July 20, 2017

Attorney at Work—Mixing Cocktails with Legal Advice: Don’t

Editor’s note: This article originally appeared on Attorney at Work on April 19, 2016. Reprinted with permission.

Mark3By Mark Bassingthwaighte

I can appreciate a well-crafted cocktail. But when I am in a situation where such beverages are being served, I never get involved in a conversation about someone’s legal problems. And I strongly encourage you to do the same.

Here’s a short story that explains why.

An associate at a law firm — not a litigator in any way — attended a social function and had a few more than she should have. She got involved in a conversation with another guest about a personal injury matter. In addition to sharing some generic advice, the associate also let the guest know there was still plenty of time to deal with the matter, saying the statute of limitations in that jurisdiction was two years. Unfortunately, unbeknownst to our heroine, there was an exception to the statute in play and the actual time to file suit was six months. The guest, relying on the advice, did not obtain legal counsel until after the filing deadline had passed.

The young lawyer and her firm were eventually sued for malpractice.

The Accidental Client

We all know drinking and driving can have serious consequences — when your judgment and reflexes are impaired, accidents can happen. Mixing cocktails and legal advice is similarly problematic. It’s too easy for a casual setting, coupled with a few adult beverages, to cloud your thinking. You may then find yourself dealing with an accidental client.

Malpractice claims can easily arise out of these situations, but the risk isn’t limited to cocktail parties. Casual conversations online with extended family members or friends and gatherings with members of your church congregation or other community organizations are all situations where you should proceed with caution.

You can’t overlook the office setting, either.

Should you be concerned about passing along a little casual advice in a conversation with a corporate constituent while representing the entity itself? How about discussing issues with beneficiaries while representing the estate, trying to help a prospective client out during that first meeting when you know you are going to decline the representation? Or what about being a good Samaritan by making a few suggestions on the phone to someone who clearly has a problem but really can’t afford an attorney? How about answering a few questions from an unrepresented third party?

The answer is, of course, yes — these are all situations that can easily lead to an accidental client.

“No Good Deed Goes Unpunished”

Old sayings became old sayings because they have a ring of truth to them.

I am always surprised by what attorneys say when they have to deal with a claim brought by an accidental client. Comments like “I never intended to create an attorney-client relationship,” “There was no signed fee agreement,” and “No money was exchanged so how could this be?” are common.

Guess what: It’s not about you! Typically, it is more about how the individual you interacted with responded to the exchange. If they happened to respond as if they were receiving a little legal advice from an attorney, and that response was reasonable under the circumstances, it can start to get muddy. Worse yet, if it was reasonably foreseeable that this individual would rely or act on your casual advice — and then, in fact, did so to their detriment — you may have a serious problem on your hands.

I share this not with a desire to convince you to keep quiet and never try to help someone. By all means, be helpful. The world could use a few more good Samaritans, and a desire to help others is a good thing as long as you stay the course. I share this because I want you to be cognizant of the risk involved whenever you decide to step into those waters.

Here’s the Bottom Line

Accidental clients are for real and there is no such thing as “legal lite.” So if you are enjoying a wonderful evening at a party, cocktail in hand, and find yourself conversing with another guest who has just learned you are an attorney and wants to “pick your brain,” don’t talk about legal issues you are not well-versed in. If you feel compelled to pass along a little advice, then remember to ask questions so you understand the entire situation. Just know that you may be held to the accuracy of that advice later on, so you might want to jot down a few notes as soon as you can.

Finally, know that it’s okay to say you’re not the right person to be asking, particularly after you’ve had a few.

That said, salute!

Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier, since 1998. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1150 law firm risk management assessment visits, presented numerous continuing legal education seminars throughout the United States, and written extensively on risk management and technology.  Mr. Bassingthwaighte is a member of the ABA and currently sits on the ABA’s Law Practice Division’s Professional Development Board, the Division’s Ethics and Professionalism Committee, and he serves as the Division’s Liaison to the ABA’s Standing Committee on Lawyers Professional Liability. Mr. Bassingthwaighte received his J.D. from Drake University Law School and his undergraduate degree from Gettysburg College.

Contact Information:
Mark Bassingthwaighte, Esq.
ALPS Property & Casualty Insurance Company
Risk Manager
PO Box 9169 | Missoula, Montana 59807
(T) 406.728.3113 | (Toll Free) 800.367.2577 | (F) 406.728.7416
mbass@alpsnet.com | www.alpsnet.com

ALPS offers up to a 10% premium credit for each attorney in a firm who receives 3 CLE credits annually in the areas of ethics, risk management, loss prevention, or office management. ALPS is a lawyers’ malpractice carrier endorsed by the CBA. Learn more at try.alpsnet.com/Colorado

But Are You Helping?

Richard Pennington 1By Richard Pennington

In 2009, psychologist and MIT professor emeritus Edgar Schein published a book, Helping, that described a general model for effective helping. Schein is widely known for his work in organization development; he wrote the business classic Organization Culture and Leadership (2004).

I reached Schein circuitously. I had retired from the private of law in 2010 and was researching models for teaming, leadership, project management, problem solving, and organizational learning. In one of the better books on leadership in teams, Lateral Leadership, authors Roger Fisher and Alan Sharp distilled their advice down to one piece: “Choose to help.” But what was helping?

The idea lay dormant for a year while I finished a book on effective team performance. Then, during preparation for a short training seminar about consultancy and learning, the relevance of Schein’s ideas to law practice suddenly dawned on me.

Schein’s model is based on the conclusion that helping relationships – and he uses attorney-client relationship as one of his many examples – have a life cycle much like teams. They move from a period of pure inquiry to various roles: the expert, the doctor, and the process consultant. Here is how Schein would see the development of an effective attorney-client relationship.

1. Begin always with a period of pure inquiry. Effective helping begins with readiness. Early in a relationship, perhaps at the stage when many attorneys have initial consultations, there is an imbalance in the social economics. Clients feel “one down,” a feeling that they don’t bring anything of value to the relationship, uncertainty about their ability to influence the outcome, and insecurity about whether their goals will be achieved. The attorney needs to do something to adjust the imbalance in order to build trust. By simply listening to the client’s story, using “humble inquiry” as Schein calls the process strategy at this stage, the client begins to feel like there is a better balance in the relationship just by being heard. That begins the development of trust.

2. Use caution not to fall into the diagnostic trap too early. Experts are more comfortable with the kinds of questions that lead to solutions. Who was at the meeting? When did you meet? What did the other party say? How did the language in that meeting compare to prior email communications? Use of those kinds of diagnostic questions too early may impede the development of the relationship. The attorney is walking a tightrope here, because this also is the time when attorneys are hoping to gain a client. The quality of informed questions is an important factor in a client’s decision, and informed questions tend to be diagnostic.

3. Start with process inquiry and return to it often. Schein uses process inquiry to describe the underlying process of relationship building and problem solving, not a focus on the substance of the problem. For example, the question, “How would you see a successful outcome?,” at the conclusion of an initial consultation turns the focus to the client’s expectation of the process outcome. That question might uncover a discomfort with the unintended consequences of litigation, for example. Occasional questions during the engagement like, “How can we better communicate about the drafts?,” or “How am I doing keeping you informed about the progress of the case?,” turns the focus to the relationship, keeps it in balance as client input is sought, and continues to build trust. These also are the kinds of questions that help a relationship out of the quicksand when it gets bogged down.

Lawyers eventually move into the expert role in writing documents or handling litigation. This may be where the Schein model pauses in its relevance somewhat, because some consultants stay in the process mode throughout. “Clients own the problem” Schein says, but lawyers are paid to solve them. “Don’t give unwanted help,” counsels Schein, but the cost of legal services probably mitigates the risk of over-helping in unwanted ways.

Still, Schein’s emphasis on the importance of process feedback is relevant. So is the inquiry approach to developing the relationship. Attorneys are taught the art of questioning, but not this way. Pure inquiry and the use of real questions are key to fostering development of the relationship. Competency, professionalism and ethics are critical parts of client relationships. But effective helping may be the most important.

Richard Pennington returned to the practice of law in April 2013 as General Counsel for WSCA-NASPO Cooperative Purchasing Organization LLC. WSCA-NASPO is the nonprofit subsidiary of the National Association of State Procurement Officials that supports cooperative purchasing by the states and what formerly was the Western States Contracting Alliance. Richard is a member of the CBA/DBA Professionalism Coordinating Council. His book, Seeing Excellence: Learning from Great Procurement Teams, is scheduled for release in August 2013.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Coach’s Corner: Be a Lawyer and a Teacher

Rebecca Mieliwocki of Burbank, Calif., was recently named 2012 Teacher of the Year and honored by President Obama at a White House ceremony.

Among other impressive achievements in her career, she went to law school. This transition is not peculiar. Lawyers are, after all, teachers. They tell stories to instruct jurors and judges for the benefit of their clients.

But lawyers may not realize that they can use teaching techniques in many other ways to make the business of law more successful.

Consider just a few examples and ask yourself how good a teacher you are.

Justify your fees

Value is ultimately determined by the client, not the attorney. But it’s the attorney who must educate the client about the value of his services.

Most clients recognize the importance of and are willing to pay a fair fee for value. What they do not want is to pay for inefficiencies, duplications or unnecessary services.

To avoid fee disputes, lawyers must regularly demonstrate that their skills and the way in which services are delivered to the client coincide with what the client wants and needs.

Blog to inform

Lawyers often know a great deal about industry and economic issues that are important to clients, and can educate their clients about trends and developments using blog posts.

A blog combines the lawyer’s observations on breaking legal or regulatory issues with specialized content and research and can offer the option to comment and ask specific questions. This defines a teaching relationship — and also often serves as the beginning of a client relationship.

Educate your staff

In the current law firm world, lawyers and staff are affected by the ongoing transformation of client expectations and legal service delivery. Lawyers must take the lead in helping all staff members understand this change.

More than the continuing sluggish economy alone, firms are contending with upheaval in the way law is practiced. Secretarial assistants, technology specialists, project managers, any staff — they all need a better understanding of the forces reshaping law firms, and the lawyers who employ them should provide that understanding.

Emphasize the value of beyond-the-case effort

Young lawyers too often view themselves as being at the mercy of the firm’s partners when undergoing annual reviews. They can enhance their situations by educating the partners on what the lawyer has actually done in a key area, such as business development.

Attending lunch or bar association functions, posting blogs and client updates, writing articles in trade or legal publications are all valid marketing activities. The young lawyer who engages in them can make a convincing argument at review time: “This is what I’ve done to promote myself and promote the firm.”

Don’t assume these efforts are well-known tactics. Teach those who matter about the value of the effort.

Education is all about communication. It is essential that those with whom a lawyer interacts knows what the lawyer is doing and understands why it is being done. As lawyers, our job is to help others. Constantly conveying how and why you are doing this is an excellent way to derive greater personal satisfaction from your practice.

Ed Poll is a nationally recognized coach, law firm management consultant, and author who has coached and consulted with lawyers and law firms in strategic planning, profitability analysis, and practice development for over twenty years. Ed has practiced law on all sides of the table and he now helps attorneys and law firms increase their profitability and peace of mind. He writes a syndicated legal column, Coach’s Corner, where this post originally appeared on June 20, 2012.

Is Solo Practice a Good Fit for You?

Today’s economy can lead seasoned attorneys, mid-career laterals and even freshly minted law grads into solo practice. But is solo practice a good fit for you? No matter the stage of your career, there are questions to ask yourself and options to examine to determine whether this is your best choice before you launch a solo practice.

How Many Hats Can I Wear?

Opening a solo practice means wearing many hats to handle all the functions in the firm—in addition to practicing law. A lawyer stepping out of a larger firm may find herself a bit ill-equipped to manage all the details required in running a law office, even a solo one. That realization—sometimes a difficult one—may lead to the need for extra support, either outsourced or in-house, to cover everything from bookkeeping and billing to marketing and technology support, plus other administrative duties. Acknowledge your strengths and interests, and then plan ways to cover the rest so you can balance both the administrative and the legal side of running the practice.

What Is My Vision of Solo Practice?

Do you view solo practice as a temporary or long-range option? Will you focus on one practice niche or several areas? Do you anticipate a need for support through a paralegal, legal assistant or other? Will you need the involvement of other lawyers? Many solo lawyers network and solidify of counsel relationships with their peers to plug into particular client matters as the need arises. Being prepared in advance is key to ensuring solid legal services and handling client expectations.

Who Would Be My Best Client?

Think about the areas of practice you want to concentrate in. Consider your background and experience—what types of client matters do you enjoy? Describe your best client and explore why that’s the case. Developing key areas of practice where you have both experience and interest to grow and develop will lead you on a path to a satisfying and successful practice.

What Is My Ideal Practice Setting?

The location of your office depends on the type of clients you want to serve. Are your clients businesses or consumers? How will the physical office affect attracting clients? Will clients need to visit you often or only occasionally? Endless technology options can support your law practice wherever it is, but you still need to decide what setting works best for you. Do you enjoy tossing around a legal issue or argument among a group of other legal minds? If so, consider renting within a suite of other lawyers. Or if you desire a strong presence, explore leasing or owning your own space. While working from home may seem like paradise, it is not always wise to bring clients to your home. You might consider a virtual office with a professional business address and renting a conference room for meeting with clients on confidential matters.

How Will I Find Clients?

To build your business, you must have a strong strategic plan that makes marketing and business development a high priority. Concentrate on marketing a few key areas of your practice. Reach out and network—you can learn and gain valuable insights by getting active in your local bar or other specialty law groups. Develop your writing and speaking skills so you can share your knowledge with potential clients. Weave your interests and experience into your online presence through your website and social media as you develop your place in a niche.

Remember, too, that in a solo setting, you may no longer be perceived as competition by your peers. This is a good thing. Communicate how you can be of value to them by helping when conflicts arise in their own firms. Their good feelings about you can result in a stream of solid referrals.

Ellyn Caruso is principal of CarusoPR, a group that combines strategy, creativity and technology. Ellyn is passionate about delivering persuasive marketing and public relations programs to help attorneys, businesses and organizations. She brings more than 25 years of public relations experience serving national and international clients. She also contributes to the Attorney at Work blog, where this post originally appeared on August 14, 2012.

CLE Program: Hanging Your Shingle

This CLE presentation will take place from Thursday, August 16 through Saturday, August 18. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in three formats: video on-demand, mp3 download, and audio CD. The course materials will also be available.

Coach’s Corner: A No-Charge Client Visit Can Pay Big Dividends

The most cost-effective business development strategy for any firm is to expand current services with existing clients. Current clients are already in hand and don’t have to be identified and wooed. They offer great potential for leverage, as new services can be provided without significant startup costs.

But it’s not a cost-free exercise. Existing client relationships require work and planning if they are to produce additional marketing benefits.

A natural and oft-overlooked starting point is to schedule a friendly, no-stress visit to a client just to talk.

Far too often, lawyers are apprehensive about making such visits, but they should be reminded that clients will not by default be hostile or confrontational; otherwise, they would not have remained as clients. What they want is to feel comfortable with their lawyer, and the best way to make them comfortable is to get them to talk about their business. A client visit should focus on listening to what clients have to say.

Such a visit takes planning if it is going to be successful. Here are steps to consider:

  • Schedule the visit at the time most convenient for the client and for any people the client wants to involve (which broadens your own circle of relationships).
  • When the day for the visit comes, remember that you are there to learn about the client, not to pitch for new business.
  • Never put clients on the defensive with a style of questioning you would use in a deposition or when structuring a contract. Try to avoid “why” questions, which are likely to carry a judgmental tone. You want to convey empathy and rapport.
  • Make all your questions open-ended. Phrase them to give clients the opportunity to provide as much information as possible.
  • Do not feel you need to respond to everything clients tell you. Show interest and demonstrate that you’ve heard, but resist the urge to push new services or ways to help.
  • Make sure you’ve done your research. Clients want to tell you about themselves, but they appreciate the respect you show them by taking the trouble to learn more about them.

The emphasis here is on learning more about the client. Clients want to share information about themselves because they want to trust their lawyer. Clients whose lawyers ask about their plans and objectives begin to think of that lawyer as an advisor and friend, not just someone who sends out a monthly bill.

That raises another important point: A client visit and the time needed for it should appear on the next bill, but with a “no charge” notation. That’s a vivid way of showing that although an attorney’s time is valuable, the client relationship is valued even more.

Finally, don’t make the bill the last mention of the visit. As a follow-up, send a handwritten note expressing thanks for the client’s time, stating why the client relationship is valuable to you, and expressing the wish for lawyer and client to extend the relationship.

That’s the real payoff, because it paves the way for asking: “How else can I help you?” The answer stands a very good chance of equating to new business — with a freshly appreciative client.

Ed Poll is a nationally recognized coach, law firm management consultant, and author who has coached and consulted with lawyers and law firms in strategic planning, profitability analysis, and practice development for over twenty years. Ed has practiced law on all sides of the table and he now helps attorneys and law firms increase their profitability and peace of mind. He writes a syndicated legal column, Coach’s Corner, where this post originally appeared on April 17, 2012.

Coach’s Corner: Client Expectations Can Be Managed

Client Needs vs Wants
Successful lawyers must find out not only what clients need, but also what they want. Only when needs and wants are understood can you shape your assessment of the services to provide. If needs and wants are in harmony and you inform the client of what to expect, there is little likelihood of disagreement or a problem in the engagement. The lawyer who does this is proactively managing client expectations.

The obligation to promote quality communication between attorney and client and to assure that the client has a good understanding of what to expect lies squarely with the attorney, as part of his or her professional responsibility.

Essentials of Good Communication

  • Always have a signed engagement letter for a new client, stating as much information as possible about the parties, issues, anticipated strategies, desired outcomes and how much the client wants to pay.

  • Beware of clients who cannot or will not agree to what they want their lawyer to accomplish. Such clients will often be future sources of last minute complaints or emergencies that at best are irritating and at worst can result in errors under pressure.

  • Help clients understand that the fee they are charged meets the requirement of being “reasonable” under Rule 1.5, reflecting the lawyer’s skill and experience.

  • Establish a budget for the engagement that provides common sense estimates of both the time and the expense that the engagement is likely to involve, making it clear that these are estimates and not guarantees. Be sure to communicate constantly about progress in comparison to budget.

  • Consider offering a “performance guarantee” of items within the lawyer’s control, such as the level of service or an offer to adjust the fee if the client is not satisfied. This can reduce clients’ feelings of risk, so that they feel comfortable moving ahead with an engagement.

  • Find out what clients think by visiting them periodically and getting them to talk about their business and to listen to what they are saying. Managing client expectations is possible only by giving clients the chance to clearly and regularly express them.

A Collaborative Relationship
Lawyers and clients should be mutually committed to a collaborative relationship that is founded on communication and understanding. Such collaboration doesn’t just manage expectations – it builds the trust and loyalty that are essential to an enduring relationship.

Ed Poll is a nationally recognized coach, law firm management consultant, and author who has coached and consulted with lawyers and law firms in strategic planning, profitability analysis, and practice development for over twenty years. Ed has practiced law on all sides of the table and he now helps attorneys and law firms increase their profitability and peace of mind. He writes the LawBiz® Tips E-zine, where this post originally appeared on April 26, 2011.

Regulation Counsel Says Law Students Need More Exposure to Professionalism

This post originally appeared on the Educating Tomorrow’s Lawyers blog. Educating Tomorrow’s Lawyers is an initiative of the Institute for the Advancement of the American Legal System (IAALS) that leverages the Carnegie Model and the work of law schools and professors committed to legal education reform to align legal education with the needs of an evolving profession by providing a supported platform for shared learning, experimentation, ongoing measurement and collective implementation.

We recently sat down to talk with John Gleason. As Regulation Counsel for the Colorado Supreme Court, he directs the office of the Court responsible for lawyer admissions, registration, regulation, and client protection. In 2010, Gleason was appointed by the Arizona Supreme Court to investigate and prosecute Andrew Thomas, the former Maricopa County Attorney—a prosecution that last week ended in the disbarment of Thomas and one of his lieutenants, and the suspension of another attorney in Thomas’ office.

Gleason often meets lawyers when they are at their most vulnerable—under investigation for misconduct—and he believes new lawyers need more guidance on professional issues. Recent graduates, he says, are often referred to his office for minor misconduct issues. “There are an enormous number of issues that are not covered in law school. In fact, probably most issues related to professionalism are not covered in law school.”

Hear more from John Gleason below or click here to view the rest of his interview.

Alli Gerkman is Online Content Manager for IAALS, where she manages, edits, and creates content for IAALS and Educating Tomorrow’s Lawyers.

Tom Matte: A Twitter Chat Can Bring New Exposure to Your Law Firm

By scheduling regular tweet chats on topics of interest to your followers, your firm will be viewed as a go-to resource for the latest information

So, you’ve been on Twitter for a while now. You are building a nice number of followers and are conversing with them on a regular basis. Your posts are informative and interesting, and you are even retweeted on a fairly regular basis.

So what’s next? Why not hold a Twitter Chat? For the uninitiated, a Twitter Chat is when a group of people participates in a real time, online conversation around a particular topic, identified by a hashtag. Think about it as a conference call with people all over the world, where each participant can share their thoughts by typing 140-character tweets rather than talking over each other. It’s an easy way to get people who are interested in your topic to discuss concerns and share new ideas.

Sounds fun, right? While it is easy, there are some things to consider first. When setting one up, make sure you:

  • Choose a topic, time and a hashtag that makes sense
  • Choose a format and share that with your followers. It may be on a single topic (typically best), a forum for followers to ask you questions, or any number of other formats, but define it up front and stick to it.
  • Promote it in advance. Otherwise, you’ll be chatting by yourself.

So those are the basics. Scheduling and conducting a Twitter Chat is one thing, but doing it in such a way that followers will participate and want to come back for future ones is another. Here are some suggestions for doing it well.

  • Choose a topic people are interested in. What are your clients consistently asking you about? What do you see trending on Twitter lately? Put a bit of thought into your topic to ensure it’s one that will draw participants.
  • Be real. One of the beauties of social media is that it tends to break down barriers between people and allows them to show a bit of personality along with their expertise. So be authentic in your approach and don’t be afraid to show a bit of your fun side too.
  • Be consistent. If you plan to hold regular Twitter Chats, find a time that works for most of your followers and stick to it. That way people will add it to their schedule and be more likely to attend future ones.
  • Invite others to host. Just like in-person events, it’s good to mix it up a bit. Bring in other thought leaders and have them “guest host” by leading the conversation or answering questions. It will keep it more interesting and bring in entirely new participants since the guest host will promote it for you as well.

For example, Colorado Supreme Court initiated the new Civil Access Pilot Project this year, which makes significant changes to the Colorado Rules of Civil Procedure for certain types of business cases in specified judicial districts. The new procedures dramatically affect the way certain civil cases are litigated, and attorneys are beginning to wade through the new restrictions right now. Here’s a great opportunity for a Colorado firm to hold a Twitter Chat to hear what others are thinking, share their own views, and even discuss what their experiences have been with the rule changes so far. Who’s first?

Hosting a Tweet Chat can be a great way for you to add followers and increase exposure for your firm and practice area. Attend a few first to see how it’s done and take notes on what works well and what doesn’t. You can find them directly in Twitter, or TweetChat is designed to help with the process.

To read more, check out Mashable articles, 7 Tips for Better Twitter Chats and How to Start and Run a Successful Twitter Chat.

Tom Matte is CEO of Max Advertising, and focuses his endless enthusiasm on crafting creative and lasting marketing and advertising for law firms, helping them to ultimately grow their practices. Whether a 10-person firm or one of the Am Law 100, he works with firms of all sizes. Tom blogs at the The Matte Pad, where this post originally appeared on June 30, 2011.

Top 10 Reasons Your Firm Should Play Lawyers’ League Softball

10. Have fun. Let’s face it: slow-pitch, co-ed softball in a relaxed league (there are no umpires, and balls and strikes are not called) is simply fun. It’s way less frustrating than golf and there are more cardio benefits. And you might get a cool trophy at season’s end.

9. Have fun with others at your office. You don’t have to be a lawyer to play in the Lawyers’ League, so it is a great way to bond with the rest of your office.

8. Get out of the office on the weekend. Not that you should need an excuse to get out of the office on the weekend, but it is nice to have a built-in one if you do. Games are finished on Saturday by about lunch time, so you have the rest of the weekend to work if you really have to.

7. Be a part of history. I’ve been league commissioner for nearly 20 years, and I have contacted the last two commissioners before me. Nobody can even remember when the league began, thus if you join you can be part of something where “the memory of man runneth not to the contrary.”

Join Lawyers League Softball
DBA Lawyers’ League Coed Softball starts June 9 and runs through Aug. 11. Games are played Saturdays at Cranmer Park (at 1st Avenue and Bellaire Street). This is a relaxed league more concerned with having fun than, well, pretty much anything else. Cost varies depending on the number of teams in the league. For more information or to sign up, contact Jack Tanner at jtanner@fwlaw.com.

6. Have fun with clients. Did you know being up with two on and two out is a marketing moment? Well, it can be (especially if you come through with a hit). I guarantee you that if your client spends 90 minutes playing softball, drinking adult beverages, and generally having a good time on Saturday, that client will call you first when a legal need arises on Tuesday.

5. Save a life. I grew up on the Gulf Coast and was a lifeguard from seventh grade through law school, but never once actually saved anybody. Playing softball in the Lawyers’ League, however, I once used CPR to help revive a guy who had been struck by lightning.

4. Have fun with your family. Bring your kids (or grandkids, or parents, or distant relatives, or dog) and have a good time as a family. One of my favorite things about this league is that it is one of the few things my teenage son and I do together.

3. Bond with other members of the Bar. Even if you don’t like how a fellow litigator acts during discovery, that same litigator can be a peach on the softball field. If not, it’s always more incentive to play hard for a win.

2. It’s cheap! Because we play days (and therefore on an unlighted field) and have no umpires, the field fees are nominal. The cost is only a few hundred bucks per team for the entire summer.

1. You’ll be doing a service to the Bar. If I get enough teams to play this year, I won’t have to try to drum up more next year, and no one will have to read another article from me next year.

The Docket eFile brings features from your favorite Denver Bar Association publication to you digitally. When you see the logo, you’re reading an article from The Docket. You’ll also still be able to read the full issue online at denbar.org/docket.

Coach’s Corner: Do Your Due Diligence on New Clients

Under Rule of Professional Conduct 1.16, a lawyer may withdraw from representing a client if “the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.”

However, withdrawing from a representation already begun is extremely difficult, as much of the rest of Rule 1.16 attests. An attempt to withdraw without adequate communication about and careful records of the difficulty that the client has caused — whether for nonpayment of fees, lack of cooperation or some other failing — may bring a state bar disciplinary action requiring future work without pay to fulfill ethical obligations toward the client.

Withdrawal cannot be done without reasonable notice to the client, allowing time for employment of other counsel, surrendering the client’s papers and property and refunding any advance payment of fees that have not been earned.

The simple fact is that no lawyer needs to contend with such headaches. The antidote to withdrawal is to undertake full due diligence before entering into a formal engagement agreement with the client. At the time of engagement, a lawyer must determine whether the goals of the client are understood and can be met. This also requires determining whether the client will facilitate achieving those goals. And facilitation, as Rule 1.16 suggests, means paying the bill and cooperating with the lawyer.

Due diligence on the client’s willingness and ability to pay should be documented in the initial engagement agreement. This investigation is a step that too many lawyers neglect, though it can be as simple as requesting a credit report from one of the consumer credit agencies or from a business credit reporter such as Dun & Bradstreet.

Once it is clear that prospective clients can pay, a signed engagement stating the terms and responsibilities for payment attests that they will pay. Clients who cannot or will not sign a fee agreement or pay a retainer, or who want to start now and pay later, should be considered suspect.

Cooperation is a similar issue. Avoid a client with unrealistic expectations or demands. Discussing engagement terms will frequently uncover the client who will in the future express irritation with delay, chronically complain about everything, demand constant or instant attention or expect unrealistic or abnormal hand-holding. Telltale signs are when prospective clients:

  • insist that their matter is “life and death”; such clients will often be future sources of last minute emergencies that at best are irritating and at worst can result in errors under pressures;
  • use pressure tactics to urge that their matter be handled immediately.
  • demonstrate a bad attitude toward lawyers and the judicial system, or suggest that they know better than the lawyer what needs to be done; and/or
  • cannot articulate what they want their lawyer to achieve.

Due diligence is a business essential. When you determine that a client will perceive what you do as being worthwhile and valuable, you are more likely to have successful engagements and a financially successful firm. Conversely, rejecting potential problem clients before representation will enhance that success by eliminating fee-collection difficulties and possible malpractice claims.

Ed Poll is a nationally recognized coach, law firm management consultant, and author who has coached and consulted with lawyers and law firms in strategic planning, profitability analysis, and practice development for over twenty years. Ed has practiced law on all sides of the table and he now helps attorneys and law firms increase their profitability and peace of mind. He writes a syndicated legal column, Coach’s Corner, where this post originally appeared on January 23, 2012.

Janet Raasch: Competitive Intelligence – An Essential Component of Better Law Firm Decision-Making (Part 2)

Editor’s Note: This is the second section of a two-part article. Click here to read Part 1.

Competitive intelligence profiles

When preparing to meet with a potential client, lawyers often ask marketers or librarians to prepare a profile of the client.  “All too often,” said McDavid, “this is done just a few hours before the scheduled meeting – and we need to scramble.

“Even with very little lead time, you would be surprised at how much information you can turn up by simply visiting and mining the potential client’s website,” said McDavid.  “You should also search company or firm pages on social media sites.”

When you have a little more lead time to prepare – like for a proposal or the resulting beauty contest – then you can delve more deeply into client background.  Good sources for public companies include SEC filings.  Good sources for private companies include Dun and Bradstreet reports.

A good profile addresses some or all (depending on your time and research skills) of these categories:

  • Quick facts
  • Company overview
  • Business segments
  • Products/services
  • Business partners
  • Board of Directors
  • Key executives
  • Key developments
  • Representative clients
  • Legal issues and litigation
  • Locations
  • Case studies
  • Patent information
  • Marketing strategy
  • Competitors
  • Sources
  • News articles

Armed with this type of information, your lawyers and law firm are well-prepared to make good decisions about how to approach a potential client (or anyone else), and how to make a good impression once the contact takes place.

Competitive intelligence on people

Sometimes you need information about an individual rather than a company.  This person could be a client, a prospective client, a competitor, opposing counsel, a potential hire or a potential merger partner.  When you know something about the person you are meeting with, you can plan appropriately.

Sometimes, you need other kinds of information about people.  For example, you might need to track down a former employee or a potential witness.  “When such a person has gone ‘off the grid’ electronically, you might not have much to go on,” said Goater.  “This is where creativity comes into play.

“In one such case, a former executive had been gone from a company for five years,” said Goater.  “He had a common name, which made the search even more difficult.  Someone recalled him saying that he wanted to take over his family’s farm.  By using the farm subsidy database and narrowing the search by general geographic area and the man’s age, we were able to locate him for our client.”

Another reason to search for people is to acquire their contact information for use in a marketing database.  Good sources of contact information include telephone directories, professional directories and professional licensing agencies (if you know a person’s profession).  Online sources include a search on Yahoo! People.

Many of the commercial and general resources mentioned in the “companies” research section in this article work just as well for people.

“We often use a site called Jigsaw, owned by Salesforce” said Goater.  “It is a business-to-business contract database populated by marketers and salespeople around the country.  By contributing their contacts, users gain access to the database.  It includes 30 million contacts.  It is an especially good source for the contact information of individuals below the usual c-level executives that show up in most directories.”

If you know a person’s location, you can search local and regional media for mentions of their names and activities.  Social media – like Martindale Hubbell, LinkedIn, Facebook, Google+, Twitter, and YouTube — are also good resources.  So are blog searches.  Social media include contact information, but they also broaden your research with less formal “chat” about people, their activities and the companies they work for.

“In gathering information about people,” said Goater, “you want to use a wide variety of sources – and you want to be very careful to validate any information you find before you act on it.  There is a lot of faulty information out there.  There are also privacy concerns.”

Today, information about companies and individuals is widely available. In fact, you could easily drown in all the data.  The trick is to focus your search in light of your business goals.  With this information in hand, you are well-positioned to make good decisions about the future of your law firm – and its work.

Janet Ellen Raasch is a writer, ghostwriter, and blogger (www.constantcontentblog.com) who works closely with professional services providers – especially lawyers, law firms, legal consultants and legal organizations – to help them achieve name recognition and new business through publication of keyword-rich content for the web and social media sites as well as articles and books for print. She can be reached at (303) 399-5041 or jeraasch@msn.com.

Janet Raasch: Competitive Intelligence – An Essential Component of Better Law Firm Decision-Making (Part 1)

Editor’s Note: This is the first section of a two-part article. Click here to read Part 2.

Important law firm decisions should never be made in a vacuum.  Instead, they should be made with an abundance of the right information in hand.  For many law firm decisions, “the right information” means competitive intelligence.

Competitive intelligence is defined as a systematic and ethical program for gathering, analyzing and managing information about the external business environment – information that can affect all of a law firm’s plans, decisions and operations.

Competitive intelligence can be information about organizations – like your clients, potential clients and adversaries.  It can be information about other law firms – like collaborators, opposing counsel or even potential merger partners.  It can be information about the legal needs in particular industries or markets.

Competitive intelligence can also be information about people – like the people you will meet in a pitch, in the boardroom, in the courtroom (like opposing counsel or an expert witness) or in a hiring interview.

In any of these settings, knowledge of companies and people is power.

“When gathering competitive intelligence, there is a wrong way and a right way to go about it,” said Wanda McDavid.  “The wrong way is typified by computer hackers like Lisbeth Salander in The Girl with the Dragon Tattoo.  As much as we enjoy the book and the movie, and want Lisbeth to succeed, we cannot condone her tactics.  This kind of corporate espionage makes for good entertainment, but bad – and unethical – business.”

“The ethical gathering of competitive intelligence complies with all applicable laws – domestic as well as international,” said McDavid.  “It is obtained from legitimate online and print sources, in both public and subscription databases.  When obtained by interviews (either with targeted competitor staff and customers or as general field research), the ethical interviewer discloses up front both her identity and the purpose of the interview.”

McDavid and her colleague Judy Goater discussed the ethical gathering and use of competitive intelligence by law firms at the monthly educational program of the Rocky Mountain Chapter of the Legal Marketing Association.  The program was held January 10, 2012 at Maggiano’s Little Italy in downtown Denver.

McDavid is president and Goater is director of services development at Access Information, a Denver-based firm that specializes in the discovery and compilation of competitive intelligence for use by law firms.  Both have master’s degrees in librarianship and vast experience in the legal industry.  The PowerPoint slides from this presentation have been made available on the company website, in the “training” section.

“Before starting any competitive research project,” said McDavid, “it is essential that you have a plan.  Thanks to the Internet, there are an almost unlimited number of resources out there.  You can waste a lot of time and money searching them all.  If we know your goals for a particular research project, we can help you concentrate your resources on the most likely, valid and reliable sources for your purpose.”

Competitive intelligence on companies, competitors and adversaries

Some sources of competitive intelligence about companies, competitors and adversaries are paid and some are free to the public.  Because of the nature of their work, many law firms and law librarians already have access to many of the paid resources.  These include products offered by industry giants LexisNexis and Thomson West.

“For industry research, I also like to use a product called Profound, offered by MarketResearch.com,” said McDavid.  “They offer a wide range of reports for purchase.  An entire report can be costly but, if you know exactly what you are looking for, you can order just part of a report for a lesser fee.

“And don’t forget,” said McDavid.  “Many of these paid resources are available for you to use free of charge at the Denver Public Library.”

Free resources for company research include www.llrx.com and Zimmerman’s Research Guide.  In its database, Zimmerman’s offers links to both company information and company personnel.  “Both of these sites are great places to start if you are trying to get an overview of the kind of research that is out there,” said McDavid.

The Virtual Chase product by Justia.com offers business research as well as county and municipal law resources.  Information on companies can be found at Hoovers, Yahoo! Finance, Google Finance, Nexis company information and ValuationResources.com.

“A lot of good research is available from Google,” said McDavid.  “We all know how to do a Google search, but much more refined searches and results are available via the Google Advanced General Search Page.  Google Scholar and Google Advanced Scholar Search offer useful results that have been ‘purged’ of casual hits.”

Court and government sites – especially the Secretary of State’s office — include public records and a wealth of useful information.  “If you want to know where a company is headed,” said McDavid, “check the U.S. Patent and Trademark Office Database.”

Janet Ellen Raasch is a writer, ghostwriter, and blogger (www.constantcontentblog.com) who works closely with professional services providers – especially lawyers, law firms, legal consultants and legal organizations – to help them achieve name recognition and new business through publication of keyword-rich content for the web and social media sites as well as articles and books for print. She can be reached at (303) 399-5041 or jeraasch@msn.com.