Lawyers’ Greatest Fear: Chaos

The ABA did a survey recently to identify what lawyers were most concerned about in their practices. The (not unsurprising) answer was “chaos” – in other words, a fear that their practice is out of control, and consequently, something terrible might happen to a matter – and to them.

I agree wholeheartedly with the ABA’s conclusion, and was inspired to write an article, which Attorney@Work is publishing as a three-part series. I detail what I see, from my 20+ years of experience working closely with hundreds of firms, are the reasons, and offer some practical solutions.

HERE is the first installment. And by the way, if you’re not a subscriber to Attorney@Work, you should be. A daily dose of good stuff.

You Won’t Need an “Emergency Plan” for Your Practice if You Have A “Growth and Success” Plan In Place

Susan Carter Liebel just posted an article on the Solo Practice University blog – a powerful and meaningful story that every sole practitioner needs to read and heed: “Emergency Planning – Thinking About the Unthinkable.”

But – in my opinion it doesn’t address the underlying issue. The best attorneys don’t need an “emergency plan” because they have built a FIRM with systems, procedures and team members who know – because they’re working on – everything that’s going on – every client, every file. Maybe it’s only one well-qualified paralegal/assistant, or maybe its a sharp associate and several team members. With this, another attorney can walk into the practice and have all the tools necessary to keep it moving and keep clients safe. In fact, even when the attorney is not there – whether for an emergency or a vacation – that good team is taking care of clients and watching over the practice. The solo-solo or the solo with only an untrained clerk don’t have anyone besides themselves who know what’s going on in the practice. They may have lists and stack of files, but most usually all the critical information is in their head.

As Michael Gerber said in “The E-Myth,” if nothing gets done when you’re not present, you don’t have a business – you have a job.” And there’s another issue. The attorney with no team has an absolute limit on his or her firm’s growth, because they have an absolute limit on their time and energy. And their family often has a limit to their tolerance of an absent spouse or parent.

So the greater truth is that the better kind of “emergency plan” is really a plan for growth and success – and the possibility of having a personal life. I just did a 10-minute video titled “The Almost Lone Ranger Syndrome”  that addresses exactly this issue. I just don’t address it as an “emergency plan” issue.

Why You Need a “Lie Detector for Your Email”

The Wall Street Journal today had a much-needed article – take it as a warning – about how to, as the sub-head said, “read between the lines” to spot lies in your e-mails.

The scary part is that we need this training. We really need it.

The article reflects what I’ve been saying for years in my CLE programs: 80% of communication is non-verbal. Digital communications are convenient, but by their nature, incomplete. Some choice bits from the article:

“Experts say that the vast majority of our interpersonal communications involves body language – gestures, facial expressions, tone of voice. Take these intangibles away, as we do with digital messages, and we are left with far fewer clues as to what is really going on.”

And here’s an especially juicy one: “Research shows people tend to be suspicious of information they receive online but override their suspicions and trust the information anyway.”

Whew. Even lawyers? The original paranoids? Yes. Unfortunately.

Missing from the article was information from earlier studies that have shown people are more willing to lie, tell half-truths and obfuscate in emails or text messages. Even people who wouldn’t do it to your face.

My urgent advice:

First, when you have a client who ONLY wants to communicate by email, and won’t talk to you in person or on the phone, be suspicious. Very, very suspicious. And expect some difficult – and too often messy – surprises.

Second, simplify your digital communications to avoid humor, sarcasm, implications – in other words, reduce your communications level to that you’d use with a 5-year-old. Simple. Facts. No chat.

Third, read it over before you send it to see if there is anything that might be misconstrued.

Fourth, never – let me repeat that – NEVER – give anything that could be construed as legal advice in a text message. Your clients pay you not just for your legal skills but your “careful and thoughtful consideration” of every aspect of their matter. And text messages encourage reactive thinking. So, while I suggest (in vain) that attorneys do not communicate with clients via text messages, at least consciously keep it to non-legal, purely procedural stuff like confirming a meeting. Never express an opinion in a text message.

Fifth, always have your radar up with all incoming communications. Expect that there will be incomplete communications, intentional or unintentional obfuscations, half-truths, omissions. Expect that they and you will likely misinterpret something somewhere.

And finally, whenever you feel uncomfortable, unclear, confused with any incoming communication, seek deeper communication. Pick up the phone. Meet with them personally if possible. Because if email communications aren’t sufficiently communicating everything to both sides, more email isn’t likely to help. Eyeballs work best, voices are the next best choice.

Remember that for some clients, a grievance or malpractice suit is an easy answer. But it won’t be for you. You need to arm yourself against a problem you may not sufficiently understand. So read the whole article. And heed its – and my – advice.

DON’T DON’T DON’T Use Free Email Like Google, Yahoo, MSN

Just received my third spam e-mail this week from a friend who uses the free Yahoo email service.

If you value your professionalism – if you value your ethics, and the security of your client communications, DON’T use free e-mail because there is absolutely NO security, and your contact list and the contents of all your e-mail is in the cloud for anyone who wants to grab it.

You DON”T have to have a website to have a secure email with your own domain name. It’ll cost you about $7 a month plus the cost of buying your own domain name, which is a one-time charge of maybe $6-12. If that’s too expensive, maybe you’re in the wrong business.

It’s easy. Here’s how.

Go to http://www.godaddy.com/. Find the “All Products” link at top left. Click on it. A menu will drop down. Click on “Email.” Another menu will pop up. Choose “Business Email.” Another page will pop up. Choose the center one, “Business Email.” When you do, yet another box will pop up which will urge you to upgrade to unlimited e-mail. Do it. You’re now up to a grand total of $6.99 per month for a complete e-mail interface, unlimited e-mail storage, 10 email addresses and a shared 10-user calendar. Or stay with the basic.

If you don’t have a domain name, you’ll need one, so follow the second option through and find one that works for you. Add another flat fee of maybe $6-12.

Finally, now that you have your own domain name, bite the bullet and create your own website. if you have even basic computer skills, you can do it yourself, or turn it over to your 13-year-old relative. But you do need one, now that you have your own web address for email, because as soon as the recipient gets your e-mail and sees the domain name, they’ll try to look you up. So you’d better be there.

The fact is, you really, REALLY REEAALLY need a website, especially if most of your business comes from referrals. Because increasingly, when someone gets your name from a referral source, they’ll check you out on the web before calling. So, if you don’t have a website, there are who knows how many people who DON’T call you, even though someone referred them to you.

So. A stealth way to push you to get a website – as part of FINALLY getting safe, secure email.

If I can offer any further thoughts, shoot me an e-mail at dustin@attorneysmasterclass.com.

Four Good Reasons to ALWAYS Do a Non-Engagement Letter

Made an offhand post to the ABA GP Solo LinkedIn group the other day. THought it was worth sharing here. 

When a prospect doesn’t hire you, should you send them a non-engagement letter? But of course. Here are my four reasons to do so.

The first reason is obvious – to have a track in your file that says you notified the person you were not representing them. That’s just good risk management, and most malpractice carriers love it when you do that.

The second is about professionalism. Someone considered putting their well-being in your hands. That’s an honor that deserves a “thank you.”

And the third is that thing called “marketing.” Part of the letter should detail how else you might be able to help them or someone they know in the future.

And the fourth follows the third. They should now be added to your marketing database for future contact (you DO keep in touch with past clients and prospects, don’t you??). By the rules of ethics, once someone has asked you for information, there are no barriers to future contact. It’s no longer considered “solicitation.” You can send them your firm newsletter (please don’t – they’re usually boring as H–) or better, devise some good and positive ways to communicate with them that they receive as positive, helpful and useful.

Those last are numbers two and four of the four fundamentals of personal marketing: build trust relationships, and stay in touch consistently over time. In other words, create “top of mind awareness” so that, next time they have a problem, they think of you first.

Oh, and it’s never a good idea to prejudge or assert anything about a case or the prospect in the letter. You could easily be sued for giving bad legal advice (after all, you didn’t get to the discovery, did you?) or defamation of character. So it’s best to simply say “I am not able to represent you at this time.”

The Rise of the Walmart Lawyer

First came the Legal Grind. Then came Chicago’s Legal Cafe. What’s next?  A prediction.

Walmart – or some other Mart – will contract with LegalZoom or an equivalent to re-sell their service, buying it wholesale and selling it retail. They will then place hungry, young, otherwise unemployed lawyers in small cubicles next to the bank & the tax preparer cubicles, paying Walmart wages, to await customers needing a will or a lease or some other simple legal work. The lawyer will briefly interview the customer to determine their need, then find the appropriate form on LegalWhatzis, help the client enter information and print the document out, and offer a brief explanation of the document. The customer (note – not “client”) will then whip out their debit card and pay Walmart for the LegalWhatzis service plus a service markup – with a voluminous disclaimer printed on the cash register receipt.

And, as Inspector Clouseau would say, voila! The customer has bought a LegalWhatzis document. Has a lawyer-client relationship has been established? Walmart has made a profit from re-marketing LegalZoom. Enter the Walmart divorce, the Walmart will – courtesy of LegalWhatzis.

Hyatt Legal Services, eat your heart out. And Bar Associations get ethics heartburn. Who is liable for malpractice? Walmart, the young hungry lawyer, LegalWhatzis?

And wither the young hungry? Double shifts in the sporting goods department and free chili dogs at the snack bar?

Trust Accounting & Credit Cards – A Potentially Combustible Pair

Colleague Peggy Grueneke, in her blog lawbizcoo, explains how the new IRS regulations concerning credit card acceptance create a very nasty web of ethical, financial and legal  traps for law firms. Accepting credit cards is increasingly important for all attorneys, but these new regulations create a level of complexity that could stop some from doing so. Clearly the new regulations come from the retailer point of view (users are all labelled “merchants”) and never considered the issues of trust accounting and retainers. An absolute must-read. if you’re out of compliance you could also be out of luck.

“Top Ten Causes of Malpractice” Article Hits Home

My recent article “Of The Top 10 Causes of Malpractice & Grievances – 8 Are Sloppy Housekeeping!” has been reverberating around the web thru LinkedIn, Twitter and e-mail at a far greater volume than I ever expected, especially my comment on the all-too-typical lack of control of open files. I’ve lost count of the times I have forwarded my Case Manager Form to worried attorneys.

So I’ve decided to follow up in three ways. First, I will deconstruct the half-day seminar I have been conducting around the country,Ethics and Managing Risk in the Law Firm into small bites, and post them right here over the next few weeks.

Second, I will offer a free 30-minute coaching call on key areas of concern to the first 10 people who send  an e-mail request to me at dustin@attorneysmasterclass.com.

Third, I will again offer my Case Manager form, which provides a simple way for attorneys to track & manage the work, to anyone. Just e-mail me a request to the above address.

And stay tuned. If you’re not one of the first 10 requests, I’ll extend the offer again with each bite of my risk management program, so try again next time.

“Ethics and Managing Business Risk In the Law Firm”

On July 26-27 I’m conducting a very important seminar in Greenville & Columbia, South Carolina. “Ethics and Managing Business Risk In the Law Firm” is a risk reduction program with a major marketing training component, because I believe a high percentage of malpractice and grievance problems occur due to insufficient income, which compromises the attorney’s ability to deliver the highest quality work and can tempt good attorneys to misuse client funds.

A catastrophe or a serious error can completely destroy a legal career. Too many good attorneys have gone down in flames because of lack of preparedness for a disaster(and they come in a wide variety, from natural to employees or even partners), or lack of income. Because of its importance, it qualifies for 3.0 South Carolina MCLE credit hours, including up to 3.0 LEPR credit hours.

If you’re anywhere close, I encourage you to attend. You can register at http://bit.ly/IZRt6n. If you would like a copy of the handout, e-mail me at dustin@attorneysmasterclass.com

Of The Top 10 Causes of Malpractice & Grievances – 8 Are Sloppy Housekeeping!

The Florida Bar Law Office Management Assistance Service, and its Director, my friend Judy Equels, a while back shared some startling statistics with me as we co-developed a legal risk management program.

I’ve often said that most good lawyers are terrible business managers, and these statistics prove just that: of the top 10 most common malpractice & grievance issues, the top 8 are NOT LEGAL BUT OFFICE MANAGEMENT related – AND HIGHLY PREVENTABLE through instituting of basic operations systems and procedures. They are:

1. Failure to manage time/procrastination
2. Failure to docket – identify/document deadlines
3. Failure to manage information
4. Failure to obtain client consent
5. Failure to file documents timely
6. Missed or unresolved Conflict of Interest
7. Poor communications with client
8. Failure to follow client instructions
9. Inadequate discovery/investigation
10. Failure to know/apply the law

How do you know if you’re at risk? If your answer to this basic question: How many  files do you have open right now is – “uh, about. . .” If you don’t have a daily handle on how many, what you’re currently doing in each, and the deadline for its completion – you could well be headed for the cliff. At the very least, you’re losing too much sleep worrying about what you might have missed in that pile of files on your desk

Don’t ignore this major sign of potential disaster. If you would like a copy of my simple tool, the Case Manager Form, just shoot me an e-mail at dustin@attorneysmasterclass.com and request Form TP-04.

Oh, the Places You’ll (Fail to) Go: How Great Intentions Turn Into Great Disasters

Each time I’m called to conduct a retreat, I’m reminded that lawyers are great at lawyering, but often stink at anything relating to effective business operations. One recent “retreat,” actually an informal mediation in a year-old two-attorney merger, was typical.

Musing 1: The Shoemaker’s Children Have No – Common Sense.
Two plaintiff attorney “partners” had been working together as a “firm’ for over a year without anything in writing. No shareholder agreement. No compensation/origination plan. No shared responsibility for the credit line. No employment agreement. Now these two, who had started out as friends, were trying to sort out all the “I thought you” and “remember we discussed” and “I don’t recall,” “you owe me for…” and “I deserve…”

The result was predictable. Nearly all the optimism lost, fear and anger rising. On the verge of MAD – mutual assured destruction.

I was called in to see if this “partnership” be saved. After a tough day, we were able to work through most of the issues without bloodshed. But in the long term, even if the partnership proceeds, the friendship and trust will remain wounded – unnecessarily. All because they didn’t make it a priority to work out all the issues BEFORE moving in together.

Do YOU have a partner agreement & compensation structure, or just a handshake? “We trust each other” won’t be enough when big enough problems surface. Take time now to get it all in writing.

One partner dispute I remember from the distant past resulted in seven years of suits and countersuits. Worse than breaking a mirror.

Musing Two: Cancer Sometimes Masquerades as a Friend
The two above partners wanted to make it work. Unfortunately, one attorney’s longtime trusted right hand staff member didn’t want her world disturbed. Like a spoiled child, she subtly spread rumors, created dissension, and destroyed staff trust. Her sabotage and lack of cooperation was close to destroying the attorney’s trust in the incipient partner. Fortunately we were able to finally recognize the problem. If blind loyalty trumps a better future and staff is running the firm, it’s time for the attorney to turn in his diploma.

Musing 3: Succession Planning Isn’t for Wusses.
The purpose of the merger, such as it was, was to create a succession plan for the senior attorney. Unfortunately, it was approached in the same way as the “partnership.” No plan, no structure, no idea of what was needed to make it work – and a deep paranoia from the senior partner, even though the whole idea was his in the first place.

Succession planning isn’t for wusses. Attorneys who think they know everything too often end up failing miserably at the process. And both the senior and junior attorneys end up losing literally hundreds of thousands of dollars in personal income.

What we grudgingly cobbled together in the retreat worked for a few months. But presently the two are in a legal and financial struggle to the death, which will entail multiple lawsuits and mutual bloody clubbings in court.

If you’re looking toward a transition of any sort in your practice, doing it right takes planning and expert guidance. Anything less could be one of the most expensive mistakes you’ll ever make. Don’t do it blindly or ex post facto. Get expert guidance. Not sure where to find it? Call me. 407-830-9810.