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 https://www.youtube.com/watch?v=vsNR9FnxOdY.

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?"

"Sure"

"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.

Wednesday, August 26, 2015

It Took Me 33 Years to Realize (and Accept)....

That clients are very often people who have "problems".

Now, you might say "What kind of idiot are you that it took you 33 years to figure that out?"

I always knew problems were the driving force bringing people to my office and perhaps into Court.  If there weren't legal problems there wouldn't be much business.

What it took me time to realize (and even longer to accept) is that the genesis of many problems are the personality problems of someone in the case (often the client but not always).

What kinds of "personality" problems generate a lot of legal problems?  Let me count the ways....

- Narcissism - people who only care about themselves and cannot see things from any other point of view. 

- Closely related (and very dangerous) are sociopaths.  I've been involved with a few of these.  Their personality disorder tends to get them involved in legal matters.  In lay terms we can call them evil and manipulative.  The first time I realized I was involved with someone like this I did some research.  The best and only advice I found was "undo your involvement with such people".  Thanks.  I'll remember that....next time.

- Immorality - Many people's moral compass consists of what they can get away with.  Maybe I was naïve but I used to assume people knew right from wrong.  Now I assume they don't and hope to be surprised.

- Inability to communicate.  Some people have no trouble communicating to me what the facts and issues are..  But they are often not able to communicate in a meaningful way with the other parties.  Often the adversary has the communication issue, but many times I have wondered whether a little more effort by my client might have enabled an early resolution.  I used to ask whether my prospective client had tried to "have a cup of coffee" with the other side, but 1,187 times in a row the answer was "no" so I don't ask this any more.

- Stupidity and/or lack of sophistication.  With intelligent clients we can explain the issues, and the inter-related possible paths things could follow, depending on....whatever.  Sometimes though, you can lay this all out and the client asks "So, do you think we will win?"

- Pathological abhorrence of paying for anything (especially legal services).  There is no fancy name for this, but maybe there should be.

In practice, we spend most of our time dealing with our clients and their cases.  Their personalities and proclivities are part of our life.  Spending our time and interacting with narcissists, sociopaths, greed, immorality, stupidity, cheapness, and personality flaws in general, can be draining.  It can make you hate what you do.  Pretty sad, but don't we all know people like that?   Haven't we all felt that way?  We are destined to repeat these unhappy experiences.....

UNLESS - we are willing to leave judgments behind and ACCEPT that if we accept these clients and their matters, we may as well accept them as they are.  Maybe even appreciate them.

Accepting their matters, or rejecting them, is OUR CHOICE. 

At a certain point I chose to reject certain cases and certain types of clients, or even cases where one of the adversaries was a certain way.  I am entitled to make that choice.  So are you.

Sometimes our greatest strengths (being compassionate and understanding and smart) turn out to be our undoing.  We end up trying to fix the people rather than solve the legal problem.  We end up trying to help in ways that cannot work.  It's a formula for failure regarding the results, but more important, it's a formula for our own unhappiness.

If you choose to not be involved, be clear and know you are protecting yourself.

If you choose to be involved, accept who you are involved with, and work with who they are, instead of getting angry that they are not who you would prefer them to be.

(Y)OUR CHOICE





Wednesday, July 15, 2015

Your Best Friend

Law practice is a business.  Make no mistake, it is a TOUGH business.  This doesn’t mean you have to be an insensitive lout to succeed, but you should to be AWARE of many things, such as…

The clients are not your friends. 

You can like them, you can care about them, you can empathize, you can feel their pain, and you can put your guts on the line for them, but they are not your friends.  The clients may even like you, but you are not their friend.  They want you to be a professional who works on their behalf.  They have a right to have expectations, and you have a right to look out for yourself.

You have a right to be treated with respect, to be told the truth, and to be paid in accordance with your fee agreement.  Sometimes these things don’t happen, and you have to look out for yourself.  How?  By being clear and direct when there are issues between you and the client that need to be addressed.  Clients often cannot address these issues with clarity and directness, nor should they be expected to, because they are your client, not your friend.  You are the professional, you have to be clear and direct.

The Court system and the Judges are not your friends.  You can and should respect them but you should know where they (and you) are in the scheme of things.  When you interact with them, you are in a business that requires you to serve your clients, and look out for yourself.   Who are the Judges and people in the Court system?   Are they in a business, like you?  Hardly. They are civil servants on a fixed salary.  There, I said it! 

When you make work for them they don’t like you.  They MIGHT care about people like your clients, but they might not.  They don’t want to take sides or ever be perceived as doing so.  SO, unless and until you put something in their face that forces them to care, they don’t care.  Often, they “care” only to the extent you have made them have to work.  This is often a big shock to clients, who think that when a case gets filed in the Court system, “the Judge” knows about it (they usually don’t), and that upon the initial filing they are interested (they aren’t), and that the Judge will somehow become “pro-active” based on seeing the merits of your client’s position (which almost never happens).
In reality Judges want the cases to be resolved without having to actually decide them.  When cases are being discussed in Court, the Judges and court personnel routinely refer to settled cases as “going away”.  As in “what would it take to make this go away?”  Clients don’t know that the Court talks about the cases this way, but they do. 
The Judges and Court system are not your friends.

Your adversaries are not your friends.  Sometimes a little dance happens in contested civil matters.  You need to negotiate on behalf of your client, with your adversary who is acting on behalf of his client, and lo and behold, you get along with your adversary.  I’ve become friendly with many lawyers who I first met as adversaries on a case.  It makes sense….I have more in common with them than most people I would meet.  The thing is, when you are involved in a case with them, they are not your friend.  (Paradoxically, sometimes your attorney adversary is indirectly your client’s best friend, because they are the only person who can convince your client’s adversary to do what is right)

In practice, while being aware of who your friends are (and aren’t), you have to continually do the three things that comprise a law practice (or any business):

Get new work

Do the work

Deal with the money.

Friendship has NO ROLE in any of these items, the essential elements of your practice.

Here’s what many of us do.  We are friendly, because it’s EASY and we are NICE. 
But if that causes you to not be attentive to getting new work, or doing existing work, or getting paid…

Then you are being awfully unfriendly to the person who should be your best friend…

YOURSELF

P.S.. – You can and should be friendly to yourself, and friendly to others.  You can even act friendly and with compassion towards people who you realize are “not your friends”.  Just remember to care about you.

Wednesday, June 10, 2015

Law Practice (and other business) Fundamentals

Due to deep seated psychological reasons, which years of therapy have not remotely addressed, I always believed I could not draw, paint, or do anything remotely "artistic". It's got something to do with my mother being an artist, and worrying too much about what other people would think about my artistic efforts. And yes, Dr. Freud, I know I married an artist, just to keep you amused.

However......once, in preparation for giving a talk on "Building a Law Practice", I made a little illustration. This is the only known work of its kind, created by my very hand.....
If I do not explain the meaning of this relic, I fear it may be later discovered and subject to mis-interpretation. The drawing is called "Law Practice Fundamentals". A law practice, or ANY business, is based on THREE basic things:

1. Getting the business.

2. Doing the work.

3. Managing the finances.

If a law practice (or ANY business) is having "problems", the source is often one (or more) of these issues.  All these issues can be addressed and improvements can be made.  This is a matter of clear thought, action, assessment, and adjustments.  All the things we all know and sometimes even do.

The BIG challenge is to work all three elements simultaneously.

Most new law practices consider themselves initially challenged with Item #1.  I maintain this is easily overcome, and once business is brought in, the challenges of #'s 2&3 will present themselves.  Of course, once we are working really hard (probably too hard because we half didn't expect to succeed at #1), the inclination is to stop getting new business and/or lose track of financial issues.  After all, we are SO busy, so things must be OK.

Then, after we do all that work but the bottom line doesn't measure up, we focus on that.  And fall behind on the actual work, and of course, still no time to go back to #1. 

So then, we work on #3 and chase down some money, but we have no new business, and so we begin the treadmill again.

Try not to do this.  Or shall I say....DON'T DO THIS!!!!

These things are all related and inter-related. 

When you market and network, have systems in place to handle the work efficiently.

Make good decisions on which matters to take (and reject) and think about the fees and billings and collections at the outset.  Money problems generally arise out of defects in #'s 1 & 2.  (We market for or accept unprofitable matters or we work inefficiently)

Law practice (or any business) requires seeing all 3 elements, and addressing them consistently.



Wednesday, March 11, 2015

Probate Complexities: Part 1

In the last post I set forth what an ideal (easy) probate would look like, noting that varying a few factors can add serious complexity.  Here are a few variations and how they play out:

- A Will that is not attorney prepared and/or supervised.  These can be harder to probate because of certain legal presumptions.  When a Will signing is supervised by an attorney, the legal presumption is that the execution was properly done.  This can be overcome, but the burden is on the potential objectants.  It is a heavy burden. 

On the flip side, if the Will signing was not attorney supervised, the burden is on the Will proponents to show proper execution.  This is a heavy (and dangerous) burden.  It means the witnesses have to state that the necessary formalities took place (that the Testator declared or indicated the document was his will, asked them to be witnesses, that they saw the Testator sign, etc).

Nobody can actually remember this stuff.  When an attorney supervises a Will, all he has to remember is what his ceremony is, that he/she always follows it, and there was nothing in this Will to indicate any deviation.

Sometimes when people are in Court with home-made or Legal Zoom wills, where possible objectants were cut out, they really regret not using an attorney to do the Will.  They now have a burden they would not have had if they had used an attorney.

To be clear on this....the above refers to the actual Will execution.  Other grounds that someone might have to object could still be pursued.  That being said, it is really dumb to run across "due execution" issues, when they could have been easily avoided.

2.  Two witnesses and a witness Affidavit.  The law in NY is TWO witnesses.  Not one.  Not one plus someone who is also a beneficiary.  Also, the witnesses can (and SHOULD) sign a separate witness affidavit right after they witness the Will.  This essentially says they were there, they signed, and everything that was supposed to be done, was done.  It saves everyone from having to locate the witnesses years later.  It also saves the problems that arise when it turns out later the witnesses have died, or are incompetent, or you can't locate them.

This stuff applies mostly to attorney drawn wills but surprisingly, sometimes attorneys don't do this step.  Very bad.  Very inconsiderate to the people trying to probate the Will later.

3.  We only have a copy of the Will, not the original.  This can be a BIG problem.  You can try to probate a copy, but you have big hurdles and some nasty presumptions to overcome.  There must be testimony regarding what happened to the original.  And, if the testimony is that the Will was last in the possession of the Testator (the person making the Will) the PRESUMPTION IS HE REVOKED IT!!!   You can probate a copy if the testimony is that the lawyer had it and lost it, or the Executor had it and lost it, but the Surrogate has to be satisfied that the testimony is credible.  Probating a copy is very high pressure and stressful because many things can go wrong. 

This is why it is VERY important when counseling clients who do wills, to be careful about where the original will be. 

Last point on this topic - sometimes the safest thing to do with an original will is to file it with Surrogates Court while the person is still alive.  It costs $45 to do this, and may be worth the peace of mind of not having to worry about this issue.

Next post - More probate complexities.