My Shingle : MyShingle : Solo and Small Law Firm Management and Marketing

Over at Legal Blog Watch, I've posted my view on the $42 million fee collected by a law firm in a multi-million dollar estate matter. Basically, the lawyers originally had a fee agreement with the client; when she found her legal fees mounting (to the tune of $1 million per quarter), she asked her lawyers what they could do. The proposal? The client would pay an additional $1.2 million after which the lawyers would take 40 percent of the total proceeds recovered in the matter. At the time the fee agreement was renegotiated, the lawyers had already collected $18 million (not clear how much related to this precise matter) and there was a $60 million offer on the table. Five months later, the lawyers settled the case for $100 million and with their 40 percent, the client took...$60 million, the same amount she'd been offered earlier.

There are more details in my other post, particularly about some of the facts that make this case particularly egregious. The court didn't approve the fee, just said it wasn't inherently unconscionable and set the case for trial. And if you're wondering what I'd consider fair in this case, let's just say that had the lawyers' renegotiated fee agreement allowed them 40 percent of the difference between $60 million and the amount eventually recovered, I'd not be writing this post.

There's one more important issue here. Some believe that when lawyers negotiate a fee agreement with a potential client, they have not ethical or fiduciary duty to ensure that the agreement is fair, beyond the bare minimum that ethics rules require. Fair enough. But that argument doesn't apply here. When theses lawyers renegotiated the fee, they already represented the client; and they had a duty to look out for her best interest and ensure that the new fee agreement was fair. These lawyers certainly looked out for someone; let's just say that it wasn't their client.

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MyShingle has been named as one of the ABA Journal's Top 100 Blawgs. I've placed my badge of honor in the sidebar to the left. My blog is included the in the category of Lawyer's Toolkit, whatever that means, and if you're so inclined, you can click on this link to vote for my blog.

While I'm honored at my inclusion on this list, it's difficult to fully celebrate when so many excellent blogs didn't make the cut. Moreover, as I posted earlier on a listserve, with 3000 blogs, I'm not so sure it's even feasible to have a "best of." My own preference would be to have an award for best blog reporting or blog article or series, which was my response here when I contributed to a Blawg Review meme on "simply the best blogs."

By the way, if you're interested in some of my own personal favorites from MyShingle, consider these:

1. Pick Up the Phone and Make Yourself a Better Lawyer (April 2003);
   
2. The Bar's Dirty Little Not So Secret Secret: Disciplinary System Discriminates Against Small Firms (May 2003);
   
3. Maryland Rule Banning NonLawyer/Lawyer Referral Groups Discriminates Against Solo and Small Firms (May 2005);
   
4. Saying Nay to the Naysayers (May 2005);
   
5. I Have Been Crazy Busy (February 2006);
   
6. And Where Were the Women Solo Lawyers...probably too busy blogging, running businesses and practicing law to complain(February 2006);
   
7. Hey Biglaw, Where Were You When It Mattered? (May 2006);
   
8. The Smallest Things Have the Biggest Impact (December 2006)
   
9. The Florida Bar Won't Let Lawyer Promise to Help You Get Rid of That "Vermin Who Is Your Spouse(March 2007);
   
10. A Tale of Two Lawyer Rating Systems (June 2007)
    

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Two factors are conspiring to make 2008 a break out year for starting a law firm. Factor 1: rapidly weakening credit and financial markets are causing law firms like McKee Nelson to offer voluntary severance packages to associates and leading other firms Thacher Profitt to give notice of impending layoffs. Factor 2: rapidly increasing hourly rates at large firms - now up to one thousand dollars an hour are spurring some lawyers to start their own practices to attract clients who can't afford big firm rates.

So, if you're affected by one of these factors - if your job is in jeopardy because you practice in an area that's going under, or if you can't find clients with sufficiently deep pockets to pay your current overhead, why not consider starting your own firm? Sure, there are other options - you could move to a smaller firm, switch practice areas, move to another firm or consider employment in academia or in house. Just be sure to that as you consider these options, think about solo practice right along with them.

And stay tuned for my upcoming book, Solo by Choice which contains a specific section on "Biglaw to Yourlaw," as well as several examples of lawyers who've taken that route, and found financial success and personal satisfaction.

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As 2007 draws to a close, I'm anticipating my 5th Anniversary of blogging at MyShingle and the long awaited release of my book, Solo by Choice: How to Be the Lawyer You Always Wanted to Be. Yet, while I'm in the mood to celebrate, at the same time, I find that I still have a list of marketing initiatives and law-firm related projects a mile long. I'd like to finish many of these tasks to lay the foundation for making 2008 great. So to get myself on track and to celebrate my impending milestones, I'm forming a Business Building Accountability Club.

Are you trying to get a blog up and running? Interested in putting video up on your website? Finish up an article? Can't get your nerve up to make those cold calls? Have a marketing idea that you're not sure how to implement. I've got those items plus dozens more on my list! So why don't we work together to keep ourselves on track to finish up what we need to before the year ends? I'll admit that I have another ulterior motive in starting up this group: it's allowed me to cross one item off my list - figuring out how to use registration software and set up a teleconference.

So...if you're interested in joining my group, follow this link to the event registration. The kick off call is scheduled for December 5, 2007 and there's NO CHARGE! I hope you can join the call. [NOTE: For those who signed up anytime before today, Nov. 27 at 2:45 pm, you can revisit the link to obtain the call in phone number. I will also be emailing the call in number along with the agenda].

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I realize that these days, alternative billing is all the rage - and I too am a proponent of alternatives to the billable hour. Still, there are times when you have to resort to the billable hour, either at the insistence of a client, or under some of the guidelines for submitting a fee petition to the court.

So if you're billing by the hour, what should your invoice look like? When I started my own practice, I had the benefit of knowing what a sample invoice looked like, having reviewed many of the outgoing bills at my former firm. Since then, I've seen many other invoices: as a contract attorney for a federal agency (a part time position that I held in the early years of my practice), my responsibilities included evauating and ruling on fee petitions submitted by lawyers on behalf of clients who prevailed in litigation against the agency. And I've come across other fee petitions in researching caselaw for fee petitions that I've submitted on behalf of my own clients (which favorable results, I'm happy to report).

So while invoices are second nature to me, I realized that some lawyers, either those starting a practice from government, or those straight out of law school may not know what an invoice looks like. And because I believe that the best examples are those straight from real life, rather than create a "pretend invoice," I'm presenting a copy of this Fee Petition, one of several submitted by the attorney representing the defendant in Capitol Records v. Foster, who was sued for allegedly downloading copyrighted materials. Ultimately, in this decision, the court granted $68,685.23 of the $105,680.7 total amount sought. While recovering only sixty percent of a bill doesn't seem like much of a victory, chances are that the individual defendant in this matter could not have afforded more than a fraction of that bill. Plus, the court noted in its decision that once it had decided preliminarily to grant attorneys' fees, the defendants' activity stepped up considerably, thereby suggesting that some of the work may have been performed to run up the bill since the record company would be paying.

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Worth Magazine just published a list of the top hundred lawyers who serve some of the nation's wealthiest individuals, with net worths ranging from $2 million to $200 million. (H/T ABA Journal News). The wealth of these lawyers' clients ranges from In particular, the editors sought out "lawyers with great tact, discretion and stellar interpersonal skills, enabling them to explain a client's options in the face of incredibly complicated legal and psychosocial issues.

Solo and small firm lawyers comprise at least half of the list. Of course, give the characteristics that Worth was looking for, does that really come as a surprise?

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My buddy Kevin O'Keefe is raising a toast to America's blogging lawyers and their "dedication to learn, exchange information, and market themselves in an upbeat and professional way." But there's another part of Kevin's post that caught my eye - the line where he adds that "Blogging lawyers, age 35, are going to be blogging for the next 25 years."

I started my blog when I was 38 and I'm fast approaching the five year blogging mark. While I can't imagine abandoning blogging, I also can't fathom the thought of blogging twenty more years, churning out content two or three times a week. Would I find enough new inspiration to keep my writing fresh? Or turn into some kind of blogging-egomaniac, forever citing my own self-created body of work, or harking back to the "good old days" when bloggers had to walk ten miles through knee deep snow to post...(oops, that's the speech I give my daughters when they balk about the three block walk home from the bus stop). And worst of all, will changes in technology render my old posts inaccessible?

Right now, the blogging phenomenon lives so vibrantly in the present that it's hard to contemplate the future. And like everything else with the Internet, some next big thing will come along in another ten years that will displace blogging entirely. The challenge that I see for lawyers isn't so much committing to blogging for the long haul, but having the ability to embrace blogging for now, while keeping our eyes and mind open for the next big thing on the horizon.

Where do you think blogging is going? And will you be blogging 25 years from now? Post your thoughts below or at your blog.

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When it comes to ghostwriting law blogs, the majority view within the blawgosphere is "don't." (For the precedent on this, see these selected opinions at Death and Taxes;
f/k/a;
Georgia Bankruptcy Blog; Home Office Lawyer and Simple Justice). At the same time, we all recognize that content makes a blog valuable to readers. So what can busy lawyers do to improve the quality of their blogs if they can't spare the time to create original content themselves?

Here's one possible solution that I discovered at Pennsylvania attorney, Neil Hendershot's blog, Pennsylvania Elder, Estate & Fiduciary Blog: have a law student research and draft an articles for your blog, just as Hendershot did with Joshua Prince, a third year student in a class that Hendershot teaches on elder law. In the most recent of his three articles, Prince wrote a piece on the fascinating topic of Estate Planning Under the National Firearms Act. And Hendershot doubled the exposure of his article by soliciting input from firearms estate planning expert David Goldman, of Florida Estate Planning Blog, who cross referenced the article in his blog as well.

Hiring a law student to write an article for your blog presents a win-win situation for all involved. The lawyer obtains quality content at reasonable rates (or perhaps at no charge, if the student can use the research for a class). The student gains valuable feedback from the lawyer as well as an opportunity to publish his or her article on the national scene. And because the student receives credit for the article, the concerns underlying ghostwriting aren't implicated.

Related post: Make A Positive Contact, Write Away.

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Thanks to a lemon of a credit market, associates at McKee Nelsonhave the opportunity to make a huge vat of life-changing lemonade. Above the Law's David Lat is reporting here that NY/DC based McKee Nelson, in an effort to avoid economically-induced, forced associate layoffs, is offering associates two options: (1) a full bonus, plus four months pay to anyone willing to leave the firm voluntarily or (2) a full bonus plus a year's sabbatical at 40 percent of the $160,000 salary. Option 2 carries two caveats; first, the firm cannot guarantee employment at the end of the year and second, the firm wants associates to use the sabbatical to "make the world a better place."

Lat suggests that associates use the time to fulfill their dreams of finishing a novel, or studying painting. But I've got a better idea: what about starting your own law firm and becoming the lawyer you always wanted to be?

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This week, Duct Tape Marketing features a post about SCORE, a non-profit association dedicated to entrepreneur formation, growth and education. Among its many services, SCORE can match you up with a counselor who can help with your business plan or advise on other issues related to getting a business off the ground.

What most lawyers don't realize, however, is that they too can use SCORE as a resource for their practices. Two years ago, I posted on how solos can use SCORE, after receiving a tip from a reader who'd had a successful experience using the group. Though SCORE may not suit your specific needs, since it's a free service, you have nothing to lose by trying it out. And don't forget other resources, such as law practice management advisors (if your bar has one) who can also provide advice on starting a firm at no cost. After all, you've been paying bar dues long enough; might as well get your money's worth by using an LPM Advisor's services.

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I rarely discuss politics here, but the ABA's planned rally to show solidarity for our colleagues in Pakistan is not an issue of politics, but law - and what lawyers are sometimes called upon to do in order to preserve the law. In our own lives as lawyers, few of us will ever experience more than ridicule, perhaps a contempt charge, for our own efforts to enforce the law. The very least we can do, then is show support for those lawyers across the world who are doing just that.

The rally will be held on November 14, 11:30 in front of the the Supreme Court in Washington D.C. For more details, visit rally. To all fellow bloggers located in the DC area, please make a point of posting this information at your website because as of today (11/11/07), I don't see any information about this at the DC Bar website, which means that many DC Bar members may not learn about it.

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Here's the announcement about the Nader Anise FREE teleseminar scheduled for November 15:

Hi there,

Remember, it's a FRE*E teleseminar. Don't wait... this exciting call is only a few days away!

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John Day of Day On Torts offers some good tips on the proper way to memorialize conversations with other lawyers. Among other things, write objectively, repeat your understanding of the agreement accurately, and if you can't remember what was discussed, admit it. Then, give your adversary a chance to make corrections.

All of Day's advice should be common sense, of course. Unfortunately, it's not. But if you follow Day's tips, you can protect your clients' interests and minimize the stress and distrust in dealing with other lawyers.

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Some of you new to my site may not realize this, but I started MyShingle back in December 2002, using Slashcode as my blogging platform. In November 2004, I joined the ALM Legal Blogwatch Network and moved to Typepad. Trouble is that my older posts are still buried somewhere in my computer's storage and they're difficult to revive and convert. As a result, I've never been able to resurrect them. But recently, I've found that most of my older posts are available here on the Wayback Machine in fairly easy accessible form. So if you're interested, go take a trip back in time.

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Michael Melcher, author of the The Creative Lawyer reminds us here of the huge impact that a mention in a
good old fashioned media source can have on blog traffic or book sales. Melcher reports that after his letter to the editor appeared in the New York Times, traffic to his blog increased substantially and his book sales jumped, placing him briefly at the atop the list of best selling law related books.

Incidentally, I've read through much of the Creative Lawyer so that I could review it here. But reading the book doesn't do the book justice; you've also got to do the exercises and complete the checklists to derive the full value, I think. I'm still working my way through some of those which has delayed my review. However, even now, I can say that Creative Lawyer will force you to rethink your practice and lead you to ideas to change it to achieve more satisfaction. With just eight weeks left until the end of 2007, you'd do well to purchase this book now and lay the foundation for making 2008 a more creative and personally satisfying year for your practice.

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Over at The WSJ Law Blog, there's a nice profile of Richard Diaz, the Florida solo who represents Michael Williams, a defendant who is challenging the constitutionality of a federal child-pornography statute in United States v. Williams. Last week, Diaz argued the case before the Supreme Court.

But despite his moment of glory at WSJ Law Blog, Diaz took a bit of a beating over at Volokh Conspiracy, where Eugene Volokh termed Diaz's brief "pretty shoddy." The post generated 66 comments, which discussed whether a brief even matters at the High Court (where talented law clerks could just as easily do the research and analysis) and whether Diaz hurt his client by handling the case himself instead of passing it on to another lawyer.

I'll admit that Diaz's brief isn't a model of clear writing, but I've seen much, much worse. But how does Diaz's brief compared to others filed at the Supreme Court by more experienced practitioners? And why is it that solos who represent criminal clients at the Supreme Court are regularly attacked by "experts" convinced that they could do a better job?

And maybe they could, at least up at the Court. But first, the cases have to get there. And I think that many of the experts underestimate the time and the skill that into shepherding a case from the trial level up to the Supremes (the WSJ post describes the procedural history of how Diaz's client got to the court). Even where a case presents an interesting issue, most clients rarely "buy on." They want to understand the issue and get a sense of their chance for success. They need to figure out if it's worth the extra money and psychological toll to move ahead, or if they're better off just making the best of a result to have a case over.

And the way you get clients to move ahead isn't by pushing your legal analysis. Foremost, you've got to build a trusting relationship with your client so that they'll accept your advice when you recommend pursuing an appeal to begin with. And Diaz established that kind of bond with his client.

Consider this quote from the WSJ Law Blog story, where Diaz describes why his client chose him over a Supreme Court expert:

I got calls from all over the country from lawyers who called themselves First Amendment advocates. Some graciously offered help, others aggressively tried to take the case away from me. One lawyer accused me of not being an appellate advocate and threatened to contact my client and directly to solicit the case from him. So I wrote to Mr. Williams and I honestly told him that I was neither an appellate advocate nor a First Amendment expert but asked him what he wanted me to do. He essentially told me, "I've known you for 20 years as a street cop and I've seen you work in the federal court building for over 10 years. There's nobody I want arguing my case in front of the Supreme Court except you."

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Here's a story about Maria Celebi, a U.S. immigration lawyer with an interesting niche: she works outside of the country. After ten years of immigration practice in the United States, Celebi, along with her husband and two young children, moved to Turkey after an economic downturn in Silicon Valley.

Celebi's husband used the move to launch a new technology business. And three years later, Celesi has established a law practice in Turkey. And as the only certified U.S. immigration lawyer not just in Turkey, but also in Greece and the Middle East (with the exception of Israel), Celesi has cornered the regional market.

Granted, moving to a foreign country to practice law is an extreme way to build a practice. But Celesi's story shows that if you're committed to building your practice, you can find a way to make it happen...anywhere in the world.

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I knew that many law schools and bar associations were developing programs to help women who've left the law re-enter the profession. But have to admit that until I read this New York Times story (hat tip to Lisa Solomon), I had no idea how much these programs cost - as much as $9000. For that price, you could almost go back to law school - or start yourself a pretty nice shingle!

Do these pricy programs really provide women lawyers with the tools they need for re-entry. According to the Timesarticle, the program offers lectures on the law, advice on explaining resume gaps and computer training. And lawyers are also set up with an unpaid internship which can help them make contacts even if it doesn't result in a paying job. At the same time, I felt that at some level, this kind of program exploits women lawyers' fears that they'll never find a job in the law once they've left the profession - and charges extortionist rates to assist them.

As I've posted here for some time, today, there are plenty of options for women who want to work part tiem and keep a foot in the door, or for those who leave the law to raise a family. And you don't have to pay $9000 for them either. My upcoming book , Solo By Choice will have some materials on a part time practice. And you can also check out my past posts here at MyShingle on work life balance and on women lawyers, including Supreme Court Justice Sandra Day O'Connor who found amazing success through alternative career paths. Finally, you can also check out my article on how young women lawyers can take charge of their careers.

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Nader Anise has just put out a "save the date" for his upcoming, annual "Lawyer Appreciation" free teleseminar. The seminar is scheduled for Thursday, Nov. 15 from 12:30 pm to around 2:00 pm EASTERN, with 800 lawyers expected to call in. This year's topic is "Making it BIG as a high-profile, celebrity lawyer," and there's a surprise guest.

I've called into Nader's previous teleseminars and they're excellent, for two reasons. First, even though the calls are free, they offer valuable, stand alone information. They are not "teasers," intended to force you to purchase Nader's materials, though I imagine that many lawyers do purchase it after this informative phone call. Second, the advice that Nader has offered on his past calls is not expensive to implement. Many of his suggestions did not involve any outlay of cash, only time. So if you're on a shoestring budget, you'll want to listen in on these tips.

The final details and call in numbers haven't been announced - I'll either post them here, or visit NaderAnise.com.

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Do you have a neat idea for a unique kind of law firm that breaks precedent? Or perhaps, like many of my solo lawyer friends, The Billable Hour here or here, you've come up with a non-legal side business. If so, then surf on over to Anita Campbell'sSmall Business Trends to learn about three contests for entrepreneurs. By the way, a business contest isn't merely a lottery; it's a legitimate source of funding on par with applying for a private grant. And as Campbell points out, "the best part is, unlike with a loan or credit cards, you don't have to repay the money."

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Here's an article from the ABA Journal entitled Billing by the Slice, which offers some alternative billing ideas by and for solos. With "billing by the slice," lawyers bill for a case in stages - a practice used by Ted Waggoner of Rochester Indiana. From the article, Waggoner describes that:

he might tell a client that for a certain fee he will make calls and write letters to settle a case. If the case doesn't settle, he will conduct discovery for another set fee. If the case still doesn't settle after discovery and the client wishes to continue and file the lawsuit, a third specific fee will be due.

Both Waggoner and Makkar say that what's most important to clients is knowing prices up front. When clients know how much it will cost, they're less likely to argue about the bill down the line.
And clients are less likely to argue about their bill if it's what they expected, he notes.

That's what makes flat fees or alternative billing options preferable to open ended cases where lawyers charge by the hour. And solo and small firm lawyers aren't the only ones who fall prey to clients who can't pay. Consider this lawsuit filed by Fulbright & Jaworski against its high profile client, Bernard Kerik. The firm ran up a bill of over $200,000 - fees which Kerik claims were unexpected and which he'd have avoided with a lower cost attorney had he known.

Many litigation attorneys complain that they can't set budgets for their cases because they have no control over opposing counsel. While I agree that it's difficult to account for every variable in litigation, that doens't mean that lawyers can't at least attempt to ballpark an estimate - or give a "not to exceed cap" (subject to change for legitimately unanticipated events). But setting those kinds of budgets takes work. For a look at some of the factors that go into setting a fee estimate in a litigation case, consider this resource, John Tothman's Devils Advocate Managing Legal Fees Guide. Tothman's resources are not frequently cited by most value billing proponents, perhaps because he advocates for clients seeking to trim bloated legal bills rather than lawyers looking for creative ways to increase revenues. But Tothman does endorse alternative billing strategies and he's clear that cheaper is not always better. Also, for additional intelligent discussion of alternative billing, check out Allison Shields' collection of posts at her Legal Ease Blog.

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It's the perennial question for lawyers starting a law firm - what do you call yourself? As I wrote here over two years ago, Enrico Schaefer maintains that the term "solo" is inaccurate. And more recently, the topic has been discussed on Solosez. As for me, I've always regarded the term "solo" as a catch phrase for lawyers who start a firm - be it one lawyer or multiples. And my upcoming book, Solo by Choice uses the term "solo" in the title because it's the most universally recognized phrase for lawyers who choose to step out on their own to work for themselves, rather than others.

Still, though I don't have a problem using the term solo descriptively, I'd never use it to describe myself. When I meet other attorneys, I explain that I'm an independent practitioner or (more preferable) that I have my own law firm. But even if you have a close attachment to the term solo, please - don't ever sign off on a pleading the way the way that this Phelps Family lawyer did: Margie Phelps, A Sole Practitioner. In fact, the entire pleading makes me cringe - and is an example of why, despite all of our best efforts, we self-starting lawyers still face image problems.

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Over at Escape from Cubicle Nation, Pam Slim suggests that you bring your kid to your start up day. The point of the Slim's post is that by showing our children and others what we do, we lay the seeds for potential entrepreneurship.

I've always adopted Slim's approach, more by necessity than choice. My daughers have never seen me in court (though now that they're older, they've stayed home alone while I've attended hearings). But they've accompanied me to meetings and some evenings, we've worked side by side; they on their homework and I on my blogs. So you can imagine my pride when my daughters announced earlier this week that they'd started their own business - a pencil loaning service at school (perhaps not the best business model, because if the pencils are returned timely, there's no fine and no revenue).

Perhaps your children may never start a business. But that's not the point. By teaching entrepreneurship, we are teaching children how to take initiative, how to take charge and how to empower themselves. Those skills can help them advance whether they ultimately decide to work for others or work for themselves.

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