kaufman

For most lawyers, those with brick and mortar offices, when you get a call from a potential client, you ask the “usual” questions: What’s the case about? Who is involved? Do I have any conflicts I have to resolve? Can I do this work competently? But lawyers and law firms who have a virtual law office presence on the web have another issue to address: What jurisdiction is the law suit in? If you are not admitted in the relevant jurisdiction you have a problem. The state Bar Associations have the same rules for Virtual Law Offices that they have for “usual” ones and if you are practicing in a state where you are not licensed that’s the “Unauthorized Practice of Law” or UPL. The Bar Associations take this seriously and you ignore those rules at your own peril.

So, if the potential client is located in your area, great. If their need matches your firm’s strengths, even better. If not, then offer the potential client names of local counsel who can recommend good attorneys in the in the jurisdiction and in the particular field of law they need.

Kaufman Law Group, PLLC has this jurisdictional issue happen all the time. We are licensed in the District of Columbia, Maryland and Virginia but are happy to help people find help in other jurisdictions if we can.

Here is the scenario:

You work with Joe X but don’t get along with him. You feel he’s abusive but can’t do anything about it. Then Joe X starts dishing out the same abuse to his boss. The boss man exercises his boss man prerogative and fires Joe X. So far, so good. You breathe a sigh of relief. But now Joe X is going around saying he was fired because of you. He has been writing this on his blog, on Facebook, and telling everyone he knows that this is what happened. Because of his statements, the firm now fires you. Can you sue Joe X now? What about suing your employer to get your job back? Enquiring minds want to know.

So how do you find out? Self-help is a good start. Go on the internet. Don’t we all? Type into Google (or your other search engine) what you need. Thousands of hits pop up. Which one should you call? You might visit AVVO.com or Lawyers.com or one of the other major sites. They work well in channeling visitors to specific attorneys. But there are issues. Two issues specifically:

1. Is the lawyer licensed in your state? If not, he can’t help. He may not even know the law as it applies to you because each state is a little different and little differences can add up to the difference between winning and losing your case.

2. Does the lawyer regularly practice the sort of law that you need. A lawyer who specializes in drafting wills cannot give good advice about the case in the scenario above. If you are lucky, she may be able to suggest someone who can. If she has the time to talk to you for a few minutes.

Note: you might actually need 2 different types of lawyers: an employment rights lawyer and a defamation lawyer (1 for the job and 1 for Joe X).

Many of us have had the joyous encounter of a lawyer who tries to bully and belittle us. They seem to think it makes them winners. Or that their clients will respect them more. Or something. They can be a giant pain in the (pick your own reference here). So how do you deal with them effectively?

Don’t talk to them. All communication is on the record and set up for the judge. A friend of mine does this:

“Dear counsel: In our conversation today you [snarled into my face that you would (not) .....] or declared that you had nothing but contempt for my client or that I “couldn’t litigate [my] way of a paper bag” and that you would “kick [my] little girl ass.”] Not only were these comments false, but the tone and manner in which you delivered them suggested that you may be placing your own personal feelings above the interests of your client or your duty as an officer of the court. Regardless of your motive, your manner of expression does not lend itself to working with you in telephonic or in-person conference. Accordingly, I must insist that you direct all future communications to me in writing.”

Another friend says that EVERY time the bully violates on of the rules (verbal put-downs, dissing you in front of your client, late service of papers, refusing to answer phone calls, etc.) write him a letter documenting the bad behavior. Then, as needed, you bring one or more motions for sanctions. This paper trial will set up a bar complaint or other issue with the judge in the case.

In depositions, I encourage you to take video depositions. It’s absolutely amazing what people will do, even when they know the cameras are running. If you are not sure what I mean, go to YouTube and search for “depositions.” Amazing, truly amazing.

Twenty years ago, when I was starting out as a lawyer, cell phones were exotic. Worse, they were insecure. People hated talking private business on them. In fact, there were legal ethics opinions that lawyers should not discuss confidential client information on cell phones. How times have changed! Now, everyone does it and doesn’t think about it. It’s taken for granted. Part of this is familiarity and part is the evolution of cell phone technology to digital rather than analogue. But even digital calls can be tapped. It’s just harder.

What about email? Or Facebook? Or any of the other ways to communicate? These days it’s complicated. Some lawyers have taken to discussing this explicitly with their clients and then having the clients sign a waiver indicating that the client knows the risks and is willing to take the risk of having their confidential communication(s) intercepted in exchange for the convenience of email/fax/whatever method of communicating.

What do you (my potential clients) think? All of you so far just seem to like email and cell phone. But have you even thought about the question. I’d like to know.

What should you (the attorney) do when you are concerned about the other side in a case. Recently I saw a post where an attorney was concerned about taking a domestic violence case because the other side a) had a bad temper; b) was violent and c) owned some guns. The lawyer was concerned about the other side showing up at the office or at home. I would add to that, worry about your own client(s) too since clients have a distressing track record of shooting their own attorneys when things don’t go “right.”

First of all: we all worry that the other side will take things personally and come after us. Even people who you never would have thought could be violent can snap. Keep that firmly in mind whenever you are doing something contested. It doesn’t have to be litigation, just contested. Making people angry is part of my profession. I know that. It’s the (very) rare person who takes it personally, and even rarer to go after my family. But it can (and does) happen sometimes. So you have to pay attention.

If you are interested in this, under Resources are my 101 Personal Protection Tips. And my 101 Business Protection Tips. Help yourself. If you are worried about your office, the ABA has a book I helped write with an entire chapter on how to design your office for safety and security.

A couple of specific things to alert you to however:

• Gavin de Becker wrote a book recently called “The Gift of Fear.” It’s a great book with a simple message: Trust your instincts. Over millions of years the human animal has evolved an early warning system that allows us to detect threats. Listen to it.
• Don’t give out free chances to your enemy. That means don’t walk down dark alleys, don’t park in isolated places, don’t be distracted by ear buds, etc. I’ve written literally hundred of blog posts and rants about distracted walking and how you can get into trouble with that.
• Get into your car and START THE ENGINE first. Don’t sit and fiddle, don’t stop to put on the seatbelt, don’t adjust things. START THE ENGINE. Then you can drive away immediately if there is a problem.
• Get an alarm system.
• Think about whether or not you want to learn to use a handgun. If you decide you do, learn to use it. If not, that’s OK too. But think about it. There are consequences from either decision you make. This is another subject I’ve written about extensively.
• De-list your home address from the public record base. Try zabasearch.com and some of the others to find out. Then take steps to have your records removed or redacted.
• Be sure your office has a back door.
• Don’t be predictable.

The art of saying goodbye starts very simply with a list: should you say goodbye?

Does the client pay his/her bill or not?

Does he/she fight you over the amount you have charged?

Does he/she follow your advice or just use you to justify his/her bullying behavior to others?

Is she trying to become your friend and making it tough to bill her?

Does she contradict your every action on her behalf by saying she never told you to do what you are doing?

Do you leave a conference with her/him scratching your head and wondering what the heck is wrong with you?

These are just a few warning signs that you need to withdraw from the case before you do any of the list below.

Change your billing rate for the client

Continually negotiate your bill

Wonder if the ethics board is going to get involved in a potential suit because the client just isn’t happy with whatever you are representing her on

If you see any of these actions on your part in any of your cases, the time has come to say goodbye to the client.

The best way is to be honest. Tell the client there are certain standards and assumptions that you have to bring to any case as a good and responsible attorney. You have to tell him/her that it is your own standards that force you to part ways with her/him.

Stick by your guns. File a withdrawal in court. Allow the client time to find other representation while you are continuing to be kept on the books as her or his attorney. Then burn a cd with all the case work to hand on to the next attorney or if the client chooses to represent him or her self then send the cd to the client.

And write a note to yourself about lessons learned.

Sometimes a client will come to my office and bring a number of other people with her (or him or them). This may or may not be a good idea, depending on circumstances. For example, if the client is a legal minor (I don’t represent them now, but I did once upon a time) I will need the client’s parent or guardian to sign the contract and pay the bills. But sometimes the client will have to tell me things they don’t want their parent or guardian to know about. Things which can be critically important to their case.

On the other hand, sometimes I am being hired by a legal adult. But they want to bring their husband/wife with them. Usually this is OK as whatever they say to me is also protected by the marriage privilege. But not always. And, again, sometimes there are things I need to ask or know about which the client does not want their husband/wife to know about. Worse, what do I do with long-term couples who are not married? There is no privilege then. You can be forced to disclose anything I say to you or you say to me. That’s not good.

There is an exception for circumstances where there is a language difficulty and an interpreter/translator is needed. But every state I know of has a specific statutory exception for interpreters/translators who are working with the lawyer.

This issue is a regular topic among lawyers. We worry about it a lot. There are different approaches we take. Some allow everyone to stay for at least part of the meeting but absolutely ensure that they have some private time with the client. Enough time to be assured that the client has told the lawyer everything. Others prefer to explain the risk to the client and let the client decide. If your lawyer takes this approach, take it from me: s/he’s just being nice. Dump the witnesses and talk to the lawyer on your own. It’s so much safer.

This may, actually, be a running theme on this blog. But I just can’t help it. It appears that big firms charge 2 or 3 times as much as I do, even when I charge the same hourly rate (which I don’t–my rate is about 60% of theirs). Why, then do the big firms charge so much? Well, consider this for an answer:

Suppose a case has an odd fact that affects whether or not a particular law applies. A small firm lawyer looks up the law and proceeds accordingly. S/he may not even bill the file for “checking a statute” but could, depending on exactly what is being checked. But if it does take some time to research, s/he only bills the research time (maybe 0.6 hours). But if the question comes in a BigLaw firm, the partner asks the question (billing 0.1 hours) of a Senior Associate, who thinks about it (billing 0.2 hours) before passing the question to a Junior Associate to research. The Junior Associate then looks up the answer, writes a 2 page memo for the file (billing 1.2 hours because first you get the answer, then you have to write it up so someone else can understand what you did and why you got the answer you got) and sends it back. The Senior Associate (assuming no typos or additional questions) reads the 2 page memo (billing 0.4 hours) and sends it to the partner who scans it (billing 0.2 hours) before calling the client to answer the question (billing 0.2 hours) . This totals 2.2 hours v. my 0.6 hours. Finally, in BigLaw firms, the client is frequently billed for photocopies and secretarial time to type the memo.

Does this help?

Now you know why I like to work in my own small firm.

When faced with a sales clerk pressuring you to sign AT&T cell phone contract or buy that dish network tv contract that bundles all of your services together, do you sign papers after you read them? Or do you sign first, read, then regret later.

Most of us sign first. We all know better but in the midst of hurrying through our day we sign before we read. Signing before reading in the examples above are pretty harmless. We all sign things that promise the moon but don’t deliver. But those contracts are just small time offenders.

The big offenders are when we need to bring in attorneys. Big ones like starting a partnership, entering into an employment agreement or a non-competition agreement, buying a house. Those are the ones that make huge amounts of trouble down the road. What we don’t know in those sorts of contracts can literally bankrupt us.

When setting up a partnership, entering into an agreement with a realtor or neighbor, make sure to bring a lawyer to read through the papers. Yes, yes, we all know you have a degree in rocket science. But it doesn’t take a rocket scientist to read legal papers. It takes a specialist in law. A lawyer can translate the language into understandable English and make sure you are protected as you go into further negotiations with the other side.

How come law is hard to understand, you ask? Law has its own language. Law, especially U.S. law, started in England. Law in England progressed from the Celtic customs to Roman law, to the Anglo-Saxons and Vikings and then to the Norman Conquest. No wonder U.S. law is complicated. There are still some of those words in the law. The biggest change came with the Norman Conquest in 1066. The official language of the country shifted from Anglo-Saxon to French and then developed into English. We still see some of the results of this in legal language. For example, in a will you will frequently see “bequeath and devise” but it will seem redundant and old fashioned. It’s not redundant but it may be old fashioned. Why? Because you “devise” real estate you don’t bequeath it. Why not? Because the Normans took the land from the Saxons but not their personal property. So the Saxon’s “bequeath” their personal property and the Normans “devise” their land. And we do both.

Worse, words that in any normal sense would mean one thing have completely different meanings in a legal brief. There, I said it. One of those legal words. Brief. A brief in legal terms is a paper that explains to the Judge why you and your client are in Court. It is not a short statement. Frequently it’s just the opposite. So forget all you ever knew about dictionaries and meanings.

Just remember, don’t be intimidated into signing legal documents. Ask for the time to review them. If they say, don’t worry, be happy, just sign on the dotted line, walk away from the table and call your lawyer. If you don’t, you’ll be calling us soon enough.

Fall. Times to restock the supplies, restore the verve for new projects, resolve to make more, do more and be more in the weeks that close out the year.

One way to restock is to look at paper, ink cartridges, printers, and anything else that is mechanical. All mechanical things have an unsettling way of knowing when to break down. Does the attorney need papers scanned in? That’s when the scanner goes haywire. Does the attorney have a trial coming up? That’s when the color printer for exhibits crashes. Does the paralegal have time to enter? That’s when the database that captures time for the attorney goes haywire. Does the courthouse have a date set for a trial? That’s when a clerk signs up too many cases to too many judges and the case the firm was gearing up for gets moved into the future. Sigh.

So what is a firm to do? The simple answer is to review all the possible things that can break down. In our case, this is quite simple. Do the scanners work? Check. Do the printers work? Check. Does the database work? Check. Can we stop case assignment mistakes? No, we can’t. But we can check online and monitor when our case comes up, who the judge is and what courtroom is assigned.

Another way to restock is less material and more practical. Plan ahead. Plot out those hearings and trials, briefs and research. Plan the motions and depositions. Hook up the G.P.S. Find the numbers to call to see if the State snow plows have cleared a path to court. If the snowplows in your neck of the woods are unreliable, locate and reserve hotel rooms online to be absolutely sure to get to the court on time. Get tire chains, heavy winter coats and any other winter gear and put them into the truck of your car. Check your tire pressure and fluids weekly in the cold months. Don’t forget the jumper cables either.

November is nature’s way of telling you that humans are not in control. Nature is. Man may propose solutions, but nature will dispose of you if you are not prepared.