New Year, New You

2012 is already off to a running start. If you are like most, you have probably spent a good deal of time last year and the beginning part of this year thinking about ways to be a better person but more specifically, a better lawyer. Here is a quick list of things that can help you in your quest to develop your practice and remain ethical:

1)      Read the latest Court of Appeals opinions on disciplinary matters. The best way to understand the trends of our profession (cases prosecuted as well as types of misconduct) is to look at some of the attorney disciplinary cases. These opinions are important because the Court will oftentimes send a message to the Bar that a common practice may not comport with a lawyer’s obligation under the ethical rules. Go to www. Mdcourts.gov to find the latest opinions.

2)      Keep up with professional reading. With all that a busy practitioner must do in a day, oftentimes it seems like a hurdle to do any additional reading other that what is required for a case. However, the best way to get educated about our profession as well as landmark national cases is to read a bar journal. An easy way to ensure that these don’t pile up on your desk is to take fifteen minutes at the end of your day and quickly go through articles that are relevant. An easier way to keep up with your professional reading is to subscribe to an on-line journal that can provide information in easy to read format.

3)      Read the Rules of Professional Conduct. What better way to understand what is required of you then to go to the rules themselves? Unless you are an ethics lawyer, no lawyer should memorize the rules but at the very least, you should refer to them often. If you have not already done so, subscribe to the free mobile app offered through MSBA which offers you the Rules of Professional Conduct at your fingertips.  The app is available for free on these platforms: iPhone & iPad, Android and Blackberry.

4)      Get organized! What better way to clear your head and be more productive than to clear the clutter off of your desk. If you have a habit of procrastinating or if you suffer from avoidance syndrome (not wanting to deal with a case that is more complicated than you originally thought) and have stacks of cases sitting in piles in your office, take some time to go through each file carefully and assess what needs to get done to accomplish the client’s objectives. If you find that you are in over your head and are not able to competently handle a matter, inform the client and/or obtain co-counsel (with your client’s consent).

5)      If you are faced with an ethical quandary and are not sure where to go, after referring to the Rules of Professional Conduct call the MSBA Ethics Hotline and speak to one of their volunteer attorneys for further guidance. If you would like a written opinion, you can request so from the Ethics Committee.

6)      Get involved! Join a local or specialty bar association. Increasing your network of attorneys who share the same interests can certainly help you especially if you find that you need a mentor or another attorney to share ideas with.

7)      Take a Continuing Legal Education seminar. It is always a good idea to remain proficient in your practice area and to learn about new law, trends, and technology as it relates to your practice. The MSBA and Pro Bono Resource Center of Maryland, Inc. are offering free and discounted slots for a selection of MSBA CLE courses. For a listing of eligible courses and to register, visit http://probonomd.org/continuing-legal-education.

8)      Take care of your health. Lawyers seem to be the most depressed people in this country. If you, or someone you know, is experiencing issues with mental health, anxiety, depression, alcohol, or substance abuse, contact the MSBA’s Lawyers Assistance Program. Lawyer Assistance Program (LAP) is a free, confidential, non-profit counseling program that assists judges, lawyers, law students, legal staff and their families who experience personal problems that interfere with their personal lives or their ability to serve as counsel or officers of the court.

9)      Have a good reference book in your library. Some personal favorites like The ABA/BNA Lawyer’s Manual on Professional Conduct and The Law of Lawyering by Geoffrey Hazard, Jr. & William Hodes are invaluable resources for a practitioner.

10)  Live a balanced life. There is more to life than work so make sure to take the time to cultivate your outside interests and personal relationships.

While this list is certainly not exhaustive, hopefully it helps you with ideas on how to be the best you.

Our Responsibility

A new post by my contributing blogger and colleague, Joe Perry:

The bloggers have declared war.

I found law school to be a mostly nasty place, so it’s hardly surprising to me that law school administrations—nefarious collectives charged with reducing once-beautiful human beings to soulless, precedent-regurgitating automatons—are capable of fudging numbers.  For many, however, this bending, manipulating and outright fabrication of employment figures has been the equivalent of the legal education system crossing the Rubicon.  And in response, the internet is now littered with websites exposing and lambasting the “law school admissions scam.”[1]

Several years ago, like so many others, I took my marching orders from U.S. News and World Report.  With two distinct options on the table, I selected the law school highest on the list without so much as a second thought.  And I made that selection without knowing that the numbers that got my school that ranking may or may not have been massaged.

Now, that doesn’t make me mad enough to start a protest website, but there’s good reason I’m not bitter.  Had I gone for option #2, I would have gone to school in a different part of the country, and would have never met my wife.  In essence, I paid six figures for the chance to bump into the woman of my dreams at a nightclub.  I’d do it all again, of course—even if I knew my choice was being made on fabricated employment data, but that’s one expensive first date.

And that’s partly the point.  Where to attend law school is an expensive decision, and the fact that applicants’ money might be extracted under false pretenses serves to justify all the rage against the machine currently found online.  For those bloggers and discontents truly devoted to changing the system and preventing others from making ill-informed choices, I have a serious respect.  They are shining a spotlight, and it would be foolish to believe that the spotlight hasn’t helped motivate change.[2]

But there’s even more to it than the money angle.  The same institutions that are being accused of taking money under false pretenses are also the ones charged with educating future lawyers about ethics.  This is a lot like your mother scolding you to stay away from sweets while she shovels cupcakes into her mouth.

Such hypocrisy—even the perception of such hypocrisy—creates a serious obligation for any attorney aware of the problem, regardless of whether they have ever personally felt wronged by the system.  Every day, there are newly-minted lawyers out there desperately searching for employment and/or trapped in employment they despise.  And many might rightfully feel bamboozled by the system, having paid particular attention to employment statistics when applying to law school just a few years before.

For those of us who have been in the trenches for a few years now, it is our job to pick up the ball where our legal education institutions have dropped it.  We are obligated to impress upon the newest members of our community that while it appears some law schools can have their cake and eat it too, we cannot.

No matter how rough it gets out there, we need to convey to new attorneys that our conduct is governed by ethics rules and codes.  We need to convey this message even when some of the very people charged with teaching those rules are making a mockery of them.

If law schools are dropping the ball, we, as mentors, are all that’s left.

Joe Perry is a Senior Staff Attorney with the D.C. Office of Bar Counsel.  He can be contacted at perryj@dcobc.org.

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[1]           See, e.g.  http://insidethelawschoolscam.blogspot.com/; http://lawschoolscam.blogspot.com/

[2]           See, e.g., Sloan, K., ABA gives ground on law schools’ graduate jobs data reporting, http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202534457162&slreturn=1 (detailing changes in the manner the ABA will collect graduate data in the future)

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Looking for a mentor? MSBA members have access to a Mentoring Program.

Looking for a step in the right direction? Check out MSBA’s Legal Career Center, or this recent article by Pat Yevics: Legal Career Building Tips. Both are great tools at any level of your career.

Coupons for Lawyers

With the advent of new technology, including, the internet, business owners are capitalizing on the latest and greatest ways to market their businesses. One such tool, is the latest trend where merchants advertise their products and/or services through the use of daily deal websites, i.e. Groupon or Living Social. On these websites, consumers can sign up to receive an email detailing the online daily deal coupon. These coupons provide drastic discounts upwards of 50 to 70 percent off of a product or service and if enough users commit to purchasing the discounted deal, then the deal goes through and the website company and the participating business split the proceeds of each deal.

There was a time, years ago, when lawyers were prohibited from advertising their services in any medium. Today, times have changed and lawyers that once advertised in the Yellow Pages are now using the internet as a way to attract more business. Because technology continuously evolves and the law remains static, the legal community is now looking more closely at the use of these daily deal websites as a viable option for advertising legal services.  Because website companies like Groupon collect the advanced payment upfront from the consumer and retains a portion for themselves and then turn over the remainder of the fee to the merchant, the real question is, can a lawyer ethically use these websites to advertise their legal services or is it a violation of MRRC 5.4, which prohibits an attorney from splitting a fee with a non-lawyer? MRPC 5.4(a) (Professional Independence of a Lawyer) states, “[a] lawyer or law firm shall not share legal fees with a nonlawyer.” Although Maryland has not yet opined on this issue, other jurisdictions (Missouri, North Carolina, and South Carolina) have, and decided in favor of the lawyer advertising with special considerations and warnings for lawyers who choose to use these websites services. A lawyer in Missouri advertised his legal services and offered a $99 deal for the drafting of a will and a power of attorney and 50 prospective clients purchased his deal. While this may seem like a lucrative way to attract new clients, an attorney must consider whether it is feasible to use such a website for their practice area. For instance, if a lawyer handles primarily contingency fee cases, the daily deal advertising just won’t work because it is not a fixed fee, but rather, can change depending on the individual case. Additionally, there are many ethical implications that must be taken into consideration. For example:

• Lawyers must still comply with the advertising Rules. [1]
• Lawyers must, in acting as fiduciaries, treat, unearned fees as property belonging to the client pursuant to MRPC 1.15, and maintain such fees in an attorney trust account until earned.
• Lawyers must return any unearned fee to the client pursuant to MRPC 1.16(d) Termination of Representation.
• Lawyers must ensure that the fee charged is reasonable pursuant to Rule 1.5 Fees.
• Lawyers must not engage in conflicts of interests as outlined in Rule 1.7 Conflicts of Interests.

Because there are countless varied scenarios and the potential for ethical pitfalls, lawyers should cautiously wait to see if this approach to lawyer advertising comports with a lawyer’s ethical requirements under the Rules of Professional Conduct.

If you are interested in an easy way to set up an online presence for your firm, check out MSBA Endorsed Vendor ESQSites. If you are a member of the MSBA you qualify for special offers. Just log-in to find out the reference code behind the link at the bottom of the page.

Also check out the new MSBA App for iPhone, Android and Blackberry, which keeps the Maryland Professional Code of Conduct right at your fingertips!

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[1] MRPC 7.1 Communications Concerning a Lawyer’s Services states, in part, “[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. . . ”  MRPC 7.2 Advertising governs a lawyer’s use of a website for marketing and authorize such use for advertisement purposes. Specifically, MRPC 7.2 (a) states, “[s]ubject to the requirements of Rules 7.1 and 7.3(b), a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television advertising, or through communications not involving in person contact.”

Retainer Agreements and Rule 1.5(b)

The most important aspect of the attorney-client relationship is the contract between the parties. If you have not recently taken the time to review your firm’s retainer agreement, now is a great time to make sure you are in compliance with the ethical rules.  Rule 1.5(b) of the Maryland Lawyers’ Rules of Professional Conduct (hereinafter “the Rules”) sets forth the ethical requirements for retainer agreements and states, “[t]he scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate.  Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.”  Although the Rules do not require that a standard (non-contingent) retainer agreement be in writing, it is a good practice for an attorney to memorialize such an agreement so that in the event that a dispute arises, the parties can review the document.

There are two requirements under Rule 1.5(b). First, the retainer agreement must clearly state, “the basis or the rate of fee,” or in other words, how the attorney will be compensated for their legal services.    Therefore, whether the fee is contingent[1] on the outcome of a recovery or settlement, an advanced fee for legal work to be performed in the future,[2] a flat fee, an hourly fee that will be billed to the client as work is performed, a statutory fee, or a combination of these fees (also known as “hybrid retainers”), it is important for the attorney to set forth and explain to the client how they expect to be compensated regardless of the type of retainer agreement.

Second, the retainer agreement should clearly state, “the scope of the representation,” or stated another way, the legal services that the attorney has agreed to perform.  When describing what the scope of the representation is, an attorney should provide as much detail as possible and, in some instances, it may be appropriate to include the services that the attorney will not provide under the retainer agreement. An attorney may want to include language that should further legal services be required, the parties, can either modify the current retainer agreement or enter into another retainer agreement altogether at an additional cost to the client.  For example, if an attorney is retained in a criminal matter and represents a client at trial, the attorney should state in the retainer agreement that the representation does not include any appellate work, should the matter present such a necessity. Having such detail in the retainer agreement will help eliminate any confusion in the event that the client is convicted and desires an appeal.

Lastly, Rule 1.5(b) requires that the attorney inform the client of any expenses related to the representation for which the client will be responsible.  By doing so eliminates any undue surprise on the part of the client once his or her matter is resolved.

Having a good iron-clad written retainer agreement serves as source of protection not only for the client but the attorney as well, especially in the event that the client files either a grievance with Bar Counsel’s office, or a fee dispute.

For more information on this topic and more on starting a solo practice, listen to this Podcast by Anthony I. Butler, Esquire. http://www.yls.org/sec_comm/sections/yls/podcasts.asp

Also check out the new MSBA App for iPhone, Android and Blackberry, which keeps theMaryland Professional Code of Conduct right at your fingertips!

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[1] Contingency fee agreements in Maryland must be in writing. (emphasis added).  Rule 1.5(c) states, “[a] fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law.  A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated.  The agreement must clearly notify the client of any expenses for which the client will be responsible whether or not the client is the prevailing party.  Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter, and, if there is a recovery, showing the remittance to the client and the method of its determination.”

[2]  Maryland takes the default position that advanced fees are considered unearned upon receipt and are property of the client unless the client agrees to a different arrangement.  Rule 1.15(c) states, “[u]nless the client gives informed consent, confirmed in writing, to a different arrangement, a lawyer shall deposit legal fees and expenses that have been paid in advance into a client trust account and may withdraw those funds for the lawyer’s own benefit only as fees are earned or expenses incurred.”

What is Good Communication?

One of the most common grievances that clients lodge against attorneys is an attorney’s failure to adequately communicate with them.  While the Maryland Lawyers’ Rules of Professional Conduct[1] does not define the term “adequate communication,” attorneys should take the time to determine what that term means for their practice as communication is the key to establishing and maintaining a good attorney-client relationship. As such, it is a good idea to implement an office practice that is communicated to the client early in the representation. For example, it is a good office practice to inform a new client that telephone calls are returned within a certain time period (e.g, a 24 hour period, or 1-2 business days).  Another good office practice that some attorneys implement is to send their clients a carbon copy of all pleadings and correspondence in the client’s matter as way to keep them informed of the status of a litigation.

In our technology driven world, many attorneys communicate with clients in a multitude of ways: telephone calls, letters, e-mail, instant messaging, Skype and the like.  However, the most effective and recommended way to communicate with a client is by way of a carefully drafted letter.  It is perhaps the best method to convey important information to the client with regard to their legal matter, especially if it requires the client to make a decision about a recommended course of action.  This is because communications made by telephone or e-mail can sometimes be made with haste and may be later forgotten or misconstrued by the client. However, creating a well written letter (copied to the file) that requires the attorney to reflect on the legal advice or information given to the client, not only benefits the client, but also, serves as a level of protection for the attorney as well in the event that a disagreement about the information conveyed or misunderstanding between the parties should occur. Written communications should be made to the client throughout the course of the representation. The representation should start with the initial engagement letter/fee agreement that sets forth the scope of the representation and the rate or basis of the fee.  If there are important developments in a client’s matter (settlement offer, upcoming court date, expert witness fees needed) or some other important information that the attorney needs to share with the client (change in office address or contact information, attorney on extended vacation, attorney closing their practice), it should always be in writing. The representation should also end with a termination/closing letter notifying the client that the matter is either resolved or that the attorney is terminating the relationship.

An attorney that takes the time to develop a good office procedure with regard to how he or she communicates with their clients will not only make for a more efficient practice but will also ensure that the attorney does not run afoul of the Rules of Professional Conduct.

The Lawyers’ Rules of Professional Conduct are now available via new mobile apps  for the iPhone, iPad, Android and Blackberry, a project of the Young Lawyers’ Section.

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[1] Maryland Lawyers’ Rules of Professional Conduct  Rule 1.4 (Communication) states:

(a)  A lawyer shall:

(1)  promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(f), is required by these Rules;

(2)  keep the client reasonably informed about the status of the matter;

(3)  promptly comply with reasonable requests for information; and

(4)  consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Maryland Lawyers’ Rules of Professional Conduct or other law.

(b)  A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Effective Client Screening

By Dolores Dorsainvil

Running a successful practice includes the ability to effectively screen prospective clients. In this tough economy, lawyers need to establish a practice policy by which they are able to make appropriate screening decisions about the clients they wish to represent. Doing so would assist an attorney in not feeling the need to accept any and every legal matter that should come through the door; and, it would also assist an attorney in avoiding possible ethical pitfalls and/or disciplinary complaints.

The initial meeting with the prospective client is an important time to assess several things. First, an attorney should determine early on whether he or she is qualified to handle the matter. (If an attorney does not feel competent enough to handle such a matter, than it is advisable for the attorney to send the prospective client a writing indicating so in the form of a non-engagement letter.) Second, the meeting provides the attorney an opportunity to assess whether the client will be a high risk or difficult client. Third, the attorney should determine what the prospective client’s expectations are and also determine whether the attorney can reasonably satisfy those expectations. After making these assessments and advising the client on the applicable law and/or the legal process, an attorney should inform the client on their fee basis and the attorney should consider whether the client can meet the attorney’s financial expectations.

If an attorney is able to complete these steps without incident, the decision to undertake such a representation should be a fairly easy one. However, there are some prospective clients that may cause an attorney some concern. When faced with these warning signs, an attorney may wish to decline the representation:

• Client who is changing lawyers
• Client who has had several previous lawyers on the same matter
• Client whose expectations exceed the evaluation of the case
• Client who has unreasonable motives or a hidden agenda
• Client who has performed considerable amount of research on the case
• Client who refuses to pay the required consultation fee or retainer
• Client who you cannot empathize with
• Client who makes you feel uncomfortable

While this list is certainly not exhaustive, an attorney should recognize certain negative gut feelings that they may have about a prospective client. Doing so will help an attorney make the critical judgment call on whether, or not, to accept the representation. Developing an effective client screening process means an attorney will spend less time defending against bar complaints, malpractice actions, and fee disputes, and can spend more time, in the long run, focusing on such things as client development, marketing, firm growth, and professional development.

For more information on this topic, check out this Podcast:  Dolores Dorsainvil on Law Practice Management.

Dolores discusses the importance of law practice management, effective client screening, retainer agreements and how to handle attorney trust accounts. She also explains what attorneys should do if disputes arise with clients and where to turn for assistance.

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For more information, check out this article on Choosing Clients Wisely by Pat Yevics, MSBA LOMA director. Another helpful link from MSBA LOMA is this sample Client Intake Form.

Hello Maryland Young Lawyers Section!

Here you will find regular blog posts with relevant topics to young and new lawyers in the area.

Please check back soon for a new post from Dolores Dorsainvil, Our Gavel contributor!