My Shingle

Do Clients Want to Self-Schedule Appointments With Lawyers?

Carolyn Elefant — Wed, 16 May 2012 17:01:45 +0000

Despite the proclaimed rise of the DIY-client, seems that many aren’t yet willing to self-schedule an appointment with an attorney. At least, that’s been the experience thus far for several of the lawyers interviewed by the Wisconsin Bar Journal on their experiences with self-scheduling.

One North Carolina lawyer, Kellie Mannette reported that while her practice is thriving, not a single prospective client has taken advantage of the ability to make appointments online through appointy.com, the free scheduling platform that Mannette uses for her firm. Mannette reasons that clients prefer to speak with her initially before making an appointment – and presumably, once Mannette has them on the phone, she’ll schedule the appointment herself instead of asking them to do it themselves.

Over in Chicago, Gianna Scatchelli has had a similar experience with Bookfresh,com which also offers a free appointment-setting platform. Scatchelli’s experience is particularly surprising to me since she reports that a good portion of her clients come by way of social media and thus, are comfortable with technology.

So why doesn’t self-scheduling work for lawyers, when it’s become standard practice for restaurants? I have a couple of thoughts. For starters, when I make an appointment with a service provider, I’ll frequently want some preliminary information regarding insurance coverage or whether there is a fee for an initial consult. Many lawyers’ websites are opaque about whether a consultation is free or not, or will offer a 30 minute consult free (leaving prospective clients to wonder if that will cover the full meeting). So naturally, in those situations, clients will want to call before scheduling an appointment.

Second, many of the self-schedule platforms that I’ve used for hairdressers, optometrists and even doctors have been seemingly unreliable – either breaking down midway through the transaction, sending error messages or failing to send me a message confirming my appointment. In fact, the only scheduling platform that I’ve used with consistent success to date is OpenTable for restaurant reservations.

I’ve not tried either Appointy or Bookfresh and both look quite slick. However, using the freeware versions, as Mannette and Scatchelli are doing might create reliability problems or look unprofessional if the scheduler carries ads or doesn’t allow for firm branding (also, as an aside, I have confidentiality concerns about most free products used to service clients).

But at the end of the day, I suspect that once consumers or businesses make a decision to hire a full service lawyer, they want a full service experience. That’s not just true of professional services, but any service as well. If you choose to grab lunch from a food truck or McDonalds, chances are you’ll tolerate rude servers, less than perfect food quality or a miserly offering of a single napkin or ketchup packet. By contrast, if you choose to fork out $100+ for a fancy meal at a five-star restaurant or even $15 for a bite at middle-of-the-road establishments like TGI Fridays, Cheesecake Factory, etc…you’re far less likely to tolerate cursory treatment by waitstaff, undercooked food or an un-replenished breadbasket.

The same holds true for legal services. Some consumers do choose to DIY – to use a virtual service and do much of the legwork themselves in exchange for lower prices. But those consumers who decide to hire a full service lawyer haven’t signed up to do the grunt work. Thus, they reasonably expect all of the amenities of full service including having a live person schedule appointments, assist with filling out forms and sending documents when requested. Oh and by the way, these niceties aren’t annoyances, but rather, justifiable expectations given when consumers or businesses are paying an arm and a leg for legal services.

But the other thing that’s important to realize is that it just doesn’t cost much to offer these amenities. You don’t have to schedule appointments yourself or hire a full time receptionist – you can outsource to providers like Ruby Receptionists. You don’t have fill out forms or send documents yourself; rather, you can hire a virtual assistant or a law clerk part time for a few hundred dollars a month. You don’t have to offer clients catered tea service when they come to your office – you can stock your waiting room with water and snacks from Costco. Sure, all these extras are an added investment – but when you provide clients white glove service, you can charge higher fees which they’ll gladly pay because they’ll appreciate being treated like a royalty rather than an annoyance.

Despite their inauspicious experience with self-scheduling, Mannette and Scatchelli aren’t giving up yet. They’re both young lawyers and they predict that self-scheduling will catch on as the generation that’s grown up accustomed to automated service begin to need lawyers. And while it’s smart to always allow DIY as an option – whether it’s for scheduling or file downloads or other services, full service lawyers should never force clients to accept DIY the default.

Who you calling unethical, Warren Boroson? Please stop picking on solo lawyers!

Carolyn Elefant — Tue, 08 May 2012 16:35:18 +0000

In an era of lawyer bashing,NJ Columnist Warren Boroson’s piece Why Every Middle Class Family Needs a Lawyer could have been an important educational reminder why lawyers still matter. And while in truth, Boroson’s article makes that case, Boroson does a far greater disservice by advising readers to “avoid solo practitioners” when hiring lawyers.

Boroson’s reasons for steering clear of solos are two fold. Citing an unidentified lawyer expert (note to Boroson: if a source isn’t willing to give a name, he ain’t worth quoting), Boroson notes that “solos specialize in fairly narrow fields and opt to be independent.” Specialization, however, is all the more reason to bring in a solo – earlier in the column, Boroson himself recommends seeking out a lawyer who “specializes in what you need.” Moreover, because many solos do specialize, they’re forced to build relationships with highly skilled lawyers in other practice areas to whom they can refer cases. When clients go to a general practice firm, the real estate partner is going to send a case down the hall to Mr. Divorce, irrespective of whether he’s ever seen the inside of the courtroom – because the client and his dollars will stay in the firm. By contrast, a solo real estate lawyer is more likely to refer clients to a first rate divorce lawyer based on merit since most jurisdictions don’t allow referral fees for these types of matters.

As for independence, why’s that a negative? Do you want a criminal defense lawyer who’s afraid to argue assertively for a client because he doesn’t want to offend the judge? Do you want a PI lawyer who’s afraid to sue the major restaurant and corporate donor in town because it may cause the PI lawyer to lose business? Only a big law attorney would criticize independence in a lawyer.

But Boroson’s other reason for avoiding solos is far worse: he claims that “solos have lower ethical standards” than lawyers in partnerships. Say what?

For starters, it’s well documented that bars disproportionately go after solos for ethical breaches (either perceived or real) while treating big fry more leniently. I’ve blogged about that problem here and it’s even the subject of a law review piece But what really burns me about Boroson’s comment is that solo and small firm lawyers, yes, Greenfield, Tannebaum , Bennett and Turkewitz are single-handedly patrolling the ethics of the blogosphere. Along with these four big guns, I and solo colleagues like Jamison Koehler, Wells Law Office and no-longer-solo-but-still-small Eric Mayer and others are co-defendants; sued by one of New Jersey’s finest because we called him out on ethics and he sued us for defamation!. Yes, you’ll find big law firms in the case, but only on retainer, defending some of the larger media players. You won’t find any big law firm defendants because none felt it worth their while to comment on the ethical practices of a lawyer who jeopardized the liberty of a criminal defendant.

So, Mr. Boronson – the next time you tell members of the public not to hire solos, please do your research first. Because nowhere in the legal profession will you find lawyers as independent and dedicated and heroic as the solo.

Do You Want to Be Discovered or Found Online?

Carolyn Elefant — Mon, 30 Apr 2012 16:07:41 +0000

Columbus discovered America. Alexander Fleming discovered penicillin. Lana Turner , like other great movie stars of the day, was discovered drinking a coke at a soda fountain. We all enjoy discovering that terrific little cafe on the backstreets of Brooklyn or Washington D.C. or London or wherever else we happen to be traveling.

By contrast, here’s some examples of things we typically found. A few years ago, I found a rusty Razor scooter left behind in the neighborhood playground. We’ve all found spare change in the crevices of a sofa. The police find weapons or drugs in car trunks during (frequently illegal) traffic stops. On long drives, we’ve all shifted uncomfortably until we can find a McDonalds or a gas station for a pee break.

As these examples show, discovery is about uncovering and introducing something of value that no one’s ever seen before. Much of what is found, on the other hand is already known (this is the case with lost children or pets) and often (the exception being children and pets) isn’t worth much, has been abandoned or is illegal. With that being the case, why is it that so many lawyers are so avid to be found online, while few strive to be discovered?

Last November, in a seminal article at Tech Crunch, Semil Shah argued that the web has shifted from search to discovery. Shah invoked Pinterest as an example, attributing its exploding popularity to its ability to capture consumers at the discovery part of their purchase – when they don’t yet know what they want (i.e., red shoes or green handbag) – rather than at the search-oriented end of the funnel — where they are already directed and self-limited (e.g., I need to find a briefcase for work).

In my view, though, Pinterest is much more than just about numbers and traffic, and the ability to capture more users before they narrow their search. Pinterest captivates because it gives users the ability to trade and share the web’s best-kept secrets. After all, in a world where you can find a Big Mac in the middle of Paris, we value what’s unique and bespoke; that which we discover, rather than find.

So what’s this got to do with lawyers? Plenty. Lawyers are so obsessed with SEO, with being found, that they don’t even stop to think whether a strategy of being found is desirable. In the UK, the new Legal Services Act has facilitated the rise of the McLaw firm, franchised firms operating under a uniform name – making lawyers easy to find. But is find-ability what consumers want in a lawyer? Or do they want a lawyer whom they’ve heard about only through friends who’s not just predictably solid (like a fast food meal), but who’s going to knock their opponents’ socks off.

There’s another aspect of the Pinterest-ization of search that bears noting. Pinterest’s dominant demographic is women. After all, the process of discovery comes as second nature to women. Not to be sexist, but women’s obsession with discovery explains why many women enjoy planning weddings and are relegated to finding pediatricians and nannies when babies are born and aren’t dominant in the SEO world, which is about brute-number crunching rather than the zen of discovery. Understanding how women’s minds and processes work is critical though, because studies also show that women are primarily responsible for important household decisions. So if lawyers are interested in targeting the decision-maker for matters like estate planning or family business incorporation, they should build marketing campaigns that appeal to women’s sense of discovery.

So what can lawyers do to be discovered, not found? Put out quality materials online that consumers pass along to each other (like my Landowners’ Rights ebook). Show up at places where you’ll run into your target clients whether it’s trade shows or PTA meetings or zoning board hearings. Leave your clients something to pass on to others – pens or totes or other kinds of swag that stimulate conversation and lead others to ask “Hey, where’d you get that? What was that lawyer like?” Take all the cash that you spend on SEO and create something of value for potential clients.

You can have the first page of Google and all the garbage phone calls that come with it. I’d rather be the web’s best kept secret, on the cusp of discovery by grateful clients who will rave about me to everyone they know.

What Does Your Retainer Agreement Say About You?

Carolyn Elefant — Thu, 19 Apr 2012 18:20:23 +0000

I am still working my way through my review copy of Stephanie Kimbro’s new book, reviewed here by Richard Granat. There’s just too much information to breeze through and unlike many bloggers (not Richard, but others), I actually make a point of reading the books that I review.

Still, one of the most useful parts of the book that I’ve noticed so far is the appendix, which includes a few draft unbundling agreements. Though there are one or two that I’ll comment on more in my full review, I was particularly impressed by the sample for Rania Combs’ virtual law practice . While Rania’s agreement isn’t short, it’s devoid of legalese, tightly structured. Most importantly, fairly protects both her clients and her own interest in an emerging area of practice – online delivery of unbundled legal services – that is potentially fraught with ethics and malpractice consequences for lawyers while educating clients about issues that should concern them when retaining an attorney online (such as UPL and security).

In many ways, Rania’s retainer agreement is a form of marketing. As I read the agreement, I thought, “Wow, someone who puts that much thought into a retainer agreement must do the same in the work for clients.” Moreover, Rania’s retainer treats delivery of legal services online as a serious undertaking, not just an offhand side tool to generate more revenue – which makes her services more appealing than both non-lawyer form fillers or fly-by-night practitioners.

Of course, retainer agreements necessarily vary depending upon one’s practice area. Some retainer agreements lend themselves to a short and stylistic format. In other practices, where speed is important, Enricho Schaefer’s email agreement or Andrew Flusche’s sign online feature makes sense.

Retainer agreements are also an evolutionary process, evolving and changing with each experience. I imagine over the next few years, Rania’s agreement may change as well as the concept of unbundled legal services becomes more routine, or as issues arise that perhaps she didn’t anticipate.

What does your retainer agreement show about you and your practice?

No related posts.

Advice on Giving Legal Advice

Carolyn Elefant — Thu, 23 Feb 2012 15:12:28 +0000

When does educational marketing cross the line into legal advice?

In an era of increased consumer hunger for information online and the rise of crowdsourced advice sites, understanding what types of communications constitute legal advice is a critical matter — and one which Brian Tannebaum addresses at My Law License. Brian’s post has also generated some interesting comments, which you should take a look at as well.

Using an educational video by Rachel Rodgers as an example, Brian makes the point that simply stating that a communication is not legal advice doesn’t make it so (incidentally, but for the ethics issues that it generated, I thought Rachel’s video was well done). Brian is right about that. Many lawyers believe that they can disavow certain conduct – whether it’s advice or formation of an attorney-client privilege — simply by slapping on a disclaimer. Truth is, if the conduct is appropriate to begin with, then a disclaimer isn’t required – and if the conduct crosses the line, the disclaimer is not going to help avoid accountability, as I posted here. Besides, as Sam Glover notes in the comments on Brian’s post, most clients don’t read disclaimers anyway so you don’t want to hang your hat on them.

So, what are some of the hallmarks of legal advice? Brian suggests that a communication discussing consequences and eventualities of an action, instead of just providing general description (i.e., what happens in court versus what to do when you’re there and the implications of this actions) is one characteristic of legal advice. I commented that an answer that specifically addresses a particularized situation is generally regarded as legal advice.
Moreover, whether an attorney-client relationship has formed or whether a client has paid money is irrelevant to the issue of whether a communication constitutes advice.

In any event, because Brian is a bonafide ethics attorney and I am not, I decided to research the distinctions between educational information and advice further to educate myself before posting about the topic. First, I turned to my handy-dandy NYSBA Ethics App and typed in the search term “legal advice” (side note to bar associations – do you not now see the value of an ethics app?!) Lo and behold, I discovered that the NYSBA Ethics Committee just addressed the ethics of Q&A sites in Opinion #899 issued December 21, 2011. Citing Comment 9 to Rule 7.1, the Committee states that
“should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems because slight changes in the fact situations may require a material variance in the applicable situation…”

Next, I searched Google Scholar and pulled two articles from the Stanford Law Journal and Duke Law Journal. Both pieces discuss the definition of legal advice and the implications of providing it online. The Duke article contends in no uncertain terms that “a specific response tailored to the facts furnished by the questioner and given as if it were definitive” is indeed legal advice, and further, providing this advice will give rise to an attorney client privilege. (As an aside, that’s another reason why Rachel’s disclaimer that “this isn’t legal advice because I’m not your lawyer. Duh” is backwards. Rather, if a communication to an individual constitutes legal advice, you become that person’s lawyer by virtue of having given the advice, not the other way around). However, the Duke article also suggests that the ethics rules be modified so that a lawyer providing limited legal advice creates a limited scope attorney-client relationship, which would therefore minimize any resulting malpractice or grievance consequences.

So now that I’ve laid out the background, let’s return to the money question: does Rachel’s video constitute legal advice (for background, Rachel’s video addresses the question, “Do I need to set up another LLC if I drastically change the services offered by my company”?

Various commenters weighed in with opinions at Brian’s post. Lisa Solomon says no, the video is not legal advice since the discussion was general in nature and not jurisdiction-specific. Brian says yes since the video responds to a particular situation and discusses the consequences of the questioner’s actions rather than just a general description of how to fill in forms.

As for me, I think it’s a really close call. Originally, I opined at Brian’s site that I didn’t think that Rachel’s video was legal advice, but after conducting more extensive research, I think that the video might be legal advice at least under the NYSBA rules. It’s a hard question and I wouldn’t fault anyone for getting it wrong

Which is why Brian’s advice to play it safe or Jordan Rushdie’s suggestion (also in the comments) to seek advice from an experienced colleague makes sense. Because these questions are difficult. Maybe even silly. But they are real and we can’t ignore them.

Still. I truly understand the desire to help those hungry for information or to make our profession and lawyers more accessible and “user-friendly.” The Internet gives us a powerful tool to expand access to law, and as a lawyer, I’ve always felt a keen obligation to assist others in understanding their rights. Playing it safe achieves that goal some of the time, but not always.

Further, I also recognize that young lawyers can offer a unique perspective and that these new ideas deserve a place in our profession. The enthusiasm that creative new lawyers bring to our profession is like a breath of fresh air and it constantly forces me to reinvent and improve my own practice. But rules are rules – and the challenge for all lawyers – whether they fancy themselves as traditional, old school practitioners or innovative futurists or something in-between – is to figure out how we can accomplish our goals within the scope of these rules. Being innovative isn’t particularly difficult; it’s being innovative within the confines of ethics rules that requires hard work.

So what do I suggest to lawyers devoted to expanding access to law, or who yearn to stand out from the herd?

Just do it – provide legal advice online.

That’s right. If you don’t think that the more generalized, descriptive information about legal rights and remedies are sufficiently meaningful to the public, then offer something more. Answer legal questions online or set up a Q&A chat at your website. Yes, you’ll be giving legal advice. But so what? There’s nothing wrong with giving legal advice, so long as you own it.

What I mean is this. If you want to respond to a specific situation with a specific solution, or discuss eventualities, or explain the consequences of setting up an LLC with a specific rather than a general grant of authority, just understand, and make clear that what you are doing is indeed giving legal advice. And since you are giving legal advice, take care to limit your advice to only those jurisdictions where you’re licensed to practice (to avoid UPL), to clarify that your advice only as good as the facts that have been offered, and to emphasize that advice rendered on a TV show or a legal chat room is nowhere near as good as what you’d receive from hiring a lawyer. If you’re really worried, contact your malpractice carrier and purchase extra coverage. But call a spade a spade.

After all, legal advice is our stock in trade. If we respond to specific legal problems or discuss eventualities, but then say that what we’re providing isn’t really legal advice after all, what’s to prevent non-lawyers or Legal Zoom from saying the same thing? Where would we lawyers be left then?

Client Portals – Love ‘em or Leave ‘em

Carolyn Elefant — Fri, 16 Dec 2011 14:33:55 +0000

There’s an article by Donna Seyle in Law Practice Today that provides a comprehensive round-up of various platforms for client portals and practice management. As the long list of products suggests, they’re all the rage – though as Marc Lauritsen notes in the concluding paragraph, large firms have long offered extranets to clients. What’s new now, however, is that these products are available to solo and small firm practitioners.

But do our clients want them? When I first learned about portals – where clients can download documents, access their own files and check the status of their bills and their case, they seemed like a win-win — a way to encourage clients to play a more active role in their case while saving lawyers time and money. So I jumped on board, testing out nearly every platform under the sun – Clio, Zoho, Basecamp, Huddle, Box and Dropbox. (Phew!)

Yet my own experience with platforms has been less than stellar. Most of my clients – who range from individual landowners to large trade associations and corporate entities – don’t want to log into a work space to download a pile of documents. They’d rather get them by email – and so, I find myself dispatching my virtual assistant to serve their requests. In short, my efforts to corral clients into their designated portals has been much like herding cats.

So why do portals work for some lawyers but fail for me? It’s a frustration because I like to consider myself as being on the cutting edge. I suppose that lawyers who handle unbundled work virtually have high success with portals because in many situations, they provide the only way for the client to interact with the lawyer. Plus, the clients are receiving lower cost service, so they’re willing to shoulder more of the work – like filling out cases or learning the case status instead of calling someone – themselves. Most of us willingly make these trade offs ourselves when we use free services like gmail or Facebook where there’s no human to talk to if there’s a problem.

On the other side of the coin, large firms and mega-clients also enjoy the portal. However, I’d venture to guess that in many of those cases, the lawyers and the company top dogs aren’t the ones logging in. Rather, it’s likely administrative assistants and paralegals uploading and downloading the documents. In a recent case that I handled, the firm set up a portal to house e-discovery responses – though they also sent them out dutifully on CD. My guess is that I was one of the few lawyers in the case who took advantage of the portal (which while appreciated, was still clunkier to use than the CD data).

In my own case, I continue to experiment with portals and make them available – they’re cheap enough, plus I have my image as a 21st century lawyer to consider! But at the end of the day, my clients take precedence over my longing to be cool and so if they want materials sent by email or electronically-compiled and bate-stamped or annotated to highlight important provisions, that’s what I do to make their lives easier.

But I’m interested about your experience. What’s the real scoop on client portals? Do your clients love ‘em or would they just as well leave ‘em? And have you started using portals and project management platforms at all – and what’s your experience been? Let me know what you think in the comment section below.

Where I’ve Been Hanging Out Online

Carolyn Elefant — Tue, 03 May 2011 13:11:56 +0000

So I know that there wasn’t much happening at MyShingle last week. Between my talk on starting a practice at Georgetown Law and three days catching up with clients and colleagues at my trade association’s Global Marine Renewable Energy Conference, I didn’t have much energy left for posting. In addition, I’ve been spending a bit of time away from my beloved MyShingle, posting at other online publications like The Xemplar and Small Firm Innovation – efforts that enable me to keep this blog running and offer so much information at no charge (and there’s much more coming by the end of the month).

This month, I’ve written Courting Change – about how courts aren’t keeping up with innovation in the legal profession, and What I Won From My First Loss At Trial, about how I was serendipitously spared the lingering agony of my disastrous first loss. Let me know what you think.

Bespoke or Be-Gone: Lessons from the E-discovery trenches

Carolyn Elefant — Mon, 07 Mar 2011 16:05:22 +0000

Make way for John Henry, Round 2 . Just as the steam-engine rolled over John Henry, recent advancements in e-discovery technology similarly enable machines to accomplish the work formerly performed by a team of 500 lawyers, reports the New York Times. Moreover, not only do computers perform e-discovery less expensively, but also with a precision that surpasses human reviewers’ sixty percent accuracy rate.

Not everyone buys that e-discovery poses a death-knell for lawyers. Some predict that declining costs of e-discovery will stimulate more litigation and in so doing, generate a need for more lawyers. After all, right now, high costs of e-discovery often compel both sides to cave early, or may deter certain cases from even being filed. Still, even reduced discovery results in more cases being brought and/or heading to trial, overall, there will still be a net loss of lawyers since trial doesn’t require the same number of bodies as e-discovery.

Others, like Corinne Tampas, a Freelance Attorney contend that simplification begets complexity, which in turn, keeps steady the demand for lawyers. Tampas explains that even as computers appear to simplify the task of e-discovery, this in turn will necessitate the need for lawyers who understand the process and can manage e-discovery or help to strategize around the new challenges. While I don’t disagree with Corinne- indeed, even the NYT piece concedes a need for lawyers who can operate the technology – there’s no doubt in my mind that technology will contract the number of lawyers needed – just as online banking, computerized accounting programs and travel websites diminished the demand for human tellers, CPAs and travel agents. Of course, where Corinne is spot-on is that for those lawyers with the specialized skills at the top of the heap who can head those strategy teams, there’s still plenty of money on the table – a point also noted by Ralph Losey in the e-Discovery Team Blog. Thus, those lawyers who’ve been diligently tracking e-discovery caselaw and developments for the past few years, will probably find more doors opening as we transition to an automated system.

In fact, I wonder why the contract lawyers who spent months or years on the front lines of document review, weren’t spending more time educating themselves about e-discovery or blogging about how the review process works. More than any other group, they could have capitalized on their birds-eye view of e-discovery to serve as sherpas in this intersection of human know-how and tech. But they chose to gripe about poor working conditions or offshoring document review to India which is fine, as far as it goes, but also a sad example of how perpetual complaining can lead to missed opportunity – because as many of these lawyers must now concede, they’re readily replaced by technology.

As for the impact of these advancements on solos, the e-discovery developments are a reminder that we can never let our tech skills fall flat. At some point, those of us who litigate will need the ability to manage e-discovery and if we can’t afford these skills in-house, we’ll need to stay abreast of trends so that we have enough knowledge to outsource the tasks (so check out Sharon Nelson’s Ride the Lightening! We don’t see eye-to-eye on social media, but she is at the forefront of e-discovery).

We also can’t afford to grow too smug and assume that computers can’t replace what we solos do in our line of work. Not so. Though I don’t think that Legal Zoom has cut into solo market share (in many cases, LZ represents the pool of cases that many of us never deigned to accept because the clients wouldn’t pay), there are lots of other areas where many solos don’t act as much more as form-fillers or check-box checkers. If we can’t offer a value-add over what machines can do, then we face the same risk of obsolescence as contract lawyers – or John Henry.
Bottom line, my solo friends: In this 21st century world, either bespoke or be-gone.

Where the Money Is In Law

Carolyn Elefant — Fri, 21 Jan 2011 15:42:41 +0000

Even though biglaw is on the decline, there’s still big money to be made in the law. Only not necessarily by lawyers.

Last month, news of the Reuters/Westlaw acquisition of Pangea dominated the headlines, with bloggers like Jordan Furlong imagining the possibilities that this new behemoth could bring to the table. And today, two other stories caught my eye – the first, from Dallas Morning News, about Virtech Paralegal, a Dallas-based, national service that offers virtual paralegals and which has attracted half a million in funding. Similarly, today, Total Attorneys, which provides infrastructure and marketing services to solos and small firms issued a Press Release announcing receipt of a capital investment from BIA Digital Partners.

What’s my take on these developments? Naturally, I’m excited because all of these services mean more options for solo and small firm practitioners. To the extent that solo lawyers have felt constrained in their ability to grow or take on more work, these companies provide important services to facilitate growth. And more’s the merrier, since competition will keep these services affordable, which means that we solo and small firm lawyers can keep our rates low as well.

But, just as part of me celebrates these new developments, another part is wary (chalk it up to my Gemini-split personality). As it becomes easier to procure low-cost services powered by technology and cheap labor, what’s to prevent law firms from setting up “shell” type practices – offices all over the country – staffed entirely by virtual paralegals with a couple of lawyers cursorily reviewing the final product? This kind of set up could ultimately put less savvy solo and small firm lawyers out of business. And in the end, I’m not so sure whether this kind of assembly-line practice expands meaningful access to law, or subverts it, as we’ve seen with other volume arrangements that rely on low cost labor like this or this.

In these crazy and turbulent times, I know one thing holds true: most of our clients don’t come to us for the forms (those who only want forms will eventually simply use Legal Zoom or online forms and cut lawyers out of the equation entirely). Instead, clients come for help solving their problems and they come because they need someone to fight for them and they come for comfort and reassurance even when there’s nothing that we can do (and that, my friend Mirriam, is why I do think we matter even if I can’t express it as eloquently as you say we don’t!). Somehow we’ve got to find a way to stay a step ahead of all these changes – not to stop them, of course – to remember what they are: a tool for expanding meaningful access to law and “bespoke services on a budget” – and not a ticket to a four hour work week or a way to earn a fast and easy buck while ruining people’s lives in the process.

Update:

One state is bucking the trend of facilitating outsourcing of support services like document review, at least when those services are provided in India. As Lisa Solomon writes at Legal Research and Writing Pro, a Connecticut representative has proposed a law that would hold that “drafting, researching and reviewing documents” for clients in the state constitutes the “practice of law,” and as such, may only be performed by Connecticut-licensed lawyers. Lisa points out that this protectionist statute won’t bring back lost jobs. Moreover, the Connecticut law put Connecticut lawyers at a competitive disadvantage by preventing them from accessing lower cost support services, such as experienced contract lawyers located in other states, law students who are not licensed but could benefit from experience and paralegals. While like Lisa, I’m concerned about the quality of some providers (though to be fair, I’m also concerned about the quality of some of the work I’ve seen that’s produced by licensed lawyers) as well as the potential for abuse (discussed in my post), I think that the harms of banning access to outsourced services does far more harm than good in the longer run.

The Retainer Letter As a Walk Down Memory Lane

Carolyn Elefant — Fri, 22 Oct 2010 13:14:08 +0000

I may not be a contract aficionado like Ken Adams, but I love a good retainer agreement. Though clean, crisp language and brevity makes me swoon as much as any other lawyer, my affinity for retainer agreements reaches far deeper than the surface: quite simply, I’m a sucker for the stories behind the the whereas clauses.

The search terms “retainer agreement” and “form” draw more traffic to this site than nearly any other. And while I gladly accomodate these inquiries, a retainer agreement, done right, is far more than just a form or a template: it’s a living, breathing, ever-evolving document that reflects our personal history as lawyers.

Just as paging through a photo album triggers old memories, so too does a skim through a retainer letter. Spend a little time with some old-time lawyers and ask them to go through their retainer agreements with you and you’ll see what I mean:

Ah, yes – that’s the withdrawal clause that I added after that nice little old lady who promised that she was good for the money wouldn’t pay me and I couldn’t get out of the case.

Mmm, I remember that. I came up with the provision that gives people a discount if they pay in full upfront after I was nearly evicted after I couldn’t make rent for the third month in a row – even though I had $10k in outstanding accounts.

Gosh, I don’t recall exactly where that section on conflicts waiver came in – I must have lifted it from the agreement that we used when I was at biglaw.

Ugh, that’s the provision that I had to add to comply with the D.C. Bar’s Legal Ethics Opinion 355 on flat fees after that annoying decision in In Re Mance that prohibits treatment of flat fees as earned on receipt.

We call it the “practice” of law because in many ways, law is a craft that we never perfect. Yet over time, we improve and ripen with experience; becoming a little wiser, a little savvier and also, sadly, a little more jaded. Our retainer agreements document our transformation, reminding us of just how far we’ve come and — each time they fall short and necessitate another change — of how far we still have to go.

Now it’s your turn: share some of the clauses that you include in your retainer agreement in the comments below — and more importantly, the stories behind them.