Behold the Menurkey. Part Menorah, part Turkey, the Menurkey commemorates the intersection of Thanksgiving and Hanukah, two holidays that celebrate the triumph of religious freedom over oppression; of small outliers over large dynasties. In many ways, both holidays represent the story of solos.
Although age-old holidays inspired the Menurkey, it came to life…
As Bob Ambrogi recently reported, Box.net is making a play for the legal industry by partnering with various legal service vendors for practice management platforms, legal research, billing, courtroom information management and productivity. And that’s great news. As a long time Box user — first, on the free platform beginning in early 2009 and bumping up to the paid version a year later — I’ve always found it far more professional for client use than Dropbox or Google Docs. In fact, I was so impressed with Box’s focus on security that three years ago, I featured Box’s diagram explaining the various stages of encryption in my presentation (Slide 22) to explain best practices for ABA Ethics 2020 to adopt. And Box has continued its emphasis on security; each time I upload a document, a little message scrolls across my screen that says “encrypting….,” making me feel very responsible even though I haven’t done anything extra.
Yet as much as I like Box, it suffers from two significant drawbacks that limit its utility and convenience for my clients. First, and most annoying, if I create a workspace and invite clients to view documents I’ve placed or upload their own, clients have to sign up for a Box.net account. Frankly, that’s simply intolerable. It would be one matter if I had a free account, but I’m at the business or enterprise level and pay full freight. Yet, when I send an invite to clients to join a workspace and they have to register to use Box, it’s not only inconvenient, but it also makes me look bad because they probably think that I’m using a free account.
Sure, Box gives me the option of simply sharing a link to each separate document or folder. But that makes it difficult for me to determine which clients have reviewed the document. Moreover, with the link-share option, clients don’t get the full benefit of Box’s search tools (which collaborators can use), nor can they share comments within the workspace. Because of the nature of my practice, a single “client” for me is typically a group – either a group of 5-20 landowners or a municipal body that may have 4-5 staffers assigned to the case. Box offers a lot of potential in these situations, but I can’t take advantage of those benefits because I don’t want to saddle my clients with signing up for another service.
Michigansystemrevised from Carolyn Elefant
In the four years since the release of Atul Gawande’s Checklist Manifesto, the topic of lawyer checklists has been making the rounds on the blogs and speaker circuits. Which is good because checklists are a valuable tool that can help lawyers keep their practice running smoothly, stay out of trouble and explain the various steps of the legal process to a client to moderate expectations. But as the practice of law becomes increasingly dependent upon technology, there’s an even better reason for developing high-quality checklists that’s rarely mentioned: money.
Think about it. In many ways, mastering black-letter, substantive law is the easiest part of legal practice. You scan a few treatises and law review articles to get the lay of the land, read the key cases and consult the blogs for recent developments. Of course, there’s more to it than that; it can take time to master the subtleties and really understand the concepts, but my point is that substantive law is accessible.
By contrast, consider the mysteries of legal procedure. Court rules are often opaque or a particular district may have a unique practice that isn’t well-known – and even when you understand them, there are usually a dozen steps needed to prepare documents to comply. Transactional matters have their own specific steps of rules and processes – such as running due diligence on a deal or compiling documents for corporate filings. There is enormous value to clear, accurate and proven checklists for all of these steps.
Most of us don’t really appreciate the value of a good checklist, because as with many retainer agreements, many of the checklists available for free on-line are junk. But I believe that there’s a market for time-tested checklists – and in fact, I’m not the only one. In some ways, a checklist is a crude form of a business method— which is still a patentable process that confers value and IP assets.
Four and a half years ago – when Axiom Legal was just gaining traction and Virtual Law Partners and Rimon Legal and Fisher Broyles were the only dispersed legal business models on the block, a group of eight solo colleagues and I who practiced in four different cities came together to form a collaborative of our own. On paper, we fit the profile for this kind of new-age model– we each had a decade or more of experience in our respective fields, we represented traditionally “big firm” clients, we were familiar with each others’ work having referred cases or teamed up in various combinations before and we were all fluent in technology. Yet, after nearly a year of research and negotiation, we were unable to consummate the venture. Here’s what happened and some of the lessons that I took away that may be valuable for others contemplating similar enterprises.
By way of background, the impetus for the group came from one of my colleagues, a successful, seasoned litigator. He expressed a frustration at the challenges he faced in procuring business from major companies due to concerns that his firm might lack either back-up or the capability to scale up to handle a larger matter. My colleague believed that a more formal collaboration could address these issues.
The lawyers asked to participate saw additional benefits as well. Because we practiced in a few different cities, we saw the effort as an opportunity to expand and attract work in other jurisdictions and because we had different specialties, we anticipated opportunities to refer work to each other as well. We believed that we pool our resources for marketing which would heighten the visibility of the group as well as each of us individually.
As part of our first task, we researched possible structures – examining the Axioms and Rimons, affiliated national firms (affiliations between lawyers in similar practice areas, e.g., appeals or eminent domain – but located in different parts of the country), and even law societies like Primerus). We came across several that I viewed as a sham – either a bunch of names listed on the page with no indication that they actually engaged in ongoing relationship (which is required under ethics rules for a group of lawyers to hold themselves out as affiliates). We quickly agreed that we wanted to operate as more than just a list of names, but at the same time, we did not want to sacrifice our respective firm’s individual identities or create a situation that would give rise to conflicts. We came up with a workable approach and our group’s excellent corporate lawyer drafted an agreement to memorialize the arrangement. We also came up with a name for our enterprise.
Recently, one of my colleagues shared with me the success of a monthly subscription service that he’d recently launched for his clients, who are businesses in a relatively specialized industry. He was surprised by the positive results because another one of our colleagues had tried a similar program a decade earlier with no takers.
There are certainly plenty of variables for why one subscription program worked while another didn’t get off the ground ranging from the prospects targeted to the look of the marketing materials. But I think that today’s business clients are also more budget conscious and a subscription service offered by a lawyer whom they know and trust (as opposed to a LegalZoom kind of arrangement) provides affordable access to legal advice. Plus, with client portals and Skype, lawyers can cost effectively deliver a wider range of subscription services now than ten years ago, when they’d have largely been limited to phone calls and email.
There are lots of other practice ideas that are implemented before their time. I experimented with client portals five years ago, but found that few clients would use them – partly because the technology was clunky and partly because they weren’t using that technology for other applications. Likewise, I’ve written about how lawyers who’ve experimented with online scheduling for clients haven’t yet seen much traction. Heck, I can remember a time when the cloud was called SaaS (“software as a service”) or ASP (application service provider) and no one would touch it.
Behold, the law firms of the future:
Lean operations powered by technology, with heavy reliance on outsourced labor and non-lawyer professionals. Reliance on economies of scale, corporate business practices and technology to maximize efficiencies. Laser-focused dedication to client demands for results and bye, bye billable hour. And even a little bit of outside investment, for good measure.
Guess what? The firms of the future are here — and to find them, you needn’t even look as far as the UK, where alternative business structures are in full bloom or Silicon Valley where fledgling companies are innovating new ways to provide access to justice. Nope – all you have to do is take a look at the large-scale foreclosure mill law practice that dominated the mortgage market and the future of law will hit you right in the face.
Of course, it seems so counter-intuitive. Dustin Zack’s law review article, Robo-Litigation (March 2013) is probably the last place that you’d look to find a glimpse of the future of law. Focused on the rise and fall of the robo-signing, foreclosure mill law practices that mushroomed in response to the collapse of the housing market, Zacks delves into the seedy side of a volume legal practice run amuck. These fly-by-night operations hardly resemble the slick branding and sharp logos of the envisioned firms of the future. But believe it or not, back in the day in internet time, these foreclosure mill practices were as innovative (well, perversely anyway) and ahead-of-the-curve as any of today’s future firms.
As Zacks describes (beginning at 895), the foreclosure mills”were built for speed and efficiency, not the billable hour.” Although foreclosure mills did employ younger lawyers, they didn’t devote time to training or mentoring them. And in fact, rather than employ large numbers of associates, foreclosure mills favored lower paid staff to “drive efficiency higher and costs lower.” In fact, one hallmark of foreclosure mills was heavy reliance on non-lawyer staff, with 90-100 paralegals for every lawyer-partner. To further boost efficiency and deliver results on budget to clients, the foreclosure mills relied heavily on forms and technology developed overseas by third party providers.
I am excited to announce the creation of the MyShingleCommingle – a meet-up group bringing together solo, small and alternative law practices (i.e., the new business models) with the legal technology companies that are developing the tools and platforms empowering law practices. In many ways, we are natural allies: we are essentially startups doing business…
The concept of work-life balance or a life without seams doesn’t get much love in the legal profession. Lawyers who strive to balance family and work are often derided as dabblers, losers or faux-lawyers. And while there are many days that I too question whether it’s possible to do everything well, all at once, there are just as many reminders — indeed, two this past week — that a well-rounded life is possible.
First up, this blog post in the Harvard Business Review gives the best selling point for a family-friendly firm that I’ve ever seen. Here’s the excerpt:
[A client questioned whether to hire a small law firm that had advertised itself as a “family-friendly workplace] “What happens when an emergency comes up during my case?” asked the prospect. “How do I know you’ll be able to respond?”
“We can respond better because we have a balanced approach,” explained the attorney. “And here’s why. We prioritize better, are staffed more appropriately, schedule time for long-term planning, and yes, allow for time outside of work for our lawyers to have full family lives. Because my lawyers aren’t chronically overworked, they have the capacity – in terms of time, energy, and mental focus – to respond effectively to your crisis situations. We are much more able to rise to these occasional challenges because we don’t treat every day like a crisis.” He got the client.
Seems that no matter what lawyers do these days – whether it’s accepting a phone call from an unknown number, or scanning press releases on a news aggregator or visiting a bar association website, or signing up for what appeared to be a free service — they quickly find themselves bombarded with high-pressure sales offers for all kinds of programs and coaching services for marketing a practice. Yet whether it’s pricey websites with three year contracts and canned content that cost several hundred dollars a month, “systems” guaranteed to produce an additional five figures in revenues and valued at $49,0000 (but generously hocked for a mere $2999), SEO services that will put your firm at the top of search engines for a mere $1000 a month or online lead gen sites that can cost anywhere from a few hundred to a few thousand dollars, there’s never a shortage of lawyers willing to pay their money and take their chances.
I’ve always wondered how lawyers – who are capable of devoting several hours to dissecting a two-page contract or negotiating a three-word clause of a settlement agreement — can so easily shed their analytical armor when presented with the promise of new business. Though the public views lawyers as greedy, avarice alone can’t explain lawyers’ poor decision-making skills when it comes to law firm marketing. In most cases, truly greedy lawyers are either too shrewd or too cheap (or too greedy) to pay any money out; instead, they’re more inclined to gravitate towards questionable, easy-money schemes like this or this that promise immediate revenue at minimal or no cost. By contrast, lawyers who succumb to the siren’s song of first-page Google rankings and seven-figure practices are more than anything else (and as Scott Greenfield has long observed) simply desperate.
Now, a recent Harvard Business School Study, described here corroborates that anxiety (a first-relation to desperation) does in fact make us particularly vulnerable to bad advice. The study found that those in an anxious state are at once more receptive to outside advice but at the same time, less discriminating:
Anxiety also impairs our ability to accurately judge the quality of the advice we received. In a follow-up to the above experiment, my colleagues and I had another group of participants write about an experience from the past that made them anxious or about their last visit to the grocery store (typically a neutral experience) and then estimate the number of coins in a jar. This time, some participants were given bad advice; others were given good advice (i.e., they received accurate estimates of the number of coins). Those who were in a neutral state were more likely to take advice when it was good rather than bad. But anxious participants tended to make no such distinction. Anxiety reduced their ability to discern between good and bad advice.
And it gets worse:
At some time or another, law firms of all sizes have outsourced legal support services such as legal research and writing, e-discovery or document review. There’s no question that law firms can bill clients for legal support services and even charge a markup, at least under ABA Ethics Opinion 08-451 and the majority of jurisdictions.
But what happens when law firms outsource back-office functions traditionally classified as overhead – like receptionist and secretarial services or administrative support? Are those fees likewise chargeable to clients? A recent ethics decision out of Michigan, RI-363 (June 28, 2013) says no. Given the increased trend towards outsourcing of administrative functions by lawyers, the Michigan decision will have consequences – I just can’t completely figure out what they are because the Opinion is so confusing that it raises far more questions than it answers.
Michigan RI-363
The Michigan opinion responded to an inquiry from a personal injury firm which, in an effort to “control costs and increase efficiency,” had set up a Clearspire-esque separate entity owned by one of the firm’s shareholders to which the firm would outsource tasks such as medical research, billing from medical treatment providers, editing and duplicating photos and videos, scanning and storing medical records and performing clerical labor to support creation and assembly of case evaluation and demand letter packages. The firm sought guidance on whether the proposed arrangement was ethically permissible (it is) and whether the firm could treat the provision of these basic administrative services as case costs covered by the client’s share of proceeds from personal injury awards or settlements.
To determine whether the firm could charge the proposed costs to clients, the Committee analyzed whether the services sought to be charged were actually “law related services.”
The inquiring lawyer’s question appears to assume that routine administrative tasks performed by a law firm’s non-lawyer personnel are services that are or can potentially come within the term “law-related services” as defined in the rule. MRPC 5.7(b) defines “law-related services” as:
As explained in the Comments to the rule, the term “law-related services” applies to professional activities that at times overlap with the practice of law but constitute the practice of a separate profession or trade. Law-related services,” as defined in MRPC 5.7, do not include the provision of basic administrative services traditionally associated with supporting the practice of law.
The Committeee went on to explain that traditionally, lawyers (whether or not with a client’s consent) have been barred from charging administrative costs to clients. Citing ABA Ethics Op. 93-379, the Committee elaborated that:
