Monday, January 15, 2018

"Who is My Client?"

Here's a paradox.......

"An attorney's ethics are directly proportional to the number of ethical issues he encounters".

This is because the most ethically aware attorneys will SEE issues as they arise, while the ethically challenged will be unaware of the problems they are about to encounter.

I wonder how many law students have taken an ethics course, and exams, and thought, "This is all academic; these things don't actually happen."  Well, it's true in one way.....real practice is WAY stranger, and much more ethically challenging, than any law school exam.

If your practice is presenting you with ethical issues to resolve, you are not an unethical attorney. More likely you are highly ethical, and your diligence will serve you and your clients well.

At the core of many of these situations is a recurring question.......WHO IS MY CLIENT?

This arises in many contexts, but is especially prevalent in elder law, estate planning, and estate administration. Here are a few examples:

1. An elderly man and adult daughter make an appointment for "Dad to do a will" but the daughter is doing all the talking.

2. A person calls you and inquires about your fees because "Mom wants to sell her house".

3. A person calls you regarding petitioning for guardianship for their incompetent parent. Upon meeting the parent and adult child, you agree the person needs a guardian, but you then receive a call from another adult child, stating that the sibling you met with cannot be trusted with money.

4. Same scenario as #3, except when you meet the parent they tell you quite clearly that they don't want or need a guardian.

5. Same scenario as #4, except when you meet the parent a second time, they seem to have deteriorated mentally....Upon telling this to the two children, the first one tells you this is how it has been going, and the second one tells you that the other child has not been giving the parent their medication.

6. You are contacted by the child of a person who died six years ago. There is no will. The person who contacted you lives in the house owned by the decedent, and has lived there his whole life. There are three other children who do not live there, and have not taken any action, until recently they began to inquire. The person who contacted you wants to be the fiduciary.

All these scenarios are real. In fact, they are situations I have encountered in the past year alone! These situations have one thing in common. One cannot proceed until determining "who is the client?" and reconciling that with the appropriate ethical issues. Very often one CAN proceed but must (or should) obtain proper waivers from parties who could later criticize the conflict. Whether we get written waivers or not, prudence dictates documenting what we are doing and why.

Something I always do if a parent and child are in my office, and I sense a "Who is my client" situation.......I tell them that at some point I MUST meet with the parent alone, and I mean ALONE, and that I am doing this for their benefit. When I meet with the parent alone, I make very clear that I am THEIR attorney, that we have attorney client privilege, that I will not do anything they don't want, that they can call me on their own if they wish, etc....and, I DOCUMENT MY FILE that I have had this meeting. In some cases, I will ask an associate to sit in on the meeting, and make notes as well. It is THAT important.

It usually takes some work to untangle these initial ethical issues. Don't succumb to the temptation to ignore the issues.

A related paradox is -

"the person who doesn't want you to spend time resolving the ethical issue, is the one who really needs you to resolve it".

In estate planning matters, don't be afraid to ask yourself "How is this going to look later?", and don't be afraid to ask that person (client?) across the desk "How is this going to look later?

I like being able to do right, and have it LOOK right.  And what I tell the potential client, because it's true is:  WE WANT A RESULT THAT WILL STAND  (sorting out the ethical stuff really boosts the success likelihood.  Most clients understand and appreciate this)

Monday, December 4, 2017

Pro-se Adversaries

While doing per-diem court appearances I regularly encounter pro-se adversaries (people representing themselves). 

In New York City Civil Court (jurisdiction up to $25,000), people often appear pro-se.  Many of these are debt collection cases, but I have been involved in many cases where one side (the other side from my side) was pro-se. One might assume that those representing themselves have fools for clients. Indeed, sometimes they are fools, but if you assume it, you will prove another axiom, where "assume" makes an ass of u and me.

A few observations:

1. When you conference a case with a pro-se and a Judge, you will find the pro-se suddenly has a lawyer......the Judge!!  This is not supposed to happen, but it does. Your job is to not let it happen that way. Here's a helpful tip....conference the case directly with the pro-se before you conference with the Court. I tell them that we don't have to talk but we are allowed to and we are here anyway.  I make it clear that they don't have to talk to me and in any event, after we talk we will have a conference with the court. If they agree to talk (90% of the time they do) I try to find out what the issues are, and I am non-confrontational.
When we conference with the Court, I say, right in front of the pro-se, "We have been discussing the issues, and if it will be helpful, I'd like to summarize what we talked about" then I look right at the pro-se and say "If I don't say it right, or if I leave anything out, please stop me, I want the Court to have a clear understanding of what this is about".  I think most people are so nervous to talk to a Judge or a Court attorney, they are relieved that I am explaining it.  I then tell it as straight as I can, and if they want to jump in, I let them. I find this approach limits "court advocacy" and encourages the pro-se litigant to explore settlement.

2. Sometimes pro-se adversaries study up and want to follow every rule, call you on every technicality, and play lawyer with you. They have a right to do this, and they assume that this is what lawyers do. Of course most lawyers, especially in Civil Court, don't do this. We usually try to figure out what the case is REALLY about, and find a fair way to resolve it. I laugh to myself sometimes when the pro-se defendant makes some brilliant legal argument to the Judge, and the Judge says "Yeah, but do you owe the money or not?"

3. Sometimes you have to go to trial against a pro-se. This is usually after you have made exhaustive efforts to settle the case. When this happens you need to carry this case around with you: Roundtree v Singh 143 AD2d 995. Essentially, this case says that a pro-se doesn't gain any greater rights by being pro-se and unfamiliar with law and legal procedure. If they don't know how to make out a prima facie case, or if they don't know how to get their evidence in, too bad. The Court shouldn't help them, and if this happens you must object based on Roundtree v Singh. Sometimes when you really make them follow procedure and they realize they could lose....they settle.

4. Along these same lines, sometimes if I know from the prior conferences that the pro-se is really wacky, I don't object on technicalities. I let them go on, and on, until I am sure the Judge realizes we are dealing with a nut. Then I reel the situation in. What often saves everyone in these nut-ball situations is that at the conclusion the Judge says "Decision reserved".  No fireworks, most Judges will do what should be done, and the decision will be issued later.

Quick story.....I once tried a credit card debt case where the debtor owed about $10,000.   At every conference he insisted that "you cannot PROVE it was me". He was especially emboldened when he saw that I did not have a witness for trial. All of the charges on the credit card seemed to relate to restaurant supplies for a shish-kebob restaurant. However, in all our conferences I did not let on that I knew that, nor did I ever show him the bills and ask him about it.

When we got sent upstairs for trial, the Judge told me to call my first witness, and of course I said "I call the defendant." He said "He can't do that!", to which the Judge replied "Yes, he can....take the stand." I then asked him questions about where he lived, what he did for a living, and the like. Most of it was not useful, but I did get him to confirm his address (at the time of the bills I had). He also confirmed that in all the time he lived there he never had a problem receiving mail. I really nailed these two items home....correct address and mail being received.

I then asked him if he had ever received a bill from my client, and he denied it. I then asked him if he had ever owned a shish-kebob restaurant, and he denied it. I asked him if he had ever helped open a shish-kebob restaurant, and to my surprise he said "Yes, I have worked in these restaurants all my adult life, and I once helped my friend open one." I asked "Where was it?" Turns out it was about two blocks from his address. I then took out my $10,000 worth of shish-kebob supply charges, and questioned him about it. He denied having anything to do with it, but the big red "L" was lit up on his forehead.

When I summed up I had a grand old time. I'll spare you the details.

His summation was "He didn't prove nuthin".

The Judge said "Decision reserved"

When I got the decision in the mail I already knew:  WINNER

Saturday, September 9, 2017

Bad is BAD

Law "jobs" may be scarce, but for the entrepreneurial, there is plenty of law business out there. One skill that separates the successes from the strugglers is recognizing and getting GOOD business, while simultaneously knowing and avoiding BAD business.  Growing a healthy law practice starts with hearing clients' stories, and making good business decisions on whether they and their story will be profitable legal business.

Bad business is bad because....

1. The time spent on bad business takes away from two important things:  good business and personal time. You can make up for bad business with good business, but only if you expand into personal time. Very unhealthy.

2. Bad business saps your energy.  Squeaky wheels get your grease, which is the essence of bad business.  Squeaking clients making a noise you can’t escape and have to attend to. So you grease it, and talk to it, and e-mail and meet with it.  You travel to court for it and with it.  Still, it squeaks. You grease it enough, it starts to quiet down and move along.  Eventually, you and the squeak get to your destination, the case ends, and then you realize the third reason bad business is so bad.

3. You lost money.  All that squeaking, all that time....YOUR time, and maybe you made $10 an hour. It happens, and if you don’t pay attention, it can happen a lot.  Sometimes bad business gets quiet and slinks away without paying, or makes you chase the fees.  

4. Bad business produces bad karma. When you are a solo lawyer, your clients and their cases are your life (We'd all like to deny this, but it's true).  When you have cases, you always have a certain “mix”.  I realized this one day while talking to another solo.  We were having a “can you top this” of problems, commiserating in our misery, when he asked, “Why are you so down today"?  Without hesitating I answered “Bad mix right now”. He knew just what I meant and said, “Yeah, that’s a bad thing”.  Since then, we start our discussions with “How’s the mix today?”

5. A bad mix, that you don't fix, makes you hate your practice. And if your practice is YOU, well, consider where that leads.

Here is my short list of bad kinds of cases, and the reasons they are bad (your actual bad cases may differ):

a.  Residential real estate closings:  Very often these have low fixed fees with no control over your time; plus clients who are generally not business people, and are now suddenly under intense pressure.  These problems can be managed, but it's a big challenge.

b.  Accident cases with minor injuries: You end up working your tail off, spending your own money, and the insurance company fights you.  Now, it is true that every so often you hit a home run with an accident case. But sometimes there are no home runs in the mix, just soft tissue injuries that squeak a lot.  

c.  Landlord-tenant cases: Unless you do a lot of them, so it would make sense to hang around in Housing Court all day. Hanging around in Housing Court on one case is bad business.

d.  Debt collection cases: a percentage of nothing is nothing. Never forget this. Yeah, you can collect once in awhile, but on all the ones where you get nothing, you never get back your time.  

e.  Purchase and sale of a small business: Unless you are really tough, and a super smart businessperson, and ruthless, and like to live on the ethical edge. As a young attorney, you find out right away that compared to other small business owners, you are a wimp. A nothing. You may be able to do the papers for the deal, but you don’t even know what the deals are really about. I’m not talking about corporate mergers here.  I’m talking about representing someone buying a coffee shop or a laundromat.  These transactions are WAY more complicated and difficult than you could imagine.  

f.  Any kind of case you don't know how to do really well, or where you won't be getting enough of them to learn how to do them well.  

There are rationales and rationalizations for taking bad business.  I have heard (and acted upon) all of them:

- I'm building a client base.
- Small fees are better than no fees.
- I'm gaining experience and contacts.
- I'm not too busy with other things right now.

If you think these thoughts, and it's natural to do so, at some point you will recognize the many flaws in all of them. Hopefully this happens sooner rather than later.  

It's easy to market for, and get, tons of bad business.  Of course, if you get enough bad business, bad becomes good, you become the specialist, and you are the bad business go-to person.  This can and does happen, and on many levels can be an excellent result of learning the lessons of bad business.
Bottom line: bad is bad, but bad can become good.  If you don't know bad when you are in it, bad is VERY bad. If you can, figure out what good is right away, skip all this bad stuff, and go for good from the git-go. 

Comments are welcome!

Friday, May 12, 2017

Top 10 Things I Learned from 35 Years in Law Practice

10.  Trust but Verify.

9.   The Courts are an inefficient place to resolve disputes.

8.  When people seem kinda crazy, it’s because they are.

7.  Ignoring problems never makes them better, it makes them way worse.

6.  Solving unsolvable problems doesn’t pay nearly as well as it should.

5.  One of the most valuable skills to learn, and one of the hardest, is to say NO when you should.

4.  Ethical issues arise all the time.  Pay attention and don’t compromise yourself.

3.  Clients are often under stress.  It comes with the territory.  Respond as if you know that.

2.  You are what you say you are, and every day you can refine how you define (yourself).

1.  Being a lawyer in private practice is WAY harder than one might think, but overall it was/is worth it.  What a long strange trip it’s been!!!

Sunday, March 20, 2016

The Next Big Thing in Law Practice

Limited scope representation (sometimes referred to as "unbundled legal services") may not be THE next big thing in law practice, but it is certainly A next big thing.  It's an opportunity waiting to be seized by current and future attorneys, IF we are astute enough to make it happen.
Like many things that affect the business of law, we will not be helped by ANY of the entities that ought to be helping.  We will not be helped by:

-  Law schools
-  The Judiciary 
- The organized bar
-  Legislatures at any level
-  Most of our colleagues

None of these entities care much about helping lawyers in practice, including the legions of unemployed and under-employed new attorneys.  Lawyers in their own practices all know that none of those entities actually help lawyers in practice.  They mostly pay lip service to helping "the profession" and "the public".

The really sad thing is that encouraging limited scope representation would benefit vast numbers of middle and lower income citizens, whose need for legal services is grossly underserved.  

Large new players (notably LegalZoom and Avvo) have entered the market for these underserved citizens, using the disingenuous phrase "access to justice" to describe their offerings.

There is undoubtedly a gap between legal needs and the perceived availability of legal services.  Sometimes there is truly a gap between what is needed and what potential clients can actually afford.  Purveyors like LegalZoom and Avvo attempt to commoditize various services, make them "affordable", and therefor appealing.

What they are actually doing is "unbundling" various legal services and offering "limited scope representation".  They are stepping in and filling the gap between what is needed and what is perceived to be available.

Can private lawyers offer AFFORDABLE legal services?

YES, but only IF they define what the different services are, make clear what they are going to do, and make the pricing for the various services CLEAR.

Doing or not doing this is a choice.  Lawyers have traditionally and collectively decided not to do this.  And so, we have this paradox:  While the law schools and bar associations scratch their heads in wonder over the declining "job market", there is a HUGE demand for legal services of all kinds.  This is an entrepreneurial opportunity that is lost on those who think law is about "jobs".
Law practice presents great opportunities for the entrepreneurially minded.  For "employee mentality" however...not so much.
In many parts of the country, local bar associations are belatedly recognizing the potential benefits to the public in unbundled legal services.  New York is woefully behind in this, though there was recently a barely publicized symposium about this.  The only concrete action to come from this was support for government funded legal access programs and law school clinics like "lawyer for the day".
When I suggest features of limited scope representation (document prep OR for appearing in Court on a one-time basis,) to experienced practitioners, they often express the fear that "once you file an appearance you are IN the case".  I understand the fear.  Would most Judges (or court clerks) permit an attorney to file a limited Notice of Appearance?

Probably not, but any potential problems with this could be easily solved.  The reason they would discourage it is the potential inconvenience to THEM.  Yes, sometimes there will be a client who doesn't understand the limitations of such an appearance (as much as it might be clarified or explained or written).  

The upside to clients and the courts would be massive.  Legions of pro-se litigants (as exist in Housing Court, Family Court, Surrogate's Court, Civil Court and in immigration matters) are detrimental to litigants and the court system.  

I don't think it can be argued that clients do better when they are represented as opposed to pro-se.  There is value in what lawyers can do in a court setting, both substantively and in the harder to quantify aspect of understanding and peace of mind.

Would clients pay a fair price for such value?  I'd guess yes, and it is certainly going to be worth the effort to find out.

I tend to advocate for practicing lawyers first.  Hey - we have an interest in this too!  Can there be value to lawyers in limited scope representation?  YES, but only IF....

- We clearly and logically price our services.

-  We work efficiently.

-  We offer true value, presented with clarity and transparency.

-  We make our services known to the potential clients.

In other States where unbundled legal services has been encouraged, an interesting thing happened....MANY times when a limited scope appearance didn't finish a matter, the client hired the attorney to complete the case.

It's pretty clear why that happens:  Client realize the actual value the attorney provides.

We ought to recognize our real value too!

Monday, February 15, 2016

What LegalZoom is Telling Us (Solo and Small Firm Attorneys)

Back in September I attended the fantastic Clio Cloud Conference in Chicago. I mention it because one of the keynote speakers was John Suh, the founder and CEO of LegalZoom.
When I noticed this, I approached someone I knew at Clio and said, “Really?!? You are having the LegalZoom guy speak to a group of practicing lawyers?”
His response was, essentially “Barry, you are not the only one asking about it. I suggest you keep an open mind and hear what he has to say. You may find it interesting.”
LegalZoom CEO John Suh told us that LegalZoom’s plan was/is on 3 levels. Most lawyers are familiar with level 1, where they provide legal forms for a certain segment of the potential client world.  He repeatedly used the phrase “access to justice” to describe the problems facing the consumers LegalZoom is trying to serve.  
His analysis goes as follows:  For people in the top 1% of income, where money is no object, they can and do get top quality legal help.  Then there is the bottom 15% of income, which LegalZoom wants nothing to do with (I guess these poor people should get their “legal services” from the government, or go unrepresented.)   So much for “access to justice”.
Then there is the 84% of "middle income" people (16-99% of income), who he says don’t have “access to justice” because most lawyers are not prepared to provide this in an affordable way.
LegalZoom’s second level of service was/is to supplement their forms with the ability for their customers to call a lawyer at LegalZoom for help with the forms. Yes, sometimes the law involves more than filling out forms.
At the third level, and what LegalZoom is rolling out next, is a widespread pre-paid legal plan. They intend to have the largest and most expansive pre-paid legal plan in the history of civilization. I know this must be big because they advertise on my favorite show, Shark Tank.  Under these plans the customers would be billed monthly and can then obtain legal advice from attorneys who participate in the plan. This will be a great thing for attorneys, Suh claimed, because it will create 20-30,000 new legal jobs.
He then continued that of course, for this to work, the legal services would have to be at the highest possible level, and the attorneys would have to be well vetted and subject to ongoing review by the customers. And if the attorneys don’t pass muster, before or during their involvement, they are out.
LegalZoom has "done studies" of attorneys and work quality and efficiency. Suh summarized his findings this way…
Big law firms are pretty efficient, with their attorneys working at 75% efficiency. That is, they spend 75% of their working hours doing actual legal work for clients.  Their quality is good and they use technology relatively well.
The most efficient firms are those numbering between 10-20 lawyers (“boutique" firms), who spend 80% of their working hours doing actual legal work.  Boutique firms are also more efficient because their lawyers tend to be “in their prime” (ie – no newbies and no dead wood older partners). These firms tend to use the newest technologies most efficiently.
The least efficient lawyers are the solos and small firms. According to Suh, they/we work at 40% efficiency. We spend only 40% of our time doing actual legal work for our clients.  We often focus on several areas of law and are not at a high level on any particular one.  And, we are behind on technology.
LegalZoom’s plan is to use boutique law firms for their pre-paid legal plans. The 20-30,000 new legal jobs are going there. They expect to pay the boutique firms well, in the realm of pre-paid legal, and for the firms to accept way less than their usual hourly in exchange for volume (and prompt payment) from LegalZoom. Will that work?  Time will tell.
John Suh made it clear that this pre-paid legal opportunity, and the legal work and income related to it, will NOT be made available to solos and small firms. He said solos could not stand up to the vetting and review process. He said we would not be able to serve the pre-paid legal clients well because we could not be counted on to be there, and to follow up, and to work efficiently.
He said it. I was there. There was a gasp in the room....though maybe it was just me.
At first I couldn’t pinpoint what was so upsetting about this. But then it struck me…
HE IS RIGHT!!! But also very wrong.
He is right that….solos are not as efficient in our work because we spend time on marketing, and billing, and collections, and evaluating new matters, and personnel issues, and all the other things that comprise being in practice.
He is right that….we sometimes venture outside our best practice areas.
He is right that….we are not all/always on the cutting edge of technology.
He is right that….it would be difficult to guarantee all-day availability for calls from pre-paid legal clients at a reduced hourly rate.
But he is WRONG (and disingenuous) when he talks about an access to justice problem for middle class people.  
He is WRONG to throw a blanket over the 16-99% income levels, as if people across the entire income spectrum have the same legal needs and the same issues about access to legal services.
He is WRONG if he thinks good clients want to commoditize legal service and get it through a monthly plan. Good clients don’t want that…they want their own lawyer, who they can talk to about the specific matter, and who knows them well enough to offer contextual advice. 
I don’t know if he thinks small firms and solos are destined to remain inefficient, and unknown to the many clients who should be able to find them. But if he thinks this, he is WRONG.  
This is NOT an "access to justice" problem.  It is a disconnect between the clients' actual needs (quality, affordable legal services) and our ability to provide this AND make the value of our services known to the optimal clients.
WE (solos and small firm lawyers) should be serving this market WAY better. We are uniquely qualified to do this IF/WHEN we up our game. Our fees should be commensurate with real value, that clients can see and understand (and appreciate).  Clients want and deserve personalized legal services.
Good lawyers want good clients, and this means way more than "people who can pay".  Good clients realize that legal service is not a commodity, that there is more to quality than cost.  They understand that legal issues exist in a larger context.  They understand that when a valuable service is being provided, reasonable and appropriate fees will be charged.  Good clients appreciate the value that a good attorney brings to a situation.
As a solo lawyer, I never minded that LegalZoom was doing the forms and advice thing.  One simple reason for this….I didn't want these DIYers as clients anyway.  Ironically, sometimes they end up being clients on larger matters, after the DIY documents, done on the cheap, blow up on them.  Even then, they still are generally not great clients.
I don’t think most legal issues can be resolved with some “access to justice” in the form of a consultation with a lawyer on a pre-paid legal plan.
I don’t think quality clients want their lawyer through a pre-paid legal plan. But they want their lawyer to be great, and responsive, and transparent, and to charge fairly.  Can we solos and small firm lawyers honestly say we are doing this?  If we are not, we better improve.  
We then have a bigger challenge:  Making sure our best potential clients know what we offer and how they can work with us.
With cudos to Jim Ignatowski, who gave me inspiration in a memorable Taxi episode, I will say the following.....
We solo and small firm lawyers will address these issues by making the value of our services known to clients who want and need us........OR FAIL TO DO SO!!!!

Wednesday, December 16, 2015

Cone of Silence

I'm proud to say that sometimes I resort to unusual methods to solve a problem.

Recently I had two people in my office who were involved in a difficult estate situation.  They were united in interest, to a degree.  They were two of five adult children who had inheritance rights.  The guy was the Executor and a one fifth beneficiary.  The woman was his youngest sister, also a one fifth beneficiary, who was living in the late mom's house.

I knew the Executor was under a lot of pressure from the other siblings to "get her out of the house and sell it".  They weren't wrong, but he had never been firm with his baby sister. 

When they came in she seemed quite comfortable with the situation as it was, and thought we were there to discuss how we (she, brother and I) would deal with the others.

I didn't like thinking that brother wanted me to do what he should have done, but I could understand his reluctance.  His sister was fragile and he cared about her more than the sibs cared about her.  He knew he should have been clear with her before, but he hadn't done it. 

It's kind of stupid to have a meeting where the most important issue is not discussed.  I tried to get him to say what needed to be said, but he wouldn't (or couldn't) do it.

After awhile I said to them "You know, this may be a situation where I want to use the Cone of Silence, do you know what that is?"  They did.  She said "It's that thing Maxwell Smart wanted to always do when he talked the The Chief".  Yup.  If you're not familiar, here's a Youtube link

I said to her "What I always found funny about the Cone of Silence is it doesn't really work because other people can hear, but Maxwell Smart felt he could talk openly in there.  If we use the Cone of Silence, I will speak openly about some important things.  Are you OK with that?"


"OK" I said. I am activating the Cone....and I made some mechanical sounds and some hand motions to indicate we were in the Cone of Silence.

I then looked her in the eye and said "Now that we are in the Cone of Silence what I want to say is this....While your brother does not like the way the others are acting, he very much wants you to leave the house.  He doesn't want to have to evict you, and he has been praying that you don't force him to do that."

Then I stopped, slowly raised my hands to indicate that the Cone of Silence was lifted, and said
"The Cone of Silence is off now."

He was crying.

She finally understood.