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Five Tips for Running Your Solo or Small Firm

By Mary Catherine Wiederhold Law Offices of Mary Catherine Wiederhold

 

I’ve had my own small firm for about 15 years. I’ve learned the hard way about what works and what doesn’t. In conversations with other attorneys over the years, I’ve found they have similar conclusions about how to successfully run solo or small firms.

Here are my top five tips for solo or small firm success:

1. Hire Professionals to Do What You Can’t or Don’t Want to Do
Hate bookkeeping? Don’t have enough time to manage your webpage? Don’t spend your evenings and weekends on tasks that are necessary yet peripheral to your law practice. Pay someone else to do them. It might take you some time to find the right person, but when you do, hold on to them.

2. Save Money by Subleasing
Do you have the type of law business where it matters to clients that you have great office space? Look for a sublease in a prestigious building with other attorneys. An even better solution is to find other attorneys who have practices that are complementary to your business.

3. Have Someone as Your Sounding Board
The law business is tough if you try to go it alone. Find someone to talk to about your business. This person doesn’t have to be an attorney to understand your problems. Having a supportive, rational person who listens will help you find answers.

4. Respond to Clients Within 24 Hours
No one likes to wait for a return phone call. If you can’t return all your calls before you leave for the day, ensure you get to them the next morning. This is an easy way to build client loyalty.

5. Send Out Monthly Statements
Keep your clients informed. Send out monthly statements to both hourly and contingency clients to let them know you’ve been working on their case. Regular statements reassure clients that their case is moving ahead.

Maybe you already do some of these suggestions. If you don’t, consider whether some of my tips might help you be more successful in running your solo or small firm.

Mary Catherine Wiederhold represents residential tenants at the Law Offices of Mary Catherine Wiederhold. She is a member of BASF’s Solo and Small Firm Section’s Communication Subcommittee. She regularly writes about tenant issues and running a solo or small firm.

What to do When the Big One Hits: E-Discovery Document Dumps

Emily S. McGrath Lawless & Lawless

It’s one of the most dreaded parts of discovery for any attorney – the 20,000-page document dump from opposing counsel.

It’s unsorted. It’s unsearchable. It’s unbelievable.

For solo practitioners and attorneys at small firms, these deluges of scanned documents feel like a punch in the stomach, especially when they come on the eve of a key deposition. Some courts have guidelines ostensibly meant to help attorneys avoid the frustration and fruitlessness associated with searches through unstructured electronically stored information (ESI). (See, e.g., United States District Court for the Northern District of California, Guidelines for the Discovery of Electronically Stored Information, available at www.cand.uscourts.gov/eDiscoveryGuidelines, last visited Feb. 14, 2017.)

One of the most important elements of such guidelines is meeting and conferring with opposing counsel early on in the case to set forth some basic rules.

First, some rules specifically allow the requesting party to specify the form in which e-discovery is produced. (See, e.g., FRCP 36(B), CCP 2031.010 et seq.) From a practical standpoint, the requesting party should always request that documents be produced in a de-duplicated, word searchable format with the metadata intact. De-duplication helps the requesting party avoid such dreaded tasks as, for example, sorting through multiple e-mails strings in varying stages of completion. A “word searchable” format allows the responding party to expedite document review with electronic keyword searches, and obviates the need to perform the time-consuming and sometimes unreliable Optical Character Recognition (OCR) process in Adobe. Additionally, document metadata can be a gold mine of information. In Microsoft Word, for example, metadata includes: the date the document was created, the names of the author and most recent modifier, and the dates of any document changes plus the total edit time. This can sometimes be very useful information.

In early meet and confer efforts, required under California Rule of Court 3.724, counsel may be able to work together to come up with a myriad of proactive agreements. Creative thinking, like cooperatively compiling a list of keyword searches to be performed in company email accounts, can ensure neither side is left blindsided by an unexpected document dump.

 

Before starting as an attorney at Lawless & Lawless, Emily McGrath was a misdemeanor trial attorney at the San Francisco Public Defender’s Office. She attended law school at University of California, Hastings College of the Law where she was a teaching assistant, research assistant, and law review editor.

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When the Going Gets Tough, the Tough Get a Lawyer: Professional Liability as a Practice

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By: James Marion

America’s most famous litigator, Abraham Lincoln, is often credited for the axiom, “He who represents himself has a fool for a client.” The statement refers to the phenomenon of the bold-but-delusional lay defendant, convinced of their serendipitous ability to win a case pro per. But the barred attorney would also do well to heed this sage advice. This is particularly true when it comes to questions of professional liability and alleged attorney misconduct.

Attorneys emerge from law school trained in the ways of legal ethics and professional responsibility. In forty-eight out of fifty states, admission to the bar requires passing the Multistate Professional Responsibility Examination, and in California the topic is even a looming essay question on the bar exam itself. Given this fact, one might be excused from presuming that the seasoned practitioner, accused of error or misconduct, is tempted to dabble in self-defense. Surely, the navigation of basic fee disputes with disgruntled clients is not beyond the pale, time providing. But ask just about any attorney once burned, and that illusion quickly flies out the window.

“The practice of law is not an exact science,” explains Russell Roeca of Roeca Haas Montes de Oca, 2009 president of The Bar Association of San Francisco, “it’s a practice.” And as with any specialization, practice makes perfect. This could doubly be said of professional liability, an area of law that is essential to success, but is only understood peripherally by most attorneys.

For Roeca, one in a cadre of specialists found in firms around the Bay Area, this fact creates a niche that defines careers. “The accepted rule of thumb is that the average lawyer can expect to be accused of malpractice at least three times in the lifespan of their practice,” says Roeca. “I’d say that’s pretty accurate.”

Asked about that same figure, Kendra Basner, Hinshaw & Culbertson, agrees. “That’s the average, and it’s even true of California, which has some of the strongest lawyer protections in the country . . . I’m not even sure that number would cover fee disputes. [There] you have clients who are unhappy with the results of their case, for whatever reason . . . they decide not to pay. The attorney then sues to collect, but the client becomes aware that insurance is involved, imagines a quick payout and is quick to countersue for malpractice, whether it’s real or perceived . . . the countersuit becomes the outlet for that initial dissatisfaction.”

For those attorneys who have yet to experience an adverse encounter with a client, fear not, that sinking feeling in your gut is normal. But it should also serve a cautionary function. In the case of a large firm, there is typically a procedure in place to handle clients’ claims against attorneys, and typically one or several in-house specialists equipped to handle disputes. No lawyer wants to find themselves “on the wrong side of the v.,” but in these settings the cost to defend against malpractice is factored into the budget, and specialists like Roeca and Basner are often hired by firms to consult on ethics and best practices to help mitigate those expenses.

The situation is necessarily different for small firms and solo practices, where the time and money required to handle a liability claim, not to mention the inevitable bump in insurance premiums, can be disastrous for the bottom line. And while pride and resourcefulness may tempt some attorneys in this situation to bootstrap their defense, this is a widely ill-advised approach. Better to suppress the rage, swallow the ego, and call the experts.

“At first there’s a tendency to act like an attacked animal,” Roeca jokes when describing the hypothetical accused attorney, “but this is an education process, even with lawyers, and most come around quickly once they understand it’s all about dollars and cents.” When asked about the attitude of most attorneys during that first consultation, Basner explains that “lawyers are often humbled to be in this position in the first place . . . they’re happy to let me take over the case.”

Paven Malhotra, Keker Van Nest & Peters, with experience litigating malpractice suits on behalf of firms, describes it another way. “In the instance where a [liability] case makes it to trial, you’re facing a scenario where you need to convince a jury that a certain standard of care was met . . . to most juries, the expectation is that lawyers are supposed to be experts.” A standard that high is already tough to meet, and the chances of doing so are no doubt diminished in a pro per scenario.

Then there are the fundamental tricks of the trade, obvious to veterans of this area of practice but overlooked by other attorneys. One twist, universally noted, involves fee disputes and varying statutes of limitations. Specifically, California Code of Civil Procedure section 340.6 limits malpractice claims against attorneys to one year after the client discovers (or should reasonably have discovered) a wrongful act or omission. Conversely, the state’s statute of limitations for breach of a written contract (for example, your handy attorney-client fee agreement) is a whopping four years. Accordingly, the attorney looking to collect from that stingy, disgruntled client can easily avoid a knee-jerk countersuit. All you need is a little patience.

Of course, exercising such restraint can be easier said than done, and while attorneys should always inquire about this and similar issues before deciding to go to the mat with a client, their energy is likely better spent on education and implementing best practices to decrease the likelihood of dispute in the first place.

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Preventive Measures

Knowing and following a few basic tenets should go a long way to minimizing the risk of a malpractice suit. Much of what you need to remember is plain common sense: vet your clients fully and avoid conflicts of interest, draft clear fee agreements, manage expectations, do your due diligence, and know the black letter law. It also helps to have a good sense of your sphere of operations. California (along with Maine) is the only state that has not adopted the American Bar Association’s (ABA) Model Code or Model Rules. While some of California’s rules are clearly ABA-inspired, the state still maintains its own particular regime when it comes to attorney conduct. For instance, of all the states, California has a notoriously stringent bar for maintaining confidentiality—the single discretionary exception being to prevent the imminent death or great bodily harm of an individual.

If this is all just now coming back to you from the distant primordial haze of your bar prep courses, it probably wouldn’t hurt to review California Business and Professions Code section 6068 (the statutory duties of an attorney), the California Rules of Professional Conduct, as well as a number of related court rulings addressing professional responsibility.

All this is not to say that the ABA guidelines should be ignored. As an example, the comments accompanying Model Rule 1.1 regarding attorney competence state that “to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology [emphasis added].” In this day and age, pitfalls stemming from society’s reliance on information technology and social media are myriad, and the legal profession is far from immune. The risk also spans generations, with some older practitioners remaining ignorant to essential technological innovations and millennial attorneys taking the drawbacks of twenty-four-hour connectivity through social media for granted.

The State Bar of California has not been hesitant to weigh in on this topic. In Formal Opinion 2015-193 the committee concluded that, “a lack of technological knowledge in handling e-discovery may render an attorney ethically incompetent to handle certain litigation matters . . . absent curative assistance . . . even where the attorney may otherwise be highly experienced.” The opinion allows that attorneys should be permitted to contract out e-discovery duties. However, this necessitates enough working knowledge of the process to be conscious of one’s own inability to negotiate it without assistance. In short, since any case these days potentially involves e-discovery, there is no longer room to dismiss it as some arcane specialization without infringing the duty of competence. Even in the instance where these responsibilities are rightly delegated, practitioners must still be aware not to delegate supervision of the process, including the requirement to maintain client confidentiality.

As with e-discovery, the world of social media is increasingly essential for attorneys and simultaneously fraught with risk. On one end, social media can be a ripe source of crucial evidence, and attorneys need to be familiar with its landscape. But social media is a double-edged sword, and on the other end overuse by attorneys (or clients) can ruin a case, and in egregious scenarios can even lead to contempt of court findings and violations of protective orders.

Cautious and aware as one may be, there will still come a time when a lawyer needs a lawyer. While this may sound like the setup to some well-worn “How many lawyers does it take . . .” quip, Russ Roeca doesn’t see it that way. “Lawyers are typically great clients . . . they’re experts in their own fields, and I’ve learned a lot and benefited while representing them by letting them be who they are . . . by letting them help me to help them.” In an age of liability and litigiousness, the concept of reciprocal deference has an encouraging ring.

James Marion is the principal attorney at Law Offices of  James P. Marion, Esq. and the president and head writer at Greenlitscripts, a media content and consulting service. He can be reached at james@marionesq.com.

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Website Design Recommendation: Paul Dumbauld

I used a great guy to update my website recently. He was knowledgeable and responsive. . . the third company I had used in the past two years and the only one I would recommend. And, he was very reasonably priced.

His name is Paul Dumbauld –
Dumbauld@gmail.com

Let him know I recommended him and he’ll know what you’ll expect. We talked quite a bit about my expectations!

 

*Referral made by Diane L. Camacho, CLM, SPHR

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Lessons from the Launch: What I Learned from Starting a Law Firm by Mark Conrad, Conrad & Metlitzky

officeLast April, I took a professional leap of faith and launched a new civil litigation boutique. In a few short months, it has already proved to be the most personally rewarding decision of my career.

To claim “success” is premature – Conrad & Metlitzky is less than a year old, and we have a long list of things we aim to improve as we grow. But, with the hope of helping others who might benefit from the lessons of our initial triumphs and errors, here are a few observations distilled from the experience of our recent launch.

1. Surprise No One
Your new law firm should not be a secret. Start laying a foundation well before you ever send an announcement, and discuss your plans with friends, colleagues, and potential clients. Ask for templates and advice. Get others invested in your success. Once we launched our firm, we were delighted and gratified to find that the people we had approached for pre-launch guidance were among the first to send us business.

2. Eschew Perfection
Do not wait to launch until everything looks just right. It never will. The website can always be better; the financial forecast can be endlessly adjusted. Instead, focus on the essential services you want to provide. In the parlance of Silicon Valley, build a minimum viable product. Once you put yourself in a position to respond to that first client call, take the leap, and then build as you go.

3. Talk to Professionals
Litigation requires expertise; that is why businesses hire our firm to help them. Running a law firm, however, requires non-legal expertise, too. Do not do your accounting, marketing, and bookkeeping pro se. As much as your resources allow, hire the right people to teach and assist you, and you will gain the confidence, and free up the time, that you need to focus on your clients.

4. Take Advantage of BASF!
The bar association has been my professional home for many years, but never was it more important than during our first months as a fledgling firm. The Solo & Small Firm Section welcomed us with open arms. CLE programs gave us opportunities to speak to and meet with a cross-section of the legal community. BASF has great start-up resources, and anyone contemplating a shingle should start here first.

Mark Conrad is a trial attorney and a founding partner of Conrad & Metlitzky. A former Assistant United States Attorney, he specializes in complex civil litigation and has broad experience representing businesses and individuals at the trial and appellate levels in both state and federal courts. Conrad served as the President of the Barristers Club Board of Directors in 2014.

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How to Interview and Identify Administrative Help

Finding administrative help for a solo practice or small law firm can be challenging – below are some sample interview questions that can help you identify individuals that have administrative experience in a legal setting.

A good place to post a local opening is the SFSU Paralegal job board. The listing is free.

https://cel.sfsu.edu/paralegal/jobs

 

SAMPLE INTERVIEW QUESTIONS

  1. How do you stay organized when you have multiple deadlines and are getting information from various sources?
  2. What computer programs have you used? What types of documents did you create with them?
  3. What do you hope to gain from this position?
  4. What do you think your typical day would be like working for me/this firm?
  5. Have you ever worked at a small company? What types of things did you do that may not have been in the “job description”?
  6. What would you do if I gave you a task, you didn’t know how to complete it and I was unavailable?
  7. Can you tell me about any experience you’ve had with the Secretary of State/Superior Court of SF?
  8. When filing a motion for summary judgment, what supporting documents are required?
  9. How many court filings do you do in a week?
  10. How many new corporations to you assist in forming in a week/month? What has been your role?
  11. Why does this position/legal field/this firm interests you?
  12. Tell me about a difficult conversation you have had and how you dealt with it.
  13. What do you think you bring to this job that other candidates may not?
  14. Tell me about a time you took a leadership role.
  15. Tell me about a difficult boss or teacher. What made him/her difficult and how did you work with him/her?
  16. Is there anything you would like to tell me about yourself that hasn’t come up in our conversation?
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Forensic Specialists, Appraisers, and Expert Witnesses

  • Forensic Accountant:Hemming Morse. www.hemming.com. I highly recommend Steven Boyles. Excellent witness, as well, if you end up needing it.
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Free Online Legal Research

  1. Google Scholar, for case authority including page references and cases citing the opinion. Not reliable for shepardizing, or one of the credible and credited case legal resources accepted by the Courts, but an excellent starting place. http://scholar.google.com/ (select case law radio button)
  2. FastCase, located in the BASF SpaceBar (right next to the free printer).
  3. From the San Francisco County Law Library (www.sflawlibrary.org), free online access onsite:

(Resources may change; check the library’s website for current list of resources.)