protest is an old form of activism.  Technology has made such activism more widespread and more easily dispersed. Technology can, should not,  be used to curtail active public input.

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Dress for success – how deep will your client see you?

In a recent Indiana trial court proceeding, the judge held the attorney in contempt of court because he failed to follow a local court rule: where socks. While most of us have heard the mantra of dressing for success, one has to wonder  how deep can the client see? Does a client know whether you are wearing a T-shirt, underpants or as in this case, socks? Apparently, the judge saw bare skin next to shoe leather, and was  offended. One has to wonder about the sensibilities of the court…

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Technology will cause change, but not overnight

Many writers and “pundits” suggest a doom and gloom forecast for the legal profession, Among those who say, “Wait a minute,” Neil J. Squillante puts a different spin on our world. See Neil J. Squillante.  First, he separates the legal business into segments. Not every segment will be impacted in the same manner. And thus the close to 80% of the legal profession who represent the “consumer” market of individual customers are likely not to be affected, at least in the short run.

And yes, while technology will impact every lawyer, the impact will have different ramifications and benefit lawyers and legal consumers differently. First, being more efficient, lawyers can be more profitable … or at the very least, get off the annual rate increase treadmill. Not all consumers will need or understand the effects of technology on a lawyer’s practice. Richard Susskind, a thought leader in our profession, suggests four elements of change that will dramatically alter the profession. I concur with him in only one of his four elements, and that is technology. The others can have their impact traced to earlier times, just as in other industries. But, technology, that is an area where the legal community has lagged far behind in innovation. Today, such innovation is moving ahead at lightning speed. And its impact has been recognized even by the organized Bar which is including technology proficiency as an element of the definition of “competency” to practice law.

Being more efficient and effective in using technology to perform legal services will, for the first time, enable and encourage lawyers to alter their billing modalities and move away from the billable hour should they choose to do so … and this will have a major impact on consumers, both large and small. This will be a game changer. While technology itself will not be the catalyst for major change, the changes wrought from technology’s utilization will. This will not happen overnight, but when we look back in the rear-view mirror, we will ask ourselves “how did that happen so quickly?”

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LawBiz® Legal Pad: Why Marketing Matters for Lawyers, Part 2

Ed shares some thoughts on electronic marketing and offers ideas on how traditional marketing can help you stand out in the crowd.

-You are more likely to be remembered, thus contacted, if you reach people on a personal level.

-Differentiating yourself will lead to increased :
–calls by clients and prospects
–calls from the media
-And most importantly:

More money in the bank.

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