A Veteran Solo With A National Practice: Meet Michael D.J. Eisenberg, Veterans’ Benefits and Federal Employment Attorney

When most of us think about solo or small firm law practice, what most frequently comes to mind is a firm with a local or regional scope that services clients within a particular city or maybe in a couple of counties or statewide. And while most of us are familiar with at least a couple of solos with national practices, many have had years of prior law firm or government experience before launching, and most of them have clients who travel to their neck of the woods rather than the other way around. That’s what makes Washington D.C.-based attorney Mike Eisenberg’s small firm, the The Law Office of Michael D.J. Eisenberg  so unique.

Mike started his firm, which focuses on veterans benefits and federal employment cases not long after law school, following a stint as a contract law clerk for the United States Navy-Marine Corp. Court of Criminal Appeals. A decade later, Mike’s firm serves clients located across the country – and while a good deal of his cases are handled in the Washington D.C. area, at least once a month, Mike is on the road, traveling to different states to represent clients in depositions or hearings.  In the first part of this interview, Mike shares how he got started in this practice area, how he mastered the necessary skills and substantive competencies to represent clients and his views on whether he may eventually be displaced by Legal Zoom. Thereafter, you can head over to Above the Law to view Part II of the interview on Mike’s tips for solo road warriors.

Thanks for joining us at MyShingle.  You have a somewhat unusual niche for a solo or small firm attorney in that it involves a national practice focused on veterans’ issues and federal employees.  Can you tell us a little more about the types of cases that your firm handles?

Thank you for this opportunity.  I have been following MyShingle for over the entire ten plus years that I have been practice as a solo. It’s been of tremendous help!

The bulk of my practice handles Veterans’ Benefits appeals.  A Veteran has applied for VA benefits and is either denied benefits or provided a rating that is too low.  These cases start at the local VA Regional Offices (VARO) all across the country.  But, they could eventually land in DC before the Board of Veterans’ Appeals, the U.S. Court of Appeals for Veterans Claims and of course the U.S. Court of Appeals for the Federal Circuit.  I’ll travel to the VAROs for hearings if necessary and of course, I’m already here if there is a hearing in Washington, DC.

I also help Veterans with Military Records Correction issues (there may be something wrong in their record, e.g., missing an award, medal or even a requesting an upgrade from a bad discharge paper (an Other-Than-Honorable discharge to a General or Honorable Discharge).  I also assist Military Members with military medical/physical examination boards – the member may have a condition or conditions that are individually unfitting for service.  The Department of Defense has a separate responsibility to take care of its soldiers before discharging them.  This is separate department (and pot of money) than the benefits received from the VA.

My science background, focus on administrative law during school, and paralegal position in the Workers’ Compensation section gave me the skills to assist Veterans and Military Members.

It’s my belief that larger law firms are not interested in the types of cases I handle because by law the only fee an attorney can collect is a contingency fee.  I remember being at a National Organization for Veterans Advocates (which I have been a member of for about ten years) session about representing Veterans before the VA.  The government had just changed the laws and now Veterans could hire attorneys to assist them with their administration appeals.  In the past, an attorney could only be paid something like $10 at most – a leftover from the Civil War).  The morning was packed with attorneys – notably medium to large size firm attorneys.  But in the afternoon, most, if not all, of those attorneys were gone.  I believe that not only did the “contingency fee” scare them away but also, as I am sure most of your readers are familiar with the news the VA makes, this process can take two (2) to ten (10) years (Sadly, this process only seems to be getting longer not shorter.)  Needless to say, those looking to make a quick buck were gone.

Meanwhile, I segued into federal employee employment issues, e.g., federal employees who have been discriminated against, Equal Employment Opportunity (EEO), federal employee who have been wrongfully denied a position or an inappropriate disciplinary issue (non-EEO based), Merit Systems Protection Board (MSPB), or federal employee medical providers, doctors, nurses, etc., Disciplinary Appeals Board (DAB).  I drew upon my administrative law education, experiences as a law clerk and paralegal and learned on-the-job what I needed to do for my clients.

Now that you’ve provided some background on your practice area, could you tell us a little about your clients?

Ninety-five percent of my clients are located more than 40 miles outside of the Washington D.C. metro area. Generally speaking, my clients are low- to middle- income families and for that reason, I try to keep costs down for them.

I think that my location in Washington D.C. is one of the reasons why prospective clients are interested in my firm. This is where the heart of the Federal Government is located.  I’m located in Washington, D.C. where all of the agencies and courts that you can find yourself before in these processes is located.  In addition, in some of the local areas where I serve clients there are not many, if any, attorneys who handle the types of cases I work on or who are willing to take on the federal government.

In one EEO case I won (where I was outside the DC metro area) against the military (where my client was both physically and permanently injured because of the discriminatory act), the government counsel disputed my rate.  He offered twenty (20) different “local” attorneys who could have worked on the client’s case at a lesser rate.  In addition, these local attorneys would not have incurred the travel fees I had endured.  My law clerk at the time and myself, looked up each of the twenty attorneys and dissected them one-by-one.  There was not one attorney who had the unique experience of dealing with the military, federal employee employment law, and understanding the medical issues that my client (a civilian employee) suffered from due to the discriminatory behavior of the military actors.  The ALJ upheld my rate and hours.

Tell us a little about when you decided to focus on veterans’ issues and federal employees in your law practice. For example, how did you ultimately settle on this practice area and did you had any prior experience in this field at government or another firm before venturing into it on your own?

Interestingly, it was a path that was not planned.  It was my experiences and the skill-sets I developed along the way that led me into these areas.  To start, I won an ROTC Scholarship for college. I was planning on becoming an engineer in the Army.  Unfortunately, I was medically disqualified and thus lost the award.  I continued to pursue my engineering degree and I achieved both a Bachelor’s and Master’s Degree.  As I was preparing to do a dissertation on the Amazon River for a PhD in engineering, I was also taking law and policy courses.  This led me back to my earlier interests in law and eventually to law school.

I earned certificates of concentration from my law school in both Environmental Law and Administrative Law.  While I was attending law school, I first worked as an intake clerk with the Ohio Civil Rights Commission and later as a paralegal with the Ohio Attorney General’s Office, Workers Compensation Section.  Meanwhile, I was networking in Washington, DC, to find a job in the federal government working on environmental law and policy.

Unfortunately, (not just for myself but of course the entire country), 9/11 happened.  While the nation was reeling from the tragedy, environmental law was placed on the back burner.  Since my resume screamed “environmental law,” I  knew that it would be difficult find employment in other fields, yet if I were to pare down the resume, it would look thin and unappealing to prospective employers.

Notwithstanding these complications, my goal was to live and work in Washington D.C. following my law school graduation.  I moved out here one-week before my law-school graduation ceremony without a job.   I struggled at first:  I worked as a catering assistant, an office temp, and a contract attorney.  These positions, while valid in their own right,were not going to lead to a career.

The last contract job I had was at the U.S. Navy-Marine Corp. Court of Criminal Appeals.  For nearly a year and a half, I assisted the Article I, Federal Court of Appeals Judges.  It was like a judicial clerkship!  I performed legal research, wrote briefs and drafted decisions for these Federal Appellate Judges.  It was a great job and certainly one of the best since arriving to DC.  Unfortunately, a “contract” job is neither guaranteed nor a career path (at one location).  My then-girlfriend, now wife, encouraged me to start my own practice.

Based on my own experience in working in federal regulatory matters, I know that federal regulation can be complicated. How did you get up to speed on the issues that you handle, and what do you do to ensure that you stay current on the law?

CLEs!  Since the bulk of my practice is dealing with Veterans’ issues, I go to three out of the four biannual conferences held by NOVA every two years.  This definitely helps keep me up-to-date on Veterans issues.  Likewise, I am also a member of Metropolitan Washington Employment Lawyers Association (MWELA) and National Employment Lawyers Association (NELA) and attend their CLEs fairly regularly.  But, these are not my only sources of information.

Networking is an important factor.  I try to take business cards with me everywhere I go, especially, to the CLEs.  I am happy to say I’ve made some great colleagues in my travels.  They are almost always willing to allow me to bend their ear as I am just as happy to do when they call me for help.  I also have some RSS feeds that I created that monitor news in my practice areas.  I check the feeds daily in order to keep an eye on current developments.

Lastly, I think your readers, especially the new graduates, have to remember that as lawyers we have the skills and prerequisites to the job.  We may need to get up-to-speed on certain topics.  It’s not our job to know the law but to be able to find the law.

Many of the tips related to marketing a practice advise lawyers to get involved in local bar associations or the community to attract clients. Is that approach relevant to lawyers such as yourself with a national practice – and if not, how do most of your clients find you?

I do believe that networking is important at both the local level and the national level.  It is through these connections that not only have I received some client referrals but that I also have received practice tips as a solo, substantive information, and friendships.  At first, my wife was not happy that I was making so many referrals to these people.  But, these referrals were outside my practice area.  As years went by, they tend to return the favor.

But, the bulk of my clients have come from on-line sources.  I spend a bit on Google Ad words – that originally generated the majority of my leads early in the practice.  I used to be more active on “LawGuru.com” where people would post legal questions – I would never answer the question directly (as it may inadvertently give legal advice) but discuss some of the general principles and invite them to a free initial telephone consultation if they were interested in potentially hiring an attorney to assist them with their legal issue. I now also get clients from my Facebook page and my website blog.  It takes time (and some investment) but, you have to learn your potential client interests and learn how to target them.  Early on, I got some “interesting” calls from potential clients (PC).  But that has diminished over time – mind you, I still get those “interesting” calls – recently, two in 36 hours:   The potential clients said they knew that they did not have a legal case but they still wanted me to take them on as a client. I quickly passed…nothing is perfect.  You just have to roll with client landscape and make some mistakes along the way.

Because your clients are located nationally, presumably, many of your clients do not have an opportunity to meet with you before you accept representation. How do you handle client intakes and engagement agreements without a physical meeting, and are your clients comfortable with this approach?

As I mentioned earlier, roughly 95% of my clients are outside the DC metro area.  All initial consultations are free of charge and done over the phone.  One of the benefits of doing an initial consult over the phone is that if the PC does not show up it’s not a major interruption in your day.  You didn’t get in a suit, waste time going downtown to an office and making sure the place was tidy for a PC.  Furthermore, since most of my inquiries are 40+ miles away, it’s not as intimidating to those who are not close by:  They don’t have to travel all the way to DC for an initial consultation.

Initial consultations are kept to under 30 minutes.  The interviewing skills I developed at the Ohio Civil Right Commission, my Alternative Dispute Resolution (ADR) classes in law school and as an office temp (along with my other experiences), helps me focus the conversation on the legal issue at hand.  I’m told that I have a pleasant reassuring voice on the phone. (I have also been told that I should be on the radio!)

It’s not uncommon that most prospective clients want to talk about EVERYTHING.  But, by keeping them focused and reminding them that the purpose of this call is to triage the matter to see if I thought they have a case.  I rarely exceed 30 minutes.

I have seldom had anyone request an in person meeting.  I won’t do that for a Veterans Benefits appeal.  But will in other matters as long as they understand that we are moving from a free initial telephone consultation to a paid initial consultation with a minimum of one billable hour.  At most, I maybe meet with a potential client in person once or twice a year.

The engagement letters are simple enough.  If a potential clients want to retain my services, I mail them an engagement letter.  I remind them that if they don’t receive it in a week, that they should call me and ask me to send a new one (as it could have gotten lost in the mail).  I also remind them that the “attorney-client” relationship does not begin until I receive the signed engagement letter (along with a retainer check – if appropriate).

In order to prevent contracts from lingering in the wild, I place a thirty (30) day expiration clause in the engagement letters.  On the other hand, if the potential client either does not want to hire me or needs to think about it, I’ll send them a non-engagement letter stating three things: (1) We talked, (2  Either they decided not to retain my services or (if after 30 days) I did not hear back from them and I presumed they either hired another attorney, pursued it on their own, dropped the matter or whatever life instance may have occurred did not hire me and (3) (and most importantly), if the situation changes and the client finds a need to hire me, they should feel free to contact me again.

Do your cases require frequent travel and how many times do you need to travel for each case? Also, what kinds of tasks necessitate physical presence and what can be done locally?

The military has a phrase “hurry up and wait”.  This could be said about my travel.  I can be gone several times in one month (for a couple of cases) and have some months go by with little to no travel.  The VA cases all depend on the path the Veteran wants to follow:  A Decision Review Officer (DRO) hearing or a traveling Board for Veterans Appeal (BVA) hearing at their local VARO versus a BVA videoconference or in-person hearing in Washington, DC.  Typically, the Veteran will choose to appear in Washington, DC.  But, I’ll fly out several times a year for DRO Hearings.  These trips are typically done in 36 to 48 hours in order to keep costs down for the Veteran.
For Federal Employee employment issues, I can be gone for 36 hours to over a week depending on where we are in the case.  Recently, I conducted a “Notice of Proposed Removal” oral presentation in Michigan – that I think went quite well for the client.  I flew to Detroit, drove less than two hours to the area, conducted the hearing and flew out that night – all less than 30 hours.  On the other hand, I have flown to California from three (3) to nine (9) days to conduct depositions and hearings.  One time, if I recall correctly, I flew from San Antonio, TX, to conduct Physical Examination Board hearing to San Diego, CA, for a week’s worth of depositions, to Seattle, Washington, to conduct another Physical Examination Board.

Do you have to retain local counsel in different jurisdictions to avoid UPL (unauthorized practice of law) concerns?

For the bulk of my caseload, I practice federal administrative law before a federal agency.  In other words, I am not practicing state law; so, the respective bars do not have jurisdiction over what I do. Moreover,  for many of the cases that I handle, I technically don’t need a bar license at all.  But, there are times that I do need to go to court, mostly in the District, when the Agency has acted in an arbitrary and capricious way under the Administrative Procedures Act (APA) – I’ve conducted oral arguments in the U.S. District Court for the District of Columbia, U.S. Court of Appeals for the District of Columbia, U.S. Court of Federal Claims and U.S. Court of Appeals for the Federal Circuit.  I also appeared before Judge Posner in the Seventh Circuit!  And for those few times I need local counsel, I’ll either get one (the people on Solosez tend to be good folk) or go pro hac vice and follow the local rules (if local counsel is necessary).

It sounds as if you have a fairly busy practice. Do you staff or other support — and what roles do they play?

The most important support I receive is from my wife.  Without her, I would not be here today after over ten years in practice.  As to the functional side of things, I am grateful for the help I have (and have had) over the years.  I typically have one or two law students working as part-time law clerks.  They help make sure that my cases are being worked on and moving forward.  The staff at Metro Offices (where my office is located) is of tremendous help; they help me keep an eye on my mail when I’m out of town.  Likewise, the virtual receptionist I use ensures my office phone is always answered from 8 AM to 8PM.  They help schedule appointments (as they have access to my meeting calendar), return calls and take (and send me) messages.

Does technology also help you to manage your practice – and in what way?

Technology is a huge part of the practice.  I remember when my step-father first started out on his own about 20 years ago.  I was one of the first people he called.  He needed me to help him ensure he had the right technology for his office. I’ve been the family’s go-to-tech guy since I was able to install the Atari to the back of a TV in 1980.

I’ve been using the Mac OS platform for nearly nine years.  It used to be that Windows was the only way to go in the legal arena.  But, given how almost everything is driven on the Internet, the profession has not been anchored to the Windows operating system.  Personally, I find Macs easier to use and more reliable.  Further, heaven forbid the whole computer goes down, it’s a lot easier to get reestablished on a Mac regardless of where you are located – at home, the office or on the road.

For the last couple of years, I no longer need a Windows-based machine to get any element of office productivity down (I used to run Parallels to run a Window’s shell on my Mac for the sole purpose of running Stamps.com; this can now be done through a web browser.)  The best part is, I can always have my office with me wherever I go . . . because everything is in sync!

Dropbox is my file management program – it helps me keep in sync my office files among my desktop, my laptop and iPad.  It also gives my clerks easy access to the client files from off-site.  I may not offer the best pay but there is some other perks, e.g., working some hours off-site, that is appealing to busy law students where time is a premium for things like studying and sleep.

Fantastical is my calendaring program.  The simple input language is great!  I use it to keep my calendars in sync across devices and the receptionists have access to my “meetings” feed to schedule appointments as appropriate.

Daylite is my client relations management program.  Its built only for a Mac.  It keeps my due dates, tasks, client, etc., in order.  The sync function is great and I can delegate out tasks, small or large, to my law clerks (apparently most law students use Macs now).  It does not matter where I am (on the road or in town), assignments can easily be tracked on my devices, e.g., iPhone, iPad, MacBook, etc.

BillingsPro is my billable hour tracker.  It ties in nicely with Daylite.

Apple Mail for my e-mail.  Again, it too works nicely with Daylite in “tagging” e-mails to projects.

1Password is my password vault.  It syncs across devices, iPhone, iPad, MacBook and Mac (desktop).  They are always with me and secure.

Cloak keeps my public Internet browsing secure with an VPN.

What do you see as the future of your practice areas? Do you think that down the line, some of the cases that you handle will be resolved through forms or online mediation? Any other thoughts on where this field is headed – will it eventually be “doomed by Legal Zoom?”

No.  GRANTED, all of the forms that are necessary for a Veteran, a Military Member or a Federal Government Employee to fill out and start legal claim are online.  But, filling out a form, even correctly, does not guarantee the result my clients want to achieve.  The gathering of evidence, the experience of dealing with government personnel, the correct arguments to make, the research, the conduct of depositions and presentation at hearings combined is a skillset the public typically does not have on their own.  I think we have all seen the mug with the writing “Don’t think your Google search can replace my law degree.” Just because you can fill out a form does not need mean you can practice law; likewise, just because you can hold a scalpel does not mean you are a surgeon.  Further, you need someone with an outside perspective to handle your case – remember, if you represent yourself, you tend to have a fool for a client.

Great ethics example:  I don’t handle applications for VA benefits.  I don’t believe that ethically I could.  Recall, for VA benefits, you can only receive a fee if you assist the Veteran in getting back benefits on appeal.  So, why would I help the Veteran with his/her application only to likely be turned down by the VA then turn around and assist him/her on appeal?  Yes, I would get a fee if we were successful on appeal.  But, I would have to worry about the client filing a bar complaint claiming I messed up the application only so it would be denied and then have to be appealed in order for me to earn a fee?!  No thanks.

Any final thoughts?

Treat the people around you with care and respect.  Those people helping you are there to help you.  Whether it’s a secretary, law clerk, office manager, travel agent or barista, you want people to help you not just because you are paying them but because they sincerely want to help you.  I carry Two-Dollar Bills to tip the barista – especially if I am going to plant myself somewhere to work for a bit.  They tend to remember you with a smile (and your drink) when you patron again.

Simply put, being an ass does not tend to get the help you need to help your clients. So don’t.