Occasionally lawyers still call in asking if it’s ethically permissible to place data in the cloud and often wanting to talk about the associated risks. I get it. For those who haven’t intentionally moved to the cloud already, trying to understand the risks and learning how to responsibly manage them can be a bit intimidating. Thankfully, a number of ethics opinions have been issued on this topic over the years so the answer to their questions is usually a rather straight forward one. Basically, it’s yes as long as you do your due diligence on the vendor and couple that with taking appropriate steps to see that your data is properly secured in transit as well as when at rest.
You’ve just been through some very intense contract negotiations for a new client and now that things are wrapping up, this client thought the time was right to let you know that once your work is complete, you are to turn over everything in your file. In short, you’ve just been informed you are not to retain anything relating to this matter. As a risk guy, I now have serious concerns. If you comply, how in the world could you defend yourself in a subsequent malpractice claim? Remember, the client will have complete control of the file. Admittedly, this kind of situation doesn’t happen often; but it does happen. So, let’s talk about your options if you ever find yourself in a similar pickle.
As I often like to do, let me share two brief stories. The first involves a criminal defense lawyer. This lawyer represented a client who staunchly refused to allow the lawyer to call his girlfriend to testify at trial. There may have been other witness who the lawyer could have called as well; however, the client simply refused to ever discuss the matter. Here’s the problem, this client has somehow always managed to find his way out of trouble; but this time was going to be different and the lawyer knew it. This time the client was likely to spend a serious amount of time behind bars unless she could find a way to convince her client to work with her……
For the past 20 years, I have worked for an insurance company that insures lawyers for their malpractice. Trust me when I say I get it. There are going to be times when an insured doesn’t necessarily agree with every decision the company must make in trying to resolve his or her claim. That’s going to happen. What I don’t get is when an insured makes a decision to prevent us from helping at all.
There may be a time when a client wants to speak directly with the other side simply hoping to move the process forward. Truth be told, I’ve been there as a client. It felt as if my legal matter wasn’t progressing as fast as I thought it should and it seemed to me that the attorneys were the ones getting in the way. I started to wonder if I couldn’t move things along by just having a one on one with the other side. So, what does a good attorney do?
Solo attorneys sometimes land in an office share setting. And look, I get it. The reasons for doing so can be compelling. There’s the savings on overhead, the presence of others who can provide personal and professional support, and the list goes on. While I have no desire to quash anyone’s desire to work in such a setting, I do feel compelled to share a story; because sometimes it’s just too easy to minimize and even ignore potential problems.
While crowdfunding models vary, there are primarily two general approaches. One is an investment model where the contributor invests funds in exchange for some kind of benefit. The other model is the donation approach, where the donor has no expectation of a return or benefit, and this is the model I’m going to discuss.
Let’s start with a potential client who has no ability to cover your fees. Would it be ethically permissible to solicit donations through a crowdfunding source as a way to have your fees paid?
If you tell your clients that you will add a 20% surcharge to your fee for work you have to do on weekends, surely that must be reasonable. If it is, how about a 50% surcharge? Is that reasonable? How about a 200% surcharge? Read and learn.
A number of years ago, I took a call from a solo attorney who was nearing retirement. The retirement years were to have been his best years yet because his plaintiff practice had been quite successful. He was an esteemed member of the bar and had become something of a pillar in the community. His reputation of helping others and being of service to the community at large was above reproach, that is, until it all went horribly wrong.
Texting is ubiquitous in our culture, which makes it too easy to embrace that reality by texting day and night regardless of the setting just like everyone else does. The question I’d like to ask is this. Is doing so a good thing, particularly for a lawyer? Remember recent rule changes. Comment 8 to ABA Model Rule 1.1 Competency reminds lawyers that they are to “keep abreast of changes in the law and its practice to include the benefits and risks associated with relevant technology.” If you are communicating with clients via text messaging, have you thought about the ramifications of doing so?