Jim Calloway's Law Practice Tips Blog

Technology Competence for the Family Lawyer

Some lawyers were concerned when the Model Rules of Professional Conduct were changed to include a comment that competence as a lawyer included an appreciation of “the benefits and risks associated with relevant technology.”

Now 31 states have adopted some version of this language in comment 8 to Rule 1.1, according to legal technology journalist Robert Ambrogi who maintains regularly updated information about the comment adoption on his blog.

Many of the legal technology community thought this comment was so obvious in today's times that it was difficult to understand those who object to the comment.

Reading an article in The New York Times this summer titled Thermostats, Locks and Lights: Digital Tools of Domestic Abuse made me think about how the lawyer who works in the family law arena faces a vastly different set of technology concerns (and competencies) about client safety and privacy compared to just a few years ago when few were familiar with the Internet of Things. But there's more to this than just telling a client to change their WiFi password.

So I wrote Technology Competence for the Family Lawyer as both a thought exercise and a guide for family lawyers. The question I attempted to answer is broad: What do you need to tell today's family law client about what that should be done to digitally protect oneself in the event of a separation or divorce, especially when the client may not have set up or be very familiar with the technology they are using? I'm sure I missed something but am pleased with the result. And while asking for social media shares sometimes comes across as self-promoting, I believe that there are many family lawyers that would like to read this column. So feel free to share or ask us about reprint rights.

Lawyer's Stories from GPSolo Magazine

Before April ends, I wanted to recognize the March/April 2018 edition of GPSOLO magazine. The Lawyer's Stories features were very well done and provided a resource of interest for most lawyers (and young lawyers in particular.)

GPSOLO is a fine and useful publication. Update: Read this issue soon. When the new issue is posted, the previous one is archived where access is apparently is restricted to members of the ABA Solo, Small Firm and General Practice Division.

One odd thing about GPSOLO magazine is attorneys who are not ABA members are not allowed to subscribe to the magazine ($135.00 per year) because they are "individuals not eligible for ABA membership." Since many solo and small firm lawyers are not ABA members, that seems a bit short-sighted to me. So if you enjoy their great content, you need to make sure and log in to read it at least every other month.

By contrast the subscription costs for ABA's Law Practice Magazine is $64 per year with no such restriction noted.

Congratulations to all of the GPSOLO Magazine editorial team on such a fine issue!

Wellness and Opening a Law Practice

There's a lot of talk about lawyer wellness— and there should be. The practice of law is a demanding profession. The emotional and psychological toll it takes on lawyers is well documented.  But I saw a Twitter thread today that would seem counterintutive to many wellness advocates because the author says the first thing the lawyer opening a practice needs to do about wellness is to see a CPA. I won't recap the author's entire message in this post, but she has a lot of important observations. You can read the thread by clicking on the graphic below. 

I am a big fan of lawyer wellness. I've noticed lately that the only ones I see preaching it are people who only do law part-time because they have a secondary source of income. From someone who was solo, without any backup, let me say, it is still possible to be healthy in law.

— Amicus Trish (@LeadChangeTrish) April 8, 2018

I've been teaching our free Opening Your Law Practice program in Oklahoma for many years. The next edition is May 1, 2018. Oklahoma lawyers and those awaiting Oklahoma Bar Exam results can see the schedule and get sign up information here. (Sorry, no online version yet. You have to show up in person.) We have breakfast and lunch provided by Oklahoma Attorney's Mutual Insurance Company and so advance registrations are strongly preferred. We will have an audience of new lawyers, but we also typically have quite a few veteran lawyers as well, either wanting a refresher or facing a career change. Once a retiring judge came up after the seminar and told me this was the most valuable seminar he had ever attended. As I beamed and thanked him, he continued, "There's no way I want to do all of that." He found employment with flexible hours instead, so maybe it was a great program for him.

But now I have something new to add to my program. For lawyer wellness, your health care professionals are important, but so is your CPA.

Who says Twitter isn't valuable?

Those who cannot attend our seminar can still take advance of our free OBA MAP Starting a Law Practice Directory of resources. You do not have to be an OBA member.

 

ABA TECHSHOW 2018: Why you should go and What you need to know

ABA TECHSHOW 2018 will be held March 7-10 at the Hyatt Regency Chicago. It’s an important year to attend ABA TECHSHOW. Long-discussed changes are underway in our profession and many of them relate to technology. Many consumers are purchasing legal products online. Smart contracts powered by blockchain technology sound very realistic and appealing to large business clients. Lawyers now appreciate that some things shouldn’t be sent by unencrypted email, including QDRO’s, financial account numbers, social security numbers and confidential client advice. There are several alternatives to “regular” email that lawyers all need to understand.

Oklahoma Bar Association members can receive an ABA TECHSHOW registration discount by using promo code EP1908 when registering. The early bird registration deadline for ABA TECHSHOW 2018 has been extended until Monday, January 29.

We interviewed ABA TECHSHOW 2018 co-chairs Debbie Foster and Tom Mighell on our Digital Edge Podcast, Preview of ABA TECHSHOW 2018. As always, there are lots of interesting sessions and fun networking social events planned. You can either listen to the podcast or read the transcript at that link.

I’m speaking at ABA TECHSHOW on The 411 on Texting for Lawyers with Ivan Hemmans and Using Client Portals for Effective Collaboration with Arkansas attorney and first-time TECHSHOW presenter Brooke Moore. Brooke has an Arkansas-based virtual law practice at http://myvirtual.lawyer/. Ivan Hemmans is a Senior Manager of Technical Development at O’Melveny & Myers LLP.

I’m well-known as a fan of ABA TECHSHOW. It is my most valuable educational experience of the year–every year. There are opportunities to go out to dinner with the speakers as well as a massive vendor exhibit hall where you can talk to the people who develop the software you use.

I appreciate that your time is valuable. But ABA TECHSHOW provides valuable information and is a great experience. You do not want to miss ABA TECHSHOW 2018.

Opening a New Law Practice

Next week is our Opening Your Law Practice program here in Oklahoma, but one of the major resources we provide is available online to all lawyers.

We at the Oklahoma Bar Association Management Assistance Program team put on this program three times a year right after the new lawyers admission ceremony. Next week, the daylong class will be held October 3 at the Tulsa County Bar and October 4 at the Oklahoma Bar Center in Oklahoma City. Earlier this week 205 applicants became Oklahoma-licensed lawyers. We wish all of them would attend our program, whether they are opening up their own law practice or not, because we provide a lot of information about manage a law practice. You can see the class schedules at the links above.

If you are interested in starting a new law practice, you’re welcome to visit our OBA-MAP Starting a Law Practice Web Directory. There are quite a few downloadable documents and links to many resources, including many of those published by other state bar associations who have practice management advisors like myself on staff. Between our resources and their resources, there is a lot of valuable information completely for free.

All Oklahoma lawyers are welcomed to take this free training. We do accept walk-ins, but would appreciate it if lawyers who want to attend would contact my assistant Nickie Day before close of business Friday, September 29 so we can have sufficient lunches for everyone. For many years now, lunch for the attendees at this program has been graciously provided by Oklahoma Attorneys Mutual Insurance Company.

This program is primarily about the business of law, which today includes much more about  technology than it would have many years ago. While we will have mostly brand-new lawyers in the audience, in the past we’ve had a mix of attendees including lawyers leaving large firms, recently retired judges and district attorneys. It is an in-person attendance only event. One of my favorite comments was from a retired judge who told me afterwards “This was an incredibly valuable seminar because it became very clear to me that I don’t want to do all that stuff.” He works as a mediator for a mediation practice now and is quite happy with that decision.

Some lawyers open a new practice directly out of law school because it is been their long term dream. Some open their own practice because they didn’t find employment after graduation. Some join an established small firm practice that could use a bit of updating with its processes. Helping new lawyers begin and seeing their excitement at the beginning of their careers is one of the most satisfying things I get to do.

OBA Program on Delivering Limited Scope Services (aka Unbundled Services) Effectively and Safely

Our citizens all deserve equal access to justice. Those with financial means can afford the best representation. There are many who can afford to pay something for a lawyer’s help but cannot afford full representation. Next Friday, August 18, OBA Practice Management Advisor Darla Jackson and I teach a three-hour program on Delivering Limited Scope Services Effectively and Safely. (Some refer to the service model as unbundled legal services.) Lawyers can attend this program in person at the Oklahoma Bar Center (registration) or by simultaneous webcast (registration). Early bird registration for these programs ends at midnight Friday, August 11.

What are limited scope services? This term refers to a lawyer agreeing with an appropriate client to provide less than full-service representation under existing Rule 1.2(c) of the Oklahoma Rules of Professional Conduct. In June 2017, the Oklahoma Supreme Court added a new rule, Rule 33, to the Rules for District Courts of Oklahoma. The rule provides that lawyers who prepare pleadings or other documents to be presented to or filed with the court must disclose their participation on the document, but may do so without entering appearance in the underlying matter.

But, as they say, the devil is in the details. While this rule change now provides an opportunity to help those who cannot afford full-service legal representation, this is intended to provide a viable and profitable business model for lawyers to use to help people. However, attorneys who deliver these services need to appreciate the ethical duties they must satisfy. Additionally, attorneys must recognize that some clients seeking limited scope representation may later have a complaint about the scope of the services provided.

This program will provide practical guidance and suggested sample forms relating to delivering limited scope services. It is offered for three hours of continuing legal education credit including one hour of ethics.

Improving Access to Justice

Access to justice availability is a significant problem today. At least that’s the belief of every organization that has studied the issue. The fact that this problem appears to be growing is a challenge for society. The legal profession has long embraced volunteerism and pro bono services. Almost every lawyer either supports legal aid or undertakes representation of individuals who cannot afford legal services under ethics rule 6.1. While those in other professions are sometimes very charitable, there’s no similar tradition that doctors or CPAs should donate their services to those who cannot afford them. (Although doctors who do a lot of work for Medicaid patients may dispute that comment.)

Then there are those who can pay an attorney's fee, but not a "full service" fee. Here’s an interesting idea. How about a non-for-profit law firm? The first response to that might be that this has been done before, but not intentionally. But the idea of a firm where no one makes partner and every lawyer earns a salary is intriguing, especially if the firm can enjoy tax benefits from serving the under-served.

Shantelle Argyle is an attorney and the co-founder and executive director of Open Legal Services, a nonprofit modest means law firm in Utah. She is the guest on the Digital Edge podcast for the episode Low Bono Legal Services: Working to Provide Access to Justice. We also discuss what’s different about today’s legal services consumers and how these differences affect access to justice concerns.

There is another development in Oklahoma related to access to justice. One way to lower the costs of legal services is for lawyers to assist those who want help in a limited way. One common example is that of a lawyer who prepares all of the court documents for a simple uncontested marital dissolution and had the client and opposing party execute all of the documents in the lawyer’s office. By providing the client with a good set of instructions on what to do at the courthouse to appear before the judge pro se, the lawyer can avoid the scheduling and time spent on the court appearance and charge the client substantially less.

While Oklahoma Rule of Professional Conduct 1.2(c) has for a long time allowed the lawyer to provide limited scope services, this authority was not used widely because of long-standing questions about so-called “ghostwriting.” Some attorneys and judges see lawyers preparing pleadings for self-represented litigants as a useful idea to lower the costs of some routine legal services. Others were concerned about a lawyer drafting a pleading without disclosing their participation. So a primary issue was disclosure of lawyer assistance.

This month the Oklahoma Supreme Court issued a new District Court rule, Rule 33, based on recommendations from the Oklahoma Bar Access to Justice Committee and the OBA Board of Governors. Rule 33 states:

Rule 33. Limited Scope Representation

A lawyer providing limited scope representation under Rule 1.2 (c) of the Oklahoma Rules of Professional Conduct may draft pleadings or other documents for a pro se litigant to file with or present to a district court without the lawyer entering an appearance in the matter. A lawyer shall disclose such assistance by indicating their name, address, bar number, telephone number, other contact information and, optionally, a signature on said pleading or other document with the phrase "No appearance is entered as counsel of record."

So lawyers in Oklahoma have clear guidance. A lawyer can assist someone by advising them about their litigation, as lawyers have always been able to do. But if the lawyer prepares any document to be filed with or presented to a court, they should disclose their participation in writing to the court as indicated.

As they say, however, the devil is in the details. So for those Oklahoma lawyers who wish to provide services in this manner, the OBA is going to provide a live seminar and live webcast on August 18, 2017 titled Delivering Limited Scope Services Effectively and Safely. (It is not limited to Oklahoma lawyers, but will be focused on Oklahoma procedures related to this new rule.) UPDATE: Lawyers can now register for the live seminar here and the webcast registration link will be up soon.

Some will criticize Oklahoma for going too far and others will criticize Oklahoma for not going far enough. But whether it is an uncontested marital dissolution, preparing exhibits and outlining the process for a small claims proceeding or helping someone prepare for a child support and administrative hearing, limited scope representation will provide another, less expensive avenue for people to obtain high-quality access to the justice that they need in some circumstances.

 

Podcast: Is Law Really A Buyer’s Market? And If So, Now What?

Our podcast Is Law Really A Buyer’s Market? And If So, Now What? is quite exceptional if I do say so myself. Of course exceptional is much easier to accomplish when your podcast guest is an esteemed expert like Jordan Furlong discussing an important topic that is near and near to his heart.

And it certainly adds to his enthusiasm when he has just released a new book about the legal marketplace.

For those of you who prefer to read rather than listen, the fine folks at Legal Talk Network have provided a transcript of this podcast.

The legal marketplace is certainly changing and the term "buyer's market" is very accurate. As Jordan says, "the short answer is that it means that the balance of power between lawyers and clients in the legal market has shifted and it has shifted in favor of clients, and it couldn’t shift any further towards lawyers ... because we have always been the ones who are in control of the market."

This impacts lawyers who serve all types of clients. Corporate America is more careful with its legal spend and consumers can explore other alternatives as well. Furlong discusses how many law firms should examine their basic business model and structure to prepare for the changes ahead.

"There are these new ways of delivering legal services," he notes. "You can adopt these legal services in some way, I mean, to your own practice, you can augment them to some degree, add your own particular unique bells and whistles, or you can say, you know what? I can’t compete in this practice area anymore and I need to go do something else. Higher value, something the machines can’t imitate." Some lawyers may decide to reshape their practices, and use a standardized process-driven approach to delivering some types of the legal services they have always delivered more cheaply and efficiently.

A law firm needs to have a strategy in three dimensions, Furlong says. These dimensions  are the user experience, a competitive strategy for differentiation and improving law firm culture. To learn more, you will need to listen to the podcast -- and perhaps buy the book.

Client Portals: Why Attorneys are Flocking to Them

Client Portals: Why Attorneys are Flocking to Them is the subject for a live webinar this week (April 12) from the ABA Law Practice Division. It features two Oklahomans, Jim Calloway, Director of the Oklahoma Bar Association's Management Assistance Program and Darla Jackson, OBA Practice Management Advisor.

It is not exaggerating to say that for most lawyers, this is a critically important topic. The idea of using a client portal to better serve your clients involves more than better client service. This involves “best practices” for security of client information. Setting up a portal allows your firm to set up comprehensive processes for electronic transmission of confidential (and nonconfidential) information and it is generally a more user-friendly process than training a client on the use of encrypted email. It is an internal time-saving practice.

Client portals demonstrate to your clients that you are on top of recent technology trends regarding how confidential information should be treated and secure client portals help you ensure that you are observing your ethical obligations about handling sensitive material.

Many lawyers already have the technical capability for client portals provided within their practice management software solutions, but they haven’t taken the time to implement a firm-wide comprehensive policy on how these portals are used.

Others may use dedicated portal solutions provided by third parties. We will show examples of  both types of solutions. This practice obviously works differently for a large firm with an IT department versus a solo practitioner. We will focus on tools for medium-sized and small law firms, but the discussion of how to use client portals and why applies to every lawyer.

The genesis for this program was my most linked and most reprinted column of last year Email Attachments vs. Client Portals. Take a few moments to read that now if you missed it the first time to remind you of why you should attend this CLE program.

For more information and to register, visit the webinar’s registration page. We hope you can attend.

How to Ethically Use Technology in Your Practice - Free Webinar this week

I am teaching a free webinar on Wednesday February 8, 2017 at 1:00 pm CENTRAL time. It is titled: How to Ethically Use Technology in Your Practice

It is sponsored by MyCase. Here is the information:

Keeping client confidences secure in the digital age is not always easy, but it certainly is necessary. It seems like there’s always some new technology tool or gadget that lawyers are told they “have to” use.

Jim Calloway, director of the Oklahoma Bar Association’s Management Assistance Program, will talk about how to ethically use today’s technology and which emerging tools are important for lawyers.

Register for our free 60 minute webinar on Wednesday, February 8, 2017 at 11 AM PT / 2 PM ET to learn about:

    Why lawyers cannot ethically avoid using technology tools
    Digital security – It’s your responsibility
    Encryption of email to clients - now required?
    The risks and benefits of cloud computing
    Emerging technology tools that benefit lawyers and their clients

No Oklahoma MCLE credit is offered.

Register at http://info.mycase.com/MC-WBNR-022017-JimCalloway_LP_Reg.html