Solo and Small Firm Ethics Traps

By Dennis L. Kennedy, Esq.

© 2013 This article was originally published in the printed magazine communique, the official publication of the Clark County Bar Association. (December 2013, Vol. 34, No. 12). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

There is nothing quite like striking out on your own and forming a new firm. But in their enthusiasm to do so, some lawyers forget to pay attention to details. I know this, because some of them later become my clients. What follows is a discussion of some problems that I have seen—over and over again.

1. “I’m outta here. Who’s going with me?”

Most small firms and solo practitioners start somewhere else—often at another law firm. Their departure carries with it a host of ethical issues. These include:

  • Job negotiations. Can a lawyer discuss prospective employment with a law firm to which the lawyer is adverse in a pending matter?
  • Notice to clients. What are the soon-to-be former firm’s clients told about the lawyer’s departure, and who decides what will be said?
  • Access to files. Does the departing lawyer have access to client files? To the lawyer’s own work product?
  • Solicitation of clients. Can the departing lawyer solicit clients of the former firm, and if so, when?
  • Solicitation of prior firm’s employees. Can the departing lawyer solicit the prior firm’s employees, and if so, when?
  • Fees for unfinished business. When a lawyer leaves a firm and takes a client, is the departing lawyer entitled to the fees earned from the client in the future?
  • New firm conflicts. Can the departed lawyer appear adversely to his former firm in a matter on which he was previously involved?

Each of these issues must be addressed by a lawyer who contemplates leaving an existing firm. The following resources will be very helpful if the reader is in that situation. ABA Formal Ethics Opinion 99-414: Ethical Obligations When A Lawyer Changes Firms (9/8/99); Alan D. Freer, “Lateral Hires: A Primer To Minimizing Imputed Disqualification”; Nevada Lawyer, p. 10, March 2013; Shawn M. Harpen and Paul Hejmanowski, “Unfinished Business,” Nevada Lawyer, p.6, March 2013.

2. “But where will I go?”
The first stop for many departing lawyers is shared space, with other lawyers, other law firms, or non-lawyers. This is permissible, but presents a host of issues, including:

  • RPC 7.5. Professional Independence. You cannot imply that everyone in the office is a member of one firm. Each lawyer’s/firm’s identity must be maintained and represented separately.
  • RPC 1.6. Confidentiality. The use of shared space, equipment and employees cannot be permitted to breach client confidentiality.
  • RPC 1.5. Sharing Fees. If lawyers sharing space decide to work together or refer clients to one another, care must be taken to comply with the rules governing the division of fees among lawyers.
  • RPC 5.5. Unauthorized Practice. Lawyers who share space with non-lawyers must take care that the arrangement does not give the appearance of a multi-disciplinary business, or worse, enable the non-lawyers to hold themselves out as being affiliated with lawyers.

3. “How do I get their attention?”
The Nevada Supreme Court recently amended the Nevada attorney advertising rules (RPC 7.2, 7.2A and 7.3). ADKT No. 445, filed 11/13/12. These amendments significantly changed the rules for advertising fees, the requirements for disclaimers, statements of past results, and targeted mail to potential clients. If you are going to advertise, you have to know these rules. A good place to start the pursuit of knowledge is the article by Glenn Machado, Assistant Bar Counsel, in the Nevada Lawyer, January 2013.

4. “How far is too far?”
Lawyer web sites and blogs can be deemed to be advertising. A lawyer who blogs (boasts) about past successes is engaging in commercial speech and is subject to the Bar’s advertising rules. Hunter v. Virginia State Bar, 285 Va. 485, 495, 744 S.E.2d 611 (2013). Be careful what you put on Facebook.

5. “Sign ‘em up.”
Once attorney and client have agreed upon the engagement, a retainer agreement should be executed by the parties. This is mandatory in contingent fee cases (RPC 1.5(c)), but should be done in every case. The retainer agreement does many things. It –

  • Identifies the client. Do you represent the shareholders, the officers, the directors, the corporation?
  • Limits the scope of the engagement. You were engaged to sue and recover damages for personal injuries. Does that include resolving liens of healthcare providers? Giving tax advice as to the recovery?
  • Multiple clients. Are you representing several clients in the same matter? Do they need to consent to or waive potential or existing conflicts? What if a conflict arises in the future – for example, where multiple clients have different settlement demands?
  • Non-payment of bills. What happens if the client does not fulfill the client’s obligations – for example, fails to pay the bill? Can you withdraw? How long does the bill have to go unpaid? Who gets the file? What forum will decide the fee dispute?

A good retainer agreement will cover all these points, and more.

6. “Let ‘em go.”
When the engagement is concluded, it is important to memorialize the conclusion in a disengagement letter. Nothing fancy; just a letter stating that the matter has concluded, that the attorney-client relationship has ended and that the attorney has no further obligations to the client regarding advice on the matter. This does two things:

  • It precludes the client from making future claims that the lawyer failed to give advice on something which occurred after the conclusion of the matter.
  • It makes the departing client a “former client” (RPC 1.9) for conflict purposes, instead of a “current client” (RPC 1.7).

In sum, starting a new law firm is exhilarating. I know the feeling. Keeping these issues in mind will make your solo/small-firm life easier.

Dennis L. Kennedy labored for many years in the vineyards of a large-firm. He now tends the vines on a much smaller estate (Bailey Kennedy) where he advises many solo and small-firm practitioners. This article is adapted from the CLE presentation made by the author and David Merrill to the Clark County Bar Association on May 8, 2013. If the reader wants copies of any of the materials referenced in this article, please e-mail Mr. Kennedy at dkennedy@baileykennedy.com.


Launching the Solo Law Practice: Ten Tips to Get It and Keep it Off the Ground

By James W. Claflin, Jr., Esq.

© 2013 This article was originally published in the printed magazine communique, the official publication of the Clark County Bar Association. (December 2013, Vol. 34, No. 12). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

Opening a law firm with only one lawyer can be a risk worth taking for those with some pluck and entrepreneurial spirit. But successfully launching the solo practice requires more than simply finding a place to hang out a shingle.

1. Location.
Today’s market for office space in Clark County offers many options, from building out your own office (as owner or tenant), to leasing an executive office (with shared receptionist and support services), to leasing a virtual office (with only a physical mailing address). Before choosing an office location, consider the following questions: Is this office (i) affordable? (ii) easy to find and convenient for the client base? (iii) close enough to courthouses? (iv) likely to generate foot traffic? (v) available with a flexible term of tenancy? Answer these questions to narrow your search.

2. Client service.
Lawyers tend to eat, drink, and sleep the law, but no matter how brilliant the lawyering may be, we must also effectively engage with our clients. Set and follow high client-service standards. Be personable and genuine. Communicate well. Use plain English and tend toward explaining more not less. Give your clients genuine access to you. Reply to messages within 24 hours without fail. Let courtesy and respect to clients and colleagues be your competitive advantage. We have many courteous and respectful lawyers in Clark County—always be numbered among them.

3. Finances.
Keep your monthly overhead as low as reasonably possible and then allow it to increase as the practice grows. Budget for everything. Establish and scrupulously maintain an IOLTA (trust account). Collect evergreen retainers from clients. Spell out your collections and client-termination policies in your written fee agreement and then have the courage to ethically fire those clients who fail or refuse to pay as agreed.

4. Technology.
Smart phones, laptops, tablets, websites, social media, e-facsimiles, videoconferencing, case/practice management software – everything exists to help ensure the efficiency and success of a solo law practice. Research and select the best equipment that you can afford. Encrypt and backup your data. Always use secure servers whether in the cloud or in your own office. See the ABA’s online Legal Technology Resource Center for more information.

5. Human resources.
Being a solo does not have to mean being alone. To keep you focused on activities that require a law license, use good people to answer your phones, keep your books, and provide professional support services. These people will be part of the public image of your law firm and will become a part of your reputation, so insist that they know and practice your high standards of client service.

6. Marketing/advertising.
Develop your competitive advantage in the legal market. First determine your market strengths, weaknesses, opportunities and threats; next set your budget and objectives; then develop and execute a targeted, ethical marketing plan that clearly communicates your strengths. Here’s a rule of thumb for the first year of a solo practice: whenever during your workday you find you are not directly earning a fee working for a client, spend that time indirectly earning future business by marketing or networking.

7. Networking.
Build and maintain strong relationships with other business people and with lawyers you trust of all experience levels, both in and out of your own practice areas. Develop relationships with peers, colleagues, mentors, and protégés. Get involved. Go to seminars, luncheons, and community and bar activities. Routinely schedule lunches with your network. A solo’s network should become an invaluable source of support, insight, advice, friendship, and yes, referrals.

8. Risk management.
Nevada lawyers who are not Bar-certified “specialists” or “experts” under Nevada Rule of Professional Conduct 7.4 are not otherwise required by the State Bar of Nevada to carry malpractice insurance, but a solo lawyer would be crazy not to carry it. Before opening your doors, adopt and adhere to strict practices to avoid malpractice traps. Have a backup calendar for the firm’s main calendar. Create and maintain a database for conflicts checks. Use written checklists in each practice area and for each client matter so that you never omit anything. Your malpractice insurance carrier is a good source of additional tips on how to avoid malpractice pitfalls.

9. Professional development.
Stay relevant. Stay ahead of annual CLE requirements. Join your Bar practice sections and attend the free CLEs for section members.

10. Pro bono publico service.
Owning a solo law practice provides the freedom and flexibility to help enable access to justice for all. Volunteer for community Ask-a-Lawyer programs. Give pro bono service on a regular basis; always have at least one, active, pro bono case or matter. By financially screening and assigning deserving clients to volunteer lawyers, and by providing substantive training and support, agencies in Clark County such as Legal Aid Center of Southern Nevada and Nevada Legal Services make it easy to accept an engagement to represent a deserving client in need of legal services consistent with the solo lawyer’s levels of comfort and competence.

James W. Claflin, Jr. has practiced law for over 22 years and in Nevada since 2005. He launched a solo family and business law practice, Claflin Law Ltd, in Las Vegas in 2011. To learn more visit www.ClafLaw.com.


 

Work life balance—does it exist?

By Stacy Rocheleau, Esq.

© 2013 This article was originally published in the printed magazine communique, the official publication of the Clark County Bar Association. (December 2013, Vol. 34, No. 12). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

“Here Mom!” My youngest daughter thrust a bright yellow note into my hand. It was a notice for our parent-teacher conference, at 3:30 p.m. on a Tuesday. Don’t these teachers realize people work? My office is 40 minutes away! Just because they are off, doesn’t mean we are off! I busily got to rearranging my calendar. Such is the life of a working parent; trying to balance the hours in each day between having a successful career, raising a family, and enjoying life. The ultimate question is, can it be done?

If you were to look at everything society dictates we are to accomplish in a day, my life has never been “in balance.” Work ten hours! Make Partner! Eat five fruits and vegetables! Read 20 minutes to your children! 10,000 steps! Call your mother! It’s exhausting and unrealistic. Over time, I’ve learned to expand my idea of what “balanced” means.

The practice of law is demanding and deadline driven. So is raising children. Even if I didn’t have children, I would have other outside interests, activities, and friends. Some days, it is impossible to have quality time with my family. I decided I needed to acknowledge the reality of my situation, and bring myself into balance. For me, that means not looking at a single day, but whether I am balanced over the course of a week, or a month, because depending on my workload, or what is happening with family or my kids, my priorities and needs will change. I run my own firm, and have three small children, who are busy with sports and school, and even though I have my husband to help me, my lifestyle just doesn’t allow a true balance. I, therefore, resolved that it’s really not so much “balancing,” as it is “juggling.”

So I juggle. Sometimes I’m “work heavy,” and sometimes I’m “family heavy,” but in the end, I feel like I balance out. Here’s the method to my madness:

1. Triage.
It’s a term usually used in the medical field which means sorting patients according to the urgency of their need. I sort my cases and clients according to deadlines and attend to the most urgent ones first. After that, because there are only so many hours in a day, I really had to sit back and determine my priorities. My general categories are work, immediate family, extended family, friends and myself. I simply couldn’t give every category my 100 percent effort and get it all done, so I had to decide what mattered most. What I learned is that if I don’t take my kids to all seven birthday parties they were invited to on any given weekend, the world doesn’t stop turning. If we don’t participate in every fundraiser, my kids don’t get kicked out of soccer. On some nights, cereal is just fine for dinner. I may not win any mother-of-the-year award, but I’d hold my own in a custody battle, and the important things are getting done. For the lesser important things, there is always tomorrow. I’ve dropped activities that really added no worth to my life. I’ve unsubscribed from email lists that I haven’t ordered from or got no real value from in the last year. I’ve learned to eliminate time wasting activities & distractions, which leaves more time for what’s important to me.

2. Live and die by Outlook.
With a busy practice and an active and social family, this is a must for me. Every week, I look at what’s scheduled over the next three weeks. I calendar the most urgent issues first (see rule number one) and then build in less urgent work, family obligations and activities, and personal time around that. And it’s not necessarily in that order. If I’ve been “out of balance” with my girlfriends because I’ve been heavy on kid activities, I might schedule my friends in first. If I have a trial or an extra heavy workload, I might work late a few nights or over the weekend. If I have a light week, I might take advantage and kick off early one day. Each week I may need to juggle some things here and there to accommodate for new priorities, but by constantly looking three weeks out, I’ve pre-planned enough to minimize or eliminate most emergencies. I book out time on my calendar for everything, from phone calls to prep time to actual appointments. No one is allowed to schedule over it without asking me first. If I don’t follow this rule, then someone else is in control, like my secretary, my clients, my husband or my kids, and I’ve learned I don’t like their idea of balance.

3. Buy back your time.
I never hired domestic help until I was pregnant with my twins and confined to bed-rest. What I discovered was that I could outsource my two hour house-cleaning chore for the cost of what it took me one hour to earn at work. I just bought myself an extra hour of time! My price point is $50 per hour, so if the charge for a task is $50/hour or less, I usually hire it out, unless it’s something that I really enjoy doing. I’ll pay more if it’s highly specialized project, such as an electrical issue, but generally, if my time is worth more than the task, I hire it out and then use that time to do other things that help balance my life.

4. Delegate and ask for help.
I always thought that since my mom did everything herself (and raised four children), that I could too. Later it dawned on me that my mom did not work outside the house! When I finally conceded I could not do everything alone, and asked for help, things got much easier. I use my assistant to check in with clients I can’t call back until the next day. My neighbor and I alternate car pooling from gymnastics. I am lucky to have a husband who is very involved with our girls. We take turns with homework, allowing each of us two nights off each week to go to happy hour, go to the gym, or even work late if that’s what the week demands. I also have a reliable sitter that I can call on to pinch-hit for me.

5. Leave work at work.
I’m as guilty of violating this one as anyone else. Technology makes it all too easy to plug in, dial up, download and remote in, anytime, anywhere. I’ve been chastised by a client for not responding to her late night emails since she knows I can get it on my smartphone! Work will never be finished. That’s just the nature of work. There is always something more you can do. I decided to allow myself to schedule a quitting time each day, and when I’m done, I’m done. I’ve learned I’m a better mom, sister, friend, and wife when my nose isn’t buried in my laptop while trying to carry on a conversation. I’m also a better attorney because when I am working, I’m refreshed because I’ve had a break, and my attention is focused on work, not other things.

6. Get in touch with nature.
The number of studies on the internet that suggest nature resets our bodies is incredible. I started hiking and rock climbing, and there is really nothing more exhilarating than gripping onto the side of a cliff for dear life. In some small way, it puts the daily tasks of life into perspective; if I fall, nothing else really matters. You really don’t need to go to such extremes to gain the positive effects of the outdoors, though. Something as simple as walking in the grass in your bare feet can actually recharge your mind!

In the end, there probably is no such thing as true work-life balance. It’s more of a see-saw, just like the ones you played on when you were little. Sometimes you are up, sometimes you are down, and sometimes your partner jumps off and you crash to the ground. The trick was finding a good balance, where you were having a lot of fun. It’s really no different now.

Stacy Rocheleau is an attorney with Right Lawyers since 2001. Her practice is primarily dedicated to complex divorce and custody cases. She and her husband, Rock, have been married for over 20 years and they have 3 daughters.