TWENTY-FIVE TIPS FOR EMPLOYEE TRAINING AND SUPERVISION (INCLUDING AVOIDANCE OF UNAUTHORIZED PRACTICE OF LAW)

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1 TWENTY-FIVE TIPS FOR EMPLOYEE TRAINING AND SUPERVISION (INCLUDING AVOIDANCE OF UNAUTHORIZED PRACTICE OF LAW) BY DIANE M. ELLIS FORMER DIRECTOR LAW OFFICE MANAGEMENT ASSISTANCE PROGRAM STATE BAR OF ARIZONA

2 1. Plan before you procure: Analyze your needs and/or those of your organization before you pick up the phone to place an ad for a new or replacement employee. Whether you re a sole practitioner or the manager of a large law firm or corporate legal department, you have to make sure each employee makes a maximum contribution to reaching your goals. (This tip assumes that you have already developed goals.) When an employee leaves, take the opportunity to re-evaluate rather than seeking a clone of your last employee, even if he or she was excellent. Over time, needs change; there may be a better way to structure the position for the organization s current needs. 2. Supplement rather than duplicate your own skills: If you re a sole practitioner with a keyboard speed of 90 WPM or skilled in utilization of voice recognition software, hiring a speed typist to input documents may not be the best use of your hiring dollar. First think about the tasks that require a law license to perform. Unless you re hiring another lawyer, those tasks are yours no matter what. That leaves all other tasks. Focus on those that don t require a particular skill you have (or that require a skill you don t have) and that take up your time and energy for no productive end. Perhaps that means you need an employee who can prepare routine correspondence, make copies, file and answer phones. The right skills in an employee won t be the same from one practice setting to another or from one position to another within the same practice setting. 3. Determine how much training you have the time, patience and resources to provide and hire accordingly. If you are willing to take a new graduate with lots of knowledge but little practical experience, you may not only save money but you will after a time have an employee custom-trained to your specifications. This is a serious commitment on your part, however. Both you and your employee will be unhappy if you hire a novice then leave him or her to sink or swim. 4. All employees must be trained immediately upon employment in their role in assuring that you and your firm are in compliance with all legal and ethical responsibilities to clients. No matter how many years experience your new employee has, or no matter how prestigious his or her prior employers, don t assume your new employee has been adequately informed and will act in an appropriate manner in your firm. Be specific, particularly about employees duty to maintain the confidentiality of client information and ways in which such information can thoughtlessly be divulged (e.g., conversations on elevators or in restrooms). This information should also be presented in written form.

3 5. Use one- or two-page quick reference guides ( cheat sheets ) to provide critical information new employees or those filling in for someone else need to get through their first few days. New employees can t retain everything they re told on Day One (or Two or Three), and they may feel awkward about asking the same question more than once. It will save you time if reminders about procedures come from easy-to-understand reference materials rather than from you. The items on the cheat sheet should be arranged in an inverted pyramid format, with information most likely to be needed right away at the top. Use boldface headings or other means to make topics easy to find. Items you may want to include: logging into the computer system; the firm s system for saving and thus finding -- documents (or how to use document management software, if applicable); proper method of answering the phone and conveying messages; where the copy machines are located and how to operate copy tracking devices; and how to process mail, including where and what time it is collected. 6. In addition to the cheat sheets for firm procedures, ask each employee to prepare the same type of concise reference guide for his or her own duties. This is of great benefit to those who pinch hit for a day when an employee is ill as well as for a new employee taking over the position. (HINT: These cheat sheets are also a useful tool to analyze the tasks assigned to different staff members for overlap or gaps.) 7. If you don t already have job descriptions, the cheat sheets provided for individual positions are a great first step to developing them. If you do have job descriptions, evaluate whether the tasks your employees indicate they are doing are consistent with the duties outlined in their job descriptions. If the two don t line up, take the opportunity to determine which needs to be changed, the job description or the day-to-day work of the employee. 8. The process of evaluating an employee s performance should start before he or she actually performs. Let the employee know immediately the firm s criteria for evaluating performance, including the standards to which he or she is expected to adhere and the goals towards which he or she should strive. 9. Evaluation of performance should be based on the expectations discussed with the employee at the outset. If changes to the goals or expectations need to be made at any point along the way, talk about them with your employees so everyone clearly understands at all times what they are trying to achieve. Although it is common to have a formal evaluation after 90 days and on at least an annual basis thereafter, don t wait until 90 days has elapsed to address performance that doesn t indicate progress is being made toward achieving the expectations. 10. Make feedback and encouragement a part of your daily routine with your staff. If you re part of a larger firm, don t leave this task totally in the hands of your administrator or human resources professional. While the knowledge and advice of human resources professionals are valuable to you in managing your staff, the

4 most effective feedback is immediate and directly between the two people involved. An error may indicate an employee does not understand a procedure; if you don t discuss it right away, it may happen again due to a continuing lack of understanding. 11. Don t forget positive feedback. An employee who doesn t realize that a job was just what you wanted may not do it the same the next time. Expressing your appreciation of a good effort, as well as a good end product, is an important element of having a productive relationship with those you supervise. 12. Listen to your employees, early and often. They have a different perspective on your firm and how it operates than you do, and their suggestions are often ones you wouldn t think of without their input. Clients sometimes share with staff members complaints or concerns that they re hesitant to voice directly to their lawyer. (HINT: Ask both your receptionist and the person who contacts clients regarding payment of their bills about this one.) Let your staff know that this information is valuable to you and the firm in identifying areas to improve. 13. Encourage open communication and make it easy for your staff members to voice their complaints or concerns to you, no matter what the topic. You can t fix what you don t know about. If staff members are intimidated, you may never hear about a problem until a valued employee is on the way out the door to a new job. Sincere positive feedback from employees is, of course, music to an employer s ears. What you really need to hear from your staff, however, is often what you don t want to hear. 14. Dare to delegate: Go back to your original analysis (See # 2 above) of the tasks that don t require a law license or some special skill you possess to perform. Because you determined your criteria for hiring based on performance of the remaining tasks, your staff should, with proper training and supervision, be able to handle those responsibilities. Give them the opportunity. 15. Don t assume that if your employee works 40 hours a week on tasks you would otherwise have performed yourself that you will save 40 hours of your own time. As the employee progresses in knowledge and skill, you will spend less of your day training, and the intensive review of all aspects of work production will probably lessen. However, you must continue to provide supervision to all employees, no matter how long they have been in your employ, to assure that all assigned tasks are performed timely, accurately and in a manner consistent with your legal and ethical obligations to your clients. 16. Delegate, don t abdicate: Even with experienced, highly skilled and well-trained employees, the buck still stops with the lawyer. After all, he or she is the one with the license! Keep track of what assignments you ve made and when they need to be completed. Even the most reliable staff member (or the attorney him/herself) using the best reminder system can overlook something; all members

5 of the legal services team need to act as resources to one another in making sure that what one overlooks the other catches. If something is overlooked or done improperly, you need to make sure there s time to do re-do it without detriment to the client. This does not mean, however, that you need to hover while your employee is trying to get the assigned work done. 17. Be specific when you assign work to your staff. Tell the employee what you need done, how you want it done, when you want it back and in what form it should be presented. Specify how much time you want them to spend on the work before checking back with you. A written assignment form is useful in making sure you cover all the bases, and you and the employee can refer to it later if questions arise. Written assignments are particularly valuable when you haven t worked with an employee extensively before. (HINT: If you regularly work with an employee and don t use formal written assignments, don t forget to advise when you want something other than the usual. ) Giving detailed instructions doesn t mean you need to micro-manage the handling of every project. However, your staff members aren t mind readers and it s a waste of time if an employee prepares a detailed written report only to learn that all you wanted was a quick verbal update. 18. Many lawyers use staff members to assist them with the financial aspects of operating the firm, sometimes including handling of their client trust account. Review the rules of your jurisdiction for any responsibilities (such as check signing) that may be limited to licensed attorneys. Given the boundaries imposed by your jurisdiction, develop procedures that include the regular involvement of at least one licensed attorney. Although some lawyers who don t feel comfortable with that numbers stuff may be tempted to leave it all in the hands of staff wellversed in that area, the attorney has a duty to train and supervise to the extent necessary to assure that clients funds are protected. (HINT: This means that the attorney must him- or herself understand the requirements of trust accounting.) 19. Review your jurisdiction s ethical rules and opinions concerning the lawyer s responsibility for the conduct of non-legal support staff and concerning the unauthorized practice of law, then educate your staff. Develop guidelines and implement ongoing training and supervision to assure that non-legal support staff members recognize the point at which attorney involvement or assistance is required to assure that a staff member does not engage in the unauthorized practice of law. 20. Within the parameters established by your jurisdiction s rules, think creatively about ways in which you can use legal assistants to provide cost-effective services to your clients. Many lawyers limit their use of paralegals to legal research, conducting informational interviews or litigation support. With appropriate supervision and disclosure to clients, legal assistants generally may without direct attorney participation assist with client intake, case management and client relations, such as keeping clients informed about the status of their matters.

6 Ethics rules and limitations on unauthorized practice of law must be considered in establishing the extent to which legal assistants may relay information or communicate on behalf of the lawyer. 21. There are in most jurisdictions no bright line tests to establish the line between providing legal information and legal advice. The attorney must develop and communicate his or her definition to non-legal support staff members. In general, legal information can be located in a court rule or statute and is not negotiable. Legal advice, on the other hand, stems from analytical reasoning based on knowledge of case law, statutes and community practice. One standard various court clerk s offices that provide information to the public use in determining whether to answer a question is whether the question includes the word should, which indicates the person asking is likely seeking legal advice as in How should I answer this deposition question? or Should I file suit to collect the money due to me? Lawyers and their staff must work together to establish a thorough understanding of the type and extent of information staff members may provide to clients. 22. With regard to electronic communications, support staff members should be instructed not to provide any information specific to the firm or its clients in an on-line discussion such as a chat room or forum. There is a danger (not just for legal assistants, but for lawyers, too) that the duties of confidentiality and conflicts of interest could be breached. In an anonymous setting such as a chat room, one of the other participants could be the opposing party in a case against one of your clients 23. If you send a legal assistant to monitor an event such as a deposition or a transactional meeting with opposing parties at which you will not be present, be sure the legal assistant and your client understand that the legal assistant s role is not to represent the client, which precludes him or her from providing any advice about how or whether to respond to questions or whether to accept proposed terms of an agreement. 24. If legal assistants are conducting client intake activities, they should collect information to enable the attorney to make a decision about acceptance of the case, but in general should not tell the client the firm will take the case, should not quote fees for handling of the client s specific case, and should not discuss what deadlines or statutes might apply. 25. Know your jurisdiction s rules and case law concerning the application of conflicts of interest provisions to paralegals (in some states there is a difference between treatment of lawyers and paralegals when they leave one firm and move to another). If appropriate in your jurisdiction, immediately implement appropriate mechanisms to screen the paralegal from infecting the new firm.

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