Legal Ease Blog

How New York Rules on Retainer Agreements Help Support Alternative Billing

Effective in 2002, the Appellate Divisions of the Supreme Court of the State of New York modified the Part 1215 to Title 22 of the Official Compilations of Codes, Rules and Regulations of the State of New York regarding written engagement letters, setting forth particular requirements for New York Lawyers.

Specifically, the section requires that an attorney representing a client from whom the attorney would be collecting a fee provide the client with a written engagement letter before beginning the representation (or within a ‘reasonable time’ thereafter if it is otherwise impracticable or if the scope of services cannot be determined at the beginning of the engagement).

The rules specifically contemplate circumstances under which there might be a change in the scope of services as originally contemplated by the attorney and the client. The rule states, “Where there is a significant change in the scope of services or the fee to be charged, an updated letter of engagement shall be provided to the client.“

The letter of engagement is required to address the scope of the services to be provided, and must include an explanation of the attorney’s fee to be charged, as well as expenses and billing practices. Where otherwise required, the engagement letter must also specifically advise that the client may have a right to arbitration of fee disputes.

There are some limited exceptions to the above rules. Specifically excluded circumstances are: if the fee to be charged is expected to be less than $3000, if the attorney’s services are of the same general kind as previously renedered to and paid for by the client, where the matter is a domestic relations matter governed by 22 NYCRR 1400, if the attorney is admitted to practice in another jurisdiction and maintains no office in the State of New York, or where no material portion of the services are to be rendered in New York.

When speaking with attorneys about using alternative billing arrangements, one of the main questions that arises is the question of how to set the fee. Many lawyers fear fixed fee arrangements because they are afraid that they will under-estimate the amount of work required, or that unforseen circumstances will arise which were not originally contemplated by the attorney, and therefore were not factored in to the original fee calculation.

Contrary to popular belief, using fixed fee agreements does not require that lawyers have the ability to see the future and anticipate every single circumstance which might arise. In New York, the rules specifically address the potential for a change in the scope of services.

The key to creating an effective fee structure and writing a good engaement letter is to define the scope of services as specifically as possible at the outset of the engagement, and make it clear to the client that the fee quoted is based only on the scope of services contemplated by the agreement. Additional services not included in the orignal agreement will be the subject of a supplemental services agreement, if necessary.

Yet another reason to keep clutter at bay in your office - client confidentiality

Last weekend I attended a meeting of the National Association of Consumer Bankruptcy Attorneys to participate in their law practice management day, speaking about productivity, using systems in your practice, and using your time wisely by focusing on the highest value clients and activities.

Part of my presentation focused on organizing and eliminating clutter in your law office. Among the reasons to get organized and eliminate as much clutter as possible in your office is that clutter wastes time, energy and other resources. But during a conversation with some of the participants at the conference I was reminded of one other, very important reason to stop office clutter in its tracks - client confidentiality.

The lawyer-client privilege and the lawyer's obligation to keep the client's confidences are among the most sacred responsibilities of any lawyer. In many instances, even the fact that a client is seeking the help and advice of a lawyer - particularly a lawyer in a specific practice area such as bankruptcy, criminal law or family law - is a confidence that clients would not want revealed to anyone.

Now imagine that your office is cluttered and disorganized. There are client files all over the floors (and perhaps the furniture) in your office. Those client files may very well be labled with the client's name. Or perhaps there are piles of confidential papers on your desk with client information visible. You're risking client confidentiality whenever someone (like the copy machine repair guy, your old college buddy you're taking to lunch, a referral source, another client, etc.) walks into your office.

Just another reason to clean up, clear out and organize!

Need help figuring out how to organize your office or improve your practice? Perhaps the articles and information on my Lawyer Meltdown website can help. Or contact me to schedule a consultation.

"Sales" is not a dirty word

I'm giving a presentation this evening for my local bar association on "Winning Strategies for Women Lawyers." The program focuses on the differences between how male and female lawyers communicate, how they network and bring in business, how they negotiate with clients and opposing counsel, and how they move up the ladder within their firm or organization. My presentation will focus on networking and rainmaking, but I'll have two additional panelists working with me.

Yesterday, while speaking to one of the other panelists in preparation for tonight's program, the issue of the word 'sales' was raised. Many lawyers still think 'sales' is a dirty word that is somehow beneath the venerated legal 'profession.' I still hear lawyers claim that the law is not a business because it is a profession. As Ben Glass, attorney and well-known legal marketer says, "Get over it."

There's no reason why law can't be a respected profession and a business at the same time. And in fact, it is. If you can't attract clients, serve them effectively and get paid appropriately for your efforts, you're out of business - and then your professionalism is going to waste.

Like it or not, a law firm IS a business, and almost everything you do on a daily basis involves selling and persuasion. If you're in the courtroom, you're selling your client's position to the judge and jury. If you're sitting at a partner's meeting, you're selling your ideas and your vision for the firm to your partners. If you're involved in a negotiation, you're trying to persuade others to get the deal done in a way that benefits your client. If you're meeting with a potential client, you're trying to persuade them that you're the right lawyer or law firm to help them with their problem.

As my friend and fellow presenter for tonight's program, Jane Myers, says, "if you don't understand that, as a lawyer, you're playing a role and you're selling all of the time, you just aren't going to make it." Both Jane and I agreed that we would have appreciated receiving this information (not to mention sales training) as young lawyers, but nobody talked about it. Don't make the same mistake - face the fact that, as a lawyer, (particularly in this economy), you must know how to ethically and effectively use sales techniques to propel your practice forward.

To attend tonight's program, register at the Suffolk County Bar Association's website.

Fast-Talking Potential Clients Into Services They Don't Want or Need is Bad Business - and Ethically Questionable

I think the following experience that I had yesterday is instructive for lawyers, even though it isn't directly related to the practice of law.

I accept credit cards from my consulting clients because often it makes paying easier for both them and me. Yesterday I received a call from one of the credit card companies with whom I have a merchant account. The caller identified themselves as a representative of a particular credit card company and indicated that the purpose of the call was to verify certain information they had on file - essentially the name of the business, the business address and the name of the contact person they had on file. All of this was information that is easily obtainable elsewhere, so I wasn't suspecting anything. Then I was told that they would be sending a packet of information about their merchant services for my review. The caller spoke very fast, but even so, I don't think I missed anything up until that point in the conversation.

Next, the caller indicated that he would be recording the rest of the call and once again went through the verification of the above information. But this time when he got to the end, he asked whether I was the person 'authorized to accept' the 'Merchant's Protection Plan.' That was when I stopped him. As the owner of the business, I'm 'authorized' to do pretty much anything. But what he'd told me before was that he was going to send a package of information to me. He didn't say anything about a 'plan' of any kind.

Finally catching on, I said that my understanding was that he was sending me some information, not that I was signing up for any kind of plan. I asked what the cost of the plan was (because, of course, there was a cost). He told me, but then advised that I would be enrolled for the first 30 days with no obligation and could cancel any time thereafter. None of this had been mentioned before he turned on the recording.

At no time was there any discussion of what the plan entailed, the benefits of the plan, or the value of the plan to me as a business owner.

It was clear to me that the company was attempting to fast-talk me into 'enrolling' in a plan that would be automatically charged to me after the first 30 days without first explaining clearly what was happening. Of course, I declined the 'offer,' letting the caller know that I was not interested in 'enrolling' in anything that would obligate me to cancel if I didn't want it or be automatically charged.

While I don't necessarily have an objection to services that include a free trial period, followed by an automatic monthly charge, ethics require that the terms be clearly explained to the client/customer before enrolling them in any such 'plan.'

In this instance, had I not asked, the monthly fee would never have been mentioned during the call. I have to wonder how many people this tactic has duped into paying for a 'plan' which they never actually understood they were enrolling in? I caught it in time with the combination of the recording of the call and the use of the word 'authorized,' but how many busy workers might not have?

Although I have clients that favor the use of this particular credit card, I am seriously considering terminating my relationship with this credit card company as a result of this call. While I can't really say that it was a 'scam' per se, and the monthly fee was relatively minor, the tactics were underhanded and left me questioning the value of my relationship with this company as well as their ethics. After all, if the plan was such a worthwhile one, why couldn't the caller speak slowly and demonstrate the value of the plan, rather than trying to rush me into something without explaining it fully?

Some lessons from yesterday's experience:

1. Be very careful, even when just "verifying" publicly available information over the phone (and of course, never, ever give away information such as your social security number, credit card or banking information on the phone or over the internet unless you are very certain who it's going to and that it's secure);
2. If someone is speaking very quickly on the phone, it should raise a red flag. Ask them to slow down and/or repeat themselves if necessary;
3. As a lawyer who is selling your services, be very clear about the terms of any agreement you enter into with your clients and be sure they are clear on those terms as well before charging them for anything;
4. Know the value of the service you provide, and be prepared to articulate that value to clients and potential clients;
5. Never, ever breach your clients' or potential clients' trust by trying to pull the wool over their eyes, fast-talk them into a service they don't understand, want or need.

Social Networking Etiquette

If you're like me, you're probably getting overwhelmed with all of the new possibilities that seem to crop up every day in the 'social networking' arena - from list serves to forums to Facebook to LinkedIn to Twitter, Squidoo, and a whole lot more. It's tough to keep it all straight at times.

It's tempting to jump on the bandwagon, particularly when we hear that one of these new outlets might be 'the next Google' or even 'the new email' as I heard someone say while I was at a conference last week. But like anything else that you do these days, you'll need to determine at the outset what your purpose is in joining any of these sites. And remember, too, that your reputation takes a long time to build, but can be destroyed in moments.

Many entrepreneurs, both lawyers and non-lawyers, are eager to jump in to every new outlet, arena or technology that comes along. While there's nothing wrong with that per se, the lawyer and the practical, cautious side of me wants to grab some of these people by the collar and remind them to slow down and think about what they're doing. Electronic messages are easy to send and difficult to take back. They're easy to disseminate quickly, and many people have long memories (and printers). It's easy to hit the send button or to dive in to the newest thing without thinking about it  - but beware your reputation and the impact of your words and actions in the electronic arena.

If you want someone to be your 'friend' or to link to you, it's easy - all you have to do is use the scripted email that is already set up in the system. But think about WHY you want to link to someone and ask yourself:

• Are you trying to establish a new business relationship or strengthen an existing one?
• How well do you know this person?
• Will the recipient automatically know who you are when they get your 'invitiation?'
• How badly do you want to link to them? 
• What is the response you'd like to receive?
• What is the value to the recipient of linking to you or being your 'friend'?
• How would you respond to such an invitation?

If linking to a particular person is important to you in the first place, make it easy for them. If you're not sure they'll know who you are, or that you're a member of the same organization, or that you met them at a networking event, or that you used to work with them, etc. DON'T send out the canned email invitation. Instead, add a line or two that explains who you are and how you know them. Sending the canned invitation is the equivalent of a 'dear occupant' letter - and you're likely to get the same response those letters enjoy.

Don't make your contact work to find out who you are by clicking on your profile, using Google to research you or going to your website - chances are that they won't do it, or they'll be annoyed by having to do it - not exactly the kind of relationship you're trying to establish, is it?

Do you like getting 'spam' emails from those trying to sell you something or offering to help you with your business? We call that junk mail. It's no different when it is the result of being on a list or belonging to a social network. Nobody wants to be 'sold' by someone they don't know. Make yourself known and establish your reputation and connection first. Contribute before you request or pitch. Provide value. Be of service.

The Ultimate in Service

Last week I was fortunate enough to attend yet another meeting of the Federation of Defense and Corporate Counsel. Not only was the meeting held in an absolutely gorgeous setting in Banff, Alberta, Canada in the Canadian Rockies, but as usual, the quality of the programs and the people both speaking at and attending this conference was outstanding.

One of the non-member speakers that appeared was a speaker by the name of Dr. Dale Henry, who spoke about getting back your 'whack.' He began his talk by commenting about how many people complain about how 'out of whack' they are, but how few people brag about being 'in whack.'

The central message of his talk revolved around what he calls his personal philosophy, which was twofold:

1. Never say "It's not my job";

2. Never say, "I wish I had."

His speech was funny, entertaining, informative, and thought-provoking. But what I'd like to focus on is the first part of his philosophy  - never say it's not my job. He had a lot of number and intelligent stories that illustrated his point, but his core message was about being of service to others. Not only is being of service to others good for the soul, but it's good for business, too. Regardless of how smart, knowledgeable or experienced you are, what people really remember is how you treat them. And a service experience that goes above and beyond will be remembered forever. That's gold for your practice. But it doesn't just apply when you're at work - being of service to others in your personal life can reap unanticipated rewards, both personally and professionally.

I challenge you to adopt some of Henry's philosophy and start by refusing to say, "It's not my job." If someone asks for your help, give it. If you're unable to help them directly, then help them find someone else who can. Not only will it help your business, but it will help you get your 'whack' back.

New Rules for Lawyer Advertising in Louisiana Go Into Effect in December 2008

The Louisiana Supreme Court recently amended its rules of professional conduct, Rule 7, affecting advertisig for lawyers. The new rule is scheduled to go into effect on December 1, 2008 and can be found here.

Some of the prohibitions contained in the rule include prohibitions against:

• Portrayal of a client by a non-client;
• Re-enactment of scenes or events that are not "actual or authentic;"
• Portrayal of a judge or jury;
• Portrayal of a lawyer by a non-lawyer;
• Promises regarding results;
• Use of a spokesperson's voice or image that is recognizable to the public in the community where a radio or television advertisement appears; and
• Use of terms such as 'expert' or 'specialist' except in specific circumstances.

The rule also includes provisions regarding payment of fees to lawyer referral services,  required language to be included in unsolicited written communications, and filing requirements for certain advertisements and solicitations.

If you practice in Louisiana, make sure you review Rule 7 before December 1, 2008.

Creating a 'Brand' for a Solo or Small Firm

Erin Ferree, author of the blog, not just pretty, reminds us in two posts, Marketing when you're more than a freelancer but not quite a brand Part I and II that even if you're small, it's important to create a brand, and that you can do so without breaking the bank.

Here are Erin's 6 steps to brand creation:

1. Be honest in your "About Us" pages and biographical information in your printed materials (look the right size);
2. Don't be afraid to use "I" instead of "we" if you're a solo;
3. Be honest about the use of subcontractors;
4. Create a brand to act as the face of your business;
5. Always act professionally;and
6. Be organized about your brand and your marketing.

When Erin talks about being organized about your brand, she talks about knowing:

• Who you are (your personality, values, and mission - as a business)
• What you do (the products/services you provide, and how you deliver them)
• What makes you different from your competitors (what makes you stand out?)
• Who you can best help (what customers do you enjoy working with?)

These four elements are truly the foundation of your marketing and business development - efforts, but they can often be overlooked, especially if they don't put the appropriate focus and emphasis on the client. If you want help defining those four elements, and creating a marketing or brand message around them, the audio series, "How to Grow Your Law Practice on a Shoestring Budget" might be a good place to start. Find out more here.

Summer and Casual Dress

Summer is just about here, and suddenly the hot topics of conversation seem to have turned once again to:

• Is casual dress in the office OK?
• What if you have a home office?
• How should you present yourself when you're out of the office?
• Does 'dressing up' really make you more productive?
• Do you dress in a certain way for clients? Why?

On June 5, 2008, the Wall Street Journal's WSJ.com On Style column was entitled, "Bare-Legged Ladies: Hosiery Reveals Wall Street Divide" discussing whether hose should be worn by professional women. The on-line article was also accompanied by a video in which New Yorkers are asked about their opinions on the hose-no hose debate.

While I grew up with the idea that hose were essential if you were to look professional, the trend here in New York has been away from wearing hose, particularly in the summer. I see many very professional women in the courthouse and out, who have given up wearing hose. I haven't seen or heard much backlash from it. Personally, if I can get away without wearing them, I definitely don't - especially in the summer. See Nicole Black's take on this issue in her post, "Toe Cleavage: Offensive to the Legal Profession?" on her blog, Women Lawyers-Back on Track.

On the Women's DISH blog (the blog of the Downtown Women's Club), one blogger notes in a post entitled, "Does she or doesn't she?" :

As more companies are going to business casual, pantyhose has fallen by the wayside.  All in all, I consider this a good thing.  I'm sure the inventor of pantyhose must have been a man.  That being said, what's the alternative? Bare legs?  What sort of shoes do you wear then?  I don't think sandals or heaven-forbid, flip-flops are appropriate in an office?  Well, there goes wearing skirts then.

All of these questions strike me as somewhat amusing at this point, since it seems to me that it's been quite some time that professional women have been wearing business suits (yes, the ones with skirts) with no hose, and wearing the same closed-toe shoes they wore when they wore hose.

I hear that the popular Solosez list serve has included much discussion on the issue of casual dress and pantyhose. The Wall Street Journal forum on this topic contains numerous entries from men and women alike about what is appropriate attire. (For the man who insists that he started wearing hose to keep warm and that they really aren't uncomfortable and you just have to shop around, I suspect he's never worn hose in the NYC subway in 97 degree heat and high humidity).

Other list-serves have been actively debating these issues as well. Over at Solomarketing, the summer casual issue sparked an ongoing discussion about what 'should' and 'shouldn't' be worn to the office -whether you see clients there or not.

Why do pantyhose and other clothing related topics receive so much attention? How you're groomed and what you wear are very personal decisions, but they certainly convey something about you, your personality, and about what you're doing and who you're doing it with. The bottom line is that you need to know yourself and your audience.

There are fewer and fewer hard and fast rules these days - although whether that's a good thing or a bad thing is a matter of your perspective. Some people think that if they're in a suit, they get more done, they project a certain image or authority within the office and both they and their employees take their jobs more seriously. Others feel that wearing a suit makes them uncomfortable and restricts their productivity.

Some people are more productive and alert in the morning, while others can get more done or are more focused in the afternoon. Some are more able to focus on the task at hand or think critically when dressed in traditionally professional clothing. Others can concentrate better in more casual attire. Know yourself - and keep testing. Sometimes, just taking a 'break' from your normal habits helps boost your productivity. So if you're a traditionally more formal dresser, dressing more casually occasionally may be a welcome change. By contrast, or work in an office in which you rarely see clients but you notice that you accomplish less if you're dressed down, perhaps putting on more traditionally 'professional' attire might help change your mindset.

You need to consider your audience. If you're going to court and the expectation is that attorneys appearing in court should be wearing a suit in order to be taken seriously in your jurisdiction, or in order to express respect for the court, counsel and litigants by all means, wear a suit. If your highest value clients expect suits from their attorneys, you should make sure that you dress accordingly. But some attorneys find that dressing a bit more casually helps put their clients at ease and helps create the impression that the lawyer understands the client and the client's problems.

One final note, which you've probably heard from me before: often, your clients are a reflection of you. Not every client is the right 'fit' for you or your practice. Your personality, work ethic and values are somewhat reflected in your style of dress. Your brand or image is reflected in your appearance. For the most part, clients that are comfortable with you will be comfortable with your style of dress. That being said, casual dress is no excuse for poor grooming or patently inappropriate attire under any circumstances. As this article from Lawyers USA notes, appearance always counts - make sure that the image you're projecting with your attire and grooming habits is the one you want your clients to see.

What are your thoughts about summer attire/causal dress/hose or no hose?

Love to tell war stories? If so, your marketing's half done!

Are you looking for ways to differentiate your law firm or to put some 'pizzaz' into your marketing? Do you love to tell war stories? If so, you've got ready-made marketing content. You may not be comfortable using testimonials, or the ethical rules of your jurisdiction may restrict your ability to use them. But war stories - otherwise known as case studies - are usually fair game, as long as they're not misleading and it's clear that you aren't guaranteeing results. (Check the rules of your individual jurisdiction to be sure).

Why would you want to use war stories in your marketing materials? Because stories sell. They're a way of demonstrating your experience, your expertise and your skills rather than just talking about them. And war stories or case studies can usually be told to demonstrate the key benefits that your services provide to clients without compromising client confidentiality or giving details of your client's business or identity.

So brush off those war stories and add them to your marketing materials as a way of demonstrating why clients should hire you to represent them.

Need help writing those case studies or figuring out how to use them? Contact me to see how I can help.