Solo Practice University®

Six Essential Traits of the Successful Legal Solopreneur

Debra Bruce — Thu, 23 May 2013 11:58:34 +0000

Sometimes lawyers in solo practices get so focused on honing their legal skills that they don’t recognize themselves as entrepreneurs. The Merriam-Webster dictionary defines an entrepreneur as “one who organizes, manages, and assumes the risks of a business or enterprise.” A solo lawyer has to be a solopreneur piloting the enterprise while also producing the legal service the law firm sells.

Very few law schools have classes that actually teach a lawyer how to run a solo practice. How can you know whether you will be any good at it? What if you aren’t graduating in the top 10% of your class? Does that mean you have limited potential for successfully running your own law firm?

Inc. magazine online shared advice from Steve Blank about entrepreneurism in a commencement speech to engineering students. It’s good advice for lawyers, too. He said:

“[G]reat grades and successful entrepreneurs have at best a zero correlation….You don’t get grades for resiliency, curiosity, agility, resourcefulness, pattern recognition and tenacity. You just get successful.”

In this post I want to talk about why those qualities are essential for a successful solo legal practice.

Resiliency. Practicing law requires overcoming failure almost daily. In our job, there are people out there who actually get paid to get in our way, to find our mistakes and to make us look bad. We never get everything we want in negotiation. In the courtroom we win some arguments and we lose some. Some of the clients we want to serve choose instead to hire the very people who so often try to thwart us. We use lots of technology, and some aspect of it malfunctions or befuddles us almost every day. If we weren’t resilient, we couldn’t make it through the week!

Solos have to develop even more resiliency, however, to survive the inevitable lean months, the occasional irrationally unhappy client, the departure of indispensable employees, the deadlines and long hours, and the burnout. All lawyers need resiliency, but solos need an added dose because they usually don’t have a lot of staff to delegate their problems to or partners to share the responsibility with.

Curiosity. Many lawyers have to consciously develop and maintain this trait. Our attraction to the certainty, the black and white finality, of the law tends to stifle our curiosity. The law tells us what is right and what is wrong, and particularly if it is on our side, we cling to it rigidly. Life and the actual practice of law rarely fit neatly into the black or white spaces, however. Even when the law clearly applies to the situation at hand, we have to deal with someone who claims otherwise, and sometimes that someone is our client.

Curiosity helps us understand our clients’ needs and goals better. It allows us to find a new and acceptable path to get them what they really want when the strategy they developed for achieving it is illegal or objectionable to another party. Curiosity helps us uncover the clue that unravels our opponent’s case. Curiosity makes room for compassion, which softens the resistance that blocks the resolution of conflict. Curiosity leads us to innovation that reveals an unconventional winning strategy or opens up a whole new market for our law practice.

Agility. We need agility to develop a new theory when it turns out that our client’s version of the facts wasn’t exactly accurate. It takes agility to quickly trim expenses or find a new market when the economy takes a nosedive or new legislation renders some aspect of our practice untenable. Our mental agility lets us literally “think on our feet” as we respond to opposing counsel’s argument before the judge. It helps us switch gears from drafting a complex instrument to answering a client’s question on an unrelated topic when the phone rings. A solo’s agility allows her to adopt new technology or embrace new trends that create competitive advantages against hidebound larger firms.

Resourcefulness. Usually solos have smaller budgets than firms that can pool the resources of multiple lawyers. We find free or less expensive avenues to conduct legal research and manage administrative tasks. We figure out how to resolve minor technological glitches ourselves because we don’t have full-time IT staff. We unearth and hire employees who can juggle a lot of balls, or we liberally engage outsourcing and virtual assistants. We broaden our range of knowledge and we develop mutually supportive relationships with solos in other practice areas because we can’t just walk down the hall to ask our partner a question. We learn how to make the coffee, unblock a paper jam, electronically file a document, balance the budget and manage personnel. When you have personal responsibility for the success of the firm, you just find ways to make things happen.

Pattern Recognition. Most of us recognize patterns unconsciously. It’s what helps us suddenly discern what the other side is trying to hide from us. It guides us in choosing the argument that is more likely to persuade a particular judge. When we engage in pattern recognition consciously, we can identify the pivot point of a recurring problem, such as why we keep coming to the end of the day without starting on the most important project we needed to work on.

More importantly, we can use pattern recognition to predict the future. By way of example, in 2009 many lawyers experienced a painful decline in their practices. Which firms recognized that they could rise above their competition by using social media to reach potential clients? Who started developing new practice expertise in advising clients on how to handle the legal issues emerging from social media? Solos led the charge. The pattern was readily visible, and even had some clarions announcing it, but only a small percentage of lawyers recognized what was coming.

Tenacity. All surviving solos have tenacity. That’s just what it takes when problems, roadblocks, breakdowns and disappointments are inevitable, and you’re the one who has to steer the enterprise past them. Solos have to keep asking questions and searching for different routes to their goals. Sometimes tenacity and faith in our vision may be all that gets us through. Those who lack tenacity wind up leaving the practice of law or resign themselves to working in an environment where they trade autonomy and control over their destiny for increased security. That’s not wrong. It’s just not entrepreneurial.

I close this post with some wisdom for all solopreneurs from the illustrious entrepreneur and scientist, Thomas Edison. He counseled,

“Many of life’s failures are people who did not realize how close they were to success when they gave up.”

Written by Debra Bruce

Being a Lawyer Is Not Worth Sacrificing Your Life

Susan Cartier Liebel — Mon, 20 May 2013 12:00:54 +0000

A few month’s ago I connected with a lovely and determined woman from Stetson University, Cynthia Clark. She has committed herself to creating the Stetson Law Solo and Small Firm Society. She has had her challenges with the school administration which I won’t detail because ultimately she is garnering a lot of interest in what she is trying to do.

During the course of our conversations she mentioned she was putting together a meet and greet-type networking event for all the students who were contemplating the solo option. I offered to provide a scholarship to SPU to potentially increase the draw and to show support for her efforts. I looked forward to welcoming the lucky winner. On April 11th I received the following email:

Well, we had a wonderful event last night – thank you so much for the door prize!

The winner is a 3L graduating next month: Kimberly Clark. I was glad she won – I know her personally. She’s from the Sarasota area, like me, and was a part-time student. She actually had a third child earlier this year – I can’t even imagine doing that while going to law school. She wants to practice in Elder Law/Estate Planning in a small firm, and then hopes to eventually go solo.

I patiently waited for Kimberly to contact me so Solo Practice University could welcome her. Instead I received this email last week:

I don’t know whether Kimberly Clark ever got in touch with you, but I just found out that she passed away yesterday. I was shocked. Apparently she didn’t seek treatment for bacterial pneumonia until it was too late. Like all mothers and law students, she was “too busy” to care for herself. She got a septic infection and suffered a brain stem stroke on Mother’s Day. Thankfully, she was able to see her 2 oldest children for 15 minutes earlier in the day. She was declared brain dead, and her family pulled the plug yesterday. She was supposed to graduate from Stetson Law this (past) Saturday.

I only knew Kim through school, but I liked her so much and we had planned to stay in touch after she graduated since we live in the same area and were both interested in estate planning and elder law. We even talked about starting a Stetson Law alumni group in this area. I’m having a hard time wrapping my head around the fact that I’ll never see this smart, funny, vibrant young woman again.

This is the Caringbridge website her family started. I thought you should know.

When I was in law school, although I wasn’t even married never mind giving birth to my third child, I conducted a one month trial supervised through our clinic which went straight through Christmas Eve Day. I, too, developed bacterial pneumonia and refused to walk away from the trial until the judge ordered me home. I, too, remember being so committed to everything around me that taking care of myself wasn’t as important. Now add in taking care of a household and two small kids, giving birth to a third child, not wanting to miss classes and studying for finals so you can graduate on time and you have a recipe for disaster.

This is what women traditionally do, put themselves last. Here was an important milestone and this mother was determined to not let giving birth to her third child or pneumonia stop her from achieving her goals. It cost Kimberly her life.

I never met Kimberly or even talked with her on the phone or exchanged a single email mail. I’m sure if I had I wouldn’t feel any more upset than I already do.

This is for all of you out there whether lawyer or law student, mother or father, who puts themselves last. You know who you are. You put off going to the doctor for that chronic cough while you rush your child to the pediatrician for a hang nail. You eat your cold dinner out of a jar standing up and talking on the phone while you make sure your child’s meal is hot and she’s seated lest she choke on her food. You do so because ‘you can handle it’. Well, here’s the truth. You can’t. You can’t care for your kids if you break down physically. You can’t care for your clients if you don’t take time to reinvigorate and refresh. None of us are superhuman and to the best of my knowledge, none of us are immortal. There is nothing more important than your health, no final, no brief, no exam, no trial, no event. Remember this the next time you get no sleep or ignore that persistent cough or inexplicable pain in your side because ‘you don’t have time’ to slow down. And remember, you can break down, too. Remember Kimberly. Then make the time.

Written by Susan Cartier Liebel

A Note to the Newly-Minted Lawyer

Suzanne Meehle — Thu, 16 May 2013 12:00:22 +0000

Dear Law School Graduate,

Congratulations! You just finished what seemed impossible three-and-a-half short years ago as you sat in your first Contracts class thinking you might die if your professor actually called on you. You finished. And now, as you prepare for what seems like an even more insurmountable challenge – passing the bar exam – you are hit in the face with headlines like, “Unemployment Crisis for Law School Grads Deepens” and ”Just How Bad Off Are Law School Graduates?”

Yeah. I know. That really sucks. You’ve worked your butt off and for what? There are no jobs. Big Law firms are laying off experienced attorneys. The D.A.’s office and the Public Defender are laying off folks too. The six-figure salaries that once accompanied a law degree are long gone, but the cost of getting that education has skyrocketed. Your student loan debt is crushing, and job prospects are pretty much nil. So what are you going to do about that?

Once you quit crying into your ramen noodles (or whatever you are living on while studying for the bar exam), give yourself a few minutes to think about it. What are YOU going to do?

Want to know what I think? I think you just need to figure out what your options are.

Go In-House. Do not limit your job search to just law firms. Part of the reason that Big Law jobs are so scarce is that the big companies that employ the Big Law firms have figured out that they can do a lot of that work themselves. Most in-house jobs require at least some litigation or transactional experience, but I’ve had friends who started their in-house careers as interns working for in-house legal departments. Research the major employers in your area, learn something about their industries and the kinds of work they do. Find out who their in-house general counsel is and try to get in front of them.

Insurance Defense. Yes, I know. Everyone cringes at the idea of defending big bad insurance companies, and you do not make as much money working for the insurance companies. But there is a huge payoff to be had here. You will get a ton of experience in contract review, drafting pleadings, taking depositions, doing e-discovery, you name it. And it’s a bona fide legal job.

Hang a shingle. The Big Law jobs are gone and the Big Law business model is a dinosaur. So what if you can’t get a job there? Once you pass the bar exam, you’re considered to be competent to practice law. So go practice law! There are more opportunities for solos and small firms to learn how to lawyer and run their business (hello! SPU!). There are great tools out there that make hanging a shingle affordable and easy. And practically all you need to market to prospective clients is a decent and ethically-responsible website, which you can learn to do yourself using WordPress or Joomla (and a little research on our professional rules) in about 15 minutes.

The bottom line is this: once you are an attorney, you have no excuses for being unemployed. If you still want that Big Law job, the best way to get hired is to not be that lawyer who did nothing with his degree for two years while looking for a job. It is better to be self-employed than unemployed.

So get to work.

Be local counsel. There is a tremendous opportunity to get courtroom experience by serving as local counsel for hearings for other law firms. Lawyers cannot be two places at once, and very often you will see law firms advertise for someone to cover a hearing for them. You need to get up to speed quickly on their client’s file, appear in court on their behalf, and return a report to the attorney who hired you regarding the results of the hearing. If you handle matters competently, have a professional appearance to the client and the court, and are diligent in turning around the results, you may get called back again and again.

Entrepreneurship. Your law school education is a great foundation for owning and running a business. My friend, Mike Ange, is a professional SCUBA instructor, expert witness, and dive shop owner. My law school classmate, Ed McKernan, owns a BMW parts and service company. Another classmate, Jenna Dunaway, owns a custom apparel company that serves the campus Greek community. All of them followed their passions outside of law school to build successful businesses.

Do something else. Burned out on the law after going to law school? You are not alone. If starting a business is not for you, you can find work for non-law businesses. I have law school friends who are deans and professors at local colleges. One friend works for LexisNexis writing case summaries. One who went to work for our law school alma mater in the administration. Still others sell insurance, run title companies, and work as financial planners.

So my friends, I am here to tell you that your degree is not worthless. You are not “stuck.” You have a great career ahead of you.

Much love,

Suzanne

Written by Suzanne Meehle

Evolutions of a Solo Practice: Part 7 (Probate and Estate Administration)

Barry Seidel — Tue, 14 May 2013 12:00:22 +0000

(Read Evolutions of a Solo Practice – Parts 1- 6 if you’re new to this author)

When I returned to work, I knew I had to adjust my practice to make it a better match with my physical and mental health. I converted the per-diem business into a model where the actual court appearances were mostly delegated to other lawyers. I didn’t simply “farm them out”. I hired, trained and supervised the lawyers and my office staff very carefully. I wanted my name to be associated with quality appearances and good service, and banked on the idea that the lawyers hiring me wanted that too. I did not think they required “Barry Seidel making every appearance himself”. For the most part, this was true. If there were ever a problem or a “situation”, I took responsibility and solved the problem. If somebody really needed me personally, I would make the appearance. After all, to appear in Court on one was easy.

I also ran the back office of the per-diem business as well as possible. I hired and trained people to handle the calls and the scheduling and the billing. I took this very seriously, and I still do. I customized Quickbooks for the per-diem business. I was an early user of credit card payments for per-diem appearances. The main use for credit cards in the per-diem world is to smoke out bad payers. The way I look at it, if a firm owes me more than $500 and won’t make a credit card payment, I cut them off. This greatly improved my collections. And, though I kinda hate to say this, it sent some of my worst deadbeats to my competitors!!

Winding down the negligence cases was not exactly a labor of love. It was more like negotiating a divorce that I knew was for the best, and ultimately, rather liberating.

Ah, but what to do instead. I was healthy enough to work, I had years of general practice experience which included concentrations in some specialties. I realized that I had never totally focused on any of the specialties, but I did not consider those experiences to be in vain. They had brought me to my present place, and I knew I could still (20 years into my practice!!) decide!!!!

The field of law that kept jumping out at me was “probate and estate administration”. To be clear, this was/is not “estate planning”, which for many reasons never appealed to me. The cases I was thinking about were the ones that started out “Somebody died, and then…..” There are a lot of cases like that…..and there always will be. In fact, considering demographics, and baby boomers, it seemed like a sure fire growth field. I didn’t need any studies or surveys to confirm this, I just knew it had to be so.

It also seemed that while a lot of lawyers were already doing this kind of work, it was not for everybody, and I liked that. Some lawyers just don’t care for the subject matter, but I actually find it interesting. Some lawyers don’t like that it has its own rules, its own specialized court, and its own language. I had always found them confounding, but I always muddled my way through. I started to envision what it would be like if I became an expert in the field and really went for it.

Self-help books always encouraged visualization and goal setting. I understood this intellectually, but finally saw the value in visualizing a goal. When you really visualize, and then sit down to plan what to actually DO, it becomes much clearer, and much easier. These are the things I did….

Started taking CLE classes on probate and estate administration.
This enabled me to get Guardian-ad-Litem appointments. This generated some fees, but more importantly, got me involved in cases where top lawyers were litigating, so I really learned. It also got me known by the Surrogate and all the “players” in Surrogates Court.
I bought an inexpensive program that could generate Surrogate’s Court documents. Oh, and I learned how to use it!
I hired a part-time associate who knew how to prepare Surrogate’s Court papers really well, but didn’t care for going to Court. Since I like going to Court better than preparing papers, this was a great hire (She’s now been with me over 10 years).
When I was in Surrogate’s Court, I paid careful attention, figured out which attorneys knew their stuff, and asked a lot of questions.
I did Google searches and reviewed the websites of all the attorneys doing this kind of work, and then…….
I rolled out my own website www.queensprobate.com.

I started the website with a modest site through Findlaw. I geared the site towards giving useful information to potential clients who had the cases I would most want to do. This I loosely defined as “anything interesting and profitable in Queens Surrogates Court”. I have cases in other Counties, but all other things being equal, I prefer the home Court. Hence the name. I wrote all the copy myself. This took some time and effort, but has been well worth it. New clients seem to connect with the site, and they often tell me so.

The website made the phone ring and immediately got me involved in a LOT of Surrogates Court cases. I had quite a few cases where the Public Administrator was a party, usually as an adversary. They have very strong legal counsel, so they kicked the crap out of me a few times, but never in a way where I didn’t land on my feet. I’ll spare the war story, but at one point I stood up to them (and the Judge and a Guardian-ad-Litem), when they told me I was wrong and that my approach to a case would not work. When I turned out to be right (and it was not my client who had to pay back the missing money, but the malpractice carrier for his prior attorney), it seemed like my relationship with the entire Courthouse improved. This also improved my confidence, and made me know I was in the right field.

Over the years I kept increasing my commitment to the website. I wrote more pages for it. One day the counsel to the Queens Public Administrator told me that if someone googled “Queens Public Administrator”, my site came up ahead of theirs. This is a good thing. When someone gets served with a Citation from the Queens Public Administrator, and they do the logical thing (google it), I want them to call me, and very often they do.

Another common website scenario is a client from out of State having a New York legal situation, and calling their local attorney. These attorneys usually realize they need a New York attorney, and they too do the logical thing, they google it. I love getting calls/referrals from out of State attorneys.

I did not realize it at first, but Surrogates Court work fits my current peer and age group…..my peers tend to have these kinds of cases. I can relate to the issues arising out of death in a family and speak from first hand experience. Some might be uncomfortable with this, but I enjoy untangling complicated situations, using creativity, and negotiating resolutions. I’d even say that the cosmic karma of “finishing up the affairs” of someone’s life is quite satisfying.

It’s nice having expertise and being recognized for it. It’s nice to practice confidently. It’s nice to know a lot but learn something new every day. It’s nice to deserve to be well paid and have it actually happen.

Funny thing – very often handling an estate requires knowledge of other legal areas. My evolution has taken me through general practice, landlord/tenant, real estate, litigation, negligence, and “per-diem”. I like what I do now, but wouldn’t trade any of my prior background. It’s all part of the package, and I am grateful for it all.

Written by Barry Seidel

Faculty Announcement – Trippe Fried – Outsourced General Counsel

Susan Cartier Liebel — Mon, 13 May 2013 12:00:37 +0000

Trippe Fried will teach a course called “Outsourced General Counsel” at Solo Practice University®.

Trippe Fried has been a practicing attorney for seventeen years. He works exclusively with entrepreneurs and businesses and often as an outsourced general counsel. Trippe functions both as part of the management team assessing and addressing potential risks and as the company’s legal representative. His work includes case and legal services management, transactions, mergers and acquisitions, company development, contracts, employee relations, intellectual property protection, corporate governance, and dispute resolution.

Trippe has worked with clients around the country and in numerous industries including technology, health care, manufacturing, professional services, transportation, venture capital, human resources, and social services. He also writes on matters of interest to attorneys and entrepreneurs and has taught several courses on the legal issues businesses face.

The creator of his own successful technology business, the Virtual Legal Department, Trippe knows from experience the challenges of entrepreneurship and what legal services business owners really need to survive in the 21st Century global economy.

Trippe has been published in several law reviews including Transactions and the DePaul Business and Commercial Law Journal. He also hosted his own radio show on issues of interest to small business owners.

Syllabus – Outsourced General Counsel

Introduction: What Is Outsourced General Counsel?
How to Integrate With and Add Value to the Client – Tips for Fitting In
Management Functions – Using Risk Assessment and Management to Troubleshoot
Legal Functions – Providing Legal Services as Part of a Broader Management Team
Multijurisdictional Practice Considerations
Ethical Considerations – Knowing Your Limits, Working within the Rules
Working as OGC with Multiple Clients
Prognostications – Why OGC Is the Wave of the Future

Written by Susan Cartier Liebel

Everyone Has a Story. What’s Yours?

Debra Vey Voda-Hamilton — Thu, 09 May 2013 12:00:23 +0000

Everyone Has A Story

As rezoomers we are often reticent to tell ‘our stories’.

Why didn’t we practice law? Why did we practice and leave? Was it that we couldn’t find a job or we found a job in another sector? Did we stay at home to raise a family? Did the road we chose just take us elsewhere? And now we have come full circle?

What ever your story, embrace it! Unless you value your experience outside practicing law no one else will. The story you tell about why you were doing something else is the story that will intrigue and interest your future employers. If you’re going solo, it is the story your clients want to hear. It may very well be the catalyst an employer or client needs to hire you.

I love reading Terri Langhans website, BlahBlahBlah. She is a professional speaker who uses storytelling to elicit emotions to move the listener. Recently, however, she was all about giving Facts and Logic to prove your point.

Terri told this story:

The evening news has begun reporting that a certain airplane, the S347, has been found to be dangerous. Recently, these planes carrying 165,000 passengers each day, have been falling out of the sky. This is happening each and every day. Everyone on board dies.

Would you want to jump on a S347 anytime soon? No. Her example is an analogy for how many people die each day from cancer linked to smoking. It’s a much more powerful way of making her point. If she’d just said 165,000 people die each day from smoking it wouldn’t have been as impactful. We are deaf to this number. Yes, it’s life and death, but we can’t relate.

Terri’s example, however, is powerful. It’s also a tool we can use when we create our story. We must be memorable. We’re more likely to be hired with a comparative story like Terri’s than the same tired story told by the person who went before us.

As I resumed my career I was fortunate enough to have the funding to attend Pace University’s New Direction Program.

While at Pace I not only learned changes in the law, I realized I was more than a stay at home PTA mom. Face it, we tend to ignore or devalue things we do outside the practice of law. Yet, it may be this very experience which provides us with an invaluable skill necessary for rezooming right back into the law. Pen your story like the airplane, not the cigarette.

I realized, while I was home being the PTA mom, I had become a unique part of this multi-directional society. I had established unique contacts (I taught Governor Andrew Cuomo & Kerry Kennedy’s daughter CCD), which I felt was inappropriate to explore further. I haven’t called the governor for a job. I am a solopreneur, after all. However, I will include him in the mailing on my proposal to bring mediation into Animal Care and Control (ACC).

What Is My Story?

As a mediator, my story is about how people address conflict. I tell a story most can relate to.

The story goes something like this:

We all have taken separate entrances to our apartment buildings if we are at odds with a neighbor or doorman. We have avoided restaurants or supermarkets where we have been treated poorly or where we reacted inappropriately in the moment and are still embarrassed.

We can do that. We have that luxury. There are a ton of other restaurants, other entrances to use or stores to shop in. It is a small inconvenience to avoid embarrassment or confrontation.

Here is the Point

For Animal Care Control (ACC), the door cannot be closed, the client ignored or the pet left un-homed. Many good people come through that door, wanting to adopt a pet, who can provide a much needed loving home. Leaving conflict unaddressed in a situation like this has serious consequences.

Like the story?

Anyone can relate to this story. I have personally shopped at a distance, changed my nail salon and fired a hairdresser. These are actions we’ve all taken. Now, take that very same conduct and make it part of your professional life. Can you afford to lose a client? Or have a door shut you need kept open. Or, in this case, cause an animal’s unnecessary death. Now your actions take on a whole new meaning.

What Is Your Story?

Find your story. Tell your story memorably. Don’t engage in self-limiting behavior. Tell your story in a way that is not the same as everyone else. Your path to rezooming will not only be smoother, it will be more enjoyable for you and all who have the pleasure of working with you!

Written by Debra Vey Voda-Hamilton

What Do You Do When You Get A Hit on A Conflict Search?

Mark Bassingthwaighte — Tue, 07 May 2013 12:00:40 +0000

(While this post is geared towards a firm of more than one attorney, there are some points every solo should take note of.)

What happens in your firm if there is a hit on a conflict search? Hopefully the conflict concern is immediately brought to the attention of the intake attorney. In firms that routinely and systematically check for conflicts, this does occur.

The interesting question however is this, is that action in and of itself sufficient?

I would suggest that it is not, at least some of the time and here’s why. An identified conflict will occasionally put the intake attorney in a precarious situation. Sometimes there will simply be no bright line rule upon which to draw when trying to decide whether it is permissible to move forward or not. Combine with this the possibility of a significant legal fee if the decision is made to move forward and the dilemma becomes clear.

When faced with a potentially serious conflict and couple that with a potentially significant legal fee, well let’s just acknowledge that reasonable minds may not always make the most responsible decision. Personal desires and financial pressures can sometimes cloud one’s thinking. Because of this reality, leaving all conflict resolution decisions entirely up to every intake attorney’s discretion can result in real exposure for the law firm. I actually have worked with firms that were surprised to learn that a significant conflict concern arose and the intake attorney moved forward on his own when he should not have and the fallout was not good. In those situations there was no accountability to the firm for conflict resolution. There ought to be, and fortunately, there is a better way.

If the conflict hit is such that it is not immediately apparent that the firm is conflicted out, the conflict concern should be brought to the attention not only of the intake attorney but the partner or departmental chair responsible for conflict resolution as well. The vast majority of conflict hits will result in a relatively quick sign-off as the intake attorney can readily explain why the name match is not going to be a concern. For those situations that are not clear, it is essential to have a non-involved attorney who is a trusted member of the firm act as the conflicts resolution attorney. Not only will the conflicts resolution attorney be able to counsel the intake attorney, she will also be able to make the ultimate conflict decision on behalf of the firm if that becomes necessary. Given this, the conflict resolution attorney should be a senior member of the firm who can rise above concerns over immediate cash flow and examine the proffered representation in light of what the ultimate benefit to or concerns for the firm may be.

In some instances, seeking the advice of ethics counsel may even be warranted. Some firms have an in-house ethics counsel which makes this rather easy. If your firm doesn’t or you’re a solo practitioner, you may need to seek outside advice. Consider placing a call to a law school ethics professor, bar counsel, a malpractice defense practitioner, a bar related or insurance carrier’s risk manager, or even another trusted colleague. In addition a review of the applicable rules of professional conduct and commentary will often provide further clarification.

Even after hearing the above, I will still occasionally have attorneys try to argue that the overall risk doesn’t justify such an effort. To them I would say this. Have you considered the exposure issues that may come into play in a conflict of interest malpractice claim? The end result of some conflict claims is that the firm must disgorge its fee because you cannot profit from a matter that you should never have been involved in in the first place. Oh, and remember this, malpractice insurance policies do not cover disgorgement of fees and, as we’ve been discussing, sometimes the fees in question are substantial. Ouch.

Even more troublesome is the issue of notice to a malpractice insurance carrier. Conflict of interest claims do not arise overnight. Attorneys are often aware of a potential problem when clients are troubled by how their matter is progressing. If one or more insurance reapplication periods pass during the time of client discontent or if coverage is placed with a different carrier in the interim, the insurance carrier may deny coverage. Why? From the carrier’s perspective, the firm was aware of an act, error or omission that could reasonably have been expected to be the basis of a claim or suit that was not reported in a timely fashion under the terms of the policy. Read your malpractice insurance policy carefully and pay particular attention to the notice requirements. Conflict claims do get denied for this very reason. When a firm was aware of a conflict and made the decision to put their financial interests above the interests of their clients and charged ahead anyway, well carriers (and juries) have little tolerance for this especially after learning about it a year or two later.

I strongly believe that the practice of law is a profession. But the running of a law practice is a business, and businesses need to have built-in accountability procedures. When you stop to think about it in this light, doesn’t the above approach just make good sense? I certainly think so.

Written by Mark Bassingthwaighte

Are You Having Relations With Your Clients? – Guest Lecture with Jared Correia

Susan Cartier Liebel — Mon, 06 May 2013 12:00:06 +0000

Well, it got your attention didn’t it? The broader question is how do you effectively communicate with your clients before, during and after representation. This is a huge area to cover from a marketing perspective, your ethical obligations, and technological challenges. It’s even bigger when you consider you are a solo/small firm practitioner. But Jared and I tackle the subject and it’s a conversation you don’t want to miss. It just may change the way you do business.

Jared receives countless questions from new solo lawyers and solos who have been in practice for decades but need advice on law practice management. We like to ask Jared what’s on lawyers’ minds as we have several times before.

If you are a new lawyer in Massachusetts or a paying member of the Massachusetts bar, be sure to connect with Jared. LOMAP’s services are free for those who qualify.

The audio is about 44 minutes. Listen or download directly below.

Guest Lecture with Jared Correia

Jared has written a new book called “Twitter in One Hour for Lawyers“. You can learn more about the book or purchase it from the American Bar Association.

Jared D. Correia, Esq. is Law Practice Management Advisor at MassLOMAP (Massachusetts Law Office Management Practice). Prior to joining LOMAP, he was the Publications Attorney for the Massachusetts Bar Association (“MBA”). He was the first Publications Attorney for the MBA, and established the continuing legal education publication protocols and standards. In addition to overseeing the MBA’s CLE Publications, he also managed the MBA’s version of Casemaker, an online legal research product provided free of charge to MBA members. Prior to joining the MBA, Mr. Correia was a private practice attorney, working in the areas of general practice and disability law, in small firms on the Southcoast, North of Boston and just outside of Boston. Mr. Correia’s general practice encompassed a diverse range of legal subjects, including the handling of administrative hearings, personal injury law, family law, tax law and property law matters. Mr. Correia is active in raising funds for cancer research and has founded a charitable organization to benefit autistic children. He is a graduate of Suffolk University Law School and Saint Anselm College, where he was a captain of the Saint Anselm College Debate Team that finished second nationally in 2000.

Connect with Jared on Twitter . You can also follow LOMAP on Facebook, visit the website or read the blog.

Written by Susan Cartier Liebel

What If?

Suzanne Meehle — Thu, 02 May 2013 12:00:38 +0000

“Of all sad words of tongue or pen, the saddest are these, ‘It might have been.”
John Greenleaf Whittier, Maud Muller – Pamphlet

What if you didn’t have a mountain of student loan debt? What if you didn’t have to worry about what all your lawyer friends thought about you? What if you never had to worry about where the next paycheck was going to come from? What if you could just do what you wanted with your law practice?

Better yet, what if you won the lottery?

I’ve been at this law thing for about a decade now – from the time I walked through the door of my first law school class to now. Before that I used to say almost every day, “Man, if I won the lottery, what I’d do is go back to school to get my law degree.” Yep, I used to say that. Nope, I did not win the lottery.

When I first started thinking about going back to get my J.D., I was a couple of years out of college. I was a bit aimless right out of school. I was an English major, after all! I had worked my way from realtor to waitress to temp secretary to retail store manager to dental office manager over three years time. I had moved from Huntsville to New Orleans, to Memphis, and back to Huntsville. I was learning to work on computer networks, but I knew that I did not want to make that a long-term career. I kept hearing the voice of one of my college professors ringing in my ears, “It’s OK if you don’t want to go to get your doctorate in English literature. There’s always law school.”

Time flies. I landed my first tech job working as the database administrator for a state-run mental health center, then transitioned to a job as a systems engineer for a software company. Ten years later, now living in Florida, I was still working as a systems engineer, still working for software start-ups, still repairing computers and programming databases. Still saying, “What if?” Don’t get me wrong – I had a great career. I was a very good systems engineer, I had a nice consulting practice on the side, and I could have done that for a long, long time. But, “What if?”

In late 2002 I was dating a wonderful guy, Tim (now my husband), and we would walk together on the beach every morning before work. Every day I would talk about “one day” going to law school. He finally got sick of hearing it. He told me, “You don’t have to win the lottery. Just go to law school.” He encouraged me to chuck a perfectly fine career in computer technology and pursue my “what if.” And so I did.

I loved every minute of law school. Even when I was crying in the restroom because my contracts prof tore into me in class. Even when I sucked so bad at oral argument that one of my professors suggested that I should just quit my moot court team. Even when I was labeled a “gunner” for raising my hand in classes. Because I was not doing this for my classmates or professors. I was doing this for me. It was MY “what if.”

After law school, I did what was expected and went to work at a Big Law firm. The whole time I was there, I kept wondering, “What if I had just hung a shingle?”

In many ways, what I did not like about Big Law were the same things I did not like about working as a systems engineer in a software company. You don’t get to choose the corporate culture when you work for someone else, you don’t get to choose what projects you work on, and you don’t get to pick the clients you work for. Of course, you don’t have to worry about whether you’ll get paid or have benefits either, but the perks come with some pretty heavy strings attached. Your work life belongs to someone else.

I was as terrified by the prospect of going out on my own as I had once been of going to law school. It was my new “what if.” Once again, Tim stepped in as the voice of unreason, telling me that I did not need to win the lottery to start my own firm any more than I did before going back to school.

That was four years ago. Four years since I hung a shingle, declared that I was going to practice law my way, and dove into the deep end. It’s not easy, I’m not going to lie, but I wouldn’t change a thing.

Today, my “what if” is more along the lines of, “If I won the lottery, I would hire someone to work for me so that I could take a vacation.” Sometimes it’s, “If I won the lottery, I would buy this building so I could grow my law firm here.” I wouldn’t quit working. I wouldn’t even move into a bigger, better house. I probably would buy a new car, but I digress.

The thing is, you don’t have to win the lottery to live your “what if.” You just have to be more afraid of never doing that thing you’ve always dreamed of than you are of letting go of what’s comfortable and safe.

You have to give yourself permission to live the life you want. To have the career you want.

What if…?

Written by Suzanne Meehle

Best Bar Exam Tip: Think Like a Grader

Lee Burgess — Tue, 30 Apr 2013 12:06:14 +0000

It is hard to believe that I am already working with students for the July bar exam. When I talk to my students about each part of the written portion of the test, I hear myself making one statement over and over again, “You must think like the bar exam grader.”

As you likely know, the grading of the written bar exam is done by real people reading stacks of essays one after another. In some states the graders are practicing attorneys and in other states the graders may work for the state bar. But in any case, it is commonly accepted that graders spend limited time on grading bar exam essays, often 2 to 3 minutes per essay and 3 to 5 minutes per performance test (that is the norm in California and the accepted norm in other jurisdictions as well). But really the amount of time doesn’t matter so much, compared with the realization that the graders are reading incredibly quickly.

So what does that mean for you, the exam taker? It means that in order to write a successful exam answer, you must think like the grader. You must write understanding how the grader is reading your exam. And you must be kind to the grader and make the grader’s job as easy as possible! So how do you do this?

1. Use smart headers. Students are often annoyed by hearing me talk about headers over and over again, but headers are guideposts—they help the grader know where he/she is going or heading (yes, very quickly). If you leave out headers, you risk the grader not appreciating an issue that you are raising. Don’t believe me? Here is one example of where headers had a big impact on a bar taker’s score.

I was reading a failing answer from a student a number of years ago. The essay required an answer in five parts (it was an evidence question and there were five pieces of evidence that needed to be discussed). The student discussed all five, but he included a header for only four of the five pieces of evidence. His score was so low, it didn’t seem to reflect the work he had done for all five evidence issues. So I had to worry—had the grader thought the student had not addressed all five pieces of evidence, because he didn’t have a header for each one?

The moral of the story is don’t risk this happening to you! You need to take a few moments and use thoughtful headers to make the grader’s job easier.

2. Write professionally. Many students think that because they are writing incredibly fast on the bar exam that they can ignore typos, sloppy writing, or even traditional writing norms (e.g., writing in complete sentences and using capital letters). Remember, this is a professional exam. Some states even make you dress up to sit for it! You want to present yourself like a lawyer—and in my opinion this includes writing in a professional way.

Does this mean that the writing needs to be perfect? No! But you want to write a high-quality first draft of your work .

Although graders typically do not give points for professionalism, it is almost certain that snap judgments are made on the initial presentation of your work. So don’t discredit first impressions; they can definitely make a difference on your bar exam score.

3. Use key words and phrases. Many students are really stressed by the idea that they have to memorize mountains of law to present it perfectly on the essays. I would argue that instead of perfection, you want to memorize short and concise rule statements that include the appropriate key words or terms of art. Because when a grader is reading quickly, he/she is likely going to be looking for key words such as “foreseeability” or “reasonable.” It is less about the exact form of the rule statement, but more about what is in the rule statement. So when you are practicing your rules, make sure you are learning rules that will make it easy for the grader to decide whether or not you know what you are talking about.

4. Use paragraphs to highlight quality analysis. Paragraphs, along with headers, allow you to guide the grader’s eye. You can help by highlighting important elements for the grader to focus on. If you have an issue that has a lot of great analysis of the facts, make that analysis its own paragraph. Show the grader that you focused on that topic. Singling it out will demonstrate that you appreciated that it was a hot-button issue and you gave it the time it deserved.

5. Practice reading your answers and evaluating them like a bar exam grader. It is great to get feedback from other people (your bar review company or a tutor) but you also want to take time to give yourself feedback. Along with carefully evaluating your work, you want to read your work as a grader would—so go through your answers carefully and see if your work is “skim-able.” If you find your own work challenging to get through, then that is a sign that you may need to clean up your act.

6. Learn from others’ work. If you are studying with friends for the bar exam, perhaps you can get a group together and trade essays in order to get even more feedback. Or you can get exposure to other student essays through books (the What Not to Write series) and websites (in California you can check out Baressays.com). Some students find reading other real student answers helpful in evaluating what makes a “good” or “not-so-good” essay.

Warning: Don’t become obsessed with sample exam answers. Many jurisdictions produce model answers that students can study. These model answers are great examples (especially if they are student answers) of what the graders are looking for. But remember these are just for guidance! Don’t become obsessed with sample exam answers thinking that you will pass only if you create an answer that looks like the model answer. Instead, think about what you like about the answer. Read it quickly and evaluate what the author did to make it a great answer. Is it easy to read? Did it have lots of headers? What can you learn from the essay? But reviewing sample answers is not supposed to make you feel bad—or make you question whether writing a passing answer is even possible. Remember this is a learning process!

So as your bar exam study process gets under way, take time to start thinking like a bar exam grader. Doing so will help you write quality exam answers that will make the grader’s job very easy and hopefully lead to a passing score.

Written by Lee Burgess