1 START UP KIT FOR A SMALL LAW PRACTICE Compiled by the Law Practice Management Program and Law Practice Management Committee of the State Bar of Texas TABLE OF CONTENTS (Click on any BLUE link below to view articles) SMALL FIRM LAW PRACTICE START-UP CHECKLIST AQUIRE SPACE TEXAS LAWYER S CREED GRIEVANCE INFORMATION BROCHURE STARTING YOUR OWN PRACTICE SELF-EVALUATION AND READINESS TEST WHO S YOUR DADDY? WHO DO I NEED TO KNOW AND HOW DO I MEET THEM? HOW TO BUILD STRONG CLIENT RELATIONSHIPS MARKETING WHAT ARE YOU ALREADY DOING RIGHT? BUSINESS DEVELOPMENT FOLLOW UP OR FALL DOWN CREATIVITY AND INNOVATION AS A MARKETING TACTIC
2 START UP KIT FOR A SMALL LAW PRACTICE Compiled by the Law Practice Management Program and Law Practice Management Committee of the State Bar of Texas TABLE OF CONTENTS (Click on any BLUE link below to view articles) DIFFERENTIATION BY DESIGN GET REMEMBERED INTERNAL AND EXTERNAL FILE ORGANIZATION PLANNING FOR FINANCIAL SUCCESS ESTABLISHING INTERNAL CONTROLS DEVELOP TIME MANAGEMENT SYSTEMS THE JOY OF TIMEKEEPING TO HIRE OR NOT TO HIRE STATE BAR OF TEXAS RESOURCES YOU NEVER KNEW EXISTED Law Practice Management Program State Bar of Texas P.O. Box Austin, Texas , ext
3 STATE BAR OF TEXAS LAW PRACTICE MANAGEMENT PROGRAM SMALL FIRM LAW PRACTICE START-UP CHECKLIST This checklist addresses only those matters that are basic when opening a new small law practice. The items listed under each heading are not intended to be exhaustive. Not all items or headings apply to every practice start-up. The Law Practice Management Program s staff is available to provide further help and assistance to deal with any of the issues mentioned here, or with practice start-up in general A ARTICULATE YOUR PRACTICE VISION 1. Mission / Vision / Values Statement 2. Target Market Statement 3. Core Services Statement 4. Practice Environment Statement B DEVELOP YOUR BUSINESS PLAN AND BUDGET 1. Marketing 2. Production 3. Personnel 4. Systems and Technology 5. Communications 6. Finance & Budget
4 C IMPLEMENT YOUR PLAN 1. Write up Partnership or Space-Sharing Agreement 2. Acquire Space * Location * Layout, including wiring for equipment * Lease details * Signage 3. Acquire Furniture * Lawyer * Secretary * Client areas (reception, meeting room) * Filing cabinets, safe 4. Acquire Supplies * Paper supplies (stationery, envelopes, business cards, note pads, telephone message pads, post-it pads, etc.) * Other supplies (paper clips, scissors, tape dispensers with tape, staplers, staples, staple removers, pens, pencils, erasers, calculators, computer disks, letter openers, hole punch, book ends, etc.) 5. Acquire Software * Word processing * Time and billing * Accounting * Calendaring / Docket control * Conflict checking * Client and file information 6. Acquire Equipment * Computers, printer, modem, network, backup * Cost-recovery devices * Telephone * Facsimile * Copier (with collator, document feeder) * Postage scale, meter * Dictation Equipment
5 7. Acquire Insurance * Commercial Property and General Liability Insurance * Business Auto Coverage * Professional Liability Insurance * Workers Compensation and Employer=s Liability * Commercial Umbrella Coverage and Excess Policies * Health, Disability and Life Insurance: State Bar Insurance Trust 8. Acquire Legal Resources * Texts, reports, digests, periodicals * Computer research (WestLaw, Lexis-Nexis) * MyTexasBar.com (FindLaw) 9. Arrange for Services * Process Server * Investigator * Courier * Court Reporter * CPA * Accounting Staff/ Clerical Support Staff 10. Court Information 11. Develop Paper-Handling Systems * File opening * Filing * Mail, FAX, and deliveries * Phone messages * Receipt journals for incoming monies, client documents and property * Log for outgoing client documents and property 12. Develop Client and File Information Systems * File index or data base * Client index or data base * Conflict of Interest Procedures 13. Develop Time Management Systems * Dual calendar for appointments and appearances, etc. * File calendaring system * Limitations and deadlines system * Timekeeping * Case planning
6 14. Start Policies and Procedures Manual 15. Develop Systems for Legal Procedures * (e.g., real estate checklists) 16. Develop Personnel Policies * Job Descriptions * Salaries and benefits * Workplace policies * Confidentiality policy * Hiring (recruiting, interviewing, selecting, negotiating terms, etc.) * Orienting, training, supervising, evaluating * Payroll policies 17. Make Banking, Credit Arrangements * Open trust and general accounts * Check into IOLTA requirements * LOC/ bank or family loan/ overdraft * Office credit cards 18. Develop Bookkeeping / Accounting Procedures * Trust accounting procedures * General accounting procedures (timekeeping, disbursements, billing procedures and cycles, accounts receivable, revenue and expenses posting, month-end procedures, payroll) 19. Develop Financial Information System * Aged accounts receivable, aged work-in progress, monthly cash and credit analysis, monthly budget analysis * Accounts receivable follow-up 20. Establish Pricing Policies * Setting Fees * Disbursements recovery policies 21. Establish Client Relations Policies * Communicating fees and deadlines to clients * Engagement, non-engagement and disengagement letters * Copies to clients policies * Documents packaging policies * Phone call return policy
7 22. Register with Lawyer Referral 23. Announce Your New Practice * To existing clients * To lawyers and judges * To potential clients * To the public 24. Start Marketing * Open house * Yellow pages * Advertising 25. Seek Out State Bar Help * Management Advisors * Assistance
8 Acquire Space By Gisela B. Bradley Will you look for a space sharing arrangement or executive suite? Look at both and see which arrangement is best meeting your needs. There are generally two types of space sharing arrangements. One where each lawyer is responsible for an equal share of the rent and other expenses and participates in decisions as an equal co-tenant or, two, arrangements where a lawyer rents unoccupied office space from another lawyer, a group of lawyers, or a firm and has little or no input into office decision making. An executive suite is a space in an office building that is subdivided into smaller offices which are then rented out to a variety of businesses (i.e. Consultants, Marketers, Lawyers, Accountants, etc.). In an executive suite arrangement, the overhead expenses are normally shared on a prorated basis and often you will find support services, such as, secretarial support, clerical support, courier services, etc. Depending on your geographical area you may find some office buildings where only lawyers are leasing office space and maybe sharing conference rooms, libraries, equipment, etc. Regardless of where you decide to open your office, by now you will have given some thought as to what type of clientele you will be serving and what practice area you will be in. This will help you determine if you want your office to be in close proximity to the courthouse, a copy center, a secretarial pool, or your home. When you find the proper location, look at the layout and how the premises are equipped, for example, with wiring. Wiring for your computers and other equipment must be sufficient to accommodate your technological tools. If you decide to go into an office sharing arrangement, be sure to pay close attention to the signage outside. You will want to make sure that you don t create the appearance of being associated with any other tenants and you want to put particular emphasis on being a sole practitioner. When it comes time to review your lease, you may want to look at a copy of the Law Office Management Program brochure, How to Evaluate Your Office Leasing Needs found below: How to Evaluate Your Office Leasing Needs Leasing smart is an intregal part of your practice being on the Road to Success! Office space is often the second largest operating expense of most law firms today. If that is your case, perhaps it is time to renegotiate or find lease space more in line with the needs of your firm. Plan for the future. Make sure your lease takes into consideration your firm's future needs. While taking our suggestions into consideration, please keep in mind that leasing requirements for each firm will vary. Following are definitions of some commonly used lease terms. These definitions are meant to give you some foundation for evaluating a lease.
9 Actual Rent is comprised of net rent plus operating expenses, and real estate taxes assessed on the building. Net Rent is the actual amount paid for the space. Operating Expense is the cost of operating the building. Be sure and set the operating expense high enough to prevent substantial increases in future years of the lease. Real Estate Taxes should be based on a fully occupied building and representative of other comparable buildings in the locality. Net Cost is the same as net rent. It is the actual amount paid for the space. DON'T be sold by "cheap rent"; often this may be the net cost before operating expenses and taxes are added. Gross Cost is the amount of money you pay for the space leased, common area spaces, operating expenses, and your portion of the real estate taxes on the building. A good rule to remember is that you should pay for taxes and operating expenses of the building based on full occupancy of the building. KNOW what your actual rent with gross costs will be, and what services are actually included in your gross cost. "Stop-Gap" is a provision that can be made in a lease that prevents operating costs from exceeding a fixed amount (usually percentage) in any given lease year. This type of provision can be beneficial to you! Market Rent is a term used for comparable space, in a comparable building, in the same lease area. Arbitration Provision is a provision in the lease which allows you an opportunity to bring in an independent person to help you and the Landlord agree upon the market rent or other issues and disputes. Long Term Options: Locking in long-term rates at competitive prices while still keeping provisions for your firm's safety net -- i.e., lease reduction or lease expansion options are a good concept to plan for the growth of your firm. This is especially important if you are just starting out and are not certain about how your firm will grow. Right of First Refusal Option: Everyone hopes to see their firm prosper and grow. On the other hand, everyone dislikes the move that is often necessitated by the growth. Moving is expensive! It is better to get a right of first refusal on any empty space that adjoins your current space. This way, if you grow unexpectedly,
10 you already have an option to lease adjoining space--no expensive move or costly change of address! Space Reduction Options: The lease should also include clauses dealing with issues that are important to you in the present and the future, such as subleasing, assignment provisions, space reduction options and lease termination rights. These provisions should be determined up-front and included in your lease. There may be a penalty to exercise these options. In the long run, however, this may still be the most cost effective route for your firm to take. Lease Termination Options: This option gives you the right to terminate a lease at some point prior to the expiration of the lease. Like the space reduction option, most cancellation options involve a one-time right -- usually six to twelve months into your initial lease period. A general rule of thumb to consider is that the larger the space canceled, the longer the notice period. The penalty usually involves a percentage of the Landlord's up-front leasing costs. Also consider in your lease termination options: 1. Landlord's inability to provide adequate expansion space. 2. A merger or acquisition. 3. A death or disability of firm's primary income source. 4. The dissolution of the firm. 5. The firm ceases doing business in that city. Demographics: Do you know what part of the state you want to be located in? Have you considered what the average attorney is making in that area or what the office space will cost you? You might want to take a look at the demographics for the area. A good place to start is the State Bar of Texas. The Research & Analysis department does a periodic study of the entire state and can often provide you with helpful information. Practice Area Considerations: Does the space you are evaluating take into consideration the client needs in the area of law in which you practice? If you do personal injury, is your office easily accessible to your injured clients? You might consider locating on the first floor. If you practice family law, is your office in such a high traffic area that a client might feel their confidentiality is compromised? If you practice social security law, does your office location take into consideration the possible special needs of your client? Take a little time to consider the needs of your current client base, as well as the type of clients you wish to acquire as your firm grows.
11 Research Tool Accessibility: If you do not have your own library, you might take into consideration the location of the nearest library. Is there another attorney in the building who is willing to share their library for a small fee, or better yet...for free? Growth!!: The best scenario occurs and you grow beyond your projections. Is there space on either side of your existing space to grow into? Flexibility: How flexible is your landlord? If you underestimate your growth, will they try to accommodate you? If they are inflexible in this, your initial negotiations with them, do you really want to sign a long term lease. Property Management: Will maintenance be easily obtainable? Is the property manager easy to deal with? Compliance with State and Federal Laws: Confirm with your potential landlord and physically survey the property to ascertain if the building meets with all state and federal requirements. You should be especially careful about compliance with the Americans With Disabilities Act (ADA). If you fall under the purview of the ADA, you may have some duty to make sure your lease space complies with ADA requirements. Parking: Is adequate, accessible parking provided for employees and clients? Checking for Safety: Obtain a Police Report of the Neighborhood -- be certain there have not been excessive crimes and/or vandalism reported in and around the surrounding area. Is the parking area safe for your employees and clients? Do your employees work late at night? If so, you might want to drive by at night to see if the environment changes. If your lease space has a security system, there may be some savings on your insurance rates. Do not overestimate the value of highly designed or finished-out space. This type of space could make it harder to sublease. More conventional and practical finished space usually sublets more quickly and at a higher dollar value. Don't let the wrapping on the package fool you! Negotiating a cost-saving long-term lease is not as practical in the long run if your firm is unable to grow later because of lack of space availability. Be certain that you have the potential to add space if your firm continues on a growth path, as well as the ability to sublease some of the space if your firm has to downsize. It is much easier, more cost effective, and promotes good client relations, to acquire more space and/or to downsize at the same location than to have to move your business.
12 Before entering into an office lease, do your own investigation. Evaluate the area to be leased for your needs. Weigh the pros and cons of leasing to see if leasing is what is right for your particular situation. Consider your leasing needs today, but be sure to plan for the future... happy leasing!
13 Gisela B. Bradley is the founder and CEO of Law Practice Management Consulting. Prior to Law Practice Management Consulting she served Texas attorneys with practice management advice and education as the first director of the Law Practice Management Program of the State Bar of Texas. She successfully built this program from the start and designed and developed the products and services offered. During her almost eleven years of service at the State Bar of Texas she developed award-winning educational programs, authored numerous articles on legal management trends, and presented workshops and seminars on local, state and national levels. She also consulted with law firms and individual attorneys on improving their management practices. Before coming to the State Bar of Texas Ms. Bradley managed law firms of varying sizes for fifteen years. Ms. Bradley served on the American Bar Association's Law Practice Management Advisors' Committee from 1996 to She also serves on several Advisory Boards of legal consulting and attorney training firms. Ms. Bradley focuses on assisting solo and small firm practitioners in improving the efficiency of their client service, and increasing their productivity while enhancing the quality of their work product. She provides management consultations to firms as well as individual management coaching to attorneys. Examples of accomplishments at the State Bar of Texas include: Writing the Start Up Kit For A Small Law Practice, a step-by-step guide to opening your own law office; Developing and presenting Planning to Conquer the Real World of Private Practice, a practical preparation course for law students; Developing and presenting The Law Office Management Institute, a 12-months comprehensive management training course for attorneys; Developing How to Organize and Manage Your Law Practice, a series of seminars for 12 practice specific areas. Ms. Bradley received her BA in Liberal Studies with a major in Accounting from St. Edward's University in Austin, Texas
14 Order of The Supreme Court of Texas and The Court of Criminal Appeals The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession's broader duty to the legal system. The Supreme Court of Texas and the Court of Criminal Appeals are committed to eliminating a practice in our State by a minority of lawyers of abusive tactics which have surfaced in many parts of our country. We believe such tactics are a disservice to our citizens, harmful to clients, and demeaning to our profession. The abusive tactics range from lack of civility to outright hostility and obstructionism. Such behavior does not serve justice but tends to delay and often deny justice. The lawyers who use abusive tactics instead of being part of the solution have become part of the problem. The desire for respect and confidence by lawyers from the public should provide the members of our profession with the necessary incentive to attain the highest degree of ethical and professional conduct. These rules are primarily aspirational. Compliance with the rules depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer pressure and public opinion, and finally when necessary by enforcement by the courts through their inherent powers and rules already in existence. These standards are not a set of rules that lawyers can use and abuse to incite ancillary litigation or arguments over whether or not they have been observed. We must always be mindful that the practice of law is a profession. As members of a learned art we pursue a common calling in the spirit of public service. We have a proud tradition. Throughout the history of our nation, the members of our citizenry have looked to the ranks of our profession for leadership and guidance. Let us now as a profession each rededicate ourselves to practice law so we can restore public confidence in our profession, faithfully serve our clients, and fulfill our responsibility to the legal system. The Supreme Court of Texas and the Court of Criminal Appeals hereby promulgate and adopt "The Texas Lawyer's Creed -- A Mandate for Professionalism" as attached hereto and made a part hereof. In Chambers, this 7th day of November, Mission of The Bar Foundation The Texas Bar Foundation solicits charitable contributions and provides funding to enhance the rule of law and the system of justice in Texas, especially for programs that relate to the administration of justice; ethics in the legal profession; legal assistance for the needy; the encouragement of legal research, publications and forums; and the education of the public. In 1965, the founding attorneys established the Texas Bar Foundation as an expression of the charitable aims of the lawyers of Texas. With each successive year, the Foundation has accomplished its mission, project by project, grant by grant. In the process, it serves people who, historically, have limited access to the legal system - the poor, elderly, young and abused. Whether by educating the public, providing legal assistance to individuals, or strengthening the justice system, the Bar Foundation succeeds in making a difference in people s lives. The Foundation board of trustees administers the grant program. Requests for funding are accepted from organizations classified as 501(c)3 by the Internal Revenue Service. Trustees, three of whom are not attorneys, evaluate the requests and make the funding decisions. The grant process moves efficiently, and a law-related public need can be evaluated and funded in a remarkably swift period of time. To make a gift, request a grant application, or for additional information, please contact the Texas Bar Foundation P.O. Box 12487, Austin, Texas Call 1 (800) ext Web address: The Texas Lawyer s Creed A Mandate For Professionalism Promulgated by The Supreme Court of Texas and The Court of Criminal Appeals Printed and Distributed Courtesy of Texas Bar Foundation and Texas Center for Legal Ethics and Professionalism MCM LXV
15 The Supreme Court of Texas and The Court of Criminal Appeals The Texas Lawyer's Creed A Mandate for Professionalism I am a lawyer. I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that Professionalism requires more than merely avoiding the violation of laws and rules. I am committed to this Creed for no other reason than it is right. I. Our Legal System A lawyer owes to the administration of justice personal dignity, integrity, and independence. A lawyer should always adhere to the highest principles of professionalism. 1. I am passionately proud of my profession. Therefore, My word is my bond. 2. I am responsible to assure that all persons have access to competent representation regardless of wealth or position in life. 3. I commit myself to an adequate and effective pro bono program. 4. I am obligated to educate my clients, the public, and other lawyers regarding the spirit and letter of this Creed. 5. I will always be conscious of my duty to the judicial system. II. Lawyer To Client A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ all appropriate legal means to protect and advance the client s legitimate rights, claims, and objectives. A lawyer shall not be deterred by any real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest. 1. I will advise my client of the contents of this creed when undertaking representation. 2. I will endeavor to achieve my client s lawful objectives in legal transactions and in litigation as quickly and economically as possible. 3. I will be loyal and committed to my client s lawful objectives, but I will not permit that loyalty and commitment to interfere with my duty to provide objective and independent advice. 4. I will advise my client that civility and courtesy are expected and are not a sign of weakness. 5. I will advise my client of proper and expected behavior. 6. I will treat adverse parties and witnesses with fairness and due consideration. A client has no right to demand that I abuse anyone or indulge in any offensive conduct. 7. I will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party. 8. I will advise my client that we will not pursue tactics which are intended primarily for delay. 9. I will advise my client that we will not pursue any course of action which is without merit. 10. I will advise my client that I reserve the right to determine whether to grant accommodations to opposing counsel in all matters that do not adversely affect my client s lawful objectives. A client has no right to instruct me to refuse reasonable requests made by other counsel. 11. I will advise my client regarding the availability of mediation, arbitration, and other alternative methods of resolving and settling disputes. III. Lawyer To Lawyer A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings. Ill feelings between clients shall not influence a lawyer s conduct, attitude, or demeanor toward opposing counsel. A lawyer shall not engage in unprofessional conduct in retaliation against other unprofessional conduct. 1. I will be courteous, civil, and prompt in oral and written communications. 2. I will not quarrel over matters of form or style, but I will concentrate on matters of substance. 3. I will identify for other counsel or parties all changes I have made in documents submitted for review. 4. I will attempt to prepare documents which correctly reflect the agreement of the parties. I will not include provisions which have not been agreed upon or omit provisions which are necessary to reflect the agreement of the parties. 5. I will notify opposing counsel, and, if appropriate, the Court or other persons, as soon as practicable, when hearings, depositions, meetings, conferences or closings are cancelled. 6. I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided legitimate objectives of my client will not be adversely affected. 7. I will not serve motions or pleadings in any manner that unfairly limits another party s opportunity to respond. 8. I will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses. 9. I can disagree without being disagreeable. I recognize that effective representation does not require antagonistic or obnoxious behavior. I will neither encourage nor knowingly permit my client or anyone under my control to do anything which would be unethical or improper if done by me. 10. I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel. 11. I will not take advantage, by causing any default or dismissal to be rendered, when I know the identity of an opposing counsel, without first inquiring about that counsel s intention to proceed. 12. I will promptly submit orders to the Court. I will deliver copies to opposing counsel before or contemporaneously with submission to the Court. I will promptly approve the form of orders which accurately reflect the substance of the rulings of the Court. 13. I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence. 14. I will not arbitrarily schedule a deposition, Court appearance, or hearing until a good faith effort has been made to schedule it by agreement. 15. I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party. 16. I will refrain from excessive and abusive discovery. 17. I will comply with all reasonable discovery requests. I will not resist discovery requests which are not objectionable. I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process. I will encourage witnesses to respond to all deposition questions which are reasonably understandable. I will neither encourage nor permit my witness to quibble about words where their meaning is reasonably clear. 18. I will not seek Court intervention to obtain discovery which is clearly improper and not discoverable. 19. I will not seek sanctions or disqualification unless it is necessary for protection of my client s lawful objectives or is fully justified by the circumstances. IV. Lawyer And Judge Lawyers and judges owe each other respect, diligence, candor, punctuality, and protection against unjust and improper criticism and attack. Lawyers and judges are equally responsible to protect the dignity and independence of the Court and the profession. 1. I will always recognize that the position of judge is the symbol of both the judicial system and administration of justice. I will refrain from conduct that degrades this symbol. 2. I will conduct myself in Court in a professional manner and demonstrate my respect for the Court and the law. 3. I will treat counsel, opposing parties, the Court, and members of the Court staff with courtesy and civility. 4. I will be punctual. 5. I will not engage in any conduct which offends the dignity and decorum of proceedings. 6. I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage. 7. I will respect the rulings of the Court. 8. I will give the issues in controversy deliberate, impartial and studied analysis and consideration. 9. I will be considerate of the time constraints and pressures imposed upon the Court, Court staff and counsel in efforts to administer justice and resolve disputes.
16 you nor the lawyer has the right to appear before the Summary Disposition Panel. The Panel reviews the complaint, together with any information, documents, and evidence deemed necessary for it to make its ruling. No testimony is taken at the hearing. If the Panel determines that dismissal is appropriate, all parties are so notified. What is a Summary Disposition Panel and who is on it? State Bar grievance committees are composed of volunteer lawyers and members of the public which serve in 49 district disciplinary districts across the state. Each committee is composed of 2/3 lawyer members and 1/3 public members. The committees act in panels that are also 2/3 lawyer members and 1/3 public members. The Summary Disposition Panel is a panel of a grievance committee that is responsible for deciding whether a complaint should be dismissed based upon the recommendation of the Chief Disciplinary Counsel or should proceed. part of which may be probated; or (3) disbarment. Any public sanction an attorney receives for professional misconduct will become a permanent part of the attorney s record. Does the State Bar offer any other avenue of recourse for a complainant who has a dispute with a lawyer that is not resolved through the attorney disciplinary system? Possibly. At any stage of the grievance process at which a complainant s grievance is dismissed, the matter is referred to a voluntary mediation and dispute resolution procedure, the Client-Attorney Assistance Program. Should that occur, you will be provided further information about that program. Can anything be done for clients whose money has been stolen by their attorney? Who do I contact if I have other questions about the disciplinary process? If you have questions prior to filing a grievance, please call the Grievance Information Helpline at If you have questions after you have filed a grievance, please call the Chief Disciplinary Counsel s office at or write the Chief Disciplinary Counsel s office at the address below. Office of the Chief Disciplinary Counsel State Bar of Texas P.O. Box Austin, Texas (toll free) THE STATE BAR OF TEXAS ATTORNEY COMPLAINT INFORMATION Can I testify at a Summary Disposition Panel meeting? No. The Summary Disposition Panel reviews the case without oral testimony from any party. Can either party appeal a decision by the Summary Disposition Panel? No. There is no appeal from a determination by the Summary Disposition Panel that the complaint should proceed or be dismissed. How will I know what happens with the grievance that I file? You will receive notification in writing about the status of your grievance throughout each step of the grievance process. What happens to lawyers who have been found guilty of professional misconduct? The lawyer may receive one or more of the following sanctions, depending upon the severity of the case. These include: (1) a reprimand, which may be public or private; (2) suspension from the practice of law, all or Yes. The Client Security Fund is a discretionary fund maintained by the State Bar that may provide some relief to clients under certain circumstances. In order to seek relief, application must be made with the Fund and the applicant must have participated in the attorney disciplinary process (unless the lawyer is already deceased, disbarred or resigned, or on an indefinite disability suspension prior to completion of the applicant's complaint against the lawyer). Under certain circumstances, clients may be eligible for financial relief from this source. The Client Security Fund does not address legal malpractice damages, disputes over the amount charged for legal services, dissatisfaction with the outcome achieved by the lawyer, or recovery of monies paid to another attorney for work that was not done by the lawyer complained about. What if I believe I have a claim for legal malpractice? Neither the State Bar nor the Chief Disciplinary Counsel can advise you regarding what claims, if any, you may have for legal malpractice. The State Bar does not have any ability to pursue or in any fashion become involved in whatever claims you may have with regard to legal malpractice on the part of the lawyer. If you believe you have such a claim, you should seek advice from a private attorney of your choosing. This brochure answers some common questions about the State Bar s attorney disciplinary system. If you have any questions about this process that are not answered in this brochure, please call the Grievance Information Helpline of the State Bar of Texas at /07
17 All lawyers in Texas have an obligation to maintain a high standard of ethical conduct toward their clients and others. To enforce this standard, the State Bar of Texas investigates and prosecutes complaints of professional misconduct against attorneys licensed in Texas, pursuant to the Texas Rules of Disciplinary Procedure as promulgated by the Supreme Court of Texas. What rules are lawyers required to follow? For purposes of professional discipline, the ethical rules that attorneys must follow are called the Texas Disciplinary Rules of Professional Conduct. These rules may be found at They are also printed in the Texas Government Code (Title 2, Subtitle G-Appendix A, Article 10, section 9), or you may call to request a copy for $ Should I file a grievance? Reporting unethical behavior of Texas lawyers helps reduce and prevent harm to the public and the legal profession. In order for the State Bar to investigate the attorney's conduct, the person seeking to complain about the attorney must file a written grievance describing the attorney's conduct with the State Bar. The Bar s Grievance Information Helpline ( ) can assist you in determining whether to report the conduct of the lawyer and whether other resources might be beneficial. Is there a statute of limitations on filing a grievance? Yes. With a few exceptions, there is a four-year statute of limitations on filing a grievance. This means that you usually have four years from the time the alleged misconduct occurred to file a grievance with the State Bar. Must I be the person who hired the lawyer in order to file a complaint? No. Any person with knowledge of what they believe to be professional misconduct by a lawyer has the ability to file a complaint. How do I file a grievance? The first step in filing a grievance is to complete a grievance form and mail it to the State Bar Chief Disciplinary Counsel s office. If you have obtained a grievance form from the State Bar, it should be mailed to the address shown at the bottom of the form. It is important that you mail your grievance to the appropriate office for review. This would be the office closest to where the attorney s office is located. The office addresses can be found on the State Bar's website or you can call and obtain that information from the Grievance Information Helpline at , or by calling the Chief Disciplinary Counsel s office toll free at Please be sure to include with your grievance form copies (not originals) of any documentation such as letters or pleadings that you believe are important in understanding your grievance. Are grievances confidential? If you are reporting the conduct of a lawyer who is or was representing you in a legal matter, it is very important to know that signing the grievance form waives the attorney-client privilege that would otherwise keep discussions between you and your lawyer confidential. Waiver of this privilege is necessary for the State Bar to review your grievance in its entirety. Information about a pending grievance against a lawyer is confidential and not subject to disclosure unless it is ordered by a court to do so or the lawyer complained about waives confidentiality. However, if the lawyer is found to have committed professional misconduct and receives a public sanction, information about the grievance is no longer confidential. What happens after I file a grievance? The Chief Disciplinary Counsel s staff will review the grievance to determine whether the allegations violate any of the ethical rules. This is called the classification stage of the disciplinary process. A grievance that does not allege a violation of the ethical rules is classified as an inquiry and dismissed. You will be notified of the dismissal and the matter will be referred to the Client-Attorney Assistance Program for a voluntary mediation and dispute resolution procedure. Can I appeal the dismissal of the grievance? Yes. You have one opportunity to file an appeal of the classification to the Supreme Court s Board of Disciplinary Appeals (BODA) within 30 days from notification of the dismissal. BODA will review the grievance and make an independent determination about whether the grievance states a violation of the ethical rules. BODA may agree with the Chief Disciplinary Counsel's decision or it may reverse the classification decision. If BODA grants the appeal and reverses the classification decision, the grievance is referred back to the Chief Disciplinary Counsel for investigation. Can I amend and re-file my grievance? Yes. If BODA denies your appeal and affirms the dismissal of your grievance, you can amend the dismissed grievance with new or additional information and resubmit it to the Chief Disciplinary Counsel s office within 20 days of your receipt of BODA s notice. The amended grievance must contain new or additional information and may be amended one time only. What happens if my grievance does state a rule violation? If it is determined that the grievance does state a rule violation, it is classified as a complaint. The lawyer complained about is sent a copy of the complaint and asked to respond to the allegation(s) and submit a response in writing within 30 days. The Chief Disciplinary Counsel will then conduct a "just cause" investigation, reviewing all of the information received from the complaining party and the accused attorney and any additional information gathered in order to decide whether there is just cause to believe that professional misconduct occurred. What happens after the just cause investigation is completed? If the Chief Disciplinary Counsel concludes that there is just cause to believe professional misconduct occurred, the lawyer is notified of what conduct is complained about and what ethical rules are alleged to have been violated. The lawyer is given a choice of whether to have a panel of a grievance committee or a district judge hear the case. A petition is then filed with either an Evidentiary Panel or a district court by the Chief Disciplinary Counsel on behalf of the Commission for Lawyer Discipline. The case will then be set for trial either before an Evidentiary Panel of a grievance committee or a district court. What happens if my complaint proceeds to an evidentiary hearing? An Evidentiary Panel is a panel of a grievance committee composed of 2/3 lawyer members and 1/3 nonlawyer members who hear and consider the evidence and decide whether the lawyer has committed professional misconduct. Witness examination may be conducted only by the Commission for Lawyer Discipline and the Evidentiary Panel members. The admission or exclusion of evidence shall be in the discretion of the Evidentiary Panel chair. After conducting the Evidentiary hearing, the Evidentiary Panel will issue a judgment of its decision within 30 days on whether or not the attorney is found to have committed professional misconduct. All parties are notified of the Evidentiary Panel s decision. Can I appeal an Evidentiary Panel s decision if I don t agree with it? No. Evidentiary decisions are not appealable by the complainant. What happens if my complaint proceeds to a trial in district court? A jury may be requested by the Commission for Lawyer Discipline or the accused lawyer. Evidence in a district court trial may include your testimony, the lawyer s testimony and possibly the testimony of additional witnesses in addition to any documented evidence submitted to the court. The trial court will enter judgment after the close of evidence or after the return of the jury s verdict. If I disagree with the result reached at a district court trial, can I appeal? No. District Court decisions are not appealable by the complainant. What happens if just cause is not found? If the Chief Disciplinary Counsel concludes that just cause does not exist to believe that the attorney committed professional misconduct, the matter is presented to a Summary Disposition Panel with a recommendation that the complaint should be dismissed. Neither
18 STARTING YOUR OWN PRACTICE PROS v. CONS By Susan Johnston I. Introduction Licensed to practice law? Then you can do it. Yes, you can do it even if you have no money, no friends, no family, and no potential clients. I didn t say it would be easy, but you can start and eventually have, a successful practice. Should you start your own practice? Are you the kind of person who likes the security of a steady paycheck? Would you prefer that someone else handles balancing your checkbook and paying your household bills? Would you like to go to work and know that you have insurance and retirement benefits established for you and not be bothered with the details? If you answered yes to one or more of these questions, starting your own practice might not be the best option for you at least not right now and especially if you do not have or cannot afford a knowledgeable assistant. However, if you answered no to the above questions, or you have an accountant or extremely detailed and trustworthy person on board, then you might consider these questions. Do you get a bit of a rush when you imagine yourself as an entrepreneur? Do you like the idea of knowing there is no cap on your salary? Are you a bit of a control freak? If you answered yes to one or more of these questions, perhaps you should seriously consider starting your own practice. Why should you bother to listen to me? I really have no idea other than I ve been practicing law for twenty-one years and even when I worked for the state as a briefing attorney and later as a prosecutor, I always had a little bonafide real estate practice on the side. No longer do I juggle any employers with my self-employment. I did, however, in 2001, marry my law partner which has its own pros and cons if you know what I mean. When I asked if anyone had any ideas or information for this article, I was told that there are numerous resources out there especially on the State Bar of Texas and ABA s websites. I admit I didn t look them up, but you should if you re seriously thinking about opening up your own practice. It s just too late for me I ve done it. Besides, if I read them now, they will only help me to plagiarize someone else s work, and I went through that on a report in junior high. It was not a good thing. I will admit, however, that I have accessed the Law Practice Management Program s site in improving my practice, and I even called upon LPM for an in-house evaluation and training session, which was quite beneficial. Listed below are just some of the pros and cons you may want to consider before starting your own practice. No doubt, because each of us is unique and has
19 different responsibilities regarding family, obligations, and other interests, you have your own personal issues to add in making your decision. II. Taking the plunge into the waters of your own practice: PROS v. CONS PROS: CONS: 1. You choose the type of law to practice. 1. You will have to learn something about the area you ve chosen. Pick an area and attend a legal seminar on the subject. Not only will you learn something which will help you in your practice, but you will gain those much-needed CLE hours. Remember, you re paying for the CLE yourself, so make the most out of it. Get to know others in your area that are practicing law and can help with ideas, networking, etc. These lawyers might even have some contract work to assign to you which could only help in training you and bringing in some income. If you are interested in going to the courthouse, talk to judges about putting your name on appointment lists ad litems, criminal cases, etc. These are great opportunities to gain experience and get recognized. You will need to be energetic and enthusiastic. If you already have a client/case base, you will still need to get to work. 2. You choose where to practice. 2. Some places are expensive. I m not talking about geography I assume you will pick a state or country where you are allowed to practice and you will pick a city where you want to live. I m talking about your office the space so to speak. Depending on the type of practice you ve chosen, you may be able to work out of your house or car or even have one of those virtual offices considering the technology available these days. If the idea of a nice office building with a well-furnished suite outfitted with equipment, supplies and staff is more your style this will cost money. And paying more means most likely working more. The best advice I ever received was the simple comment, keep your overhead low. If you start small, as your practice grows, you can have more. 3. You choose the clients. 3. You will occasionally represent someone you do not like. Sometimes, because you need the money or you just feel like you should, you will represent someone you do not like. The good news is that it is still your decision to take the case and not a boss s mandate. Other times, you may start off quite well with a client, but just like in other relationships, things may digress to an increasingly unpleasant existence. You can ride it out or if it s just not worth it, you can bail. That s the beauty of Motions to Withdraw as Counsel or Motions to Substitute Counsel.
20 4. You set your hours. 4. You may set a lot of hours. Especially just starting out, you may have to work some evenings and weekends on top of your regular work week. Look at it this way, as soon as you get things going, you can start planning that vacation that you will get to take and when you decide it s time. Also, with advanced technology available, you can do desk work and research outside of the office. My laptop and portable printer are usually with me. With wireless Internet and my Remote Desktop software, I can access my office computer from practically anywhere in the world. I can pull up client files, type documents, do the office accounting and bill paying, communicate with my staff, etc. all in the most playful and exotic locations. Your client doesn t have to know you re working on his case while your thawing out in between ski runs. 5. You set the fee. 5. You will have to determine what is reasonable. Your fee must be reasonable. Sometimes trying to decide what the client can pay and what is really fair for the work gets a bit tricky. Believe it or not, especially just starting out, it seems like (and I was one of them) new lawyers actually do not charge enough for their services. Maybe it s because they don t believe they are worth much or they don t want to scare the client off, or maybe it s a combination of both. Remember, if you think you re not worth much, odds are, everyone else may feel the same about you. Check around to see what others are quoting for the same service. In my practice, I bill differently depending on the type of case it is. Upfront flat fees work well for criminal cases; after-the-work flat fees work well for real estate transactions; and contingency fees work well for the few plaintiff s cases I handle. I do very little hourly billing. I am into value billing 1) because it seems fairer to me and to the client and 2) because I am really lousy at keeping up with my hours. You will have to decide what works well for you. You also will have to set up some type of billing system. Example: A client comes to me to represent her in a DWI. My fee contract sets out that I will charge a flat fee for handling the matter through disposition other than by jury trial. I have another amount set out for the cost of a jury trial. The contract also addresses that the attorney s fees do not include costs for experts, investigators, court fees, bail bonds, etc. This fee arrangement allows for very little misunderstanding between me and the client. It allows me to get paid a fair amount even if I work the case out in a day, and it doesn t punish the client if I have to spend hours doing research on an issue that another lawyer might have already known about. (FYI: For obvious reasons the State Bar does not allow us to charge contingency fees on criminal cases). I used to allow criminal clients to pay out their fees as their cases moved along. I learned pretty
21 quickly that once someone goes to prison, he usually (go figure) does not pay off his legal bill. 6. You hire. 6. You fire. Being the boss, you get to decide who you want as coworkers. Believe it or not, some people do not always work as well as their interview went. After hiring and before firing comes the nasty part of watching over employees which includes their hours and their work performance. Most of the attorneys I know are horrible at managing their staff. They are also horrible at managing their associate lawyers. This probably is because most lawyers want to practice law and not administrate, but it is a necessary part of owning your own practice. You will also have to either hire an accountant or figure out how to handle fun things--like payroll taxes. I have been through many legal assistants. Every time I hire a new one, I come up with a new rule. Once you start hiring, you will probably see what I mean. Some lawyers manage without any assistants it s just them and their cell phones. You will have to decide if you need one or more assistants to help you in your practice. Perhaps you are in a position to hire an office administrator, receptionist, bookkeeper, paralegal, errand runner, etc. If you are, then good for you. Most of us have to hire at least one person. You should hope that this person doesn t mind doing a variety of things most of all, making you look competent, reliable, compassionate, and efficient. I tell you now, this person is hard to find. And, if you find him (or her), hard to keep. 7. You will make money. 7. You will have to manage your money. Starting out, you will need some front money. If you do not have some saved, prepare to borrow. You may have to establish a line of credit, or you may be able to use just a credit card. Be mindful of interest rates and try not to get in over your head with debt. Open a business checking account and determine if you need an IOLTA account. Invest enough initially to get you off the ground with supplies, equipment, staff, etc., but unless you have a blank check, you probably don t want to start out buying that solid mahogany desk. Decide how much money you need to make and then set out a plan to get there. In essence, establish a budget and a business plan. If you, like most of us, are doing this actually to make a living, you need to think about establishing a retirement plan. You will also need to think about insurance all kinds including health, life, disability, malpractice, etc. Your office is going to need a lot of the money that comes in your door, but I m also thinking you are going to need to take some home too. That means you will be paying two sets of bills one for the home and one for the office. The list of expenses for both are long so be prepared. If you can afford an accountant to help you with determining what counts as a business expense and how much and when to make tax payments, then do so. The money issues are the single biggest distraction to my practice of law, and I have an accountant.
22 8. You re in charge. 8. You re in charge. Yes, your privilege of calling the shots is an enormous responsibility. This general statement has been alluded to throughout this article. You get to decide how to dress, talk, act, manage, etc. You can create your look and your style, but know that it s easy to be branded before you realize it. If you re the type to frequent the bars during work hours, it will most likely be noticed. If you don t want to invest much in your wardrobe, it might be noticed. These things may not matter depending on your type of practice. I ve been known to bring my Yorkshire terrier, Maya, to work. It does result in in some odd looks, but the girls at the bank on the first floor of my building love her. This silly little companion may not really help my practice, but I m willing to take the risk. You may have certain quirks to your practice which contribute to your own unique style. Just be genuine and aware of the possible consequences. And yes, that old cliché, Perception is reality, really works. So, just act like you are a successful lawyer and most likely the act will work. You ll think I m kidding but the one area you should not skimp on is kindness. You should be nice, even if it s an act. People are already skeptical and distrusting of lawyers. Psychologists say if you force yourself to smile, just the act alone for some reason makes you feel better. So go with it. Besides, hateful, grumpy lawyers put out a bad image and put the rest of us in a bad mood. If you re nice, you will feel better about yourself, and you will either directly or indirectly, reap the benefits. Trust me, I m a lawyer. III. Conclusion As you work through your decision to start your own practice, write down what is important to you. Ask yourself what really motivates you....is it money, recognition, the satisfaction of helping others, independence, etc.? Consider not only the pros and cons set out in this article, but come up with your own benefits and drawbacks to working for yourself. Think hard about going at it alone or sharing space with other lawyers. Examine your personality and how you function best. Talk to people. Talk to your family. Utilize the State Bar and specifically, the Law Practice Management Committee for information. Do not be afraid to ask for help. You can start your own practice, and you can be successful.
23 Susan K. Johnston Susan K. Johnston is a partner in the firm of Johnston & Johnston located in Waco, Texas and has been practicing law for 20+ years. Susan is a member of the Law Practice Management Committee and a graduate of Baylor University School of Law.
24 Self-Evaluation and Readiness Test Erich M. Birch, P.E. Birch & Becker, LLP 7000 N. MoPac Expressway, 2 nd Floor Austin, Texas (512) , (512) fax Introduction The purpose of this paper is to discuss the issues a lawyer should consider before making the jump into a solo law practice or other small firm environment. The decision to be totally self-sufficient should reflect the lawyer s beliefs that he or she can provide competent legal services, can attract clients, and is prepared for the business of running a law firm. This paper will help the lawyer evaluate the reality of the business portion of the conviction, i.e., are you prepared to run a law firm? The paper is written from the perspective of a lawyer who has some level of legal experience, i.e., a lawyer who is already working in a law firm, for a corporation, in government service, etc. It is important to note this perspective because the paper assumes that the lawyer has already developed a legal expertise and has been somewhat exposed to the business side of the practice of law. Although the guidelines presented are equally useful to the brand new lawyer who intends to hang out a shingle immediately upon graduation, the new lawyer should recognize and be forewarned that he or she will have the additional challenges of learning the law, learning how to practice law, and trying to gain exposure to clients while also attending to the important business matters discussed below. This is not to discourage the new lawyer; obviously there are many successful law firms that have been started by brand new lawyers. Instead the new lawyer should just be aware that these additional areas need to be considered when writing a business plan for the new firm. The self-evaluation and readiness test, focuses on the time period immediately prior to the start of a new law firm. This paper is part of a multi-series program offered by the State Bar and it therefore should be considered in context with the other topics in the series. In particular, the Business Plan is a crucial element of the preparation required for a lawyer launching a new firm. Many of the details that will help determine the smoothness of the firm s take-off and flight will be determined by the attention given to the Business Plan. This paper will discuss some, but by no means all of the details that need to be addressed in a well developed Business Plan. It should also be noted that although this paper discusses the self-evaluation issues involved with the details of starting a new firm, there is another self-evaluation that is
25 even more important. This is the self-evaluation that helps determine whether the lawyer truly has the desire to be a solo/small firm lawyer and has the skills, discipline, marketing abilities, etc. to be successful. This paper assumes that the personal assessment has already been conducted, and the lawyer is now in the tactical and preparation phases of the firm s life. Countdown to Take-off Regardless of the reasons behind the lawyer s decision to launch a new law practice, the time period immediately prior to the start of the firm can be the most exciting, but also the most unsettling. Interrupted sleep patterns will likely be the hallmark during this time period as uncertainties concerning finances, clients, office issues, self-confidence, etc., often seem much larger during the wee hours of the morning. Shortly after the resignation letter has been handed in, these issues will come more clearly into focus. However, if the issues have been properly addressed in advance, the anxiety associated with the decision to leave the familiar for the unknown can be greatly reduced. There are two time periods when the lawyer should affirmatively and deliberately evaluate whether sufficient preparation has been made to start the firm. Before the notice of resignation is submitted to the employer is the obvious first time, and the second is shortly before the first day of business for the new firm. Self-Evaluation: T minus 30 days Tomorrow I turn in my resignation Before announcing your decision to cut the umbilical cord with your current employer is the time for a serious self-evaluation. The act of submitting your resignation is usually an irrevocable decision, and so thereafter is not the time to discover that you aren t quite as ready as you thought you were. Even if your employer would consider reinstating your position, the relationship would never be the same as you have now breached your loyalty and tipped your hand that you have entrepreneurial inclinations. Significant planning should have occurred prior to the day of submitting your notice of resignation, and the self-evaluation is a gut check as to whether you are ready to fly. Similar to a pilot s review of the flight checklist before even taxiing to the runway, the lawyer should also make sure that all systems are flight ready before starting the 30-day (or whatever resignation notice period applies) clock. Assuming the lawyer is currently employed, it is unlikely that his or her work will stop the moment the resignation is submitted. In fact, in light of the lawyer s ethical duty to manage the client s work, the time period from the resignation day to the first day of business at the new firm may be very busy. As you busy yourself preparing letters to notify clients of your departure, work on the transfer of your cases to your new office (or Page 2 of 8 Erich M. Birch November 28, 2001
26 to another lawyer), address the hassle of cleaning out your office and moving, make yourself available for the goodbye lunches, etc., you will find 30 days consumed in a flash. For this reason, the lawyer must be truly realistic about the self-evaluation and assessment whether things really are in order. Before you know it, you ll be sitting at your new desk (if you remembered to order one). The following items, in my opinion, are essential to the T minus 30 day evaluation: 1. Business Plan. Most of the items on the lawyer s checklist can be generated from the already prepared business plan. In fact, completion of the business plan is the very first, and likely the most important self-evaluation item to consider. The reason for this is because the process of preparing the business plan forces you to consider most of the other issues that should be addressed. It is also for this reason that the business plan must be an original document, created by the lawyer himself or herself. Although the use of a go by business plan is helpful and encouraged, mindless plagiarism of a business plan is a waste of time and may instill an artificial sense of readiness. The work and fruit of the business plan is the painstaking effort of working through the details of your new firm, e.g., assessing where you expect your clients to come from, defining what specific services you will offer (and which you affirmatively will not offer), estimating how much time you will spend marketing and where you will direct your marketing efforts, understanding how much fee income you must generate to make your firm profitable, etc. Self-evaluation reality-check No. 1: If your business plan is not complete, you are not ready to resign. 2. Are You Ready for the Independent Life? Leaving the comfort and security of an employer to blaze one s own trail is not for everyone. Of course the prior statement assumes there really is comfort and security with the current employer. As part of the self-evaluation the soon-to-be lawyer entrepreneur should confirm that he or she has the constitution for the job. Employees live sheltered lives. Someone else manages the firm/company; someone does the marketing; an accounting department sends out the bills and collects when the bills are overdue; like clockwork, a paycheck arrives on the desk twice a month. So why would an employee choose to give up this sheltered life to risk the unknown of entrepreneurialship? Obviously many nevertheless take this road, and in fact, certain character traits are common to the independent type. Some have created personality tests that help evaluate whether a person fits the independent mold, and an example of one of these tests may be found in the appendix to this paper. Self-evaluation reality-check No. 2: If you don t pass the independent at heart test, then you might want to pass the opportunity to resign. Page 3 of 8 Erich M. Birch November 28, 2001
27 3. Finances. Since most entrepreneurs will already worry about the financial aspects of starting a new business more than anything else, there is little need to emphasize the importance of this issue. Financial planning issues should also be thoroughly addressed in the business plan. Needless to say, prior to resignation day the lawyer should have a very clear understanding of how much it will cost to start and operate the firm, where the money will come from to start the firm, and how long it will take before the firm is profitable. In the typical practice, assuming client billable work starts immediately, the lawyer will still probably not see the first client check for about three months. Self-evaluation reality-check No. 3: If you can t quote your estimated monthly expenses or your anticipated monthly income, but you re pretty sure the finances will work themselves out, then let s just hope your spouse makes a lot of money. 4. Office Arrangements. By this time the lawyer should have selected the new firm s office location, signed a lease, ordered or arranged to order computers, printers, furniture, etc., have the phone systems in the works, made arrangements for internet and long distance services, arranged for secretarial and administrative support, etc., etc. Whether you need an office at all is a question in today s high technology world. A growing number of lawyers are finding that certain types of practices can be conducted from an office located at the lawyers home, resulting in a much reduced overhead without any sacrifice in work quality or service to the client. Regardless, the lawyer must have addressed office issues, especially if the employer abruptly responds with the why don t you just leave today! response to your notice of termination. It won t be apparent how important all of the details really are until your first week of business and you reach for your, e.g., staple machine, business cards, Texas Statutes, malpractice insurer phone number, etc., and find they aren t there. Self-evaluation reality-check No. 4: If you can t recite the address and telephone number of your new office, then maybe today s not the day to resign. 5. Confidants and Advisors. There is a proverb that says: In the multitude of counselors is safety. Although it is possible to start a business based completely on your own research and intuition, it is unnecessary and somewhat foolish, especially since there are good resources available. Chief among these resources is the State Bar s Law Office Management Program. Personnel within this office are helpful, knowledgeable, and have a large library of resource information available for use by the lawyer entrepreneur. This office can also provide a confidential sounding board as the lawyer debates whether going it alone is the right thing to do. In addition, the lawyer should also meet with solo and small firm lawyers and other small business owners who might shed light on their experiences in starting a business. I have yet to meet a small business owner who isn t flattered and excited when asked to share their insight about the opportunities and pitfalls in starting a business. Page 4 of 8 Erich M. Birch November 28, 2001
28 Self-evaluation reality-check No. 5: If you haven t discussed your plans with impartial counselors and listened to a few horror stories, you might want to hold onto that resignation letter. 6. Timing & Schedule. A timeline can be a very helpful tool for setting targets and tracking progress as you prepare to open for business. In fact, the timeline really should be prepared long before resignation day, and the resignation day itself should be a milestone on the timeline. A well-planned timeline will reveal the long leadtime items and will help you to set realistic goals and factor in other issues that might affect your plans. For example, if your business form requires a filing and entails a certain lead time then the date for filing these documents should be entered on the timeline well in advance of the day you open for business. Also, if your current employer typically awards bonuses at a certain time of the year it would certainly be prudent to take this into account as you set your resignation date. Self-evaluation reality-check No. 6: If you are not sure today is the day to resign, because you don t have a schedule telling you today is the day to resign, then today isn t the day to resign. 7. Readiness Test Dry Run. The second part of the self-evaluation is a readiness test. There are two times (at least) that you should take yourself through this list of readiness items. The first time is a dry run through the list as part of your preresignation self-evaluation. The second time is the final exam, i.e., the day before you start your business. If during your dry run you realize that there are still lots of things to do, it is not necessarily a reason to hold onto your resignation letter, but you will then have created a list of things to do so that you are prepared for the final exam in 30 days. Self-evaluation reality-check No. 7: If my readiness test dry run reveals that I am not prepared to start work, then I have lots to do over the next 30 days. The self-evaluation items identified above are obviously not all-inclusive. However, the items should encompass most of the key issues, and can act as a barometer to gauge the overall intensity of your preparation and planning. In other words, if you have thoroughly addressed the above issues, it is a good bet that you ve adequately addressed the other issues that aren t mentioned above. It is now time for a more detailed checklist. Readiness Test: Page 5 of 8 Erich M. Birch November 28, 2001
29 It s Monday morning at the new firm What will I do today??!! So, you really did it you ve resigned and will now hang out your own shingle. Tomorrow is the first day of business then what? The purpose of this next part of the self-evaluation is to provide the seed for a checklist of things that should be considered in preparation for the first day of business. The list asks Who, What, When and Where questions about your readiness to start practicing law on day one. In some cases italicized comments have been added to clarify the question. If you don t have a ready answer to each question, then you ve still got work to do. Who o am I? [Last week you were an employee; this week you are owner, manager, administrator, bookkeeper, marketer, etc.] o will take care of my administrative and paralegal tasks? [Do you have an assistant, or do you plan to do some or all of these tasks yourself? Have you delineated who will do what?] o is my first client? o is my next client? [If you don t know who your next (or first) client will be, then marketing would appear to be a high item of attention.] o will I call to start generating/referring work? o will I meet for lunch? [The solo lawyer especially should schedule lunches routinely to avoid feelings of loneliness and to stay connected with the profession. This is also a great marketing tool. But, don t wait for the phone to ring; you should initiate the calls and schedule the lunches, otherwise they probably won t happen.] What o is the name of my firm? [You should get use to saying it proudly.] o are my areas of practice? [Consult your business plan.] o clients & matters will I refuse to accept? [When times are slow you will be tempted to take these matters could be a mistake. Ask your advisors for some war stories about cases they knew were a mistake from the beginning.] o are my billing arrangements? [Do I have an accounting system? Do I have a format for printing invoices?] o is the first client matter on which I will work? o will I do if I have nothing to do? [Options: marketing activities, straighten up the office, play golf, knock-off early?] When o is my first day of business? o will I arrive for work in the morning? Page 6 of 8 Erich M. Birch November 28, 2001
30 o will I quit for the day? [It is very easy for the solo/small firm attorney to become a workaholic. Obviously long hours may be required in the beginning, but eventually the lawyer should establish a working routine.] o do I expect my first check from a client? [When do I mail my first bill? When is payment due? Will the firm accept credit cards?] o will I pay myself? o are the bills due? o are taxes due? o will I mail my new firm announcements? o will I place my announcement in the Texas Lawyer and local bar magazines? Where o is my office? o is my next meal coming from? The above list is a start, however, it is at best a sampling of the details that need to be addressed when starting a new firm. Once the idea to start a firm takes life, throughout the day and into the night the budding entrepreneurial lawyer will likely experience flashes of ideas, things to-do, and worries about the budding firm. If each of these flashes is added to a firm start-up checklist, the lawyer will eventually have a custom-made list of things to review as the startup date approaches. Obviously there are other sources of helpful information from which startup lists can be obtained. As mentioned earlier, the State Bar s Law Office Management Program has an excellent library of resources. I also found Jay Fooberg s How to Start and Build a Law Practice to be very helpful. The back of the book contains a management checklist that lists over 500 items to consider in the operation of a law firm. In addition, the web is a seemingly endless source of information. Many sites containing small business and law firm-specific startup information can be found on the web. (See, e.g., Heiros Gamos at the ABA s site at and the State Bar s Program at: Conclusion In conclusion I would like to encourage the would-be entrepreneur to follow his or her dream. I have now worked for a large corporation, the government and for a mid-size law firm. The startup and operation of my own law practice has been by far the most rewarding. The time spent on planning and preparation will remove the mystery from the startup process and will help ensure the successful startup of your new venture. Page 7 of 8 Erich M. Birch November 28, 2001
31 Appendix Are You Independent at Heart? 1. Do you work best when you re in control of the project? 2. Do you tend to question authority? 3. Do you consider yourself a nonconformist or outsider? 4. Do you enjoy making your own rules? 5. Do you resent office politics and power games? 6. Is having control over the hours you work very important? 7. Do you work well by yourself? 8. Do you like spending time alone? 9. Are you motivated more by your own desire to do the job well than by the expectations of others? 10. Do you like variety and dealing with new challenges? If you answered yes to most of these questions, you probably want to be on your own badly enough to overcome the inevitable challenges of solo practice. Excerpted from The Complete Guide to Contract Lawyering by Deborah Arron & Deborah Guyol (Niche Press 2 nd ed. 1999) Page 8 of 8 Erich M. Birch November 28, 2001
32 Erich Birch, P.E., J.D. Erich Birch is a professional engineer and attorney with over seventeen years of legal experience primarily in the areas of environmental, administrative, and contract law. His practice is focused on permitting and compliance issues involving air quality, industrial and solid waste, environmental audits, and Superfund. Erich's experience spans the areas of private business, public governmental service and private law practice. He began his legal career in the public sector as an attorney with the Texas Water Commission, working in the Commission s Legal Division handling matters involving hazardous waste, Superfund, petroleum storage tanks, and contracts. He also served as the agency's Public Interest Counsel prior to entering private law practice with an Austin law firm. Prior to practicing law, Erich was an engineer in the petrochemical industry. He worked for thirteen years with Monsanto Chemical Company serving in various roles including project engineer, design engineer, field engineer and as manager of the design group. Through this experience he gained hands-on familiarity with many types of manufacturing equipment and process systems. Erich was also a specialist and instructor of a logical problem solving technique and successfully facilitated many group participatory problem identification and resolution sessions. Erich received a degree in Mechanical Engineering from Vanderbilt University in 1976, and received a Law degree from the University of Houston in He is a Registered Professional Engineer in Texas and is a member of the American Society of Mechanical Engineers, the American Bar Association, the State Bar of Texas, the Austin Bar Association, the State Bar's Law Practice Management Committee, the American Arbitration Association, and he is a trained Mediator. Erich is a frequent speaker on environmental and law practice management topics, and a listing of his speaking engagements and published articles is available at the link below. A complete history of Erich's educational background and work experience is also available below.
33 PLANNING TO CONQUER THE REAL WORLD OF PRIVATE PRACTICE Who s Your Daddy? Who Do I Need To Know And How Do I Meet Them? By Debra Bruce I. Rule 1.01 of the Texas Disciplinary Rules of Professional Conduct A lawyer should not accept employment in a matter beyond his/her competence. Unless: 1.01(a)(1) a competent lawyer is associated with client s prior informed consent Competence defined as having the ability to timely acquire the necessary knowledge, skill & training. Need to know: lawyers That you can call on to give you advice and guidance to expeditiously acquire such additional knowledge, skills and training as you may need. That you can associate in your client matter with the client s consent if the matter is too complex to handle on your own. How do you meet them? Houston Young Lawyers Association meetings State and local bar association section meetings. Solos Supporting Solos. Call your old professors, especially if you are practicing in the same town. They can answer questions and refer you to other lawyers. They may even be able to help you find employment down the road if you stay in touch. Established lawyers often contact their old professors when they are looking to hire a young lawyer. Lawyers in firms where your friends are working. Even someone just 2 or 3 years ahead of you can be helpful. Take on bar association duties or section duties Start attending meetings before you have questions, so that you will already have the relationships established before you have the questions. Most of the organizations have student memberships, but very few students take advantage of them. You will stand out as dedicated, plucky, and savvy. Find ways that you can benefit the lawyers you would like to benefit from. When you do them a favor first, they will want to find a way to benefit you. Perhaps offer to 2d chair a trial with them for free, or at a very cheap rate. Handle some of their dog cases for them. Find out what needs or interests they have and try to help get them met. Baby-sit their kids in a pinch. Give their high schooler a tour of the college campus. Prepare a home-cooked meal and deliver it. Take their college kid to lunch to tell them what law school is really like these days. Teach them the slang they need to know to understand what their kids are saying. Teach them how to do things on the computer. Debra Bruce, JD, PCC Executive Coaching for Lawyers Page 1 of 4
34 Set up a simple website, listserv or blog for their ski club or charitable organization. II. Rule 1.14 A lawyer holding funds of clients must hold them in an account separate from the lawyer s own funds, in a separate account, designated as a trust or escrow account. 2. Need to know: bankers familiar with trust accounts, and preferably with IOLTA accounts. That banker can be essential to your practice for a lot of other reasons, as well. If the banker knows you and trusts you, she can be a good referral source. You may need a loan for capital improvements or equipment. Perhaps you will be able to negotiate a line of credit once you are able to demonstrate an income stream and create some receivables. How do you meet them: Don t just set up your account and do all your business thereafter at the ATM or drive-up window. Walk in to make deposits and make a point of saying hello. Call them by name. Consider putting your accounts at a bank small enough that you can get to know the branch manager or a significant officer. Perhaps one in your building, so you can bump into them or stop in often. Stop and ask questions about their services. Refer new accounts to them. Take out a small loan and pay it off in 6 months or a year, just to establish yourself as a good and creditworthy customer. If you do transactional work, find out who handles real property financings or business loans. Invite them to lunch and find out what kind of business they are looking for. Attend some of the networking and holiday events that the bank has. For example, Sterling Bank has a women s networking event each month. Bankers move around a lot. That s good and bad. It makes it more challenging to have a solid banking relationship with your bank when the people keep changing. It gives you an opportunity to have potential referral sources in multiple banks, however, if you keep up the relationship. Rule 2.01 In advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice. Comment 4 says, Matters that go beyond strictly legal questions may also be in the domain of another profession. Family matters can involve problems within the professional competence of psychiatry, clinical psychology or social work; business mattes can involve problems within the competence of the accounting profession or of financial specialists. Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation. 3. Need to know: depends on your practice area. Often the people you may need to refer your clients to can be good referral sources to you, as well. For a Family Law Practice: Therapists, counselors, social workers Financial planners CPAs (tax & auditing) Ministers Bankers Debra Bruce, JD, PCC Executive Coaching for Lawyers Page 2 of 4
35 Investigators Appraisers Lawyers in other specialties For a Transactional (Business, Real Estate, Tax) Practice: CPAs (tax & auditing) Appraisers Bankers Investment bankers Venture capitalists Surveyors Title companies Real estate agent Property insurance agent Life insurance agent for key person insurance Tenant leasing agent Architects Interior designers/space planners Specialized licensing agents (like liquor licenses) Engineers For a Trial Practice: Court reporters Court clerks Mediators Investigators Doctors Expert witnesses (engineers, safety experts, chemists, etc.) Forensic computer experts Document storage, retrieval and management Demonstrative evidence presentation and multi-media specialists Jury consultants How do you meet them? Bar section meetings talk to speakers & ask other lawyers Networking groups Chambers of Commerce Civic groups Trade association meetings Ask for referrals by other service providers who serve the same client base Your building directory Events, parties, etc. they sponsor (they re looking to meet people like you and potential customers) Chat with people at the courthouse Attend unusual CLE events with non-lawyer speakers Judicial receptions Events sponsored by Texas Lawyer or other companies that have exhibitors State Bar convention Debra Bruce, JD, PCC Executive Coaching for Lawyers Page 3 of 4
36 Ads in the Texas Bar Journal, the Houston Lawyer, Texas Lawyer and other legal publications Online research, listservs & chat rooms for lawyers III. Paragraph 5 of the Preamble to the DRs: As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. You need to have your office well organized to be able to render quality legal services. What connections do you need to help you run a quality law office? Who do you need to know: Persons to recommend hardware & software tailored to the legal industry Insurance agents for: malpractice liability, premises & general liability, fire, theft & casualty, flood, business interruption Good legal secretary, legal assistant or office assistant Computer technology professional Landlord representative in your office building Tenant rep to find your office space Executive suites rep Lawyers subleasing space Banker loan officer CPA or other tax advisor Employment agency for temp and permanent assistants College placement office & financial aid office for part-time help Furniture dealer perhaps used Bookkeeper Printer for business cards, stationery, announcements, invitations, etc. Promotional item sales rep Business coach Professional organizer Legal research & forms guide company rep (Westlaw, Lexis, LoisLaw, BNA, etc.) Nearby bigger law firm with a good library How do you meet them? See the other suggestions above. Debra Bruce, JD, PCC Executive Coaching for Lawyers Page 4 of 4
37 Debra Bruce, JD, PCC Lawyer-Coach, LLC Before becoming an executive coach, Debra practiced law for 18 years in firms ranging from a prestigious international mega-firm to her own entrepreneurial firm. She specialized in business transactions, but on occasion acted as consultant to or assisted trial attorneys. Over the years, Debra s interest in practicing law waned. Finally she made a courageous Leap of Faith to follow her heart elsewhere. Her desire to share her experience and encourage others to live a life they love ultimately led her to a new career in executive coaching. Today through coaching, writing, and conducting workshops, Debra helps her clients create fulfillment and success in their careers, businesses, relationships and lives. Her lengthy legal career gives her a special understanding of the unique issues that confront lawyers. Although she specializes in coaching lawyers, her clients come from other fields, as well. They are located across North America in places like Houston, Seattle, Dallas, Los Angeles, Austin, Washington, D.C., and Toronto. B.S. in Psychology (summa cum laude) University of Houston J. D. (with Honors) University of Texas School of Law Order of the Coif; Texas Law Review Certified Professional Co-Active Coach (CPCC) Professional Certified Coach (PCC), International Coach Federation Past Co-Leader, Houston ICF Chapter Board Member, Renaissance Lawyer Society Chair, Law Practice Management Section of Houston Bar Association Vice-Chair, Law Practice Management Committee, State Bar of Texas Member, Texas Bar, Houston Bar Association, American Bar Association, College of the State Bar Monthly Columnist for The Practice Manager, published by the State Bar of Texas Practiced Corporate & Securities Law for 18 Years 2007 Debra Bruce
38 How to Build Strong Client Relationships Martha M. Newman, J.D., B.J. Business and Professional Coaching
39 Martha M. Newman, J.D., B.J. Business and Professional Coaching Martha M. Newman is a Business and Professional Coach and owner of Gain Your Goals, Inc. She specializes in performance coaching and action-planning for attorneys and other professionals, and delivers presentations and workshops on client development, marketing and time management. Her background is in business litigation, broadcast journalism, and sales training. Martha is former Vice Chair of the Fort Worth Zoning Commission and a docent at the Kimbell Art Museum. Having received her coach training at the prestigious Graduate School of Management at UT Dallas, her coaching and workshops are outcome-oriented with a focus on positive change that produces tangible results. Her corporate work experience is in the fields of sales training, technical writing, public relations, and advertising.
40 How to Build Strong Client Relationships Martha M. Newman THE Foundational Skill of All Great Lawyers: Listening Whole-Heartedly Listening whole-heartedly demands incredible concentration and a deep desire to understand the client who is speaking. Great listeners have the ability to make you feel completely understood and recognized. Mastering this skill can radically transform your law practice! Employ Empathizers Show empathy with more than an unconscious uh huh or umm. Dust your dialogue with phrases like I see what you mean, or, That s interesting. When you respond with complete sentences instead of grunts, your listener feels that you really understand. Empty Their Tanks Your client s brain is like a topped-off tank of gas. over flowing with his or her own thoughts and worries. If you want your clients to listen to the expert advice you have to give, let your clients empty their tanks first. Wait patiently until they have had their entire say, and the needle is on empty. Only then will they hear you. Listen with your eyes! Don t just listen to what your client is saying. Picture it. As he or she speaks, create a visual a movie, even of the story. This will help you understand, follow and remember the story even a month later. If you retain only the words of the story, you will forget it a day later. Echo the Emotion! (How to Turn Anger Around) When clients emote, respond with words that show you have heard what they say and understand their feelings. Such empathy calms a client s emotional storm. For example: You must feel terrible. I m so sorry you are going through such pain and aggravation. What an awful experience you have had!
41 Your First Impression Shrieks Before You Speak The way you look and the way you move is more than 80 per cent of a potential client s first impression. Great posture, a heads-up look, confident smile and direct gaze portray the image of a Somebody. The Flooding Smile A big, warm smile is an asset, but to convey credibility, a smile should erupt slowly. An immediate smile given to everyone makes no one feel special. Pause before you smile for just a moment. Then let a big, warm, responsive smile flood over your face and overflow into your eyes. The split second delay convinces people your flooding smile is genuine. Use Sticky Eyes Exaggerated eye contact can be extremely advantageous in awakening feelings of respect and affection from your clients. Maintaining strong eye contact also gives you the impression of being an intelligent and abstract thinker. So, pretend your eyes are glued to your client s. Don t break eye contact even after your client has finished speaking. When you look away, do so slowly and reluctantly. Say We The word we fosters togetherness. It makes the listening client feel connected to you. It gives a subconscious feeling of you and me against the cold, cold world. So if you want to create a bond with a new client, use the word we to make the client feel you are already friends as in I think we ll survive this. A Lawyer s Cardinal Rule RETURN PHONE CALLS within 24 hours! You will keep clients if you do; you will lose them if you don t. How to give bad news and have clients like you even more Successful lawyers know how to deliver bad news to clients. It s all in the attitude. Often it s not the news that makes someone angry. It s the unsympathetic attitude with which it is delivered. Gauge your client s mood first; then deliver bad news with a sigh, a smile or a sob, not according to how you feel about the news, but how the receiver will take it. Master the Welcome: How do you greet clients and prospective clients? The first five seconds-- the greeting, the welcome, the receptionist s answer influence client satisfaction more than any other act. Clients love feeling welcome. Is the visitor greeted immediately and warmly? What immediate impressions does your office make? Does the receptionist desk face the people who enter your office? Are your telephones always answered within three rings and warmly? Does your office feel alive?
42 Use the You word liberally! Start every appropriate sentence with you. It immediately grabs your client s attention. Clients respond positively because you have pushed the pride button. So, Comm-YOU-nicate whenever possible. Don t touch a cliché with a Ten-Foot Pole. Big winners (your clients!) cringe at clichés. Trite, over worn phrases shout lack of imagination. So, if you are feeling fit as a fiddle, happy as a lark, or high as a kite, just remember that using common clichés around uncommonly successful people brands you as uncommonly common. Roll out some clever phrases instead! Pause before you speak. Silence---the pregnant pause, the white space of conversation---works! It brings the words around it into high relief. It suggests those words will matter. It makes those words effective and memorable. It s hard to resist talking, enthusiastically and often, but that makes you appear too eager and too inclined not to listen. What clients love most: Comfort Clients crave comfort more than anything. How do you answer that craving? Perceived expertness comforts people. Firms that look and sound expert comfort anxious clients. Clarity comforts. It helps them understand, which makes them more confident about who you are and why they should choose you. Integrity comforts. It assures your clients that in a world of uncertainty, they can predict what you will do from what you say. Expressing your genuine interest in people comforts them, too. It assures them you will protect their interests as well as yours. Your passion comforts people. It shows you love what you do which increases the chances that you will perform well. We admire excellence and envy superiority, but it is simple comfort that captures clients and keeps them. How to Respond When You Don t Want to Answer: The Broken Record Technique If a rude client hangs on you like a leech, asking the same impertinent question on an unwelcome subject, simply repeat the same response over and over until the
43 questioner gives up. Use the same words in exactly the same tone of voice. The frustrated client will usually give up and quiet down. Never the Naked Thank You People use the bare, curt thank you so often that it becomes a throw away. So never let the words thank you stand naked and alone. Always make it thank you for something. Thank you for being so understanding. Thank you for being such a good client. Thank you for waiting. This practice has surprising effects. People listen and appreciate your gratitude. Business Manners that Keep Clients 1. Always wait a split second after a person finishes talking before you speak 2. Listen with your entire body. 3. Be positive. 4. Speak well of others. 5. Memorize names. 6. Never try to impress. It diminishes you. 7. Praise, but never flatter. 8. A simple rule when in doubt: Be kind. 9. Deliver on your promises. Clients crave consistency. 10. Answer your phone: When a client calls, pick up the phone if you possible can! THE BOTTOM LINE: Sincerity is the threshold characteristic of effective communication with clients. All of our suggestions regarding good listening and empathetic responses are powerful only if they are genuine. Portions of this presentation were garnered from the following sources: What Clients Love, by Harry Beckwith; Rainmaking Made Simple, by Mark Maraia, and How to Talk to Anyone, by Leil Lowndes.
44 Marketing: What Are You Already Doing Right? Debra Bruce, JD, PCC Lawyer-Coach, LLC
45 Debra Bruce, JD, PCC Lawyer-Coach, LLC Before becoming an executive coach, Debra practiced law for 18 years in firms ranging from a prestigious international mega-firm to her own entrepreneurial firm. She specialized in business transactions, but on occasion acted as consultant to or assisted trial attorneys. Over the years, Debra s interest in practicing law waned. Finally she made a courageous Leap of Faith to follow her heart elsewhere. Her desire to share her experience and encourage others to live a life they love ultimately led her to a new career in executive coaching. Today through coaching, writing, and conducting workshops, Debra helps her clients create fulfillment and success in their careers, businesses, relationships and lives. Her lengthy legal career gives her a special understanding of the unique issues that confront lawyers. Although she specializes in coaching lawyers, her clients come from other fields, as well. They are located across North America in places like Houston, Seattle, Dallas, Los Angeles, Austin, Washington, D.C., and Toronto. B.S. in Psychology (summa cum laude) University of Houston J. D. (with Honors) University of Texas School of Law Order of the Coif; Texas Law Review Certified Professional Co-Active Coach (CPCC) Professional Certified Coach (PCC), International Coach Federation Past Co-Leader, Houston ICF Chapter Board Member, Renaissance Lawyer Society Chair, Law Practice Management Section of Houston Bar Association Vice-Chair, Law Practice Management Committee, State Bar of Texas Member, Texas Bar, Houston Bar Association, American Bar Association, College of the State Bar Monthly Columnist for The Practice Manager, published by the State Bar of Texas Practiced Corporate & Securities Law for 18 Years
46 Marketing: What Are You Already Doing Right? On a panel for a webcast by the Law Practice Management Program about Finding and Keeping Good Clients, we discussed the efficacy of public speaking. Rick Albers, a real estate lawyer in Austin, recounted that another lawyer once told him that he had spoken many times at continuing legal education programs, and never got any business from it. Rick s mouth dropped open. He himself had referred four matters to that lawyer over the last several years. Rick made those referrals because he knew from hearing the lawyer speak that he was knowledgeable in the relevant area of practice. Many years ago, when I had my own law firm, my father asked me how I got my clients. I blinked, dumbfounded by the question, and finally responded, I wish I knew, Dad, so I could get more of them. That question spurred me to examine my list of current and former clients. I discovered that 75% of my business came from referrals from other lawyers. To my surprise, many of those referrals came from my competitors! These stories illustrate one of the shortcomings in the marketing efforts of many lawyers. We don t have a system to measure which activities produce the outcomes we desire. Find What Already Works for You When I work with attorneys on business development, many are afraid I will ask them to do something way outside their comfort zone. Often, however, we start by uncovering what already works for them to enhance that, or to better capitalize on existing opportunities. In my own situation described above, my analysis revealed that something I did for other reasons turned out to be a good business development tool. Shortly after the conclusion of a transaction, I often invited opposing counsel to join me for lunch or an adult beverage. I did that to smooth over any rough edges that might have developed from the tensions of adversarial representation. As a result of that habit, I developed lots of relationships of trust and friendship with lawyers who knew first hand the quality of my work. When they could not take on a representation due to a conflict, many of them referred their prospective clients to me. Track and Analyze Your Marketing Results Here are some steps you can take to make sure you recognize what you already do well: 1. Ask prospective clients who contact you how they found you. If they found you through the Internet, what search terms did they use? If another
47 lawyer referred you, how did they know that lawyer? If they saw your advertisement, where and when did they see it? 2. If the client was referred to you, contact the referral source to thank her and ask why she suggested your name. 3. Track that information in a way that lets you easily review, reconfigure and analyze it. The system doesn t have to be complicated or high tech, but do take advantage of the features of software you are already using. Look for patterns and commonality. 4. Record every time you touch a prospective client, whether in person, by phone, letter, , speaking, writing, or advertising, and the length of time between the first touch and the date they became a client. 5. Look for evidence of which activities bring in top tier clients, and which tend to attract less desirable ones. That requires you to grade your clients so you can recognize the common traits of the more desirable ones. 6. Track the cost and time involved in your various marketing activities to identify the most efficient use of your time and money. High dollar marketing companies track results meticulously and make adjustments based on that feedback. 7. Ask clients for feedback on your firm s services. What did they like? What would they want to see more of? What would they want you to do differently? How do your services compare to other law firms they have used? What would make them feel comfortable in referring friends and colleagues who need your services? Adapt to the Data Once you get a large enough sample from tracking this information, you may find some surprises. Those expensive season tickets may not be paying off, especially if you give them away instead of accompanying your client. It may take a lot more touches or a much longer period of time to generate a new client from your marketing efforts than you expected. Sometimes new clients say, I heard you speak a couple of years ago. You may have a misperception about where most of your business comes from. You may be spending too much time in an arena that brings in lower level clients. You may be doing things right that you never realized. Persist with What Works Marketing legal services often involves planting a lot of seeds that take a long time and a lot of nurturing to germinate and grow to harvest. That time lag can distort our perception of what works. Reviewing the statistics on your successful efforts can bring clarity and give you the necessary encouragement to persist when delayed gratification tempts you to give up too soon.
48 Business Development: Follow-up or Fall Down Debra Bruce, JD, PCC Lawyer-Coach, LLC
49 Debra Bruce, JD, PCC Lawyer-Coach, LLC Before becoming an executive coach, Debra practiced law for 18 years in firms ranging from a prestigious international mega-firm to her own entrepreneurial firm. She specialized in business transactions, but on occasion acted as consultant to or assisted trial attorneys. Over the years, Debra s interest in practicing law waned. Finally she made a courageous Leap of Faith to follow her heart elsewhere. Her desire to share her experience and encourage others to live a life they love ultimately led her to a new career in executive coaching. Today through coaching, writing, and conducting workshops, Debra helps her clients create fulfillment and success in their careers, businesses, relationships and lives. Her lengthy legal career gives her a special understanding of the unique issues that confront lawyers. Although she specializes in coaching lawyers, her clients come from other fields, as well. They are located across North America in places like Houston, Seattle, Dallas, Los Angeles, Austin, Washington, D.C., and Toronto. B.S. in Psychology (summa cum laude) University of Houston J. D. (with Honors) University of Texas School of Law Order of the Coif; Texas Law Review Certified Professional Co-Active Coach (CPCC) Professional Certified Coach (PCC), International Coach Federation Past Co-Leader, Houston ICF Chapter Board Member, Renaissance Lawyer Society Chair, Law Practice Management Section of Houston Bar Association Vice-Chair, Law Practice Management Committee, State Bar of Texas Member, Texas Bar, Houston Bar Association, American Bar Association, College of the State Bar Monthly Columnist for The Practice Manager, published by the State Bar of Texas Practiced Corporate & Securities Law for 18 Years
50 Business Development: Follow-up or Fall Down Recently I celebrated a business development victory with a lawyer. I asked him what he thought was the most important ingredient in his success. Persistence, he replied. I just kept following up. That s where many of us fall down. We attend networking events, give speeches, join organizations, and do other things to be at the right place to meet prospective clients. We succeed in meeting what appear to be some good business prospects or good potential referral sources. Hooray! Now what do we do? Some of us take their business cards back to the office, put them in our desk drawer, and that s the end of it. Perhaps we are hoping they will germinate in there. Perhaps we hope that we are so memorable and our services in such demand that the prospective client will soon call us. Many of us manage to enter their contact information into our database and send a nice to meet you before we peter out. We would do more, but we just don t know what else to do. Some of us get bold enough to call the prospect. We exchange pleasantries, tell them about what we can do for them and offer our services. Usually that results in a polite brush-off, and that s the end of the road for us. We mark that prospect off the list. Follow-up is one of the most crucial, yet most neglected or malpracticed business development skills. That s probably because it requires so much delayed gratification. It requires making repeated investments that may not pay off for a long time, if ever. Some of us are too impatient to make that kind of investment. We take our shot, and if we miss, we move on. Others of us get discouraged too soon, taking the lack of action by a prospect as a sign of rejection. Some of us are willing to make the investment, but we are afraid we will be nagging or pestering the prospect. We have all been the victims of in-artful follow-up where someone did make a pest of himself. If you found yourself in any of the above categories, here are some tips on how to make your follow-up work. 1. Try to go beyond superficial conversation when you first meet the prospect. Learn a little about her interests or her challenges. You will have more fodder to work with in your follow-up.
51 2. Do some preparation before you follow-up. At a minimum, check out her company s website and Google her. If you learned about some concerns she is facing, do some brief research into possible solutions. 3. Look for ways to benefit your prospect when you follow-up. Share some current information that might be useful to her. Offer to be a sounding board or to give her some off the clock advice about any of her challenges that you discovered. Offer to make an introduction that is valuable to her. Send her an article or news clipping that relates to something you discussed with her. 4. Have a genuine interest in and curiosity about her and her business. You can find something interesting or intriguing to you about every person and every business on this planet, if you approach them with curiosity. Expressing a desire to learn more about something specific about her experience or her opinion may be just the ticket that gets you a follow-up lunch. We are all attracted to someone who genuinely finds us interesting, aren t we? 5. Listen for her needs or worries that you can help with. Don t just listen for legal needs that you can address. Listen for needs that other lawyers in your firm can handle. Listen for needs that have nothing to do with the law, but for which you may be able to make a referral or provide a resource. 6. Focus on building a relationship and filling needs. Most unsuccessful follow-up has its focus on what you can get from the prospect, instead of what you can give. If you make yourself a good resource for your prospect, she will want to stay connected to you, and won t find your calls a bother. She will want to repay your favors with business or referrals, if she understands what you do and how you can help. 7. Have a system for follow-up. Don t let prospects fall through the cracks just because they don t have a need for your services at this moment. Set reminders on your calendar to touch base periodically. Months can slip by before you realize it. Perhaps you will want to set aside a specific morning each month to review your list of prospects and dormant clients to reach out to. 8. Track your contacts with a prospect. Sales research shows that most salespersons make 7 to 10 sales calls before closing the sale. Many lawyers give up on a prospect after contacting them only 2 or 3 times. At least for a little while, try recording each time you have a phone call with, send an to, have a meeting with or just bump into a prospect. You can use Outlook, your case management software, contact management software like Act! or Sales Logic, an Excel file, or even a chart on a piece
52 of paper. When you do get some business from her, look back to see how many times you connected before you actually got the business. You may be surprised to see that even with a hot prospect, you connected more than a dozen times. This information will give you the encouragement to persist with other prospects when progress is slow. Armed with these tips and a giving attitude, you can confidently persist in building relationships that ultimately result in your business success. Debra Bruce ( practiced law for 18 years, before becoming a professionally trained Executive Coach for lawyers. She is Vice Chair of the Law Practice Management Committee of the State Bar of Texas, and the co-founder and past leader of Houston Coaching Network, the Houston Chapter of the International Coach Federation.
53 Creativity and Innovation as a Marketing Tactic Debra Bruce, JD, PCC Lawyer-Coach, LLC
54 Debra Bruce, JD, PCC Lawyer-Coach, LLC Before becoming an executive coach, Debra practiced law for 18 years in firms ranging from a prestigious international mega-firm to her own entrepreneurial firm. She specialized in business transactions, but on occasion acted as consultant to or assisted trial attorneys. Over the years, Debra s interest in practicing law waned. Finally she made a courageous Leap of Faith to follow her heart elsewhere. Her desire to share her experience and encourage others to live a life they love ultimately led her to a new career in executive coaching. Today through coaching, writing, and conducting workshops, Debra helps her clients create fulfillment and success in their careers, businesses, relationships and lives. Her lengthy legal career gives her a special understanding of the unique issues that confront lawyers. Although she specializes in coaching lawyers, her clients come from other fields, as well. They are located across North America in places like Houston, Seattle, Dallas, Los Angeles, Austin, Washington, D.C., and Toronto. B.S. in Psychology (summa cum laude) University of Houston J. D. (with Honors) University of Texas School of Law Order of the Coif; Texas Law Review Certified Professional Co-Active Coach (CPCC) Professional Certified Coach (PCC), International Coach Federation Past Co-Leader, Houston ICF Chapter Board Member, Renaissance Lawyer Society Chair, Law Practice Management Section of Houston Bar Association Vice-Chair, Law Practice Management Committee, State Bar of Texas Member, Texas Bar, Houston Bar Association, American Bar Association, College of the State Bar Monthly Columnist for The Practice Manager, published by the State Bar of Texas Practiced Corporate & Securities Law for 18 Years
55 Creativity and Innovation as a Marketing Tactic At a dinner party recently, a lawyer and I discussed theories about the struggles many law firms are facing. Today the market place changes rapidly, but changing something in a law firm can be harder and slower than turning a battleship. My theory was that, as lawyers, we focus on the past and on precedent. We actually have an aversion to innovation and change because too much innovation in the law creates unpredictability and instability in society. On top of that, we spend most of our time on behalf of our clients trying to determine who is at fault and assigning blame (and damages), or trying to protect against every risk that could possibly arise as the result of all the negligence and malfeasance in the world. We are too expert at pointing out the problems and risks of any new idea, and too unpracticed at seeing the benefits and possibilities. As if on cue, the next issue of Texas Lawyer included an article titled, Law Departments and Firms Should Nurture Creativity, (February 5, 2007). Although most of the article discussed how lawyers suppress creativity, it included several examples of innovations by corporate law departments. I promptly sent quotes of some of the innovative ideas and a link to the article to appropriate clients and prospects, as well as to the lawyer from the dinner party. When you see new ideas, do you think of how your clients might benefit from them? Or do you just keep your focus on the law? When I trained as a young lawyer, I was taught to stick to the legal issues, and avoid the business issues. Today, however, the biggest rainmakers are the lawyers who become trusted advisors, sounding boards and doors to resources for whatever challenges their clients face. What would your clients think if you said, I was reading about the improvements in X, and I wondered whether that might be opening up a market opportunity for your company in our area. What message would it send to your client if you were to share with them the innovations you see in other industries that might apply to their business? What would your client s perception of you be if you said, You know, I ve been thinking about the recurring litigation you have been facing, and I wondered whether X change in procedure would reduce the number of cases. Some litigators reading this are thinking, Litigation business is already down right now. Why would I want to help reduce it further? To them I respond, When litigation is down, how do you think clients choose which few lawyers will get the cases they do have? I think most clients would perceive such discussions as an indication that you care about their success; that you see yourself as a member of their team. Such discussions especially foster trust when the client sees you hold their interests ahead of your own. In an era of increasing competition in the legal field, you can
56 stand out amidst armies of qualified lawyers by demonstrating to your clients, prospects and former clients that you focus on and care about their success. And what about innovation? The February 5, 2007 Texas Lawyer article cited a survey of in-house counsel respecting the three most distinguishing attributes of successful outside counsel. Only 6% named creativity. It is not clear from that report whether corporate legal departments don t really look for innovation and creativity when they hire outside law firms, or just don t find it. Anecdotal evidence supports the argument that business people (if not in-house counsel) want creative lawyers who offer more than just legal advice. Take the case of the outside general counsel chosen for the San Antonio Spurs basketball team. In a Texas Lawyer article entitled J. Tullos Wells Scores as Outside General Counsel for San Antonio Spurs (July 18, 2005), Jack Diller, the Chief Executive Officer who engaged Wells said I was looking for someone who blended a strong knowledge of the San Antonio market with the ability to be creative in terms of reacting to the kinds of changes that had taken place in NBA basketball. Notice he didn t say he was looking for the lawyer who had the most legal expertise, or who had tried the most cases, or who had closed the biggest deals. Texas Lawyer also reported that Rick Pych, the Executive Vice President for Corporate Development of the Spurs, said that the Spurs reliance on Wells went well beyond providing the team with legal advice. They also relied on him for advice on the role the Spurs should play in the city of San Antonio. Diller further recounted that Wells learned how to work the NBA salary cap so the team would have money to acquire a valuable player later. That required planning ahead and conducting business in a way that would position the team to take advantage of the cap when other teams couldn t. If you want dream clients, be their dream lawyer. Wells noted that only 29 other lawyers on the planet get to do what he gets to do. It s pretty hard to compete with a lawyer like Wells, who creatively solves his clients problems and helps them run their business more effectively. This month, be a shining star in your client s eyes. Lawyers called brilliant are usually the ones who find new solutions to old problems, or who innovate quickly enough to keep pace with the development of new problems. Keep your eyes, ears and mind open for brilliant solutions to their challenges, even if they don t involve legal issues.
57 Differentiation by Design Debra Bruce, JD, PCC Lawyer-Coach, LLC 2007 Debra Bruce
58 Debra Bruce, JD, PCC Lawyer-Coach, LLC Before becoming an executive coach, Debra practiced law for 18 years in firms ranging from a prestigious international mega-firm to her own entrepreneurial firm. She specialized in business transactions, but on occasion acted as consultant to or assisted trial attorneys. Over the years, Debra s interest in practicing law waned. Finally she made a courageous Leap of Faith to follow her heart elsewhere. Her desire to share her experience and encourage others to live a life they love ultimately led her to a new career in executive coaching. Today through coaching, writing, and conducting workshops, Debra helps her clients create fulfillment and success in their careers, businesses, relationships and lives. Her lengthy legal career gives her a special understanding of the unique issues that confront lawyers. Although she specializes in coaching lawyers, her clients come from other fields, as well. They are located across North America in places like Houston, Seattle, Dallas, Los Angeles, Austin, Washington, D.C., and Toronto. B.S. in Psychology (summa cum laude) University of Houston J. D. (with Honors) University of Texas School of Law Order of the Coif; Texas Law Review Certified Professional Co-Active Coach (CPCC) Professional Certified Coach (PCC), International Coach Federation Past Co-Leader, Houston ICF Chapter Board Member, Renaissance Lawyer Society Chair, Law Practice Management Section of Houston Bar Association Vice-Chair, Law Practice Management Committee, State Bar of Texas Member, Texas Bar, Houston Bar Association, American Bar Association, College of the State Bar Monthly Columnist for The Practice Manager, published by the State Bar of Texas Practiced Corporate & Securities Law for 18 Years 2007 Debra Bruce
59 2007 Debra Bruce Differentiation by Design Recently I ran into a Houston lawyer at the Hermitage Hotel in Nashville, Tennessee. As we chatted, he extolled the virtues of the hotel. He began with his amazement that, although he had only stayed there once before, the doorman called him by name when he arrived. Then he gushed about the impact of walking into the luxurious bathroom in his room. At the Vintage Inn in Napa, California, as I unlocked the door and stepped into my room, I heard gentle strains of soothing music. Lamplight and a fire flickering in a fireplace created a romantic mood and warmed me from the chill of the night air. A small table held a complimentary bottle of wine, with glasses and a corkscrew. I sprawled on the bed, and felt like I had landed on a fluffy cloud. This was not my usual business trip experience. When I got home I started planning how I could get back to that hotel. What do these stories have to do with your law practice? They illustrate the marketing power of focusing on a client s experience when delivering service. These hotels stood out in an industry with competitors literally around the corner. Would your clients say that about your firm? An article in the October 2007 issue of Fast Company magazine reported that a threeyear study of more than 40 Fortune 500 companies by the research firm Peer Insight found that companies focused on customer experience design outperformed the S&P 500 by a 10-to-1 margin from 2000 to Jeneanne Rae, co-founder of Peer Insight LLC, says Customers will gladly pay more for an experience that is not only functionally but also emotionally rewarding (emphasis added). Psychologist and marketing experts say that most buying decisions are emotional, and the buyer s analysis is really just designed to support the emotional decision already made. That s why Madison Avenue uses sex to sell cars, beer and soap. I work with lawyers in large firms all over the U.S., and when we survey them about what differentiates their law firm from their competitors, a high percentage of them respond that they provide superior legal services. These top notch firms compete against other top notch firms, and if there is any real difference in legal ability at that level, I doubt that most clients can discern it. Clients can discern, however, differences in how they feel when they receive legal services. The lawyers surveyed, however, tended to focus on functional needs, and rarely considered the emotional needs of their clients. What would effective customer experience design look like for your law firm? Begin by identifying the emotional needs, concerns and preferences of your client base. What do your clients want? There are probably a number of core needs in common with most clients, regardless of the kind of legal services sought. They want relief from stress and worry about the legal issue they have entrusted to you. They want to feel important and know that you have their interests uppermost in your mind. They want to feel safe. They
60 want to feel taken care of. They want to feel valued and appreciated for choosing you. They want to feel understood. They want to feel special. Now think about the touchpoints with your clients and the ideas, emotions and memories that these interactions trigger. It may help to think of them not as clients, but as participants in an experience of sights, sounds and smells that you create. Don Norman, a nationally-known design guru, says attractive things work better. Norman asserts that a pleasant aesthetic design can help people be more flexible and creative in finding solutions to challenges. Stress, however, makes people less able to cope with difficulties and less flexible in their approach to problem solving. So it is important to minimize distractions, bottlenecks and difficulties, and to maximize aesthetics. A well-designed experience for your clients may actually help them be more creative participants in problem solving. For most clients, situations involving legal representation involve stress. To improve interactions with clients, begin by creating a pleasant experience for them when they come to your office. Difficulties in parking, or a late start for an appointment, can reduce your client s ability to deal with unexpected news or to be flexible and creative in negotiations. By way of example, I went to a new dentist, and thought it was odd that a dental office would have coffee and chocolate chip cookies in the waiting room. The snacks were attractively presented, as if Martha Stewart had chosen the table cloth, napkins, serving plates and containers for cream and sugar. Several of the chairs in the waiting room had vibrating back massagers. I felt comfortable and welcome, and found I even wanted to linger there. I found I didn t mind dealing with all of the usually bothersome new patient questionnaires and insurance paperwork. That dental office used good customer experience design to improve my impression of their services, and after my first visit I told several people about those dental offices. One Houston family lawyer has offices in an old house with a large attractive flower garden at the entrance. She keeps homemade cookies on hand and burns scented candles in the office. Her clients have commented that the environment helps them calm down. Give your own office a client experience audit. Contact your own office as though you were a client. When your clients call your office, does the person answering the phone recognize their name? How many times did the phone ring before they picked up? If it is necessary to put the caller on hold, does your assistant or receptionist ask permission first? Does he or she actually wait to hear the response? If a client informs you of an unsatisfactory telephone experience, what do you do about it? Do you thank the client for letting you know? 2007 Debra Bruce
61 If you serve elderly, injured or disabled clients, can they get to your office without climbing steps? Is the physical environment pleasant and soothing, or noisy and chaotic? Do your clients have the sense that their matters are truly confidential, or can they overhear telephone conversations as they walk down the hall? Do they see other clients documents as they meet in your office? Do you give the clients the experience of feeling special? Does your receptionist know to expect their arrival and address them by name? Do you promptly greet them, or do you keep them waiting? If they meet in your office, do you put your phone on Do Not Disturb and turn off the alerts so that you can give the clients your full attention? Do you offer your client a beverage? Does the client have a comfortable place to sit? Do you stay behind a fortress of a desk, or do you join your client in a symbolic gesture of your partnership with them? In rendering legal services, do you help your clients know what to expect and keep them informed of developments? Evidently many lawyers do not, because I repeatedly hear General Counsels say that surprises are their pet peeves about outside counsel. How quickly do you respond to s and phone calls? The most frequent complaints received against lawyers by the State Bar of Texas have to do with poor communication and failing to respond to client request for information. What other ways can you give your clients a positive experience when working with you? It is worth some thought if you want to stand out in a crowd of competitors Debra Bruce
62 Get Remembered Debra Bruce, JD, PCC Lawyer-Coach, LLC
63 Debra Bruce, JD, PCC Lawyer-Coach, LLC Before becoming an executive coach, Debra practiced law for 18 years in firms ranging from a prestigious international mega-firm to her own entrepreneurial firm. She specialized in business transactions, but on occasion acted as consultant to or assisted trial attorneys. Over the years, Debra s interest in practicing law waned. Finally she made a courageous Leap of Faith to follow her heart elsewhere. Her desire to share her experience and encourage others to live a life they love ultimately led her to a new career in executive coaching. Today through coaching, writing, and conducting workshops, Debra helps her clients create fulfillment and success in their careers, businesses, relationships and lives. Her lengthy legal career gives her a special understanding of the unique issues that confront lawyers. Although she specializes in coaching lawyers, her clients come from other fields, as well. They are located across North America in places like Houston, Seattle, Dallas, Los Angeles, Austin, Washington, D.C., and Toronto. B.S. in Psychology (summa cum laude) University of Houston J. D. (with Honors) University of Texas School of Law Order of the Coif; Texas Law Review Certified Professional Co-Active Coach (CPCC) Professional Certified Coach (PCC), International Coach Federation Past Co-Leader, Houston ICF Chapter Board Member, Renaissance Lawyer Society Chair, Law Practice Management Section of Houston Bar Association Vice-Chair, Law Practice Management Committee, State Bar of Texas Member, Texas Bar, Houston Bar Association, American Bar Association, College of the State Bar Monthly Columnist for The Practice Manager, published by the State Bar of Texas Practiced Corporate & Securities Law for 18 Years
64 Get Remembered Years ago at an early morning meeting Jimmy Brill, a board certified estate planning lawyer and the founder of Solos Supporting Solos, asked each of 30 lawyers to introduce themselves and their practices. I didn t know any of them, and they all faded into a blur, except for one tall gentleman in a straw hat and seersucker suit. He said, I m a proctologist in the courtroom. He got some chuckles and my attention. I often ask the attorneys I coach on business development to analyze their client list to determine how they obtained their previous clients. Most of them report that the majority of their new clients come as referrals. If your business depends on referrals, your success depends on the likelihood that others will remember you when someone has a problem you can solve. A couple of months after that morning meeting, I asked someone in the group, What s the name of that guy who s the proctologist in the courtroom? Ted Hirtz, he responded immediately. Ted s introduction stood out and triggered the memory of enough people for me to locate him again. What made Ted memorable? Chip Heath and Don Heath, the authors of Made to Stick, would say that one reason Ted stuck in my mind was that his description broke my guessing machine. I anticipated that he would say he was a trial lawyer, a real estate lawyer, or something else predictable. Unexpectedness grabs our attention and enhances memory. In their book Made to Stick, the Heath brothers analyzed what makes stories, events and sayings memorable. They distilled it down to six factors that create stickiness, which they express in an acronym that (almost) spells success: Simplicity, Unexpectedness, Concreteness, Credibility, Emotions, and Stories. Ted Hirtz used concrete words that created an image in my mind. (Let s not go any further with that.) We remember concrete images more easily than abstract concepts. He also kept it simple. He conveyed one straight-forward message: that he is a tough trial lawyer. Ted s statement also evoked some emotion. Most of us either winced or chuckled. Studies show that people remember thoughts paired with emotion longer. No wonder we remembered Ted s statement. In one sentence he utilized at least 4 of the stickiness factors. People also remember what you do if your description triggers them to imagine that you can help with a problem they struggle with or know someone else who does. So keep those legal concepts simple and easy to understand, and try to illustrate the benefit of using you. Don Graul, a lawyer who handles family law
65 mediations before attorneys get locked in battle, says that he helps parents get divorced with less pain for themselves and their children. Sometimes Don says he does early intervention mediation, but he recently remarked that often even lawyers don t seem to get it. That approach doesn t employ the principles of simplicity and concreteness. Big words often float right over our mental retention pond. It also lacks the emotional depth of Don s other description. What if what you do is just naturally complex and difficult for a lay person to understand? Boil it down to the most basic issues, or the most meaningful concrete benefits. Kevin Maguire switched from saying that he is a condemnation lawyer to saying he helps resolve land disputes. His listeners responded with questions about his work. Lisa Thorp, a public finance lawyer, said her descriptions of what she did bored people. Now she speaks with pride about helping communities build hospitals and schools. Chris Kotlarz, a tax lawyer, says he helps keep the government s hand out of your pocket. Who doesn t want that? Notice that none of the previous examples started with I m a lawyer. Most people already have in mind an image of what it means to be a lawyer. Unfortunately, today that may not be the image you want to invoke. Once you stick a concrete image in their minds of the benefit you provide, however, you will often get a follow-up question like How do you do that? There s your opportunity to tell a brief success story, illustrating the point and strengthening your listener s memory. It might start with, Well, I m a lawyer and, for example, when my client had a problem with X, I helped him by doing Y. How will you know when your introduction works for you? Here are some good signs. One: you get a follow-up question indicating curiosity about how you do what you do. Two: Your listener asks for your card. Three: You hear other people repeating some version of what you said. An acquaintance may introduce you to a third person using your words, or even better, someone may call to hire you because they heard you can help with whatever you said. By way of example, Steve Scholl got trained in a specialized form of mediation called peacemaking. He began introducing himself as a trial lawyer and peacemaker. I knew he had achieved stickiness when someone at my church remarked to me that she met a man who is a lawyer and a peacemaker, with a certain tone of surprise in her voice. If these ideas sound effective to you, but you keep drawing a blank when you try to apply them to your practice, perhaps coaching will help. Find a buddy to brainstorm and experiment with, or contact your favorite lawyer-coach.
66 INTERNAL AND EXTERNAL FILE ORGANIZATION MANUAL SYSTEM By Gisela B. Bradley I. INTRODUCTION This article concerns itself with the set-up, maintenance and organization of files, both within the individual file folder as well as the files themselves. The ideas contained in this article are suggestions only, there are many different ways to structure your records based on personal preferences, as well as different needs depending on the type of file it is. If you are looking at major restructuring of your filing system you may wish to consult a records management professional for additional suggestions and advice. II. OPENING AND CLOSING FILES A. Opening Files When a new file is opened, the following should always be done. A new matter information sheet filled out by the attorney (or legal assistant) to place within the file. New client and matter information should be entered into your firm s billing system. New client and matter information should be entered into your firm s case management system, if you use one. At least one, and preferably a series, of tickler/deadline entries should be made and placed on the firm s calendar. Never open a file without associating it with some sort of calendar entry. If you do not have a case management or billing program, set up important client information on a card, cross-reference it, and place in an open file box. Add the matter to a list of new open matters (if you do not record this information anywhere else if you do, then don t duplicate your efforts). Set up a new directory (where appropriate) in word processing to hold the client s documents Where appropriate (usually) a statue of limitations entry should be made for the file. A new file must be physically set up, with appropriate labels, etc. The firm should have a policy for which files need separate internal organization, and all files that need to be internally organized (such as litigation files) should have the initial steps taken WHEN the files is opened, not after. B. Closing Files As with opening a file, many firms have too informal a procedure. It is not good enough just to know that the legal work has been concluded; the administrative issues must be brought to a close as well. To close a file, ensure that: An attorney in charge must first of all request that the file be closed. Never inadvertently close a file on which more work needs to be done.
67 Once the request is made, the file should be marked as closed in your billing and case management systems. Never mark a file closed if it has an outstanding balance due. Check your trust account records to make sure there is a zero balance for that client. If not, either refund the overage or send a bill to the client for the remainder. Never close a file with a non-zero trust balance. Archive any word processing documents associated with the file and remove any directories created when the client matter was set up. Pull any true junk old note pads, extra copies of documents, etc. from the file and discard. Pull any reusable materials such as memos or briefs, expert witness opinions, etc. and file. Remove the file listing from your open matter list, if you maintain a separate manual one. Remove the file cards from your open file cards box, if you maintain a separate one, and transfer the information to a closed files box. Record a new closed files number for your file in a closed file record keeping system. Transfer the file to closed file storage. III. FILE APPEARANCE A. File Labeling Many law firms just put the name of the client on the file label, or assign the number 1 to the first client and go up from there. While this may work all right for small firms with a few clients (none of whom is a repeat customer), it is not desirable for several reasons. Ideally, you want a file label designator that: Allows you to distinguish between separate matters handled for the same client Can be used as is by your billing program Provides some clues to the age and/or subject of the file Is not so long or so complex that it s incomprehensible or easily mistyped Many billing programs require either numeric file designators or ones that begin with numbers. Check your program. Others may not permit hyphens, spaces, etc. Here are some possible constructions: 02001JJ (First file opened in 2002, client is John Jones JJ-W02 (A will file opened for John Jones in 2002) W (ditto; just does not have client s name on it) (This firm categorizes types of files by number; wills are 1) And so on there is no one right and wrong way of handling this.
68 IV. COLOR CODING FILES Color-coding your law office files is a great way to draw attention to different types of files and prevent the casual viewer from confusing these files with other, unrelated files. The concept of color coding covers a variety of options, so mix and match the following suggestions to customize your filing system to your office s particular needs. TIP # 1 Don t use only a colored label color code the entire file. It is possible to buy a full rainbow of file folders instead of the standard manila ones. Using different colored file folders for different categories of cases can be a real time saver, especially considering attorney s habits: they will leave piles of files all over their offices, no matter how many times they have been instructed to return files, only have out the file they are working on, etc. If they can scan a pile of folders for the green folder, file misplacement is much less likely. Most offices who color code folders by type of case work out their own sometimes tongue-in-cheek means of identifying the different subjects: white is probate, red personal injury, green real estate, blue corporate, and so on. This particular implementation will not be useful, however, for an office that only handles one type of case, or for a general practitioner with twenty or more general types of cases to deal with. The same concept can still be used; some examples follow: Give each new year a different color Color files according to the primary attorney on the case If your firm only handles a few clients, color by client. Tailor your own particular use of this idea to fit your own firm, attorneys and clients. There is no best system for any given office; the one necessity is that all attorneys within the firm must be using the same system. TIP # 2 Combine effects. All right, so now you have a variety of colored file folders. There is obviously more available, however, than a colored folder. Colored labels are available, as are different colored dots that can be affixed to a folder or a label. You can combine these to convey a wealth of information about your firm s files. Depending on the size of the firm, you may wish to give each attorney a differently colored label, or change label colors with the start of each new year. New label colors with the start of each new year is especially helpful if your office uses a numeric file
69 labeling system that starts with the last two digits of the year, e.g That way egregious misfilings will be noticed immediately. An excellent idea is to either change the label color for closed files (since most authorities agree these files should be renumbered anyway) or, if they retained their original labels, to red-dot them indicating they are closed. That way, anyone skimming a row of files will note that a closed file has been intermixed with the active ones. Dots can also be used to flag files that are scheduled for trial, or for which a client conference has been scheduled, or what ever would be most helpful for you. V. FILE CONTENTS A. Documenting the File. Maintain a log that shows all documents placed in a file or removed from a file, along with a notation in the case of a removal. (this can be as simple as a sheet of lined paper). Bates stamping. (again, simply hand numbering each document in the file will help). B. Subdividing a File. 1. Administrative Fee Agreement Trust Ledger Card (in closed file) Associated Counsel Agreement Medical Releases Other Authorizations of Liens 2. Correspondence Generated by Your Office 3. Correspondence Received by Your Office 4. Court Documents 5. Evidence Blueprints Contracts / Other Agreements Medical Records Police Records What should the well-dressed file include? Fee Agreement!!! Any other necessary authorizations or contracts between you and anybody else involved
70 New matter information sheet Case progress form or notes form Place to keep telephone messages Log of information in the file Separate locations for all evidence, exhibits, etc. Documentation for all expenses associated with the file All closed files should contain, in addition Copy of the client s trust account ledger card Completed file closing check-list C. General File Organization Systems There are many different ways that firms set up file organizational systems; no one system is intrinsically best, but they share certain characteristics: Some sort of master index or log of all files in the office. Without this, you will have no record of a file that has been taken home or misplaced, and you will have no way to see at a glance the total number of files that you are working on at any given time. A consistent naming or numbering system for all files in the office. While statistics show that it s easier to misfile alphabetically rather than numerically organized files, most people don t like having a file whose numerical name gives no clue to its contents. You may want to combine names with numbers, as in 02Smith. You should also have something about the physical appearance of the file or its label give you a hint as to the age of the file. For example, you could start a new color each year or preface each file name with the year the file was opened. This makes it easier for you to see at a glance the relative ages of the matters you are working on. Within the file itself, information must be (a) organized and (b) logged. Logging each item in a file, although an extra administrative burden, is imperative in order that you will be able to have a running list of all file contents that you can use in case that you mislay an item in the file. Logging information can be as simple as having a lined piece of paper placed in the file, or behind each organizational divider, recording each document that was placed in the file, the date, and any subsequent activity for that document (such as being removed). As far as organizing the material in the file goes, there are several adequate alternate methods, which include: Using the time-honored method of attaching a two-hole punch clip to either side of the file folder, and placing all correspondence in chronological order on one side, and all court documents in chronological order on the other.
71 Using an accordion folder or some other master file folder and within it placing multiple small manila files labeled as to contents. Typical content files would include correspondence, administrative work, court documents, police reports, medical records, and so on. Three-hole punching all material and keeping a case notebook, with material organized chronologically behind tabs separating different topic areas. VI. FILE LOCATION A. Reasons for File Location Management Central storage means that all attorneys and all staff know the location of any given file, so they can help with it if need be Closing files becomes much easier Files don t get lost, reducing risk of malpractice Making it harder for disgruntled employees or associates to steal files B. Reasons Why Files Are Not Kept Where They Are Supposed To Be Firms without good tickler systems need to have the file physically present as a reminder of what needs to be done Attorneys claim that file needs to be at hand if client calls Attorneys like security and control of having files with them C. Sample File Location Policy All active files for a particular work group, such as domestic, corporate, or workers compensation, should be stored in a central location, regardless of which attorney is primarily responsible for them. As soon as file is closed, it should be renumbered and transferred to a closed file storage location on-site. Files should remain in the file storage area unless they are currently being worked on. In other words, a file that is waiting for a medical report to be sent in and added is not currently being worked on: it should be in storage. A file that will be tickled in a month for a motion that needs to be completed within 40 days is not currently being worked on: it should be in storage. Files that are currently being worked on should be on the desk of the attorney, legal assistant or secretary doing he work until, and only until, that work is completed. Then the file should be returned to the central file storage area with the tickle date put into the case management system that shows when the file should be pulled next. If a file is not currently with the person to whom the file was assigned, the file s temporary location should be noted in a user-definable field in your case management system. This includes any files that are taken home, a practice that should be strongly discouraged.
72 File clerks should not move whole files around; if pieces of information within the file need to be copied, the removal of the document should be noted in the file s internal log. VII. CONCLUSION The overall organization of a law office often takes roots in the way the files are handled and managed. From this article the reader will see that there are many options and possibilities to create a well working records management system. The key to success is select the system that will work best for your practice, document the procedures and make sure every one complies with them
73 Gisela B. Bradley is the founder and CEO of Law Practice Management Consulting. Prior to Law Practice Management Consulting she served Texas attorneys with practice management advice and education as the first director of the Law Practice Management Program of the State Bar of Texas. She successfully built this program from the start and designed and developed the products and services offered. During her almost eleven years of service at the State Bar of Texas she developed award-winning educational programs, authored numerous articles on legal management trends, and presented workshops and seminars on local, state and national levels. She also consulted with law firms and individual attorneys on improving their management practices. Before coming to the State Bar of Texas Ms. Bradley managed law firms of varying sizes for fifteen years. Ms. Bradley served on the American Bar Association's Law Practice Management Advisors' Committee from 1996 to She also serves on several Advisory Boards of legal consulting and attorney training firms. Ms. Bradley focuses on assisting solo and small firm practitioners in improving the efficiency of their client service, and increasing their productivity while enhancing the quality of their work product. She provides management consultations to firms as well as individual management coaching to attorneys. Examples of accomplishments at the State Bar of Texas include: Writing the Start Up Kit For A Small Law Practice, a step-by-step guide to opening your own law office; Developing and presenting Planning to Conquer the Real World of Private Practice, a practical preparation course for law students; Developing and presenting The Law Office Management Institute, a 12-months comprehensive management training course for attorneys; Developing How to Organize and Manage Your Law Practice, a series of seminars for 12 practice specific areas. Ms. Bradley received her BA in Liberal Studies with a major in Accounting from St. Edward's University in Austin, Texas
74 PLANNING FOR FINANCIAL SUCCESS By Gisela B. Bradley I. INTRODUCTION To achieve financial success in your law practice you must first define what that means to you, create a plan to reach your financial goals, monitor the development and growth of your financial health, and be prepared to take corrective actions when necessary. To gain financial success assumes a steady flow of clients, competent client representation, and the ability to manage the firm s affairs efficiently and cost effectively. It is said that only when the lawyer is able to meet his/her reasonable economic needs, he/she is most able to serve the client in the client s best interest. For purposes of this article the author narrows the focus on client communication, fee structure and related issues, and banking relationships and bank accounts, as they relate to the planning for financial success process. The material presented here is by no means an exhaustive study of the subject. The reader is encouraged to seek individual guidance from a legal management consultant, a CPA or a banker for additional information. II. CLIENT COMMUNICATION a. Client Expectations There is an old saying A client does not care how much you know until he knows how much you care that points to the relationship side of the attorney / client interaction. A side that is so often overlooked or ignored by the attorney. Yet it is the relationship between the client and attorney that will set the tone and determine the level of success with that client for the duration of the association with the firm. Clients typically only have an involvement with the law once or twice in their lives; they really don t understand the process the lawyer lives with on a daily basis. That is why it is so important to establish a clear line of communication with the client. The client has four basic needs: they want to tell their story, they want to be listened to, they want to know that they have come to the right place, and they want their problem solved. Once the client feels that you can meet these needs, he also wants to know how much it will cost him. With as many choices as the client has for legal representation, he is naturally looking for the best service at the most cost effective price. It is the lawyer s responsibility to communicate clearly if and how the firm can meet the client s needs. b. Firm Expectations A successful attorney/client relationship is based on two-way communication. The attorney s responsibility does not just consist of listening to the client s needs, but also to express the firm s needs and expectations of the client. In particular, when it comes to billing issues. During the initial client interview the attorney should
75 explain the firm s process of handling the case. Who will be working on the case, at what billing rates, and how often will the client be billed. It may be helpful to show the client a sample bill to make sure the format and extent of detailed information meets the client s needs. If the firm s policy is to ask for a retainer, the client needs to know how the retainer will be applied to the charges, and whether or not he is responsible for replenishing the retainer. Equally important is to let the client know the firm s expectation regarding payment of the bill. What are the firm s payment terms? Will there be interest accruing on late payments? How does the firm handle fee disputes, etc.? In some firms someone other than the attorney, i.e. the business manager or bookkeeper, conveys this type of information to the client. This distinguishes the attorney as the legal service provider from the business side of the firm. However, regardless of the policy you adopt, the information must be given to the client before the case is accepted. The client needs to know, and has a right to know, all aspects of the relationship before he hires the firm. This will also contribute to payment by the client according to firm expectations. c. Internal Procedures for Communication Internal procedures must be established to handle ongoing communication with the client. From the first office visit by the client a process should be in place about what type of information to obtain from the client and how, i.e. by way of intake form or client information sheet or a personal interview. Secondly, there should be a process for providing the client with information about the firm, i.e. a firm brochure or resume. Once the client has hired the firm and the firm has accepted the case, each client should be treated as if he was the only client in the firm! Following are a few examples of how to accomplish that: 1. Return phone calls promptly your internal systems should be able to identify which calls must be returned by the attorney and which calls can be answered by someone else. 2. Make sure your clients know your staff, and your staff knows your clients. This will prevent the client from insisting on speaking to the attorney if he knows that your staff is part of your team. 3. Create a regular flow of information to the client. You can do this by sending copies of everything to the client, use your invoice as a status report if you bill on a regular basis, or send out a separate status report even if nothing is happening in the case at the time. 4. Ask the client for feedback. Your internal systems may include a tickler to remind you at certain intervals of the case to get client feedback and input. This will include the client as a team member and will make him feel more in control of his own case, and give him a better understanding of the legal system. 5. Under promise and over deliver. Be realistic in forecasting your work. Your internal systems should give you reliable information about deadlines and commitments already booked, so that you can give the client a good estimate as to when the work can be completed. Don t promise something to make the sale and then find yourself unable to deliver. It makes a much better impression on the client if circumstances are explained honestly and then the work is delivered when promised or even before!
76 d. Fee Agreements When all the necessary information has been shared to make the hiring / accepting decision, all terms of the agreement should be reduced to written form. The written agreement should explain all charges to be made and the need for timely payment by the client. III. FEE STRUCTURE a. Market Analysis / Observations In order to price your services competitively you must know what the market around you is doing. That does not mean that you need to fall in step with every one else, it simply means that you should be aware of what similar services are priced at in your market. It is just one part of the billing rate equation. Additional sources of billing information may be your local bar association as well as other professional organizations. b. Firm Financial Needs Regardless of what other firms are charging, you must look at your own financial needs as the second and equally important part of your billing rate equation. What does it cost you to provide one hour of service? What does it cost you to keep the doors open per hour? Your overhead expenses may be very different from the firm down the street. Does that mean your billing rates should / could be different? When you examine the firm s financial needs, also keep in mind any upcoming expenditure, i.e. computer upgrades, other equipment acquisitions, new furniture, planned expansion, etc. You will find a sample fee calculation formula under d. Setting Fees. c. Clients Ability to Pay When establishing your fee schedule a number of variables must be taken into consideration: the market, your own needs, and the client s ability to pay. Economic downturns can have a devastating affect on your own firm as well as your clients business. If your research shows that your client s business is about to be impacted by an economic or other event, which will render him unable to pay your bills, your overall fee structure may need reviewing to work with the client through this down time. The key is to seek a balance in your cash flow sufficient to meet your firm s needs and continue to serve your clients. The best way to accomplish that is to keep informed, have a good communication system with the client, and engage in advance planning. d. Setting Fees. Today s market and increased client sophistication when selecting legal services are making it necessary to carefully evaluate billing practices. Whether you prefer task based billing, value billing, hourly billing or other alternative billing methods, it is crucial to know what the cost of each billable hour is. Only after you have determined the cost of each billable hour, will you be able to
77 structure your fee arrangements. Your calculations will show you where your break-even point is, as well as what your profit margin is. Following is a sample formula (by Jay Foonberg, author of How to Start and Build a Law Practice) you can use to determine the cost per available hour. This formula is for a solo practitioner with a monthly salary of $5,000, and a secretary at $2,000 per month. The office rent is estimated at $2,500, a part time runner/clerk at $500 and taxes, insurance, supplies, etc. at a total of $2,600 per month. This formula may be adjusted for groups: Total monthly expenses: $12, Less attorney s salary $ 5, Overhead costs: $ 7, Divided by available hours (160) Overhead cost per available hours $ Plus attorney s rate (5000:160) $ Total cost per available hour: $ This calculation results in a cost of $78.75 per available hour. If you billed your time at $78.75 and billed 40 hours per week, and your fixed and variable expenses were the same as in the above example, you would be at break-even. Any billing above $78.75 would result in profit. The danger in this analysis is that it makes no allowance for billing adjustments, such as write-downs or write-offs, nor billing at less than full time each week. Therefore, while it is absolutely necessary to know the cost of each billable hour, you must take the collectibility variables into consideration when setting your fee. e. Disbursements Recovery Policies Some firms establish a policy whereby the firm will advance client expenses such as filing fees, court costs, court reporters, expert witnesses, process servers, etc. up to a certain dollar amount and then bill it to the client. The witness, the court reporter, or any other third party will bill anything in excess of this dollar amount directly to the client. Other firms have policies where no expenses will be advanced, instead the client will be asked to pay a certain amount of money up front to cover anticipated third party expenses. What ever your policy may be you need to take these situations into consideration when making your financial projections. f. Discounting Fees I have yet to meet an attorney who has not discounted his fees for whatever reason. May that be as a favor to a friend, neighbor, family member, or simply a client who cannot afford the regular fee. I am in no way advocating changing this. However, in planning for financial success I am strongly suggesting that you keep track of discounted fees. When you practice the exercise above to determine what
78 your cost per hour is to deliver legal services, you know how far you can discount your fees before jeopardizing the economic health of your practice. For example if your per hour cost is $80 and your regular billing rate is $125, your profit margin is $45 per hour. This is the range in which you can discount. Of course I must cautiously point out that you should also calculate your realization rate to know what your effective billing rate is and you will find that the profit margin shrinks somewhat. For example: Total dollars collected per month divided by the number of hours billed per month results in the effective billing rate. Take that rate and compare it to your per hour cost and you will have a more realistic profit margin. Your internal accounting system should be able to give you this information on a regular basis so that you can make the appropriate management decisions on a day-by-day basis. Without this knowledge you will still discount your fees, but how do you know what kind of discounts you can give before you find yourself taking shortcuts in the services you provide. g. Collecting Fees According to Jay Foonberg, the author of How to Start and Build Your Law Practice if a client doesn t have the money up front to hire you, he won t have it after you have done the work either. Therefore, his motto is Cash Up Front! For all the other lawyers who have accounts receivable to collect, here are some suggestions: 1. Have a clear fee agreement that is signed by the client and the lawyer. 2. Bill clearly, accurately and regularly. 3. Try to get retainer fees in advance. 4. Stay on top of your accounts receivable. 5. Have form letters in place for quick mail out when necessary. 6. Be aware of slow down in payments that may signal future problems with collections. 7. Develop script for someone other than the lawyer to use when making collection calls. 8. Offer discounts before writing them off completely. 9. Remember that a lawsuit for the collection of outstanding legal fees may invite a complaint or even a malpractice claim. h. Accounts Receivable If you are using an automated time and billing system, chances are very good that you have a built-in aged accounts receivable schedule. Be sure to print it out after each billing cycle and review it carefully. You may have various options for the format of the print out, i.e. names only or names with addresses and phone numbers. The latter makes it easier to initiate contact at the time of review. You may also want to check your software program to see if it has automatic reminder letters. Some applications have form letters already as a part of the system. Review them and add your own touches as needed. The advantage of these form letters is that you might be able to tell the system that you want letter No. 1 generated for every one in the 30-day column, or letter No. 2 for
79 every one in the 60-day column, etc. You can substantially minimize your collection problems by staying on top of your accounts receivable. This means that if your payment terms are Upon Receipt, and your accounts receivable schedule shows someone in the 30-day column, that is the time to pick up the phone. The client may not have received the invoice but is ready to pay as soon as you fax him a copy. The client may have a question about one item on the bill, but hasn t had the time to call yet. Answer the question and ask when you might expect payment. If you do not follow up on a regular basis, the item will move another column to the right and in doing so will become increasingly harder to collect. Uncollected accounts receivable affect your realization rate. To become financially successful means to be in control of your practice. That includes working the accounts receivable. If you as the lawyer are not comfortable with this task yourself, hire someone on a part time basis once a month to make the collection calls and keep your accounts receivable manageable. IV. BANKING RELATIONSHIPS / BANK ACCOUNTS a. Choosing Your Bank / Banker The relationship you develop with your bank and your personal banker should be a mutually beneficial one for many years to come. To help you decide where to keep your bank accounts, ask yourself the following questions: 1. Depending on my type of practice, does it make a difference to my clients where I bank? 2. Depending on my type of practice, can the bank be a potential referral source for more clients? 3. Can the Bank accommodate my needs for the various types of accounts required for my practice? 4. Does the Bank have an officer who is familiar with the legal profession s banking needs? 5. Can the Bank handle IOLTA accounts? 6. Is the Bank s location convenient to my office? 7. Does the Bank offer after hour deposits? 8. How flexible is the Bank with interest rates? The answers to those questions will go a long way towards choosing a bank you can work with for many years to come. b. LOC (Line of Credit), Loans, Overdrafts From time to time a law firm, even the most financially successful law firm, may find itself in need of funds. It may be to enable the firm to take on a larger case requiring a certain amount of cash flow for out of pocket expenses; it may be a relocation of the office, or the acquisition of expensive equipment, or a number of other out of the ordinary events. This is where a good relationship with your personal banker will prove beneficial. Depending on the nature of your cash requirement, the most prudent method of borrowing, in my opinion, is for as short
80 a time as possible, at the lowest possible rate of interest. For example, if you have a temporary shortage of funds (malpractice premium is due by Monday and the large settlement is not coming in until Friday) a negotiated overdraft protection may be the best way to go. If, however, you foresee the necessity for a periodic expenditure to take care of out-of-pocket expenses in that large case, a Line of Credit arrangement with your bank may be the most suitable solution. This is where you draw as needed, pay back, draw again, pay back, etc. etc. A line of credit arrangement with a bank is often looked at as testing the waters of this relationship. The manner in which you handle such an account will build the relationship with your banker. You are developing a mutual trust relationship, which in the long run may result in better interest rates, client referrals, etc. Another benefit of a line-of-credit account is that the interest is calculated on the outstanding amount, rather than a fixed amount. If and when it becomes necessary to apply for a loan for a fixed amount at a certain rate of interest for a fixed length of time, the trust relationship between the firm and the banker will also determine the extent of flexibility the bank is willing to work with. A banking relationship is like a courtship by which over time, both parties can benefit if handled appropriately and a foundation of trust can be developed. c. Operating Accounts I am often asked by solo practitioners why do I need a separate operating account, everything comes to me anyway? My suggestion: Treat your law practice as a business. Have a separate bank account under the law firm s name and title it Operating Account. This account is used for all items, which relate to the operation of the law practice, including fees received, operating expenses, and the payment of attorney draws, or paychecks. This provides a much cleaner audit trail for business transactions. d. Trust Accounts A trust account is established for the purposes of handling client funds. It should be opened under the firm s name and titled Trust Account. What are client funds? Client funds or 3 rd party funds are moneys received by the firm to be held until a fee is earned or can be disbursed otherwise. For example, a client retainer should be deposited in the trust account until the work is performed and can be billed against the retainer. A settlement check from a 3 rd party needs to be deposited in the trust account until such time when proper disbursement to all parties can be made. This account should never be used for operating transactions. e. IOLTA Accounts IOLTA stands for Interest on Lawyers Trust Accounts. This is another type of trust account, which must be established IF you are handling client funds at an average bank balance large enough to accrue interest in excess of service charges. This account is opened under the federal ID number of the Texas Equal Access to Justice Foundation and any interest accrued minus the service charges is paid to
81 the Foundation by the bank. I am including a pamphlet in the back of this book on Guidelines for Attorney published by the Texas Equal Access to Justice Foundation. CONCLUSION Planning for financial success means nothing other than being in control of your practice, establishing sound business practices, nurturing good client relationships and knowing the value of your work. Developing the right balance between wanting to serve those who cannot always pay the full price, while at the same time building a trust relationship with those who can help you through some financially challenging periods is a lifeline for many law firms. Learning these skills does not happen overnight, but with patience and ongoing monitoring and adjusting processes financial success can be achieved much more so than living in a reactionary practice.
82 Gisela B. Bradley is the founder and CEO of Law Practice Management Consulting. Prior to Law Practice Management Consulting she served Texas attorneys with practice management advice and education as the first director of the Law Practice Management Program of the State Bar of Texas. She successfully built this program from the start and designed and developed the products and services offered. During her almost eleven years of service at the State Bar of Texas she developed award-winning educational programs, authored numerous articles on legal management trends, and presented workshops and seminars on local, state and national levels. She also consulted with law firms and individual attorneys on improving their management practices. Before coming to the State Bar of Texas Ms. Bradley managed law firms of varying sizes for fifteen years. Ms. Bradley served on the American Bar Association's Law Practice Management Advisors' Committee from 1996 to She also serves on several Advisory Boards of legal consulting and attorney training firms. Ms. Bradley focuses on assisting solo and small firm practitioners in improving the efficiency of their client service, and increasing their productivity while enhancing the quality of their work product. She provides management consultations to firms as well as individual management coaching to attorneys. Examples of accomplishments at the State Bar of Texas include: Writing the Start Up Kit For A Small Law Practice, a step-by-step guide to opening your own law office; Developing and presenting Planning to Conquer the Real World of Private Practice, a practical preparation course for law students; Developing and presenting The Law Office Management Institute, a 12-months comprehensive management training course for attorneys; Developing How to Organize and Manage Your Law Practice, a series of seminars for 12 practice specific areas. Ms. Bradley received her BA in Liberal Studies with a major in Accounting from St. Edward's University in Austin, Texas
83 ESTABLISHING INTERNAL CONTROLS Article Written by: Gisela B. Bradley, Director, Law Office Management Program, State Bar of Texas, Austin, Texas
84 Gisela B. Bradley is the founder and CEO of Law Practice Management Consulting. Prior to Law Practice Management Consulting she served Texas attorneys with practice management advice and education as the first director of the Law Practice Management Program of the State Bar of Texas. She successfully built this program from the start and designed and developed the products and services offered. During her almost eleven years of service at the State Bar of Texas she developed award-winning educational programs, authored numerous articles on legal management trends, and presented workshops and seminars on local, state and national levels. She also consulted with law firms and individual attorneys on improving their management practices. Before coming to the State Bar of Texas Ms. Bradley managed law firms of varying sizes for fifteen years. Ms. Bradley served on the American Bar Association's Law Practice Management Advisors' Committee from 1996 to She also serves on several Advisory Boards of legal consulting and attorney training firms. Ms. Bradley focuses on assisting solo and small firm practitioners in improving the efficiency of their client service, and increasing their productivity while enhancing the quality of their work product. She provides management consultations to firms as well as individual management coaching to attorneys. Examples of accomplishments at the State Bar of Texas include: Writing the Start Up Kit For A Small Law Practice, a step-by-step guide to opening your own law office; Developing and presenting Planning to Conquer the Real World of Private Practice, a practical preparation course for law students; Developing and presenting The Law Office Management Institute, a 12-months comprehensive management training course for attorneys; Developing How to Organize and Manage Your Law Practice, a series of seminars for 12 practice specific areas. Ms. Bradley received her BA in Liberal Studies with a major in Accounting from St. Edward's University in Austin, Texas
85 INTERNAL CONTROLS - An Integral Part of Law Office Management by: Gisela B. Bradley An internal control structure is a system of safeguarding the firm s resources. It provides a way to collect, organize, record and report information that is needed for the efficient operation of a law practice. There are several operating activities which require internal controls. This article addresses the activities of practice management, production, revenue, expenditures, and financial and management reporting. The management of the firm defines practice objectives, which will be met by way of implementing internal control procedures and policies. Following are examples of internal control goals to be implemented in each of the above mentioned activities: Practice Management New clients and/or new matters will be approved by management before acceptance. Contingent fee work will be evaluated and approved by management. Pro bono work will be reviewed and approved by management. Written firm policies and procedures will be communicated to all firm personnel. Billing rates and terms as well as client credit limits will be set by management and communicated to clients and staff. Non-standard rates or billing arrangements will be approved by management. Billing and collection problems will be addressed before they effect the firm s finances. Legal work as well as attorney and paralegal performance will be reviewed regularly. Write-offs of accounts receivable or work-in-progress will be evaluated and approved by management. Maintenance procedures for a docket control system will be established. Background information for purposes of conflict checking will be established. Production A log or some other tracking system will be maintained in a timely manner to record and report time. All recorded billable time will be charged to the correct client file. All non-billable time will be recorded in the appropriate accounts provided for such activities (i.e.cle, pro-bono work, management, or administrative hours). Revenue All recorded time will be billed regularly at the pre-approved rates. All bills will be reviewed by management before mailing and will be posted to the client s file in a timely fashion. Client advances (third party billings) will be reviewed for pre-approved amounts. Direct billing will be initiated for costs in excess of approved advance amounts.
86 All incoming funds are logged in and properly deposited Any unbilled time and expenses will be reviewed regularly. Aged accounts receivable will be reviewed and followed up on. Expenditures All disbursements for operating or capital expenditures will be authorized by management. Purchasing of goods and services will be authorized by designated personnel only. Check writing and signing procedures will be established. All goods and services will be verified against goods and services purchased and invoices and shipping documents will be attached to the check copy. Disbursement transactions will be properly classified and recorded for financial and management reporting. Financial and Management Reporting Standard accounting policies and procedures will be established and approved by management. Information contained in financial and management reports will be verified for accuracy, it will be meaningful, understandable and reliable. Financial and management reports will be prepared and distributed regularly. An annual operating budget will be prepared and approved. Discrepancies between budgeted and actual results will be reviewed regularly. All tax returns and other reports will be filed regularly and timely. The written policies and procedures to achieve these goals will be more detailed and will clarify each individual aspect of the control system. The users of such a system will realize that non-compliance with these policies will have a direct effect on the revenue potential of the firm. A crucial component of internal control is follow-up. The information contained in the financial reports is to be reviewed and compared with management s objectives. This process allows refinement of the operating cycle. Decisions will be made based on the reported information, therefore the integrity of the reporting system must be preserved and never viewed as a simple clerical exercise.
87 Gisela B. Bradley is the founder and CEO of Law Practice Management Consulting. Prior to Law Practice Management Consulting she served Texas attorneys with practice management advice and education as the first director of the Law Practice Management Program of the State Bar of Texas. She successfully built this program from the start and designed and developed the products and services offered. During her almost eleven years of service at the State Bar of Texas she developed award-winning educational programs, authored numerous articles on legal management trends, and presented workshops and seminars on local, state and national levels. She also consulted with law firms and individual attorneys on improving their management practices. Before coming to the State Bar of Texas Ms. Bradley managed law firms of varying sizes for fifteen years. Ms. Bradley served on the American Bar Association's Law Practice Management Advisors' Committee from 1996 to She also serves on several Advisory Boards of legal consulting and attorney training firms. Ms. Bradley focuses on assisting solo and small firm practitioners in improving the efficiency of their client service, and increasing their productivity while enhancing the quality of their work product. She provides management consultations to firms as well as individual management coaching to attorneys. Examples of accomplishments at the State Bar of Texas include: Writing the Start Up Kit For A Small Law Practice, a step-by-step guide to opening your own law office; Developing and presenting Planning to Conquer the Real World of Private Practice, a practical preparation course for law students; Developing and presenting The Law Office Management Institute, a 12-months comprehensive management training course for attorneys; Developing How to Organize and Manage Your Law Practice, a series of seminars for 12 practice specific areas. Ms. Bradley received her BA in Liberal Studies with a major in Accounting from St. Edward's University in Austin, Texas
88 Develop Time Management Systems By Gisela B. Bradley Following are some suggestions on calendaring, appointment setting, tickler systems, and docket control. This information refers to manual systems to address the time management issues. I also make reference to the earlier software portion of this paper for electronic calendaring and docket control. A. Calendaring, Appointment Setting, Tickler Systems and Docket Control Note: Firms use different terms to talk about how they set appointments, manage court dates, reminders, etc., including such terms as diary, docket, tickler, calendar, and so on. We re just using three terms, defined as follows: Calendar: any tool that lets you record any type of appointment or deadline on it Docket: a calendar that only includes court dates Tickler: a reminder of an upcoming event 1. Useful Tools Single Large desk calendar with plenty of room in each day for entries. Calendar should preferably have space for to-dos, reminders, and miscellaneous as well as appointments (for example, a DayTimer) If you must, separate calendar books for attorneys. Recommended instead: small notebooks that will hold copies of weekly schedules, copied from the main calendar or printed from your case management software. However, your attorney may want you to keep private appointments in a separate book. Note that using calendaring software makes keeping public vs. private appointments much simpler. Wipe-off wall calendar for major events that may involve the entire office (i.e. closings, depositions, holidays, etc.) DO NOT place a wall calendar, or any other calendar for that matter, in any place where clients can see it. This includes the lunchroom, if you ever take clients back there to get them sodas or coffee. Tear-off appointment slips that the attorneys can fill out when they are out of the office and give to the secretary that makes appointments when they get back. Calendaring/Case management software program, preferably installed on a network. Filing box for ticklers, either a small box that holds the index cards (if you re just writing notes for your ticklers) or a large accordion-type folder (if you re placing the tickle documents inside the tickle file as you set it up). Firms that have a busy court docket may want a separate calendar or separate reminder box for court appearances only. The disadvantages: time, trouble, and the confusion that results from having separate systems;
89 in addition, you will have to cross-check with the other calendar to make sure that a regular appointment doesn t conflict with a court appointment. Advantages: double-check your most important appointments (court dates), easier to talk with judges and staff with the information readily in front of you, easy to spot double-ups in larger offices where two attorneys are supposed to be in the same court the same morning (ask one to cover for the other). 2. General Tips Try above all to keep your calendaring systems simple. If everyone in the office does not understand the system and use it 100% of the time, it s worthless--once people do not trust the system, they will begin to create systems of their own, and chaos will result. So, if at all possible, don t set up multiple calendars where one calendar will do, or separate to-dos, reminder lists, private calendars, public calendars, dockets, hold-forpickup items, etc. if it s possible to keep track of them in the same place. Keep ONE calendar. ONE person makes entries on the calendar. Use calendar slips to make appointments when the attorney is away from the office, then transfer to the main calendar. Don t just calendar important events like hearings, deadlines, and statute of limitations expirations. Put reminders of these events on the calendar as well to let you know that you need to start worrying about these items. Remember to calendar not just what you are supposed to do, but what other people are supposed to do as well. For example, a common reason for P.I. cases dragging on as long as they do is that the attorney who requested the medical records or the response to the interrogatories forgot to follow up when the records or the response was never received. If you request something, always put on your calendar the due date for the response. Never make any sort of request of anybody, inside the office or outside of it, without having a deadline associated with it. Never allow a file to go back into the file cabinet without having a calendar entry associated with it. If you follow this advice, you will never lose files that have gone off into limbo and been forgotten. You will always have a calendared item (even if it s just Pull the Jones file today to see where we are ) to remind you that the file is active. Don t calendar in pencil and erase changes. Write everything in pen (assuming it s not computerized) and cross out changes. Sooner or later you will be glad you can prove the original item was on your calendar. If you use a computerized calendaring system, look for one that can give you an audit trail of all changes to the calendar. Combine calendaring and mail opening functions, when possible. Open and sort the mail for the attorney, then highlight each item in the mail that requires a calendar entry to be made and initial it to show that the item has been transferred to the calendar. Only then deliver the mail to the
90 Categories of reminders: attorney. This will save A LOT of time as well as keep you better familiar with what s going on with the office s case files. If at ALL possible do not let attorneys open their own mail. If one person in the office always opens the mail, try to make that same person the person who keeps the calendar. Calendar and schedule not just people but things, as well. A prime example is your conference rooms. You should always indicate on your MAIN calendar when the rooms are scheduled, and with whom. If people must get up and go sign in a log in the conference room itself, they probably won t make the effort and occasionally you will have a conflict. 3.Ticklers (Reminders) Reminders for upcoming appointments, deadlines, etc. on the calendar Reminders for other work you ve promised to do on a file OR that other people have promised to do for you Reminders of people coming in to pick up information, sign documents, etc. Place reminders for upcoming deadlines, etc. directly on the calendar. If you have a calendar system that supports to-do lists, place your reminder on the to-do lists. Place a copy of any piece of paper that refers to an action you re supposed to complete into a tickler file with the date that action is supposed to be completed written on the top of the paper. Also include reminders of all things that you ve asked others to do for you. For example, if you ve requested medical records by a particular date, put a copy of your request letter in the tickler file. Store all pieces chronologically within the file and refer to the file every day to find your to-do and follow-up items for that day. Place information that people are coming in to pick up or sign in a hold file at the front of the office, organized chronologically. Make SURE that it is part of someone s job responsibilities to call each person who has something in the hold file and has not come into the office. You can combine this with the tickler file if necessary, but it can be a good idea to have separate files (One reason is that the receptionist can probably handle everything in the hold file, but a lawyer, secretary, or legal assistant may have to individually deal with the other items). 4. Case Management/Calendaring Software A firm-wide docket/case management program is very, very useful indeed, even if you re a small firm with a small budget. It will enable you to have one central calendar for the entire firm, which can be viewed and sorted by individual attorneys, workgroups, or however you like. You can also set up private appointments and entries that pertain only to a set group of people. Ticklers can be set up once and then have all associated events automatically be
91 scheduled You can easily see schedule conflicts and overlapping resources. For example, you can see that one attorney is scheduled to be in court in Hays County on a routine appearance at 10:00 a.m. and another is supposed to be in the very same court at 11:00 a.m. Why not have one cover for the other? The program will maintain all kinds of case and client information that can again be sorted and printed for various purposes. A standard use is printing labels for Christmas or birthday cards. Remember that you have user-definable fields in which you can store that information -- or any other you want. You can also use this software to schedule not only people but resources, such as conference rooms. This is wonderfully useful for firms that do a lot of real estate closings or client meetings. Instead of running around looking for a free room, you can just tell the program to look for whichever space is free and schedule there. You can link data if you have integration with your billing system; in other words, you can post a completed appointment with a client as a billed event in your billing module, complete with all the necessary financial information to process it. Better systems either have their own electronic mail or link to a third party program, which means that you can quickly and easily tie in questions mailed to another attorney to existing appointments, or create an appointment on the fly based on an entry. Because of this, programs such as Abacus, TickleX, TimeMatters, Amicus Attorney & Amicus Assistant, and CaseOrganizer are favorably viewed not only by the firms using them but also by malpractice insurance carriers, who may lower your premiums based on knowing you use one of these programs. Cost (not including the general cost of networking) for these programs should run from $60-$600, depending on the program you choose. If you do install calendar control software, follow these guidelines: Keep it simple. Again, a program with a lot of bells and whistles that nobody will use is inferior to a simple program that everyone will follow. Keep it centralized. Do not allow many people, especially if they are not well trained to make entries or change entries in the calendar. If at all possible, install your calendar on a network. This will enable everyone to be able to view or print the calendar from his or her desk, but appointment making can still be centralized in one person s duties.
92 Anticipate partners or others who will refuse to use a computer, and work around this. If a partner does not have a computer on his desk, get the secretary to print out a daily calendar from the program, but DO NOT allow that person to avoid using the calendar. The calendar will only work if everyone s schedule can be counted on to be found.
93 Gisela B. Bradley is the founder and CEO of Law Practice Management Consulting. Prior to Law Practice Management Consulting she served Texas attorneys with practice management advice and education as the first director of the Law Practice Management Program of the State Bar of Texas. She successfully built this program from the start and designed and developed the products and services offered. During her almost eleven years of service at the State Bar of Texas she developed award-winning educational programs, authored numerous articles on legal management trends, and presented workshops and seminars on local, state and national levels. She also consulted with law firms and individual attorneys on improving their management practices. Before coming to the State Bar of Texas Ms. Bradley managed law firms of varying sizes for fifteen years. Ms. Bradley served on the American Bar Association's Law Practice Management Advisors' Committee from 1996 to She also serves on several Advisory Boards of legal consulting and attorney training firms. Ms. Bradley focuses on assisting solo and small firm practitioners in improving the efficiency of their client service, and increasing their productivity while enhancing the quality of their work product. She provides management consultations to firms as well as individual management coaching to attorneys. Examples of accomplishments at the State Bar of Texas include: Writing the Start Up Kit For A Small Law Practice, a step-by-step guide to opening your own law office; Developing and presenting Planning to Conquer the Real World of Private Practice, a practical preparation course for law students; Developing and presenting The Law Office Management Institute, a 12-months comprehensive management training course for attorneys; Developing How to Organize and Manage Your Law Practice, a series of seminars for 12 practice specific areas. Ms. Bradley received her BA in Liberal Studies with a major in Accounting from St. Edward's University in Austin, Texas
94 TIMEKEEPING - or THE JOY OF TIMEKEEPING! By Gisela B. Bradley The financial success of your law practice begins with a good system of time record keeping. Why is it that lawyers who always keep contemporaneous time records enjoy a 25 to 40 percent higher income than those who do not? Let s examine some of the reasons: 1.To be Able to Produce More Meaningful Bills. Clients are becoming more demanding in wanting to see what they are paying for. Therefore, the more descriptive the invoice - the higher the probability of collecting it. It is very difficult and time-consuming to draft a detailed, narrative invoice without contemporaneous time records. You would have to go through the client s file and review everything that was done during this billing period. This would most likely result in estimations, loss of detail from telephone calls, incomplete expense records, etc. A good timekeeping system, either electronic or manual - will assist you in capturing the time spent on a case. Whatever system or method you use, be sure to keep the time book or time slips on your desk in front of you as a constant reminder. Record all telephone calls and all correspondence. It is important to write your description of services in exactly the wording you would use on a narrative bill. When you are ready to send your bill, all the detail of your services will be readily available to draft a meaningful, descriptive bill. If you do not record your time contemporaneously, you will not be able to remember later what you did. It is simply not possible to remember everything you did at the end of the month or the end of the week or even the end of the day. Following is a time conversion schedule for your convenience, in recording your time: 1 to 6 minutes = to 36 minutes = to 12 minutes = to 42 minutes = to 18 minutes = to 48 minutes = to 24 minutes = to 54 minutes = to 30 minutes = to 60 minutes = 1.0 As you are disciplining yourselves to make timekeeping a regular process of each day, you must also teach those to whom you delegate work. Be that other attorneys, paralegals, law clerks, or secretaries - teach them the importance of accurate, detailed, contemporaneous time records. You have the ultimate responsibility for your client s invoice. You can make a much
95 more informed decision about what to bill the client, when you have all the information in front of you. 2. To Know the True Value of One s Services. If you do not keep accurate time records, you would not know how much of your time was really spent on a case. To prepare a bill, you would have to estimate every aspect of the services provided. It is natural that we tend to underestimate the time spent on a task, because we simply don t remember everything that was done. How then, can we really know the value of our service? 3. To Evaluate the Cases for Profitability. To determine the profitability of a case, simply divide the total fee collected on the case by the total number of hours expended. This will give you the per hour fee collected. You can and should perform this calculation on contingent cases as well. This method of testing will show you which cases are more profitable than others. This is an important management tool. It will help you streamline your practice. You will be able to manage your cases better by deciding how much time to spend on less profitable type work and how much time to free up for more profitable work. If you feel that you are working too hard for the level of income you generate, take a look at your time records! If you keep accurate time records (including accountability for nonbillable time) you may find that you are spending too much time on firm management tasks, or maybe you are accepting too many community or association responsibilities, or, as stated above, spend too much time on cases that are not profitable. The knowledge of where and how your time and efforts are expended, allows you to make the decisions needed to achieve your goals! It may help for you to establish a yearly income goal, and determine how many billable hours it will take to achieve this goal. Then, divide that number of billable hours per year by the number of work days in the year. This will give you a daily budget of billable hours required to meet your goal. At the end of each day, total up your billable hours and compare with your daily budget. You will know immediately if you are on target to reach your income goal, or if adjustments are in order. By keeping proper time records, you are much more in control of your financial health, then having to deal with surprises several months after the fact. If all this means - having to change old habits - I think, you will understand that it will be much more rewarding to learn new (timekeeping) habits. The key is to keep time records, not billing records. Do not evaluate a service at the time it is provided - as to whether it is billable or not. Record all time and then decide later if it should be billed. This assures that no billable services are omitted from the invoice.
96 To help you accomplish your goals, it takes commitment to be disciplined, it takes commitment to be consistent, and it takes commitment to follow up and take corrective actions when necessary! BILLING ==================================================================== Your time records are the source of information for your clients invoices. If you recorded everything you did, it is just a matter of transferring the information from your time records to your billing format. But before we do this, let s examine the impact an invoice can have on the client, and how we can achieve ultimate collectibility. We will look at overall communication with the client re: billing; what can / should be billed; timeliness of billing; billing methods; billing formats; and billing accuracy (clerical). 1. Communication with Client re: Billing. As a part of your initial client interview, explain your billing practices, so that the client can ask any questions at that time. This will prevent surprises when you mail out your bill. Explain the fee structure; who will work on the case, and at which rate. It is recommended that you introduce your team to the client. Explain the frequency of billing, expense reimbursement policy or direct billing by third parties, and last but not least - unless you have a retainer to bill against - discuss the payment due date. Some firms allow cash discounts for payments within ten days, others are talking about penalties for late payments. Whatever your policy is - do communicate it to your clients before you accept a case! 2. What Can / Should be Billed. In addition to billing for your time at whatever rate or value you and your client agreed to - there are several service related expenses, such as long distance, copying, fax and postage expenses, which many firms bill out to their clients. Third party expenses - such as expert witness fees, court reporters fees, filing fees, etc., for which you may want to have a separate agreement for. Some firms set a dollar limit to what they will advance for the client, others instruct third parties to bill the client directly. Travel expenses, delivery charges, etc. - be sure to include copies of receipts for every
97 expense you are billing to your client. Some clients even require copies of your long distance bill! Billing for technology - technology resources have often been viewed as part of a law firm s overhead - and were not charged to the client. With some law firms making huge profits on photocopy charges, fax charges, etc. clients have taken a dim view on lawyers profiting from such expenses. After all, they are in business to practice law, not to sell photocopies! Nevertheless, to recoup the cost of technology is an acceptable practice. The client benefits from the attorney s quick access to information, and the use of technology, in many cases, is the only vehicle to accommodate this. The law firm must be careful not to charge for the learning period of on-line legal research, or to create a data base for the client. Persons performing legal research should charge for their time actually spend doing the work. Similarly, if the cost of an on-line service is to be passed on to the client, the charge should reflect the actual cost incurred by the firm. Additionally, if a law firm uses more technology, i.e., with document assembly programs, to perform a service for the client, this technology may be billed out at either a time (computer time) charge or a flat fee. These systems are expensive to develop and maintain, but reduce the time an attorney must spend creating a document while producing the work faster, at higher quality, and reduced cost. 3. Timeliness of Billing. If you fail to bill your clients fairly and promptly - you may lose your practice! Prepare your bills on a regular basis. Monthly would be best. The client likes to see what is going on in his case on a regular basis, and may find it easier to pay as you go than being surprised or, worse yet, shocked to receive one big bill at the end of the case. Also, you incur your rent, payroll and other expenses on a monthly or even more frequent basis. Billing your clients monthly will match your income against expenses. As soon as a case is completed, send out a final bill, preferably within ten days of settlement or other conclusion. If you do not send your final bill, which often is a large one, while the momentum of the conclusion of the case is high, your chances of collectibility diminish with each passing day. 4. Billing Methods. Determine the rate structure best suited for a particular case. Discuss the result with your client. You may decide on a fixed fee, an hourly rate, a contingency arrangement, or a retainer basis. Whatever the outcome - be sure the client is informed completely and all his questions are answered - to avoid later surprises and / or disputes. 5. Billing Format. Be as explicit as possible. Which of the following invoices do you think your client would be most willing to pay? A. For professional services rendered. $500 B. For professional services rendered. Motion for Change of Venue and Answer to Complaint. $500
98 C. For professional services rendered. Anderson vs. Baker, Los Angeles Superior Court Case No : Analysis of Complaint; office conference with Tom Baker to obtain facts of case and to discuss strategy of defending; preparation of Motion for Change of Venue, including Notice of Motion for Change of Venue, Points and Authorities in Support of Motion; Declaration of Tom Baker in Support of Motion; Declaration of Attorney in Support of Motion; preparation of Proposed Answer to Complaint; preparation of Declaration of Service by Mail of various pleadings. Telephone conference with Tom Baker and opposing counsel concerning no settlement of case. Telephone conference with clerk of court and opposing counsel to obtain hearing date for Motion; preparation of Order Granting Change of Venue. (Services rendered May 3, 4, 6, 8, 10, 12, 14, 15, 24, 25, and 27, 1995) $ Billing Accuracy. Be sure you have a system in place for checking the bills for clerical errors before mailing. Be sure all names are spelled correctly consistently! Be sure amounts billed are according to agreement with a client! If there is a forwarding balance from a previous billing, be sure all payments and other credits have been applied properly! And last but not least - be sure the bill is addressed to the right person at the right address! Clients are paying closer attention to the bills they receive. They are often explicit about the form and content they would like to see in their bills because they want to know what they are paying for and how much each type of work costs. Clients have a right to know! Just by looking at the bills they receive, they should be able to determine what resources were used to produce their legal work. That is the only way to effectively value the services and present the work as a good value to the client and profitable for the firm. Client Communication / Relationship Management ==================================================================== Numerous bar association studies and client surveys have repeatedly shown that clients anger and disgruntlement are not the result of poor legal work, but rather the lack of common courtesy displayed by attorneys. Clients complain about unreturned telephone calls and, if calls are returned, they are often days or even weeks late. Even more seriously, attorneys ignore written correspondence, rarely responding in a meaningful way within a reasonable amount of time. Clients feel that they become a number, or non-entity once they have hired an attorney. These clients views, sadly enough, are confirmed by attorneys attitudes of being bothered by clients with the smallest details. Attorneys feel that they could not complete their jobs if they paid attention to every client communication. To find ways to satisfy the client s need for communication efficiently is fundamental
99 and crucial to good client relations. We will look at several techniques to promote good client relations and then focus on ongoing relationship management. First, we must realize that each client is different. Therefore, the attorney must create the communication process suitable for each client. Some clients want to participate in or at least be informed about every move the attorney makes, others become annoyed if inundated with paper or telephone calls. It is important that during the initial client interview, the attorney asks the client to which degree he would like to be kept informed. Do not keep the matter of communication to chance! Once the attorney determines how the client wants to be kept informed, instructions should be placed in the client s file for all staff to see. If a new attorney or staff person comes on the case, they can easily review the guidelines and instructions and respond accordingly. The most frequently heard complaint is that attorneys do not return clients telephone calls. By returning phone calls promptly, the attorney will set a good precedence for client satisfaction. All calls should be returned within twenty-four hours. Sometimes it may not be necessary for the attorney to return the calls him/herself. If the attorney has other staff return the client s telephone calls, it is important the client know this person. The attorney can assure the client that even though his/her assistant may place the call, the information given still comes directly from him. When the attorney decides to return the client s calls personally, it is recommended that a certain time during the day be set aside for this task. This is no different from scheduling an appointment. Also, the attorney s staff will be able to let the clients know when they can expect a call back. The advantage of having an assistant return calls is that the assistant is more likely to be in the office at various times, whereas the attorney s availability may be limited. Misunderstandings are usually the result of two main sources: poor communication and miscommunication. Creating a memo system is a very effective way of solving this. When a client calls with additional information on the case, ask him/her to put it in a brief memorandum and fax it to you or it, if you are linked electronically. This way you always have something in writing to refer to as needed. Similarly, when responding to a client s request, put it in writing. Later, if you need to discuss the matter over the telephone you can refer to the written memorandum. To prevent miscommunication, it is best to follow up each telephone conference or personal meeting with a letter, stating all decisions reached and issues addressed. Clients often say that the attorneys do not do the work they say they will, don t do the work timely, and make mistakes on details of substance. Most of these problems can be solved with the follow-up letter. This letter summarizes what happened in the meeting, and guarantees that everybody heard the same thing. If necessary, changes can always be made. The follow-up letter allows both the client and the attorney the same understanding of what took place, and the same expectations of what is to come - all of which greatly reduce the chances of client disappointment and consequent dissatisfaction.
100 The basis of good client relations is prompt and reliable attorney - client communication. Developing a good system may take some effort, but the pay-off will be well informed and satisfied clients. Once a communication system has been developed, we move toward a relationship management concept in the ongoing process of client relations. Relationship management is the center of Total Quality Management. Many firms are adopting the TQM approach in their practice of law. This approach was born out of the need to improve service to the client. Many traditional law firms are structured in such a way that the critical element of administrative support is service to the attorney, who, in turn, serves the client. In such firms, individual attorney needs determine how the firm s support services are conducted. In the client-centered law firm, all client service personnel serve the client directly. The attorney is viewed as simply one team member involved in providing that client service. This approach directs the work to the most capable, but least expensive person in the firm. Some effective checks and balances for a workable relationship management program will include a series of questions, such as: 1. Does the firm treat clients over the duration of the relationship in the same way as when first pursuing their business? 2. Are client satisfaction interviews given? 3. Does the firm have a policy for promptly identifying and addressing client complaints? There are several ways to initiate a dialogue with the client: firm-hosted luncheons; client focused task forces; client interviews; and/or structured partner/client conferences on service quality and enhancing relationships; have the whole client team from the firm meet with their counterparts at the client; find out how much the client wants to be involved in strategy; discuss time and dollar budgets; ask the client for feedback as case moves along; discuss changes in strategy, etc. It is also recommended to do a post-mortem audit with the client on each matter to assess satisfaction, items for improvement, and future needs. Additionally, clients are increasingly distributing written engagement guidelines and requirements. Some of these documents deal primarily with billing issues, but are increasingly covering goal-setting philosophy, status reports, staffing, budgeting, media contact, research, approvals, communication channels, and other special issues. This information source must be factored into any relationship management guidelines and should be heeded conscientiously. There should be internal processes to evaluate the commitments to the clients to avoid gaps between client expectations and service product delivery. Externally, a process should be created to determine client satisfaction and adjust to meet clients needs before any dissatisfaction becomes damaging. From time to time there should be a performance evaluation. Some firms believe that all is well and first class service is provided, unless the client complains. Firms can no longer afford that complacency.
101 TECHNOLOGY ==================================================================== 1.Technology Trends. The business of practicing law continues to change through the use of automation. More and more attorneys are using their computers for applications other than the basic word processing and accounting. The use of computers accelerates the work product resulting in still higher expectations. Last year s ABA survey showed that particularly solo and small firm practitioners are increasingly relying on technology to provide solutions for their clients. Survey results suggest that computers may become the expert partners of solo practitioners and small firm lawyers. Some of the trends discovered were: only a. Lawyers work styles are changing as lawyers increasingly use computers not in the office, but also at home and away from the office. b. Solos and small firm practitioners are speeding up the use of basic applications such as word processing, time and billing, conflict checking, docket control, and c. Are ready to expand their technology capabilities to include on-line services, CD- ROMs, and electronic research. Other findings showed that 63% of the respondents use PCS, 6% use pentiums, and 9% use Macintoshes. Two thirds said they use Windows, 69% have modems, 42% own a portable or lap-top computer with 20 more percent saying they are likely to purchase a portable computer in the next twelve months. A growing percentage (23% over 3% in 1990) have and are online with a commercial on-line service. The practice of law has always had tremendous pressure to produce results under tight deadlines. Many lawyers report that electronic communication has increased their clients expectations for a fast turnaround. Clients, who use technology in their own businesses, expect a swift response from their attorneys. Many are beginning to demand that their lawyers install a remote access link between their computers so that work can be done in real time between the two offices. How do we get there from here? If you are thinking of automating or upgrading / enhancing existing systems, you should first do a needs analysis. A needs analysis consists of a series of questions to determine exactly where you would like to be when the transition is over. You begin with looking at what is automated currently, i.e., word processing, accounting, time and billing, conflict, docket, legal research, ability to send fax, track copies by client/matter, keep track of long distance telephone calls, etc. Next, you consider the degree of satisfaction / dissatisfaction with existing systems, their user friendliness, and their overall usefulness. Following must be a clarification of desired
102 functionality of current work processes. Once you have established how you would ideally like to see your current operation improve, think about the new applications you would like to add to enable you to take on larger cases, new practice specialties, more clients. One important reminder: if technology will not improve the efficiency or effectiveness of a particular function, it may not be wise to fix it! Decide which functions should be automated, and when. Schedule the transition for such periods when it will cause as little disruption as possible. Study technology surveys in your geographical area as well as your practice area. Talk with other law firms of similar size and find out what works best for them. Develop an informal Request For Proposal which will allow you to establish a common ground for evaluating software and hardware configurations. You specify the firm s needs and methods for submitting proposals, making sure you will be able to compare apples with apples. First determine which software applications are best suited for the firm s needs. Then let the software dictate the hardware needed to run it efficiently. Hardware decisions that precede software decisions may restrict your use of applications. Networking or upgrading your Local Area Network will pose some hardware challenges. Here you have to consider the file servers and any possible cabling requirements. If you have remote workstations or notebook computers, special communication tools need to be installed, such as a Wide Area Network or a dial-up modem. This is really a step beyond the basics and you may best be served by talking to an independent network consultant who can evaluate your specific needs without trying to sell you a product. Planning, planning, and more planning is the best way to ensure that your firm is equipped with the most effective technology as we approach the new millennium. You may implement automation in several stages over a period of time to assure a smooth transition. This may be easier to accommodate the busy schedule of everyday operation. It may also be easier to budget for technology installments rather than for one lump sum expenditure. Keep in mind the training curve for staff and attorneys. You will need to determine your own firm s pulse to decide what type of implementation schedule will work best for you. With the needs analysis process complete, you can chart a steady course of short and long-term steps necessary to improve and upgrade the firm s technology into the 21st century. 2. Client Satisfaction Through Technology. Law firms are forced to be more attentive to client concerns by increasingly competitive pressures in the legal community. Many clients are demanding change and improvements in their legal work. Clients have become more cost conscious and want their cases resolved quickly for the lowest possible cost. Even a courtroom victory is sometimes viewed as unaffordable!
103 The traditional way of delivering legal services (labor intensive) needs to be reengineered to be more efficient and effective. Technology can be the answer. But a more satisfying method for the client is the combination of client involvement in a case and technology. One Seattle law firm has found the answer to that challenge. This law firm has implemented a system of allowing the client electronic access to ongoing activities in their case. This is done by way of four forms: an evaluation form, a strategy form, a settlement form, and a budget form. As the case progresses each form is updated after consensus is reached with the client. A well-managed case can be recognized by constant refinements in the strategy and settlement log. The budget form is automatically updated by the system as the attorney s time is entered. The system watches the fee totals and notifies the managing attorney for this case when they start to approach budget limits. All this information is accessible to the client by calling into the attorney s computer and viewing these forms. This eliminates telephone calls, status reports, billing surprises, and achieves client satisfaction. This system is only one example of how technology can enhance client relationships and client satisfaction. The key is to listen to the clients requirements and complying with their rules.
105 Gisela B. Bradley is the founder and CEO of Law Practice Management Consulting. Prior to Law Practice Management Consulting she served Texas attorneys with practice management advice and education as the first director of the Law Practice Management Program of the State Bar of Texas. She successfully built this program from the start and designed and developed the products and services offered. During her almost eleven years of service at the State Bar of Texas she developed award-winning educational programs, authored numerous articles on legal management trends, and presented workshops and seminars on local, state and national levels. She also consulted with law firms and individual attorneys on improving their management practices. Before coming to the State Bar of Texas Ms. Bradley managed law firms of varying sizes for fifteen years. Ms. Bradley served on the American Bar Association's Law Practice Management Advisors' Committee from 1996 to She also serves on several Advisory Boards of legal consulting and attorney training firms. Ms. Bradley focuses on assisting solo and small firm practitioners in improving the efficiency of their client service, and increasing their productivity while enhancing the quality of their work product. She provides management consultations to firms as well as individual management coaching to attorneys. Examples of accomplishments at the State Bar of Texas include: Writing the Start Up Kit For A Small Law Practice, a step-by-step guide to opening your own law office; Developing and presenting Planning to Conquer the Real World of Private Practice, a practical preparation course for law students; Developing and presenting The Law Office Management Institute, a 12-months comprehensive management training course for attorneys; Developing How to Organize and Manage Your Law Practice, a series of seminars for 12 practice specific areas. Ms. Bradley received her BA in Liberal Studies with a major in Accounting from St. Edward's University in Austin, Texas
110 Antony Ng Antony P. Ng is a registered patent attorney with extensive experience in preparing and prosecuting patent applications. Mr. Ng has drafted over 600 patent applications encompassing a broad range of technological fields such as electrical hardware and computer software, telecommunication and network systems, semiconductor fabrication and chemical compositions, etc. In his Austin-based practice, Mr. Ng also provides, to domestic and international clients, counseling on various intellectual property related matters, including infringement and validity opinions. Prior to his legal practice, Mr. Ng was a reliability engineer at Texas Instruments for over four years with responsibilities including investigating new testing methodologies to detect reliability problems of integrated circuit devices. During law school, Mr. Ng was a judicial intern for Honorable Judge David Hittner, Southern District of Texas, and Honorable Justice Michol O Connor, First Court of Appeals of Texas. Mr. Ng also served as an assistant editor for the South Texas Law Review. Practices Patent preparation and prosecution Patentability and infringement opinions Intellectual property portfolio development and management Trademark prosecution Technologies Telecommunication and network systems Computer hardware and software Analog and digital electronics Semiconductor fabrication Chemical composition Bar Admissions State Bar of Texas U.S. Court of Appeals for the Federal Circuits U.S. Patent and Trademark Office Education J.D., South Texas College of Law M.E.E., Rice University B.S.E.E., Texas A&M University Affiliations Tau Beta Pi
111 State Bar of Texas Resources You Never Knew Existed By Orlando Lopez The intent of this article is to hopefully introduce the reader to some of the online resources that the State Bar has created for the benefit of its members. The Bar prides itself on providing our members with innovative tools that puts relevant, accurate information at their fingertips, provides a forum for communication, and assists them with day-to-day practice management issues. TexasBar.com First, let s take a look at the State Bar s website and some of its nifty features. Find a Lawyer The most-used feature of the State Bar s site is its Find a Lawyer Tool found at the bottom of the home page. This section of the bar s site provides users with information about all licensed Texas attorneys such as contact information (city practice is located and phone number), status of attorney (whether or not attorney is in good standing with the Bar), picture of attorney (if provided), and an address (if provided). This portion of the site gets tens of thousands of hits per month, so it s a good idea to make sure that your information is current with our membership department. Blogs by Texas Lawyers A new feature on the Bar s site is Blog s by Texas Lawyers. The Bar provides the framework / coding for licensed attorneys to create and maintain their own blogs in various practice areas.
112 TexasBarCircle.com The Bar s latest addition to its website is TexasBarCircle.com, which can be described as Myspace for attorneys. This is a social / networking community where attorneys can interact with other attorneys about almost any issue / topic whether it is work-related or purely social. Attorneys can share pictures with one another, make announcements, tell others about their hobbies, etc. TenMinuteMentor.com Ten Minute Mentor is an award-winning site that was created by the Texas Young Lawyer s Association several years ago. The site contains hundreds of short video snippets on a wide variety of law-related topics that were designed to provide attorneys with a quick overview of these topics. For example, if you re preparing for your first deposition, you would want to watch the video on Taking Your First Deposition. TexasBarCLE.com TexasBarCLE, the Bar s main CLE provider, has a very large site with several really helpful features that many attorneys use in their practice on a daily basis. First of all, an attorney can access countless hours of CLE programming through TexasBarCLE.com. All of their live CLE programs are videotaped and archived for viewing on the site as a part of their Online Classroom. In addition to the videos, all of their course materials are made available in pdf format via their Online Library, which members of the Law Student Division get free access to. Visitors to TexasBarCLE.com can also access a free Case Digest. The digest is updated weekly and contains case summaries in some or all practice areas with links to the full-text opinion of the summarized cases.
113 The State Bar of Texas offers its members free legal research via TexasBarCLE.com. At the moment, only Texas case law is available through TexasBarCLE.com, but there are plans to expand this to include federal case law. TexasBarLPM.com The Law Practice Management Program has a really comprehensive site with some really innovative features. Like TexasBarCLE.com, LPM also has an online classroom featuring archived videos of past CLE offerings that may be accessed at the user s leisure. In addition to the archived videos, LPM also offers live online webcasts. These are
114 usually one two hours in duration and usually address single / specific, management topics. Although, these are broadcast over the Internet, these programs are interactive as viewers are able to their questions to the speakers during the course of the program. Starting a Law Practice This is a section of our site that attorneys who are in the process of starting up a practice will find particularly helpful. This portion of the site is a sort of directory of different resources that we have run across over the years that would benefit attorneys starting up a practice. In some cases, the site will point you to a publication that can be purchased, and in others, it may point to an article that can be downloaded free of charge. We do update this part of our site regularly with new resources, so do check back from time-to-time. Online Support Staff Training There are numerous educational opportunities available to attorneys in the form of CLE. However, the same is not true for attorneys support staff and it is the support staff that interacts with clients sometimes more than the attorneys. For this reason alone, it is important that your employees are aware of confidentiality issues and can competently communicate with clients and attorneys. Recognizing this dilemma, we created an online training portal specifically for support staff. State Bar Marketplace The Marketplace is a part of our site where a member of the Bar can find information on any number of products used by law firms throughout the state. From computer software to legal research, you can find information on just about any product here.
115 Self-Assessment Tool This innovative feature of our site allows users to answer a series of questions that will ultimately help them gauge how well they are managing their practices. There are four different areas of practice management that one can assess technology, business planning / client development, operations / facilities, and financial management. The user chooses a category and then answers a series of yes / no questions. If the user answers yes, then he / she can go to the next question, if the answer is no, the user is then given an explanation of problems / consequences of answering as such and is also given a list of resources that may help correct said problem. Once all of the questions have been answered, a score is tabulated and given to the user along with a list of resources to consider. Product Reviews Attorney can post reviews here of any type of product that they use in their practice from insurance to hardware. Visitors to the site can also respond to the review and post their own comments about that product. Reviews can be searched on the site either by product name or product category.
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