Law Practice Management Class #5 - LOMAS and the Florida Bar; Malpractice and Bar Grievances 1 (Grievances)

Law Practice Law Practice ManagementManagement

Class #5 - Class #5 - LOMAS and the LOMAS and the Florida Bar; Malpractice Florida Bar; Malpractice

and Bar Grievances 1 and Bar Grievances 1 (Grievances) (Grievances)

LOMASLOMAS

Law Office Management Assistance Law Office Management Assistance ServiceService

Part of The Florida BarPart of The Florida Bar Founded in 1979 as first such service Founded in 1979 as first such service

in U.S.in U.S.

Need for LOMASNeed for LOMAS

Many practicing lawyers lack training Many practicing lawyers lack training in business and practice in business and practice management principlesmanagement principles

Purpose of LOMASPurpose of LOMAS

Assist members dealing with all of the business aspects of setting up, managing, merging or closing a professional practice

Focus of LOMASFocus of LOMAS

Management principlesManagement principles Trust accounting rulesTrust accounting rules Docket controlDocket control Prevention of client conflictsPrevention of client conflicts Integration of technology into law Integration of technology into law

practicepractice Avoidance of malpractice/grievancesAvoidance of malpractice/grievances

LOMAS ServicesLOMAS Services Telephone consultation with practice Telephone consultation with practice

management staffmanagement staff Free and confidentialFree and confidential

Reference library servicesReference library services On-Line On-Line FormsForms Publication of news articlesPublication of news articles Voluntary on-site consultationsVoluntary on-site consultations

Fee basedFee based Result in detailed and confidential analysis of Result in detailed and confidential analysis of

firm management policy, procedures and firm management policy, procedures and issuesissues

Rehabilitation of attorneys experiencing Rehabilitation of attorneys experiencing law office management problemslaw office management problems

LOMAS – 10 Ways to Maintain LOMAS – 10 Ways to Maintain Successful Law PracticeSuccessful Law Practice

1.1. CommunicationCommunication

2.2. DelegationDelegation

3.3. Avoid Paralysis by AnalysisAvoid Paralysis by Analysis

4.4. Take Firm Entity Agreements Take Firm Entity Agreements SeriouslySeriously

5.5. Maintain Excellent Client RelationsMaintain Excellent Client Relations

LOMAS – 10 Ways to Maintain LOMAS – 10 Ways to Maintain Successful Law PracticeSuccessful Law Practice

6.6. Manage office and practiceManage office and practice

7.7. Don’t skimp on technology trainingDon’t skimp on technology training

8.8. Train staff on policies and Train staff on policies and proceduresprocedures

9.9. Goal-oriented planningGoal-oriented planning

10.10. Exceed client expectationsExceed client expectations

LOMAS – Disaster Preparation, LOMAS – Disaster Preparation, Protection and Recovery ProgramProtection and Recovery Program

Assign disaster program Assign disaster program responsibilityresponsibility

Do risk analysisDo risk analysis Know what could cause a disasterKnow what could cause a disaster Select a protection method for each Select a protection method for each

causecause Educate staffEducate staff Run a test disaster responseRun a test disaster response Monitor and update program as neededMonitor and update program as needed

Personal Safety PreparednessPersonal Safety Preparedness

Create written emergency response Create written emergency response procedures and give to all staffprocedures and give to all staff

Maintain a telephone and/or email tree to Maintain a telephone and/or email tree to contact staff in event of disastercontact staff in event of disaster Have cell phone numbers if no regular phone Have cell phone numbers if no regular phone

service is availableservice is available Hold fire drillsHold fire drills Know evacuation routesKnow evacuation routes Designate pre-arranged meeting spots Designate pre-arranged meeting spots

upon office evacuation upon office evacuation

Office and staff securityOffice and staff security

Clearly mark office areas closed to Clearly mark office areas closed to publicpublic

Escort all visitors in non-public areasEscort all visitors in non-public areas Make sure a staff member is always Make sure a staff member is always

present in reception areapresent in reception area Know that terminated employees may Know that terminated employees may

pose security riskpose security risk Have them turn in all keys, ID’s, etc.Have them turn in all keys, ID’s, etc. Change all passwords to computers, Change all passwords to computers,

network phone system, etc. network phone system, etc.

Protection of office, equipment, and Protection of office, equipment, and datadata

Have automatic fire detection Have automatic fire detection equipment in placeequipment in place

Limit or ban smoking in office areasLimit or ban smoking in office areas Store chemicals cleaning solvents Store chemicals cleaning solvents

safelysafely Have fire extinguishers in Have fire extinguishers in

appropriate places, make sure staff appropriate places, make sure staff knows how to use themknows how to use them

Protect paper files from water Protect paper files from water damagedamage

Avoid storage in underground or low-Avoid storage in underground or low-lying areaslying areas

Avoid storage in areas where water Avoid storage in areas where water or sewer pipes pass throughor sewer pipes pass through

Avoid storage in areas where roof is Avoid storage in areas where roof is prone to leakageprone to leakage

Know how and where to turn off Know how and where to turn off water supply when pipe burstswater supply when pipe bursts

How to operate without access to How to operate without access to officeoffice

Arrange Arrange in advancein advance for substitute for substitute temporary office spacetemporary office space Partner with one of more firms, perhaps Partner with one of more firms, perhaps

one close by in case of fire and a second one close by in case of fire and a second more removed in case of hurricane or more removed in case of hurricane or other large scale disasterother large scale disaster

Equip and train staff Equip and train staff in advancein advance to to work remotely at home if necessarywork remotely at home if necessary

Maintain Maintain off-siteoff-site data backups and data backups and copies of personnel recordscopies of personnel records

Disaster supplies and equipmentDisaster supplies and equipment

Tarps and plastic sheeting to protect Tarps and plastic sheeting to protect from waterfrom water

Plastic crates for packing (cardboard Plastic crates for packing (cardboard will be weakened by water exposure)will be weakened by water exposure)

Fans and dehumidifiers to promote Fans and dehumidifiers to promote dryingdrying

Pumps to remove standing waterPumps to remove standing water Gasoline powered generator for Gasoline powered generator for

emergency poweremergency power

Disaster supplies and equipment Disaster supplies and equipment (cont.)(cont.)

Wet/dry vacuumsWet/dry vacuums Waterproof grounded heavy-duty Waterproof grounded heavy-duty

extension cordsextension cords Large plastic garbage containersLarge plastic garbage containers Wheeled carts to move heavy itemsWheeled carts to move heavy items Cell phones or battery-operated two-Cell phones or battery-operated two-

way radiosway radios Petty cash (ATM’s may be out of Petty cash (ATM’s may be out of

service)service)

Disaster supplies and equipment Disaster supplies and equipment (cont.)(cont.)

Emergency food and water suppliesEmergency food and water supplies Wet weather clothing like boots, Wet weather clothing like boots,

hats, gloves, ponchos, etc.hats, gloves, ponchos, etc. Essential toiletriesEssential toiletries

Evacuation essentialsEvacuation essentials Copies of insurance policies and contact Copies of insurance policies and contact

information for your agent and carrier information for your agent and carrier The binder or album with your The binder or album with your

application software CD's including application software CD's including installation codes installation codes

Photographs showing your office Photographs showing your office furniture and equipment (a good reason furniture and equipment (a good reason to buy a digital camera) to buy a digital camera)

Employee and client contact Employee and client contact information including telephone, information including telephone, address, and email address, and email

Evacuation Essentials (cont.)Evacuation Essentials (cont.)

Contact information for your landlord, Contact information for your landlord, vendors, utilities, public safety, and vendors, utilities, public safety, and emergency management emergency management

User names and passwords to access your User names and passwords to access your network, server, computers, web site, network, server, computers, web site, email, web mail, etc.email, web mail, etc.

Payroll and bank account information Payroll and bank account information Credit card information Credit card information A handful of blank checks for each of your A handful of blank checks for each of your

firm's bank accounts firm's bank accounts

Problem #6Problem #6

How would a new lawyer use LOMAS How would a new lawyer use LOMAS to help with a start-up law practice?to help with a start-up law practice?

What other resources would you use?What other resources would you use?

Law Practice Law Practice ManagementManagement

Class #5 (cont.)Class #5 (cont.) Bar Bar GrievancesGrievances

Conflicts of InterestConflicts of Interest

Need to be sensitive to conflicts of Need to be sensitive to conflicts of interestinterest

Not all conflicts are apparent at Not all conflicts are apparent at beginning of representationbeginning of representation Need to look forward to anticipated Need to look forward to anticipated

developments in case (witnesses, experts, developments in case (witnesses, experts, etc.)etc.)

Need to take steps in advance to resolve Need to take steps in advance to resolve conflicts or, if not resolvable, decline conflicts or, if not resolvable, decline representation or withdrawrepresentation or withdraw

Common conflictsCommon conflicts

Represent two or more plaintiffs Represent two or more plaintiffs against same defendantagainst same defendant Even where actions are unrelated, there Even where actions are unrelated, there

may be a collection-related conflictmay be a collection-related conflict Parties with contrary legal Parties with contrary legal

positions/theoriespositions/theories Exacerbated if in same courtExacerbated if in same court Winning for one client often means Winning for one client often means

losing for otherlosing for other

Common conflicts (cont.)Common conflicts (cont.)

PartnershipsPartnerships Representing multiple partnersRepresenting multiple partners Representing both a partner and the Representing both a partner and the

partnership itselfpartnership itself CorporationsCorporations

Representing multiple directorsRepresenting multiple directors Representing both a director and the Representing both a director and the

corporation itselfcorporation itself


Divorce casesDivorce cases NEVERNEVER represent both spouses represent both spouses Don’t pretend to represent the children unless Don’t pretend to represent the children unless

you are appointed to do so by the courtyou are appointed to do so by the court Decline to represent either spouse if you Decline to represent either spouse if you

previously represented both spouses in previously represented both spouses in matters such as estate planning or closely-held matters such as estate planning or closely-held businessesbusinesses

Watch for “shoppers” who meet with Watch for “shoppers” who meet with lawyers just to disqualify them from lawyers just to disqualify them from representing spouserepresenting spouse Good reason not to offer free consultationsGood reason not to offer free consultations


Multiple defendants or potential Multiple defendants or potential defendants in criminal or civil casesdefendants in criminal or civil cases Criminal defendants may turn on each Criminal defendants may turn on each

other to cut a plea deal in exchange for other to cut a plea deal in exchange for testimonytestimony

Civil defendants may try to shift liability to Civil defendants may try to shift liability to other defendant(s)other defendant(s)

Passenger and driver in auto accident Passenger and driver in auto accident casescases Owner/driver liability may be issueOwner/driver liability may be issue

What can happen to lawyer if What can happen to lawyer if conflict is ignored or mishandled?conflict is ignored or mishandled?

Withdrawal from caseWithdrawal from case Become object of motion to disqualifyBecome object of motion to disqualify

Heard in open court in front of your peersHeard in open court in front of your peers May not be able to collect fees dueMay not be able to collect fees due May have to refund fees already May have to refund fees already

collectedcollected May face disciplinary proceedings or May face disciplinary proceedings or

malpractice litigationmalpractice litigation

What can happen to client in What can happen to client in conflict of interest cases?conflict of interest cases?

Need to retain new lawyerNeed to retain new lawyer Delay associated with bringing new Delay associated with bringing new

lawyer up to date on caselawyer up to date on case Delay in court date and ultimate Delay in court date and ultimate

resolution of matterresolution of matter

Resolve conflict Resolve conflict FIRSTFIRST

Better to recognize conflict and avoid Better to recognize conflict and avoid working on case than to work on working on case than to work on case, then find conflict, and not get case, then find conflict, and not get paidpaid

Everyone has to “eat crow” (admit Everyone has to “eat crow” (admit mistake) sometimemistake) sometime

Better to do so when crow is young Better to do so when crow is young and tender rather than when crow is and tender rather than when crow is old and toughold and tough

Waiver of conflict?Waiver of conflict?

Conflict does not preclude Conflict does not preclude representation if conflict can be waivedrepresentation if conflict can be waived

Some conflicts should not be waived Some conflicts should not be waived Such as representing both spouses in a Such as representing both spouses in a

divorcedivorce Always get conflict waiver Always get conflict waiver IN WRITINGIN WRITING

See See FoonbergFoonberg pp 224-227 for sample pp 224-227 for sample waiver clauseswaiver clauses

Ethics problemsEthics problems

Avoiding an ethics war is much Avoiding an ethics war is much better than winning onebetter than winning one

Collateral damage to your reputation Collateral damage to your reputation is serious and permanent even if you is serious and permanent even if you prevailprevail

The time and effort it takes to win an The time and effort it takes to win an ethics battle could be better spend ethics battle could be better spend on fee-generating client workon fee-generating client work

Common ethics issuesCommon ethics issues Amount of FeeAmount of Fee

Generally must be “reasonable”Generally must be “reasonable” If unsure what to charge, call other If unsure what to charge, call other

lawyers with experience in the arealawyers with experience in the area Fee agreement Fee agreement must be in writingmust be in writing Keep accurate time recordsKeep accurate time records

Common ethics issues (cont.)Common ethics issues (cont.)

Fee SplittingFee Splitting Must be disclosed to clientMust be disclosed to client Fee must not increase due to fee-Fee must not increase due to fee-

splitting arrangementsplitting arrangement Can’t split fees with non-lawyers or, in Can’t split fees with non-lawyers or, in

most cases, with out of state lawyermost cases, with out of state lawyer


Fees paid by third partiesFees paid by third parties Duty is to client, not person paying feeDuty is to client, not person paying fee Fee agreement should state that duty Fee agreement should state that duty

will be to client, not fee payer, if conflict will be to client, not fee payer, if conflict arisesarises

Common problem when insurance Common problem when insurance carrier is paying fee for the insuredcarrier is paying fee for the insured


Failure to refund unearned feesFailure to refund unearned fees Fee agreement should be clear that fee Fee agreement should be clear that fee

is flat or fixed and not dependent on is flat or fixed and not dependent on time devoted to matter, continued time devoted to matter, continued representation, or result achievedrepresentation, or result achieved

Dropping client for failure to payDropping client for failure to pay Place appropriate clause in agreement Place appropriate clause in agreement

letting you get out if client doesn’t payletting you get out if client doesn’t pay Court permission required for litigation Court permission required for litigation

mattersmatters


False billing practicesFalse billing practices Overstating number of hours worked on Overstating number of hours worked on

casecase Often to make up for unrealistically low Often to make up for unrealistically low

hourly ratehourly rate Misstating who did the workMisstating who did the work Billing for paralegal time at lawyer’s rateBilling for paralegal time at lawyer’s rate


Depositing fee advance prematurely Depositing fee advance prematurely in to operating accountin to operating account Unless the fee is specified as non-Unless the fee is specified as non-

refundable (and meets certain other refundable (and meets certain other requirements), fees are not earned until requirements), fees are not earned until the work is donethe work is done

Ethical violation to deposit or transfer Ethical violation to deposit or transfer such funds into firm operating account such funds into firm operating account before fee is earnedbefore fee is earned


Suing clients for unpaid feesSuing clients for unpaid fees Expect counter-claim for malpracticeExpect counter-claim for malpractice

Waiting until malpractice statute of Waiting until malpractice statute of limitation runs may limit counter-claim to limitation runs may limit counter-claim to amount of fees in disputeamount of fees in dispute

Before you sue, make sure your file is in Before you sue, make sure your file is in order and you have done an exemplary order and you have done an exemplary job for the clientjob for the client

Consider ADR (mediation or arbitration)Consider ADR (mediation or arbitration) Juries don’t like lawyers, and especially don’t Juries don’t like lawyers, and especially don’t

like suits for feeslike suits for fees


Lack of a written fee agreementLack of a written fee agreement No written agreement often means not No written agreement often means not

getting paid or being forced to take less getting paid or being forced to take less than the full amount billedthan the full amount billed

Agreement often defines scope of Agreement often defines scope of representation, which is important to representation, which is important to avoid being pulled into disputes that avoid being pulled into disputes that were not contemplatedwere not contemplated

Agreement should have client’s Agreement should have client’s signature as well as lawyer’s signaturesignature as well as lawyer’s signature


Failure to communicate all Failure to communicate all settlement offerssettlement offers May think offer is totally unacceptable, May think offer is totally unacceptable,

but must still advise client of offerbut must still advise client of offer Free to offer your recommendation on Free to offer your recommendation on

offeroffer


Failure to keep client informed of Failure to keep client informed of progress of matterprogress of matter Copies of all incoming and outgoing Copies of all incoming and outgoing

correspondence, pleadings, emails, etc.correspondence, pleadings, emails, etc. FoonbergFoonberg says “bombard them with says “bombard them with

paper” at p 542paper” at p 542 Client should have a file nearly complete Client should have a file nearly complete

as your ownas your own Some firms provide nice binders for this Some firms provide nice binders for this

purpose at beginning of representationpurpose at beginning of representation


Media advertisingMedia advertising Follow the three “T’s”Follow the three “T’s”

TruthfulTruthful TastefulTasteful TentativeTentative

Do not guarantee resultsDo not guarantee results

Most complaints come from fellow Most complaints come from fellow lawyers, not clientslawyers, not clients


Indirect media advertisingIndirect media advertising Keep yourself in the newsKeep yourself in the news

Frequent press releases trumpeting Frequent press releases trumpeting accomplishments and awardsaccomplishments and awards

Keep a list of all media contacts in your area Keep a list of all media contacts in your area including email addresses, fax numbers, including email addresses, fax numbers, telephone numbers, etc.telephone numbers, etc.

Recognize when case related publicity Recognize when case related publicity may be helpful to you but hurt your may be helpful to you but hurt your client – Avoid crossing this lineclient – Avoid crossing this line


Nonsolicitation mailingsNonsolicitation mailings Firm newslettersFirm newsletters

Paper and emailPaper and email AnnouncementsAnnouncements BrochuresBrochures Holiday cardsHoliday cards PR mailings with copies or excerpts of PR mailings with copies or excerpts of

articles about self or firmarticles about self or firm


““No recovery, no fee” advertisingNo recovery, no fee” advertising Client may still be liable for costs, which Client may still be liable for costs, which

can be substantialcan be substantial May also be sanctions or other penalties May also be sanctions or other penalties

for non-meritorious filingsfor non-meritorious filings


Selection of firm nameSelection of firm name Many jurisdictions have restrictions on Many jurisdictions have restrictions on

fictitious namesfictitious names Often can’t use name that sounds like a Often can’t use name that sounds like a

research or educational non-profit institutionresearch or educational non-profit institution Can’t always use names of deceased Can’t always use names of deceased

lawyerslawyers Can often use names that describe the Can often use names that describe the

nature of the firm’s practicenature of the firm’s practice ““Business Litigation Group”Business Litigation Group” ““Environmental Law Group”Environmental Law Group”


Buying or selling law practiceBuying or selling law practice Many states still prohibit the direct sale Many states still prohibit the direct sale

or purchase of a law practiceor purchase of a law practice Forming entity for merger purposes, Forming entity for merger purposes,

then transferring “goodwill” is a then transferring “goodwill” is a workaroundworkaround


Coaching a client to lieCoaching a client to lie Ethical violation everywhereEthical violation everywhere Some jurisdictions require lawyer to Some jurisdictions require lawyer to

withdraw and blow whistle on client if withdraw and blow whistle on client if lawyer is convinced that the client liedlawyer is convinced that the client lied


Failure to turn over client file when Failure to turn over client file when dischargeddischarged Must return to client all property, Must return to client all property,

including documents, that belong to the including documents, that belong to the clientclient

Must provide copies of all other file Must provide copies of all other file documentsdocuments

Who bears the copying cost varies with Who bears the copying cost varies with jurisdiction, but this can often be specified in jurisdiction, but this can often be specified in the fee agreementthe fee agreement


Premature destruction of client filePremature destruction of client file Should first return documents belonging Should first return documents belonging

to clientto client Must be able to demonstrate compliance Must be able to demonstrate compliance

with file retention policywith file retention policy Best to have policy in fee agreement Best to have policy in fee agreement

signed by clientsigned by client Archive paper files on CD or DVDArchive paper files on CD or DVD


Inadvertent violations of Attorney-Inadvertent violations of Attorney-Client confidencesClient confidences Discussion of client matters in public Discussion of client matters in public

placesplaces Misdirected mail, faxes, emailsMisdirected mail, faxes, emails Sending enclosures to wrong person via Sending enclosures to wrong person via

mail (or attaching wrong files to email)mail (or attaching wrong files to email) Failure to use “Personal and Confidential” Failure to use “Personal and Confidential”

on sensitive mail, faxes, emailon sensitive mail, faxes, email Not protecting identity of clientNot protecting identity of client


Failure to teach client confidentiality Failure to teach client confidentiality to:to: Members of lawyer’s familyMembers of lawyer’s family Independent contractorsIndependent contractors Office staff and others who come into Office staff and others who come into

contact with case filecontact with case file Special problem in smaller or close-Special problem in smaller or close-

knit communitiesknit communities


Trust account violationsTrust account violations Overdrawing trust account usually Overdrawing trust account usually

ethical violation “per se” with no ethical violation “per se” with no defensedefense

Taking client funds for personal use Taking client funds for personal use almost always results in suspension or almost always results in suspension or disbarmentdisbarment


Getting into business deals with Getting into business deals with clientsclients Never trade fees for a “piece of the Never trade fees for a “piece of the

action” in a questionable business action” in a questionable business ventureventure

FoonbergFoonberg, p 555: “A lawyer who wears , p 555: “A lawyer who wears two hats has no head”two hats has no head”

May move services outside of your May move services outside of your malpractice policy coveragemalpractice policy coverage


Alternative billing methodsAlternative billing methods Results-oriented “bonus” fees not Results-oriented “bonus” fees not

permitted in every jurisdiction or in all permitted in every jurisdiction or in all types of casestypes of cases

Florida does not permit results-oriented fees Florida does not permit results-oriented fees in family law cases because they too closely in family law cases because they too closely resemble an impermissible contingent feeresemble an impermissible contingent fee


Overly “zealous” representation of Overly “zealous” representation of clientclient Rule permitting zealous representation not Rule permitting zealous representation not

a blank check to win at all costsa blank check to win at all costs Zealous is not the same as hostile or Zealous is not the same as hostile or

aggressiveaggressive Often results in running up a bill the client Often results in running up a bill the client

is unable or unwilling to payis unable or unwilling to pay Balance Balance duty to client with duty to duty to client with duty to

legal system and duty to societylegal system and duty to society


Filing non-meritorious casesFiling non-meritorious cases Failure to adequate investigate factsFailure to adequate investigate facts Failure to develop a legal theory on Failure to develop a legal theory on

which recovery may be obtainedwhich recovery may be obtained Sanctions can be levied against Sanctions can be levied against

client, lawyer, or bothclient, lawyer, or both Sanctioned client will often grieve or Sanctioned client will often grieve or

sue lawyer who gave bad advicesue lawyer who gave bad advice


Communicating with adverse party Communicating with adverse party represented by counselrepresented by counsel Happens far too often in family casesHappens far too often in family cases

Communicating “ex parte” with court Communicating “ex parte” with court or court staffor court staff Limit communication to procedural Limit communication to procedural

issues such as confirming court dates, issues such as confirming court dates, etc.etc.


Suppressing or sanitizing evidenceSuppressing or sanitizing evidence Don’t hide discoverable evidence or Don’t hide discoverable evidence or

counsel clients to do socounsel clients to do so Don’t alter or “clarify” documentsDon’t alter or “clarify” documents

Foonberg’sFoonberg’s 10 Rules 10 Rules

1.1. Discuss fees and expectations with Discuss fees and expectations with client at beginning of client at beginning of representationrepresentation

2.2. Have written fee agreementHave written fee agreement

3.3. Bombard clients with paperBombard clients with paper

4.4. Return all telephone calls promptlyReturn all telephone calls promptly

5.5. Be open and honest with bad news Be open and honest with bad news for clientfor client

Foonberg’sFoonberg’s 10 Rules (cont.) 10 Rules (cont.)

6.6. Hands-off client’s money (no dipping Hands-off client’s money (no dipping into trust account before fee is into trust account before fee is earned)earned)

7.7. Cooperate fully with substitute Cooperate fully with substitute counsel when you are dischargedcounsel when you are discharged

8.8. Respond immediately and completely Respond immediately and completely to all disciplinary inquiriesto all disciplinary inquiries

9.9. Keep accurate time recordsKeep accurate time records10.10. Read and understand your state’s Read and understand your state’s

ethical rules ethical rules and and interpretive opinionsinterpretive opinions

Problem #7Problem #7

What law practice management What law practice management techniques can be used to minimize techniques can be used to minimize the risk of a Bar grievance?the risk of a Bar grievance?

Documents

Law Practice Management Class #5 - LOMAS and the Florida Bar; Malpractice and Bar Grievances 1 (Grievances)