OBA Program on Delivering Limited Scope Services (aka Undundled 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.

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

Podcast: Evernote for Lawyers- Manage Your Research, Marketing, and Process

I attended Heidi Alexander’s presentation on Evernote for Lawyers at ABA TECHSHOW 2017 and thought at the time that she should be a guest on our Digital Edge podcast to talk about Evernote. As it turned out we were able to arrange that fairly quickly. Sharon Nelson and I are pleased to allow Heidi an opportunity to further showcase her expertise in our podcast Evernote for Lawyers- Manage Your Research, Marketing, and Process where she discusses basic features for the beginner and tips for the advanced users.

Earlier this year, the American Bar Association published Heidi’s book Evernote as a Law Practice Tool. Heidi Alexander Evernote Book Cover Read some excerpts from the book here. There is even a ebook edition.

I think Evernote and its now-free competition Microsoft OneNote meet a basic need for lawyers more as a free form digital notebook than as a note-taking app. I love the ability to capture web pages so I can easily find and read them later. But both of these have powerful note-taking features. Personally I like the theory of using both Evernote and OneNote, one for personal matters and the other for business.

Alexander-HeidiBut that approach means that you may not become a power user of either program. So I’d encourage you to read all of the linked resources above and see if Evernote is the tool you can use or if your basic use can be upgraded to power user.

But first, enjoy the podcast.

Podcast: Evernote for Lawyers- Manage Your Research, Marketing, and Process

If you only had a short time to live, would one last conference call be your highest priority? NYT: The Lawyer, The Addict

A feature in the New York Times this weekend, The Lawyer, the Addict, is a compelling read, made so in large part by the writer’s viewpoint from outside of the profession.

Those of us in the profession have repeatedly heard the statistics on lawyer depression, addiction and suicide. In every one of those areas our profession ranks worse than most all others. Many of us have lost colleagues to depression and suicide. Lawyers have offices where others bring in their stress, their problems, difficult situations, threats they are concerned about and other such matters. Lawyers are there for every death sentence passed in a criminal trial, but we are also there for corporate “death threats” as well. We even have a name for it- the “bet the company case.”

But I think this story of Peter, dying from the impact of his drug addiction while still maintaining appearances as a partner in a high-powered law firm, breaks some of our assumptions about what addicted lawyer behavior looks like. His last call from his death bed was to call in to a scheduled conference call.

I’ve never met Marty Solomon, but his 50 tweet “tweet storm” response to the article is worth a read, too.

I have no great wisdom to share on this critical topic today. But it bears repeating to say, if you are in trouble, reach out for help. Many bar associations provide crisis counseling to members now. The Oklahoma Bar Association provides 24 hour free crisis counseling to its members, who can call 800-364-7886 any time day or night. There are other community resources for many situations. Ask for help if you need it.

If you only had a short time to live, would one last conference call be your highest priority? NYT: The Lawyer, The Addict

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 Happy clientno 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.) Online registration is not yet open, but I will repost again when it is.

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.

Improving Access to Justice

Cyberthreats are now worse than you think. A warning to all law firms!

The danger of ransomware as a threat to your law practice has increased exponentially the past few weeks. You’ve heard about viruses and malware for years and, for those who have never had a data loss, it is easy to become complacent.

Recent events demonstrate how weaponized ransomware has created such a dangerous threat that responsible and cautious lawyers must act to protect both their business operations and their clients.

The WannaCry outbreak subsided when a researcher somewhat accidentally created a so-called kill switch. The Petya aka GoldenEye outbreak this week looked like ransomware, but researchers now believe it was not actually ransomware. Rather it seems to be designed to do as much damage as possible, particularly to the Ukrainian government. An email address used to facilitate ransom payments was quickly shut down by authorities, so any files encrypted or wiped by this will be lost forever in any event. Prominent global law firm DLA Piper has been offline since Tuesday. See Fortune, Law Firm DLA Piper Reels Under Cyber Attack, Fate of Files Unclear. Imagine your clients reading that headline while your phones are going unanswered.

Take precautions now.

  1. Warn and train your staff. Today’s message is Think before you click. The most common attack vector for malware is someone clicking on an email attachment or a link in an email. This is important communication to staff. If you must visit an unfamiliar website, it may make sense to use your smart phone for that purpose rather than your office computers.WannaCry Attack
  2. Update the operating system on all Windows machines (Microsoft security update website.)
  3. Make certain your anti-virus and firewall are updated and your subscription payment is current.
  4. Create an image Backup of every computer and store it on media unconnected to the machine. (Flash drive or DVD) Label appropriately. Repeat monthly. See How to Create a System Image Backup in Windows 7, 8, or 10 from How-to Geek.
  5. Back up your data either continuously or daily. An online backup service is recommended. If you back up to another hard drive, it must be disconnected from your system when not in use or the backup could be encrypted or wiped too.
  6. Do not fear the cloud. Some lawyers have been reluctant to use the cloud for some data, but the evidence is pretty clear at this point that the cloud solutions have survived these threats even while their subscriber’s local networks were being encrypted. They have experts and engineers working full-time on this. You don’t.

See also from the May 2017 Oklahoma Bar Journal Calloway, Cyber-Attacks: Is It Really Not If You Will Be Attacked, But When?Personally I am now very concerned about what comes next. You should be, too. Take action.

Cyberthreats are now worse than you think. A warning to all law firms!

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. Law is a buyers market

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.

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

Manage Cyber-Attacks: Is It Really Not If You Will Be Attacked, But When?

Manage Cyber-Attacks: Is It Really Not If You Will Be Attacked, But When? is my new column in the Oklahoma Bar Journal.

This is a sobering subject, but it is critical for all law firms to appreciate this idea in their risk management practices. It is a bit hard to accept that it may be impossible to have such bulletproof cyber security that you can be absolutely confident you will never be breached. After all, I’m fairly certain our country’s intelligence services had some Skull and crossbones high level experts working on their security and they have suffered spectacular breaches. In hindsight, this article’s title perhaps should have been “Manage Cyber-Attacks: Is It Really Not If You Will Be Compromised, But When?”

We have fallible, and sometimes corruptible, human beings working with our technology systems. Computer code is vastly more complex. There are more openings. Think of the difference between fighting crime in a small town with one stop light and a large urban metropolis with high rise buildings, subway systems, subterranean sewers and other complex infrastructure. Coders are going to write new code. Some of it will have unintended consequences and open up new security risks. And that new employee may not appreciate all of the dangers lurking in her inbox.

So does that mean give up? Game over?

Of course not, we cannot give up on security measures. We need to have good cyber-security infrastructure, practices and training. But there will be dangers appearing online that haven’t been invented yet.

Today, a large part of good security practices includes creating Incident Response Plans and other recovery techniques. If you do not have an IRP, it is time to create one. This is unpleasant to consider and easy to procrastinate for the same reason so many people put off creating an estate plan. But this is just as important.

In the column, I take the reader through a couple of scenarios to give some examples of planning. Firms can get help with IRP’s from professionals, but each plan should be unique because the assets you have to respond are unique. I tried not to make this too threatening, but I have been on the phone with lawyers who had no plan and now have a network frozen by some malware. Planning is better!

Manage Cyber-Attacks: Is It Really Not If You Will Be Attacked, But When?