Legal Ease Blog

Do You Need a "Do-Over?"

Don't you just wish you could press the reset button sometimes?

This idea seems to keep popping up in different forms recently, so I thought it might be time to blog about it. Which may be ironic since I’ve been neglecting this blog of late – so consider this post the Legal Ease Blog “do over.”

It strikes me also that, although I'm not Jewish, I am posting this on Rosh Hashanah - the Jewish New Year. For those of you who celebrate, Happy New Year - and aren't New Years great for starting over?

Two recent incidents brought the do-over idea to mind:

False Start

First during my regular weekly video roundtable session (I’ll blog more about that another time, but if you follow me on Facebook, you may have seen me post about it there) when one of my fellow presenters had a bit of a “false start.”

She started her video, made a mistake, and then got flustered, forgot what she wanted to say, and asked if she could just stop. She could have continued speaking just to practice what she wanted to say for the next time, but she didn’t. She wanted to quit.

The rest of us on the call didn’t want to let her go away discouraged. We encouraged her to just start over and re-record her video. And after that false start, she nailed it! Her presentation was excellent, and hopefully, her video will be posted on her website and/or YouTube soon.

There is no wagon

The second popped up in a fitness program with a Facebook community where the members come together to support one another in the program and in their fitness and life goals, inspire one another, and share their successes as well as their frustrations.

One of the members posted in the Facebook group that a number of factors in her life had caused her to “fall off the wagon” with her exercise routine and that she was disappointed because before those life events got in the way, she had been exercising regularly and feeling good about it.

Erin Stutland*, the creator of the exercise program and owner of the Facebook group, gave what I thought was an awesome response. She said, in part,

I am here to tell you something very important.

There is no wagon.

There is no wagon to fall off of.

And there is no wagon to get back on.

There is only life.

And you are living it, with grace and dignity. Every day.

Sometimes we do things one way. Sometimes we do things another way.

Sometimes— for a myriad of reasons, big and small— we [do] better than other times.

However, … we are reminded that we never need to do any[thing] perfectly.

We do the best we can.

With what we have.

Today.

This is your reminder that it's all good.

There is no wagon. There is life. And you’re living it.

I thought her response was incredibly powerful, not just for the person who made the original post, but for everyone (so did Erin – she later shared it with her entire email list). It reminded me of the intro to many a guided meditation – when you notice your mind wandering, just bring your attention back to your breath and start again. It’s natural. It doesn’t mean you’re doing it “wrong.” The awareness that your mind has wandered is the key. Once you become aware, you can do something about it.

Lawyers tend to be perfectionists. But we’re all only human. Nobody does everything perfectly all of the time.

The Power of Community

One of the things that strikes me about both of these stories is the difference that having the support of the right community makes – even if it is a virtual community.

The video roundtable participants could have simply encouraged our other member to practice and try again next week. But I imagine her experience wouldn’t have been as positive, and she wouldn’t have felt as good about herself. And maybe the video next week wouldn’t have been as good as the one she ended up with. If she were doing this on her own, she probably would have just given up. But even though few (if any) of us on the call know one another in “real life,” the community support made all the difference.

Similarly, the response to the “fell off the wagon” post could have been much different. I’ve seen it before – this kind of discussion can devolve into loads of people jumping on the thread and talking about how they’ve “fallen off the wagon” too and beating themselves up over the fact that they haven’t done this or that, or they’ve gained weight or they don’t have time to go to the gym, etc. The difference with this response and this community was to re-frame the discussion.

Important Reminders

• There is no wagon. There is only life.
• Everyone makes mistakes.
• Sometimes a “false start” leads to a better result than you would have had without it.
• Support from the right community can make all the difference.
• Re-frame the discussion. Instead of focusing on what you haven’t done in the past, focus on what you can do today.
• There’s no need for judgment. Just start again, when you can, the best way you can.

What do you need a “do-over” for? Leave it in the comments. Then do the best you can today.

*If you’re interested in the exercise program and Facebook group, I can personally vouch for the Movement with Erin Stutland (and I have an aversion to organized “exercise.”) You can check it out here.

 

Sit or Stand? Why Use a Standing Desk?

A number of things have kept me from posting since the ABA TECHSHOW, so I never had an opportunity to do a recap of the event, but one thing I did want to talk about was my new standing desk. At this year's ABA TECHSHOW, as the exhibit hall was winding down, I had the privilege of meeting Marissa from ErgoTech, and several weeks later, I am the proud owner of an Ergotech Freedom E-desk.**

For a while, standing desks became all the rage as studies showed the negative effects of sitting all day at work. But then more studies (such a this one) were released that showed that workers using a standing desk didn't burn significantly more calories than those using a standard sitting desk. While sitting for too long is definitely detrimental, it isn't clear that standing for long periods of time is necessarily better.

While I do have a tendency to sit for long periods of time in front of my laptop, often with admittedly poor posture, leading to neck stiffness or pain and other problems, my reasons for wanting a standing desk isn't about an expectation of the desk itself making me significantly healthier. And it certainly isn't about losing weight (although I wouldn't mind dropping a few pounds).

As this Forbes article notes, standing may help you focus and think better. And as this article suggests, it is important to stand during virtual presentations as well. "Not only is your voice produced physically; your body is an essential tool of communication in many other ways." When you're more energetic in your body, your presentations are more energetic.

In addition to doing a lot of writing at my computer, I also do a lot of talking while using my computer - from webinars to client meetings or consulting sessions to video recordings, I'm often talking at my desk, and many of these activities require me to either be looking at my computer screen and/or using my webcam. So, while I might be able to stand during a call with a client (which I often do), I can't stand for the other activities, given the height of my desk. Given the amount of virtual communication I regularly engage in, when it's easy for the participants to be distracted or to hide their lack of attention, I can use all the help I can get keeping the energy and interest level up.

That being said, I don't anticipate that I will want to stand all of the time when I'm working, so for me, an adjustable desk was a must. The Freedom E-Desk promises to adjust quickly and easily so I can go from standing to sitting (and vice versa) with minimal effort. I haven't yet had an opportunity to use it much since it arrived, but I am looking forward to using it more, and I will provide a comprehensive review at a later date, once I've been using it regularly for a length of time.

**In the interest of full disclosure, I was provided with the Ergotech Freedom E-desk at no charge so that I could provide a review, but in no way has that affected what I've written in this post or in future posts about the desk - these words, and my thoughts about the desk, are my own.

Do Something! Inject Some Calm Into 2019 - Try Meditation

This might seem like an odd post for this blog, but it really isn't. I'm all about preventing Lawyer Meltdown, being more productive, increasing your bottom line and making the practice of law more enjoyable. Believe it or not, meditation can help you with all of those things.

I wrote about meditation and mindfulness before in this post, in which I reviewed the book The Anxious Lawyer.  And lawyer health and well-being have been getting a lot of press lately. A post in yesterday's "Your Voice" column of the ABA Journal online, 4 Strategies for Building the Habit of Lasting Resilience in the Legal Profession, highlights the growing importance of resilience and mindfulness for lawyers, referencing the ABA's Working Group to Advance Well Being's pledge for law firms to acknowledge that more needs to be done to improve the health and well-being of lawyers.

The article poses the question, "What are the most effective and efficient strategies for achieving this important goal?" and outlines four essential principles for implementing an effective well-being strategy. One of those principles is to form habits around well-being.

One of the well-being habits attorneys can begin to cultivate is meditation. While I've long been skeptical of meditation (or at least skeptical my own ability to meditate), the increasing deluge of information in today's world has made it incredibly difficult to turn off and 'tune in' to what makes us human and what connects us to other human beings on a deeper level than just scrolling through photos on our social media channels. For other reasons that I will explore in a future post, I think the ability to connect on a human level and to use our intuition will become increasingly important, particularly for lawyers, as technology continues to advance and artificial intelligence becomes more mainstream in the legal world.

Over the past several months, I've been working on meditating more frequently. It certainly isn't always easy and I admit that I  completely got away from my meditation practice (and it does take practice) over the holidays. Part of that was because my usual routine was to meditate immediately after working out. But I was hit with not one but two nasty colds and threw my back out all during the holidays, so, working out wasn't even on the radar.

None of that should have kept me from meditating.  Thinking about the power of habit and developing habits around well-being makes me realize that when the habit of working out went away, the habit of meditating did also because the two were linked. Perhaps that is something to keep in mind when developing habits - linking them is great for reinforcement, but the loss of one habit could create a domino effect with unintended consequences.

But I digress, so I'll do what I do when my thoughts start taking over in meditation - simply recognize it and return to the practice. Back to meditation.

As we begin this new year of 2019, I'm re-committing to make meditation a part of my regular routine, if not daily, then at least several times a week. I find that by giving myself permission to slow down and let go of everything - even for a few minutes - I can be more productive with the rest of my day. And ironically, the days in which I have the most to do or the most pressure are the days when meditation seems to help the most - if I make the decision to carve out the time to do it. It helps me clarify my thinking and makes it easier to let go of things that aren't important or that create unnecessary stress.

As a beginner at meditation, I'm not yet comfortable just meditating on my own, so I've tried out a few meditation apps. The one I like best at the moment is Insight Timer - a free app available on iOS and Android. Insight Timer categorizes meditations into 7 categories: Mindfulness, Visualization, Gentle Repetition, Movement, Sound, Concentration, and Self-Observation. There are literally thousands of meditations available from all over the world - some guided, others just with music, ambient sounds or bells, or you can just use the app to set a timer for your desired length of meditation. 

One of the things I like about the app is that it keeps track of your meditation time and the milestones you reach when meditating, which helps you keep the momentum going once you start meditating. Habits require reinforcement, after all. And apparently I'm not the only one who enjoys using Insight Timer - according to this article, 63% of those who use meditation apps in the U.S. are using Insight Timer - that's three times more than any other meditation app.

If Insight Timer isn't for you, there are many other meditation apps available. For a calmer and more productive 2019, why not give one a try? Even 5 or 10 minutes can make a big difference. Just don't give up too soon - the more you practice, the better you'll get at it, and doing it "badly" or letting your thoughts intrude on your meditation practice is just part of the process.

Let me know in the comments if you already meditate and why, or if you decide to give it a try, let me know and tell me what you experience as a result of employing this new well-being habit.

 

 

Lessons for Law Firm Leaders from Undercover Boss

In the television show, Undercover Boss, executives disguise themselves and go undercover within their companies or organizations. The “boss” poses as a trainee in different positions and at different locations within the company, speaks with employees who are on the front lines performing the daily work of the company, and gets to experience what they experience on a daily basis.

At the end of each episode, the executive reveals him or herself to the employees, often providing bonuses or other perks to outstanding workers or those who have been involved in personal struggles, and also revealing changes made or planned in the company as a result of the experience.

In each of the episodes, the executive learns valuable lessons about the daily obstacles encountered by employees and the ways the company could better support them. Many of the employees the executive encounters during this journey have valuable ideas and suggestions to make things better at the company, whether it is improving infrastructure, procedures, equipment, working conditions, etc. Other times, the boss encounters unhelpful or difficult employees who make the work harder for those around them, compromise the company’s culture or reputation, or cause other problems. Either way, the boss gains valuable insights from their experience and found that getting to know their employees better reaped rewards for the company.

While it might not be possible or practical for law firm leaders to undertake an undercover mission within their firms, there are ways law firms can use the concept and lessons of Undercover Boss to improve their law firms.

Your Front-Line Employees are Your Firm’s Brand Ambassadors

Getting to know front-line employees and putting themselves in the shoes of their employees on the show fostered a greater understanding of their employees’ lives and their experience working for the company. As one undercover boss put it, “This experience taught me to slow down a little and spend more time getting to know my employees. Everyone has a story to tell, if you take the time to hear it…”

Some bosses learn that the “lowest” employee can make the biggest impact on their customers and clients. One said, “I left Undercover Boss with a greater appreciation for the people on the front lines of our business. The overwhelming majority of them do a fantastic job.”

Another commented, “Something I have always known, but [the show] reaffirmed for me how important our front-line associate is to the success of our brand, and how much our training program plays a role in delivering that club level experience we aim to achieve.”

In law firms, front-line employees like receptionists, clerks, and assistants often have the first contact with the client, whether greeting clients when they enter the office, answering the phone when clients call, or contacting clients to confirm an appointment or court date. These employees are your brand ambassadors, and they can make a huge difference on the client’s experience with your firm. Treat them well and they will treat your clients well. Treat them poorly and you risk them taking it out on your clients or other valued employees.

See my related post, Why Your Receptionist Might Be The Most Important Person in Your Office

The Importance of Staying Connected

It’s nearly impossible to discover what improvements could be made or what challenges are faced by law firm employees if firm leaders remain disconnected. This is a theme repeated over and over on Undercover Boss. As one of the show’s participants explained, “…this experience has opened my eyes to see how very important it is to stay connected. We're putting a program in place to conduct roundtable discussions with our frontline employees, so it will be great to hear from them and any changes they would like to see going forward. Being too busy to stay connected with your team is no excuse.”

Another noted, “To become a really good leader you have to understand the importance of a team. It's not a one man show, you need a really solid team in order to be successful.”

Yet another says, “I believe it’s a CEO’s obligation to truly understand the interworking of their company and regularly communicate with associates. The value of ongoing, open communication cannot be overstated. As a CEO, we each make a commitment to guide the company towards the best possible future, which we can only do if we take the time to ask questions, listen and learn from those who support our company at every turn.”

Offering Opportunities and Identifying Leaders

Getting to know the employees and their personal stories also revealed ways that the company could help their teams to improve and grow. The experience showed these company leaders ways to provide perks or rewards that were much more meaningful to the employee (and often, to the company as well) than a raise. Offering opportunities to mentor or supervise others, to share their knowledge, to participate in focus groups or roundtable discussion not only engaged employees and provided an opportunity to contribute to the company, but these perks fostered loyalty to the company, increasing the chances that valued employees will stay, while also allowing others to learn from their experience, perceptions and observations.

Law firms can offer opportunities for improvement, whether is training, CLE programs, or in-house seminars. Look for the employees who take advantage of these opportunities, or who are seeking their own continuous improvement. Many an undercover boss has identified future leaders in the company just by working alongside them and identifying those with a good attitude who are looking for ways to learn and grow.

Improving Performance

Learning about their employees’ daily tasks and struggles also revealed ways the company could improve productivity. One boss said, “I learned that when it comes to employees, the details matter most. The smallest upgrades in equipment or installation hardware can shave off significant amounts of time and stress for employees.”

Law firm leaders sometimes don’t take the time to ask their front-line employees – the ones who are scheduling the appointments, doing the paperwork, filing court documents, typing reports, maintaining the firm’s website and social media accounts about the obstacles they encounter in accomplishing their daily tasks, and how the firm might help them to overcome those obstacles. What improvements could the lawyers make in the manner or method of their communication that would help their front-line employees and make their jobs easier? What technology could be implemented to improve productivity? What training could be provided that might help their employees improve their performance?

Bosses who went undercover on the show got ideas from employees at all levels of the company by putting themselves in their shoes and seeing what those employees see on a daily basis. They were willing to go outside of their comfort zone to learn and to help their companies grow and change.

Law firm leaders can do more to get to know their employees on a personal level by speaking to them one on one and taking the time to listen. For example, hold regular meetings with employees at all levels, and provide a mechanism for employees to give suggestions (and then take them seriously).

Invite staff members to attend occasional partnership or leadership meetings, or to contribute in practice group discussions. Take a legal assistant, secretary, or even a receptionist to court, to a deposition or to a closing so that they have a better perspective on what the attorneys do every day. And perhaps even get outside of your comfort zone and step into the shoes of your employees by shadowing them or trying to do their jobs for a day. You might be surprised at what you learn.

You can see comments from some of the bosses who have participated in the show here.

Interview with Nicole Galli of Women Owned Law

Nicole Galli, Esq. Women Owned Law

I recently had the pleasure of conducting what I hope with be the first of many interviews with experts, legal innovators and other interesting folks in the legal field with  Nicole Galli, an intellectual property litigator and trade secrets lawyer who is also the founder and President of Women Owned Law (WOL), a network for women-owned law and legal services firms.

Nicole and I talked about a number of topics, including networking, challenges facing women lawyers today, why and how she started WOL, and how WOL can help women lawyers and other women in the legal industry. We also chat a bit about grit and resilience.

I'm planning to do a series of these interviews and eventually turn it into a full-fledged podcast, but for now, click below to play the interview:

Nicole Galli interview 2018

As noted on their site,

WOL is a national organization for women owned law and legal services firms to provide a forum for networking opportunities; to increase visibility and media coverage of women entrepreneurs; to help interested firms grow into larger organizations with significant influence in the legal industry; and to provide an “on ramp” for women considering their own legal ventures.

WOL offers several different types of memberships for individuals, law firms, and other organizations in the legal space. Learn more about WOL here.

How to Run a More Efficient & Profitable Small or Solo Law Practice with Virtual Receptionists

Guest post by Maddy Martin of Smith.ai.

 

When you’re running a law firm on your own or with just a couple partners, you’re shouldering more than just lawyering work. Responsibilities for administrative, marketing, and operational tasks fall on your shoulders, and there’s only so much time in a day. Finding ways to take work off your plate that don’t require your unique skill set as a lawyer means more time for profitable (read: billable) work.

Virtual receptionists have been a popular choice for small-firm and solo lawyers for over a decade, to help them minimize distractions and gain efficiency. But many attorneys are still reluctant to take the leap and hand-off tasks that take up precious time. The most common reasons related to a lack of comfort, trust, attention to detail, comprehensiveness of services, and personal touch.

To be sure, not every virtual receptionist service delivers enough value to warrant their payment, setup, and coordination. An answering service that only answers calls and takes messages will provide limited value. But, having a remote receptionist service that does that, plus schedule appointments, qualify leads, intake new clients, return calls, and other significant and valuable tasks is wholly worthwhile.

If you’re not yet using a virtual receptionist service, here are 5 major ways it can help you streamline your law firm’s operations to maximize efficiency and profit.

 1. Lead Capture & Qualification (Plus, Monetize “Bad” Leads)

 New leads come from referrals, Facebook, Google, Avvo, and many other sources. You might even be paying for ads or premium placements on these sites. When a potential client sees your law practice and calls with a need for services, if you don’t pick up, they’re off to call the next firm. Chances are, it doesn’t matter whether or not they left a voicemail; they’re not waiting for a call back. If they completed a form on your website, then it’s just a matter of how quickly you respond. A receptionist service that offers lead qualification can ensure you’re capturing and assessing new leads as soon as they come in, whether they’re reaching you by phone or email.

How do these services qualify your leads? They do it based on your custom criteria. Do their needs align with your practice area? Are they in the right county? Are they willing to pay your fees? These are just a few of the questions your receptionists can use to filter out the great leads from those that won’t convert to real clients. Provide the essential questions you need your receptionists to ask leads, and they’ll capture the “good” ones.

As for the “bad” leads, a receptionist service can also help you monetize those, so the call isn’t a wash. Many attorneys earn referral fees by passing clients to attorneys in other practice areas, in other counties, and with lower fees. Just provide the list of your referrals and any instructions for the correct types of clients to pass to each one, and your receptionists can refer “bad” leads to them. If they end up working with that recommended attorney, you’ll earn your referral fee.

 2. New Client Intake

For the good leads, the process doesn’t stop at qualification. Remote receptionists can also complete new client intake. Just provide your public intake form link that you created in your CRM to your receptionists, and they’ll complete it on the new lead’s behalf during their first call. Contact information, as well as basic details of their need for an attorney, will be captured and passed directly into your CRM, taking away the need for a follow-up call or the work of taking notes from the call and copying and pasting it into your CRM.

3. Appointment Scheduling & Reminders

Once the new client intake is complete, the next step in the process is often to schedule a call-back or in-person new client appointment with you or another attorney at your firm. Your receptionist service can handle this for you, too. All you need to do it is provide access to your calendar so the receptionist can see when you’re available. They won’t be able to change or edit existing events -- they’ll only create new ones -- so there’s no risk of them changing anything on your agenda. (Note: If you use Google Calendar, Outlook, Office 365, or iCloud Calendar, a free service like Calendly makes securely sharing your calendar with a receptionist service easy.)

Before a new lead’s or existing client’s appointment, you can also request that your receptionists call leads and clients to remind them, which prevents no-shows and cancellations that waste precious time.

4. Follow-Up: Case Updates & Payments

 Hunting down clients to provide case updates and capture payment is a royal pain and can be time-consuming. Maybe a court date was changed, another document needs to be signed, or a payment installment is past due. Whatever follow-up is needed, your receptionists can take care of it for you.

You can even go the extra mile and have your receptionists reach out proactively to clients who haven’t heard an update on their case in a while or who have recently completed work with you. For example, a receptionist can call recent clients and capture information on their satisfaction with the work you completed for them. If they express positive sentiments, the receptionist can use the call as an opportunity to request a positive review on one of those sites that generate leads for your business, which builds your online reputation.

 5. Automated Workflows

Tasking your receptionist with the duties mentioned above needn’t require ongoing, hands-on maintenance and oversight. When you first get started with a receptionist service, they can capture all the required FAQs, lead-qualification criteria, new client intake questions, appointment scheduling directions, and payment processes, so calls are handled seamlessly without the need for your receptionists to bother you with “How do I…” questions. Your receptionists follow your unique workflow, so administrative and operational tasks that they’re handling on your behalf become automatic.

You can even set up certain processes to gain even greater efficiency. For example, if you have a lead form on your website that captures information from potential clients looking to hire you, every time someone completes that form, you probably receive an email with the same “New Lead” subject line. In your email settings, you can auto-forward these emails to your receptionist service and they’ll call them back quickly, increasing the chance you reach them before they’ve contacted another attorney.

Whether you’re busy or just looking to reduce interruptions in your day, these automatic call-backs by your receptionists can increase efficiency and result in more leads converting to clients, both of which improve your bottom line.

Choosing the Right Virtual Receptionist Service

It’s important to note that not every live, remote receptionist service offers lead qualification, new client intake, and outbound calls. Make sure you ask about these features when shopping around.

 Maddy Martin is the head of marketing for Smith.ai Virtual Receptionists, which offers all of the above services and more. If you’d like to sign up for Smith.ai or simply test it out with a 30-day/10-call free trial, you may do so online at https://smith.ai, by phone at (650) 727-6484, or by email at [email protected].  

Legal Ease Blog readers get $50 off your first month with code LEGALEASE. This code can be used in combination with your free trial, for a total savings of $110. I may receive a small commission if you use this link, but it's a huge savings for you!

 If you have questions about virtual receptionists and how they can help your firm be more efficient and profitable, Smith.ai support is available Monday through Friday between 6 AM and 6 PM PST at (650) 727-6484 or [email protected].

Client is Questioning a Legal Bill - Can This Relationship Be Saved?

When a client begins questioning your bills, is it the beginning of the end of the client relationship?

A lawyer recently told me, “If the client is questioning my bills, it means the client doesn’t trust me, and the relationship deteriorates from there. The relationship will end badly. It’s inevitable. It has nothing to do with me and there is nothing I can do about it.”

Is this really true?

Maybe, but then again, maybe not.

If a client is questioning a bill, it is not a foregone conclusion that the client doesn’t trust you; nor is it accurate to say that there is nothing that you can do about it.

Why do clients question lawyers’ bills?

There are many reasons why a client may question your bills. These might include:

• The client doesn’t understand what was done or why it was necessary
• The client doesn’t understand the process involved
• The client doesn’t understand your billing process
• The bill doesn’t fully describe the work performed or the effort expended on the client’s behalf
• The bill contains work that was not anticipated by the client
• The bill was much higher than the client expected

Many of these factors are within your control, and may be limited or eliminated with good billing and intake practices.

Good practices get bills paid

Use the initial client meeting to fully explain the scope of work to be performed and the fees associated with that work. Take advantage of this opportunity to fully explain all potential variables. Give the client the chance to ask questions. Many clients are reluctant to admit their ignorance of the law or the legal process and will be afraid to ask questions, but encouraging questions at the beginning can avoid headaches – and unpaid bills – later.

Avoid “surprise” bills that include unanticipated work or a higher fee than expected. No client likes to receive those kinds of bills. Communicate with the client about the work to be performed before undertaking that work. When unanticipated circumstances arise, get the client’s agreement on any new work before moving forward and explain why it must be performed and how it relates to the client’s goals and expectations. And use each bill as an opportunity to demonstrate and reinforce the value that you provide to the client.

Although there are rare occasions when it may not be possible to discuss work with the client before the work is done, the client’s first notification about unanticipated work or charges should not come when the client receives the bill. In all circumstances you should discuss the unanticipated events with the client and explain the effect on the fee before the bill is sent to the client. These conversations should take place by telephone or in person, and should not be communicated only by email in all but the most extreme circumstances.

What to do when a client questions your bill

When a client questions your bill, it is imperative that you investigate what is behind the client’s questions. What is motivating the inquiry?

There will always be some clients who will not value lawyers or the work they do, no matter how well you explain it. Others simply cannot afford your fees, and are just trying to get the bill as low as they can. But it is your responsibility to determine whether that is the case, or whether the client has legitimate questions about the work that was done and why or the amount of time expended.

When a client questions a bill, it is a good opportunity for you to reinforce value – to return the discussion you had with the client during the initial intake and to revisit the client’s goals and expectations for the engagement. If this conversation did not occur at intake, now is the time for you to explore these issues with the client to ensure that you and your client are working together toward a common goal.

Old clients, new matters

On occasion, billing questions arise when you are performing ongoing work for an existing client or the client requests new or additional work after completion of the matter for which you were originally engaged.

For example, assume a client hires you to negotiate a lease agreement at $250/hour. Once that contract has been negotiated and the lease has been signed, the client asks you to negotiate a contract with a vendor at the same $250/hour rate. Although you may have discussed the intricacies of negotiating a lease agreement with the client at the beginning of the engagement, the same may not be true for the second contract. If the vendor negotiation is more complicated or the other party is less responsive, the bill may be higher than the client expects, giving rise to questions when the client receives the bill.

Ideally, you would discuss the client’s objectives and expectations with each new item of work you undertake, and provide the client with the variables that might affect the fee, but many lawyers neglect this step with ongoing client relationships.

Hourly billing only complicates the matter, since it can be difficult to determine up front exactly how many hours will be expended on a client’s matter, particularly if the matter involves litigation or otherwise relies upon compliance or cooperation from other parties and/or their counsel. But variables and potential complications should be discussed with the client up front, and any delays or other complications should be communicated during the engagement as they occur, before the client is billed.

Billing write-offs

Another lawyer asks, “I have some clients for whom I write off a lot of time. Should I take that as a sign that I should eliminate the client? Should I itemize no-charge items on client bills? It’s time-consuming to keep track of these items, but later, the same client will question charges or skimp on necessary work to save money.”

First, explore the reasons why you are writing off time. Is it at the client’s request, or are you undercutting yourself by writing off legitimate time spent on the client’s matter before the client receives the bill? Are you writing off time because you believe the value of the services provided to the client is less than what you have billed? If so, you may need to examine the kinds of matters you are undertaking or how you are handling them.

If the client is asking for the write-off, have you adequately established the value of the work you have performed? Have you firmly established your billing practices and boundaries with the client?

While it is time-consuming, if you are going to bill based on hours, you should always keep track of all of the time you spend working for a client and always reflect it on the bill, even if (and perhaps especially if) you are not going to charge for that time. This may reduce or even eliminate instances of clients asking for a reduction for work that was necessary.

When you bill hourly, clients tend to focus on just hours, rather than on the actual work you are doing or the value you are providing to them and their business. It is especially important to show those kinds of clients that you are providing value and to show them that you are not nickel and diming them or charging them for every minute you’re working for them. It is likely that you are tracking this time to some extent anyway, so taking the few seconds it should take to create a no-charge billing entry is well worth it in client goodwill.

Keep in mind that the clients who are most focused on hours (to the exclusion of other factors) are usually not your ideal clients. You may want to use time write-offs or repeated billing questions as a way to help identify and eliminate lower value clients who are more demanding and do not value your services – but only after you’ve explored how you might salvage the relationship, set better billing practices and standards and communicate more effectively with clients about your services and your fees.

Update: This post was picked as a Technolawyer SmallLaw Pick of the Week!

New ABA Ethics Opinion on Confidentiality, Security of Client Data in Electronic Communications

Last week (May 11, 2017), the ABA issued a new ethics opinion, Formal Opinion 477, dealing with the security of communication of protected client information. Several excellent posts have already been written about the opinion, including a summary by the ABA Journal, and an article by Bob Ambrogi on his Law Sites blog, among others. The opinion is getting a lot of attention, since it updates the ABA's Formal Opinion 99-413, issued in March 1999, on protecting the confidentiality of unencrypted email. That opinion concluded that, 

Opinion 477 is getting a lot of attention, since it updates the ABA's Formal Opinion 99-413, issued in March 1999, on protecting the confidentiality of unencrypted email. That opinion concluded that, 

A lawyer may transmit information relating to the representation of a client by unencrypted e-mail sent over the Internet without violating the Model Rules of Professional Conduct (1998) because the mode of transmission affords a reasonable expectation of privacy from a technological and legal standpoint. The same privacy accorded U.S. and commercial mail, land-line telephonic transmissions, and facsimiles applies to Internet e-mail. A lawyer should consult with the client and follow her instructions, however, as to the mode of transmitting highly sensitive information relating to the client's representation.

But much has changed since 1999; email and other forms of electronic communication have become much more prevalent, and hacking has become a daily occurrence. In addition, since 1999, the ABA has adopted the 2012 "technology amendments" to the Rules of Professional Conduct, including Comments to Rule 1.1 regarding technology competence and 1.6 regarding the lawyer's obligation use reasonable measures to prevent inadvertent or unauthorized disclosure of confidential information.

As noted in Opinion 477,

Comment [18] to Model Rule 1.6(c) includes nonexclusive factors to guide lawyers in making a “reasonable efforts” determination. Those factors include:

• the sensitivity of the information,
• the likelihood of disclosure if additional safeguards are not employed,
• the cost of employing additional safeguards,
• the difficulty of implementing the safeguards, and
• the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).

Opinion 477 still reinforces the "reasonableness under the circumstances" standard to determine what measures a lawyer must take to protect confidential client information, but provides some guidance in the form of seven factors lawyers should consider when determining what level of security is appropriate and what measures are reasonable under the circumstances. I recommend that all lawyers read the complete opinion, but I've listed the seven factors here, along with a list of questions under each factor that lawyers might use to help them decide what security measures should be employed.

1. Understand the Nature of the Threat

• How sensitive is the client's information? Does the matter involve trade secrets or other proprietary information that might be valuable to hackers or competitors?
• Is the client in a highly sensitive industry, such as banking or healthcare?
• Is this a high profile case or client which might increase the risk of a cyber-attack or attempt to intercept the client's data?

The more sensitive the client's data, the more stringent your security measures may need to be to be considered "reasonable."

2. Understand How Client Confidential Information is Transmitted and Where it is Stored

• Is client data stored onsite or off (or both)?
• Where are the data servers located? 
• What security is in place for servers storing client data?
• How are your electronic communications generated?
• How is client data accessed?
• Who can access client data?
• What devices are used to access client data? How many devices, and how many different types of devices, access client data?
• Are firm employees accessing client data from home? On the road? 
• Where is client data being accessed from? How many different potential locations? 

Once you know the answers to these questions you can begin to evaluate what security measures should be considered.

3. Understand and Use Reasonable Electronic Security Measures

As Opinion 477 states, 

Making reasonable efforts to protect against unauthorized disclosure in client communications thus includes analysis of security measures applied to both disclosure and access to a law firm’s technology system and transmissions.

Lawyers have many different options when it comes to data security, but not all options make sense in all circumstances. Some are more costly or complicated to implement, and may not be necessary in all circumstances. But lawyers must understand what is available in order to evaluate what is reasonable. Options include strong passwords, two-factor authentication, device security, and encryption, as well as the security of the networks over which client electronic data is being accessed or communicated.

• How secure is our network within the office?
• Are firewalls and anti-virus software up to date on all devices within the office?
• How are other networks that are used to transmit client data secured (ie are home wifi networks used by lawyers secured?)
• Are firewalls and anti-virus software up to date and being used on any networks or devices outside of our office that access our network and client data?
• How are the devices that access our network and client data secured? Are they password protected? Are all devices that access our network and client data locked? Can they be remotely disabled and wiped if lost or stolen?

4. Determine How Electronic Communication About Clients Matters Should be Protected

Now that you know how sensitive your client data is, how that data is accessed and communicated, where the potential points of intrusion are, and what security measures are available, you need to determine which available security methods (or combination of methods) is reasonable given the sensitivity of your clients' data.

In addition to asking questions globally for the firm as a whole, you must also consider each client and matter individually and discuss security and protection of data and confidentiality with the client.

• What kinds of communication will be sent in this matter? Will they be routine or highly sensitive?
• Who will we be communicating with in this matter and how will that communication take place?
• How confident are we in (or how much control do we have over) the security measures put in place by those with whom we will be communicating?
• What technology is available to the client (or third party) with whom we will be communicating?
• How tech-savvy is the client (or third party) with whom we will be communicating?
• Who has control over and access to the devices which the client will use to communicate with us electronically, and how will this affect attorney-client privilege?
• What methods of communication are appropriate for this client or matter? Is there especially sensitive information that should not be transmitted by email?
• Is there especially sensitive information that should not be transmitted by email?
• What other, secure methods are available to communicate with clients and third parties in this matter?

The opinion even suggests that "well vetted and secure third-party cloud-based file storage systems" might be a secure alternative to communicating and exchanging documents with clients than email.

 5. Label Client Confidential Information

The opinion suggests that labeling client confidential information to alert others that the information was intended to be privileged. While this may be a good routine practice in some circumstances, and may trigger a lawyer's obligation under Model Rule 4.4(b) to notify another lawyer if they "know or reasonably should know" that the information was intended to be privileged, it is likely not a reliable method of protection.

• Are privileged documents prominently labeled "privileged and confidential?"
• Are appropriate disclaimers used based on the circumstances and the content of the communication?

6. Train Lawyers and Nonlawyer Assistants in Technology and Information Security

Managing partners and supervising lawyers are required to take measures to ensure that the firm and its lawyers comply with the Rules of Professional Conduct, and those who supervise nonlawyers, including outside vendors who have contact with or access to client data, must ensure that those nonlawyers are acting in a manner compatible with the ethical rules. This includes rules regarding security of electronic communications and data.

• Do we have a security policy in place that covers electronic data and communication? Has that policy been provided to all employees?
• Has that policy been provided to all employees?
• How often is this policy updated?
• Have we trained our lawyers and staff on appropriate security measures for storage, access, and communication of client data?
• How recently was this training conducted?
• How often do we provide an update or refresher on this training?
• Are all employees required to participate in this training?
• Are the security measures being implemented?
• How often do we assess the security measures in our firm?
• Who is responsible for ensuring that security policies are implemented and followed?
• How recently was this training conducted? How often do we provide an update or refresher? Are all employees required to participate in this training?
• Do lawyers and staff understand how to secure devices that access our network or client data?

7. Conduct Due Diligence on Vendors Providing Communication Technology

• What are the qualifications of the vendors we use, including education, experience, and reputation?
• What services is the vendor providing (are they likely to come into contact with sensitive or privileged information)?
• What hiring practices are employed by our vendors (background and security checks, etc.)?What security measures do our vendors have in place?
• Do we have confidentiality agreements in place with our vendors? Do the vendors have confidentiality agreements in place with employees and others?
• Do vendors use to check for conflicts? If so, what methods do they use?
• What legal forums and remedies are available if the vendor agreement is violated?
• Are the members of our firm qualified to assess these issues, or do we need to hire an outside expert?
• Do the vendors have confidentiality agreements in place with employees and others?
• What security measures do our vendors have in place?

Getting Client Input

Lawyers are also obligated to communicate with clients about security and confidentiality issues and may need to advise clients about potential risks, particularly those involving highly sensitive or confidential information. A client also has input on the security and communication methods to be used in their matter; a client may provide informed consent for the use of a less secure (but possibly less expensive and/or less onerous and complicated) method of communication or may require the lawyer to use more secure methods.

(For more on client confidentiality, specifically with regard to email communication with clients, see my post on attorney-client confidentiality and email here.)

UPDATE: This article was chosen as the SmallLaw Pick of the Week!

Related articles

New York Social Media Ethics Guidelines

How to Enable Two-Factor Authentication for Instagram on Android

ABA Issues New Ethics Opinion on Encryption of Attorney-Client Email - Jim Calloway's Law Practice Tips Blog

Lawyers and Technology - ABA TECHSHOW 2015

5 Tips for Managing Client Expectations: Infographic

Managing clients' expectations is not always easy, but this infographic contains 5 quick steps you can take to manage client expectations better in your legal practice.

Meeting and managing expectations well creates loyal clients. In order to manage expectations well, you need to identify what they are, and to recognize that clients have expectations around both outcome and service.

The client's perception about whether you did a good job as their lawyer will be colored by the expectations they have for the engagement from the moment they walk through your office door. The way you communicate with the client at your first meeting will set the tone for the rest of the engagement.

Clients with "identical" legal problems, may not have identical goals and expectations. Find out the backstory behind the client's matter. Learn about their background, family, business or employment and gauge their emotional reaction to the legal issue at hand and to the discussion as a whole. Each of these factors may influence the client's perception of the matter, as well as the result they would like to achieve.

LISTEN to the client before jumping in with your solution or plan to solve their legal issue or accomplish their goal. Ask questions not only about the client's substantive legal issue, but also about their expectations during the engagement. These might include expectations about how often and in what manner they would prefer to communicate with you about the matter, about the budget and fee, or other non-legal, non-substantive issues that can make or break the attorney-client relationship.

Finally, assess the client's expectations. Are they realistic? Are there potential pitfalls to the course of action the client wishes to take or the result they want to achieve? Provide options and suggest alternatives that might serve the client's overall objectives more effectively.

 

Productivity Tips

The April 2017 Expert Roundtable post on Law Technology Today is a survey of productivity tips. A group of lawyers (including me) were asked to answer five questions about productivity.

Here's a quick list of the tips I shared on the post:

Write everything down

Develop systems for storing the information you save so you can find it easily when you need it

Don't multi-task!

Use your calendar effectively- schedule time to complete work

Use an editorial calendar to schedule marketing and writing projects

Invest in resources, technology and/or people to improve your productivity

Although we were asked to provide only one or two tips in response to each question, it was hard for me to narrow down my responses. 

One of my favorite productivity tips that didn't get mentioned was breaking large projects down into bite-sized pieces; looking at an entire project can be overwhelming, but tackling only one small piece at a time can help build momentum and confidence. And the project is likely to get done much faster.

Some of my other favorite productivity tips were covered by my colleagues in the roundtable. These tips include:

• Never use your email inbox as your to-do list
• Don't use your email inbox as a place to store communications - file or delete messages
• Set a schedule and stick to it
• Know your "power hours"
• Create workflow checklists
• Do the worst first
• Use automation tools available in programs you already use
• Don't check email constantly!

You can get all of the tips in more detail here, and the post also contains a great list of productivity resources.