Legal Ease Blog

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!

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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.

 

Need Help Choosing Law Practice Management Software?

Practice management software provides advantages for firms of all sizes, whether the firm is a solo practice or a larger firm with employees at all levels: partners, associates, paralegals, legal assistants and others. In this post, I talked about some of the advantages lawyers can expect when using practice management software.

More recently, in this interview with Law Firm Suites, I mentioned practice management software as one of the tools that lawyers can use to make their jobs easier, saying:

Practice management software can help organize each client’s documents and data, and some even include client-facing portals to allow clients to access some of their documents and information on their own. It can also include timers to help with hourly billing and built-in reminders to help calculate deadlines and statutes of limitations.

But knowing your firm needs to employ practice management software is only the first step. Choosing the right platform or program can be a difficult and daunting decision, particularly with new vendors entering the marketplace.

Luckily, the folks at Lawyerist have done some of the work for you. They have put together a directory of 24 law practice management software programs at lawyerist.com.  And if you're really new to practice management software, scroll to the end of the page to see the definitions of the features discussed in the directory.

The directory not only provides information about each program, including Lawyerist's "best fit" judgment for each program, but there is also a downloadable comparison chart showing the key features of each of the programs included in the directory, which can help you to narrow down your choices to those within your budget that have the features you require. Then you can return to the directory for more detailed information by visiting the product page on Lawyerist for each of the programs on your list (by clicking on the name of the program in the alphabetical directory).

 

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Choosing Office Space for your Law Firm

Office space is one of the biggest expenses for any law firm. What do you need to know when choosing office space? I was recently interviewed by Law Firm Suites about this very issue. Here is an excerpt from the interview with some of the things I think you need to think about when choosing office space for your law practice:

Does your space need to attract walk-in business? Do you need a full-time office or only an on-demand office space? Is there conference space available? How much demand is there for that conference space? Do you need immediate availability (if a client calls and needs to meet with you right away, will there be meeting space available)?

Are you planning for growth? If so, will your office space be able to grow with you? Is the office look and feel in line with your brand identity? Do the fees and costs fit into your budget and financial goals? What kind of environment promotes your best work? Is it a busy, collaborative environment, or do you require more privacy, peace, and quiet? Consider how your workspace will affect your productivity and how you feel about your work.

Read the full interview here.

 

Lawyers and Technology - ABA TECHSHOW 2015

This week is the annual ABA TECHSHOW, the premier technology conference for lawyers taking place in Chicago. TECHSHOW is a combination of educational sessions offering continuing legal education credits, an exhibit hall featuring the latest technology available to help you run your practice, and social events offering opportunities to meet lawyers from all over the country who are learning to use technology to improve their law firms.

In addition to all of this, TECHSHOW provides attendees with the opportunity to meet ABA Law Practice Division authors in meet the author sessions and to purchase LP books at a discount.

This year's keynote speaker is Nick Carr, columnist and best-selling author on technology and culture.

I have a busy schedule for TECHSHOW this year - here's where I'll be if you'd like to take some time to chat:

Thursday, April 16:

12:30-1:45       State of Legal Technology
                            I'll be joining some of my colleagues from the Legal Technology Resource Center discussing the results of this year's technology survey during the State of Legal Technology Luncheoon

2:00-3:00    LinkedIn's Next Level: Getting More Return on Your Networking
                        Dennis Kennedy and I will be talking about how lawyers can get more out of their LinkedIn use. This presentation is a follow up to our basic LinkedIn program and is designed to give those with a basic knowledge of LinkedIn some power strategies to ramp up their networking. If you're still a LinkedIn newbie, you can see a version of our basic presentation that we just did earlier this month for the ABA here - not only will you get the video download, but you'll also get a free copy of the e-book version of LinkedIn in One Hour for Lawyers, Second Edition.

3:00-4:00    Shaping Your Narrative - Online Reputation Management
                                In this program, Gyi Tsakalakis and I tackle the issue of online ratings and reviews sites: why lawyers need to be aware of them, how to improve your positive ratings and reviews, what to do if you receive bad reviews online, and we'll cover some of the ethics issues involved.

Friday, May 17

10:00-12:00    Concierge Booth
                                    Friday morning I'm manning the Concierge Booth with some of my colleagues from the Legal Technology Resource Center. Come say hi!

1:45-2:30        Meet the Author: How to Do More in Less Time
                                 My latest book, How to Do More in Less Time: The Complete Guide to Increasing Your Productivity and Improving Your Bottom Line, was recently released, and my co-author, Dan Siegel and I will be talking about the book during this meet the author session on Friday afternoon, followed by a book signing at 2:30. If you've ever felt overwhelmed with all of the tasks you need to accomplish, had difficulty delegating, or wished you could get better use from the software programs you use every day, this book might be for you. Come learn some of our best tips! 

While at TECHSHOW, I'll also be attending many of the social events and receptions - if you've never been to TECHSHOW, don't miss the TASTE OF TECHSHOW Dinners - dutch treat events at some of Chicago's best restaurants, hosted by our speakers. I may make an appearance on Legal Talk Network as well. All in all, it should be a fantastic event - hope to see you there!

Finally, I want to say thank you to Heidi Alexander for her post on Women You Need to Know in Law and Technology - she's put together a fantastic list of women in technology, and many of those on her list are current or past ABA TECHSHOW speakers and authors. I'm flattered to be included on her list!

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Women's History Month: 8 Tips for Managers

Women's History Month: 8 Tips for Managers

March is women's history month and this year's theme is "Weaving the Stories of Women’s Lives." Is disparate treatment in the workplace an element of women lawyers' (and other professionals) stories?

I came across this presentation entitled, "LeanIn Together: 8 Tips for Managers" that describes how men and women are treated differently at work and how managers can address those issues. I've decided to share it in honor of women's history month.

Do you see these kinds of things still happening in your workplace?

Are female lawyers treated differently and do they have more trouble getting promoted than men?

Is the fact that we need a "Women's History Month" at all evidence of disparity? 

Do these issues need to be addressed in order to create future women leaders in the legal profession and elsewhere?

Let me know your thoughts in the comments!

#LeanInTogether: 8 Tips for Managers from Lean In

 

You can get the complete tips at LeanIn.org

New Productivity Tool Just for Solos

I recently heard about a new productivity tool built specifically for solo service providers that I thought might be of interest to solo lawyers, although I haven't tried it myself yet. Built by an international team of designers and developers, 17 hats is a business management app that seeks to streamline business processes for solo business people.

17hats is a cloud-based tool that combines basic CRM (customer relationship management, including contacts), project management, calendaring, quotes, contracts, invoicing, time tracking and bookkeeping all into one integrated program, eliminating the need to subscribe to several software services and purchase different apps and programs.

Some features lawyers might be interested in include:

Workflows lets you automate many repetitive tasks, and to create workflows so you don't skip an essential step in a client's representation. For those who like checklists, these workflows should work well.

Contracts isn't just for contracts, per se - it's a feature that  lets you create documents, send them and get them signed digitally. You can create questionnaires to send to clients or potential clients in advance of a meeting or to obtain client feedback after a matter has been completed. Clients fill out the questionnaires directly online. Quotes is what you'd use to send a client an estimate or explanation of your fees. You might use either quotes or contracts for a retainer agreement for example.

Templates helps you to create re-usable templates so you don't need to reinvent the wheel. You can create templates for questionnaires, contracts, quotes, email messages and more.

Incorporated into the invoicing feature is the ability to send online invoices and receive credit card payments. A time-tracking tool will help if you need to bill by the hour or just want to keep track of your time.

There is also an email sync feature, but reviews at this early stage have been lukewarm at best on this particular feature.

17hats is a relatively new program which was launched in October 2014, but the Pasadena, CA based company reportedly received additional seed funding this month from Wavemaker Partners, a company that focuses on technnology based startup companies. This could mean good things for the future of the program.

The company offers a two week free trial, followed by pricing that, if the program delivers the functionality it advertises, is eminently affordable: if you sign on for two years, you pay just $13/month. Shorter terms are available at $29/month for the monthly plan or $17/month for the annual plan.

While not built specifically for lawyers, 17hats does say that lawyers are among the solo business owners it had in mind when creating the program. As with any cloud-based program, you'll want to see what security and confidentiality measures 17hats uses to safeguard data you enter into the program, but for solos who want to stay organized, this may be an interesting option.

If you decide to try out 17hats, let me know what you think!

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5 Ideas for Improving Your Practice

The November 2014 issue of Law Practice Today is out, and as always, it is filled with interesting and thought-provoking articles designed to help you improve your marketing and your practice.

Here are five great ideas from this month's issue:

1. Prepare new associates for future success

One of the biggest challenges for small law firms arises when it's time to hire - and train - new associates as the firm grows. Susan Pitchford, a partner in a small intellectual property firm, shares her tips for - as she says, "raising your associate to be a good firm partner" - in Training of New Associates in Small Firms. Her tips include:

1. Inviting associates to observe everything
2. Teaching associates how to break bad news to clients
3. Asking new lawyers to prepare summaries of new opinions and present them to the firm
4. Setting a good example by continuing your own legal education
5. Allowing new lawyers to participate (even a little) in court
6. Discussing the business of the firm with associates
7. Encouraging new lawyers to join bar and other legal organizations

Take a look at the full article to see all of Pitchford's tips and get her insight on why they are important.

2. Set (and reach) goals

In Becoming a Real Goal-Getter: 5 Tips for Setting and Reaching Goals, Holly Miller demonstrates why it's so important to set goals, and how to do so effectively. Her tips include taking time to take stock of where you are now and your past successes and failures, developing not only the goals themselves, but also a timeline for completing them, and ensuring that your goals are measurable so that you can determine whether or not you've met them. Read the full article to get all of her goal-setting tips.

As we approach the beginning of another new year, planning and goal-setting are activities that should be a priority, to ensure the best 2015 possible. For some of my planning tips, see my Simple Steps column in this month's Law Practice Magazine, entitled, "Simple Steps. Developing Daily and Weekly Plans."

3. Hone your business development and client retention skills

In her article, How to Win and Cultivate New Clients,  Sarah Freeman discusses four factors that help to earn the trust of potential clients at an initial consultation:

1. Knowing yourself
2. Projecting confidence
3. Taking time to explain the process 
4. Listening and asking questions

But getting the client to sign on the dotted line is only the beginning of the relationship. As Freeman says, "After we have won a client, we need to cultivate that relationship, keep that client satisfied, and lay the groundwork for future business and referrals. A happy client will talk about us and recommend us when the opportunity arises."

Freeman discusses two ways to cultivate those client relationships: putting good procedures in place to follow up frequently with clients and ensuring that you - as the attorney - communicate regularly with clients, rather than always leaving that job to staff. And don't forget to stay in contact with clients even after the matter has been concluded.

4. Consider video to improve your firm's online presence

Brian Albert writes about how video can help improve both traffic to your website and conversion of website visitors into clients (or at least help to convince them to contact you - after that it's up to you to close the deal). He also shows why posting those same videos to YouTube, on social media sites such as Facebook and Twitter, and in email newsletters can improve your marketing efforts as well. Finally, he presents a list of reasons why video might not be right for your firm. And if you don't feel like reading the article, check out the video at the top, in which Corey Saban discusses reasons you should consider video.

5. Be an active alumnus or alumna

Whether you're a brand-new lawyer or a seasoned practitioner, your alumni network can be a valuable resource for your practice. Tyler Volm's article, Being An Active Alum Can Mean a Better Career, demonstrates many of the benefits of being active in your alumni network. Networking is one obvious benefits, but participation can also provide opportunities for learning new skills - for example, Volm mentions that he learned about time management, fundraising and more as a result of his involvment.

The November issue of Law Practice Today contains even more articles, including those on attornrey coaching programs, support for solo practitioners, how community involvement can co-exsit with small firms, and more. Check out the complete issue here.

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NY Ethics Opinions Address Technology

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NY Ethics Opinions Address Technology

Next week I’ll be presenting at the ABA Women Rainmakers Mid-Career Workshop on “Lawyering in the Digital Age.” My presentation covers technology issues that the lawyers of today are faced with that didn’t exist 20, 10, or sometimes even 5 years ago, including issues involving electronic communication, data storage and security, “cloud” services, websites and virtual law offices.

In the past several months, the New York State Bar Association Committee on Professional Ethics has issued a number of ethics opinions that deal with some of these topics.

Here is a quick overview of the New York Opinions.

Remote Access to Law Firm Electronic Files

Perhaps the most comprehensive of the recent New York opinions dealing with the application of the New York ethics rules to modern technology is Opinion 1019, discussing confidentiality and remote access to a law firm’s electronic files. The opinion concludes that, “A law firm may give its lawyers remote access to client files, so that lawyers may work from home, as long as the firm determines that the particular technology used provides reasonable protection to client confidential information, or, in the absence of such reasonable protection, if the law firm obtains informed consent from the client, after informing the client of the risks.”

This reasonableness standard comes from Rule 1.6, Confidentiality. Rule 1.6(c) provides that a lawyer must "exercise reasonable care to prevent . . . others whose services are utilized by the lawyer from disclosing or using confidential information of a client" except as provided in Rule 1.6(b). 

Comment 17 to Rule 1.6 provides some additional guidance regarding reasonableness, and notes that “special circumstances might require additional security precautions.” Comment 17 also sets forth factors to be considered in determining reasonableness, including the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement.

Opinion 1019 concludes that,

Because of the fact-specific and evolving nature of both technology and cyber risks, we cannot recommend particular steps that would constitute reasonable precautions to prevent confidential information from coming into the hands of unintended recipients, including the degree of password protection to ensure that persons who access the system are authorized, the degree of security of the devices that firm lawyers use to gain access, whether encryption is required, and the security measures the firm must use to determine whether there has been any unauthorized access to client confidential information. However, assuming that the law firm determines that its precautions are reasonable, we believe it may provide such remote access. When the law firm is able to make a determination of reasonableness, we do not believe that client consent is necessary.

However, if a law firm cannot make such a conclusion, the client’s informed consent may be obtained.

Use of Cloud Services for a Transaction

In Opinion 1020, issued September 12, 2014, the Committee addressed a question raised by a real estate attorney who wanted to use an electronic project management tool which would allow sellers’ attorneys, buyers’ attorneys, real estate brokers and mortgage brokers to post and view documents, including contracts and building financials, using a cloud-based data storage tool.

As they did in Opinion 1019, the Committee referred to Rule 1.6(c) and the reasonableness standard, stating that,

Whether a lawyer to a party in a transaction may post and share documents using a “cloud” data storage tool depends on whether the particular technology employed provides reasonable protection to confidential client information and, if not, whether the lawyer obtains informed consent from the client after advising the client of the relevant risks,” and that lawyers must “exercise reasonable care to prevent … [persons] whose services are utilized by the lawyer from disclosing or using confidential information of a client."

Virtual Law Offices

In Opinion 1025, issued September 25, 2014,  the Committee opined that a lawyer would be permitted to have an entirely virtual law practice in the State of New York (operating solely online, with no physical location to meet with clients or conduct the practice of law), as long as the attorney complied with the requirements of Judiciary Law §470.

The issue presented was based on Rule 7.1(h) of the Rule of Professional Conduct, which requires that advertisements contain the attorney's principal law office address. An attorney inquired about whether Rule 7.1(h) prohibited the attorney from operating via a purely virtual law office.

Previous NYSBA Opinions concluded that Rule 7.1(h) required all attorneys who advertise to have and disclose a physical office address, however, based in part on court rulings applying Judiciary Law §470, Opinion 1025 comes to a somewhat different conclusion, stating that, “[W]e no longer believe that Rule 7.1(h) -- a rule that on its face regulates only advertising -- provides an independent basis for requiring a physical office.”

The opinion points out that there is potential value to clients of having a lawyer who works solely through a virtual law office, particularly where the client themselves works only virtually, and stating that, "The robustness of electronic communications, and the appointment of a virtual law office service as an agent for accepting service of process, effectively combine to eliminate any concern that a physical office is necessary in all cases for the receipt of service and other communications,” and that, “there is nothing inherently misleading about advertising a virtual law office.”

The opinion cites N.Y. City opinion 2014-2, which deals with a similar issue. It was noted however, that the lack of requirement for a physical law office was not automatic, and would depend heavily on the circumstances.

New York Rule of Professional Conduct 1.1, Competence, requires all attorneys to ensure competence, which Opinion 1025 notes

[N]ot only includes competence in performing the legal work but also competence in handling communications and storing and providing access to client files. An attorney should only use technology that he or she is competent to use. Attorneys owe duties of effective communication with clients to keep them promptly and reasonably informed and consulted about the means of achieving the client's objectives (Rule 1.4). Attorneys owe duties to maintain confidentiality (Rule 1.6), and there are unique concerns about confidentiality that relate to conducting all communications and client file storage electronically. Attorneys have numerous duties relating to the proper preservation of client materials (Rules 1.6(c) and 1.15). Attorneys must assure adequate supervision of subordinate lawyers and of non-lawyers (Rule 5.1 and 5.3). There is no “virtual law office exception” to any of the Rules.

Website Domain Names

As I discussed in this post, in mid-2013, the NYSBA Committee on Professional Ethics issued Opinion 972, in which it noted that attorneys are prohibited from listing their services under the heading “Specialties” on a social media site unless the lawyer is certified in conformity with the provisions of Rule 7.4(c).

On September 12, 2014, the Committee issued Opinion 1021, which addresses the issue of the use of the word “expert” in a law firm’s domain name, citing New York Rule of Professional Conduct 7.5(e)(3), which prohibits firms from using a domain name that implies the ability to obtain results in the matter. The opinion notes that, “The implication of the word [expert] is that the law firm may bring to the matter a seal of approval that provides comparatively greater assurance of some favorable outcome which no disclaimer may readily cure.”

With the rapid pace of technology change in today’s legal environment, all attorneys must remain up to date not only on the changes in technology that affect the delivery of legal services and advertising for those services, but in the ethical rules implicated in the use of such technology.

 

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