Category: Odds & Ends

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Starting a Law Firm | Post-Bar Exam Wait

As any readers of this blog know, I am starting a law firm in Minneapolis, MN just as soon as I can get licensed by the State of  Minnesota.  I have practiced for 3+ years in Indiana as both a small firm attorney (10 attorneys) and on my own as a solo practitioner.   However, I have never practiced in Minnesota (my new residence) because I just took the bar exam and I am now playing the lawyer licensing waiting game.

My wife tells me that I should relax and enjoy my free time.  The problem is that I am not very good at enjoying free time.  I suspect that is why many of us became lawyers in the first place: we can’t let good enough alone and always strive to do just a little bit better.  In an effort to “do a little bit better” I am going to continue to blog and try to have as much internet marketing help as I can before I can officially hang out my shingle in Minneapolis.

As I stated in a prior post about legal blogging for business, it is important to get content up on your blog on a constant basis.  This is work.  I’ll say it again:  legal blogging is work.  This creates the need to be diligent about posting and trying to make posts that are at least somewhat interesting to the public at large (or, at least, all you boring start-up lawyers out there).  The problem lies in the fact that I don’t always know what may be relevant or interesting to my small readership.  I will tell you that I get a lot more hits and responses from legal marketing and legal internet/blogging type posts.  Why?  Probably because that is what most attorneys are searching for when they find my blog – how to market their little firm and make it better.

I don’t know that I necessarily know how to market better than anybody else.  I do, however, know that marketing is a must for starting a law firm.  I did quite a bit of networking as an associate and on my own in Indiana and I can tell you that it works.  This blog is meant to serve as a vehicle for two things:  (1) explaining to younger attorneys how to start up and run a practice and (2) to serve as a marketing vehicle with link-back potential.

In the world of the internet, content is king.  I strive to have good content on this blog and that is probably why I haven’t been posting as much lately – I just don’t have any good content at the moment.  I plan to update this blog with posts about all of my Minneapolis firsts – first client, first office, first retainer check, etc.  But, alas, I have to wait until I get licensed before any of that is relevant.

Thus, in a world where content is king, I will continue to try to blog about prior war stories and my general ideas about starting a firm.  There are some things I can do, such as writing a more detailed legal business plan.  I also need to get all my old office furniture so I can create home office with a virtual office space.  This is all work and it can be blogged about.

Starting a law firm means being patient and staying the course.  It is tough to be patient when waiting to be licensed because the bar examiners take so very very long.  Hopefully I passed and licensure will come.  I’ll be sure to keep you posted.

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Starting a Law Firm | Finding time to Blog

Starting a law firm means that you wear many hats.  Perhaps too many?  It also means managing time can be tough and things get put on the back-burner that maybe shouldn’t from time to time – such as blogging.

Ok, this post is a total cheat and I apologize ahead of time.  I hate short blog posts, I don’t want to say anything unless I can put my full effort into it.  However, today my starting a law firm blog gets less effort because I am in extreme bar exam study mode.

The point here is that I want to blog, I like to blog, I hope my readers like this blog, but I don’t have time right now.  I know many of you probably struggle with this as well.  Blogging for business is important, but it means that you have to keep it up.  That is actually the whole point- you have to get content out there.  The blog (yours, mine, anybody’s) is like a little child that you have to feed and nurture otherwise it wilts and dies.  I don’t want my child to die so I am posting about not having time to post.

Anyway, I wish everybody luck on the their upcoming bar exams. I know I am very tired and want to just take the test and get it over with.  I don’t worry too much about passing, but I am still in the library everyday grinding it out.  The bar exam is akin to the practice of law itself – you just have to grind it out.  Good luck to everybody!

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Starting a Law Firm | Accountability

Starting a law firm means that the buck stops here . . . with you.  If you aren’t so good at being diligent and extremely forthright in everything you do, maybe starting a law firm isn’t such a good idea.

When working at my prior firm, I will admit that, as an associate attorney, I often had an unwise attitude that the partners were ultimately responsible.  I thought I could just work hard and try and generate a lot of business for the firm and everything would be fine. While that certainly made the partners happy and gave my wallet a boost, it didn’t lead to learning skills necessary to be a good lawyer.  I forgot, at times, to take ultimate responsibility for my actions.  Looking back on the experience, I realize that I often needed a lesson in accountability.

Accountability also means that the client comes first.  Always.  The client is the boss and you are their paid servant.  I don’t mean that they dictate your ethical and legal responsibilities, but lawyers are accountable to their clients and their case from beginning to end.  Now, if you are not getting paid for your legal fees, you don’t have to keep working for free, but you owe a duty to withdraw your attorney appearance in an ethical fashion as an officer of the court.

Accountability also means being there for your staff.  On more than one occasion, when I first began practicing, I have had issues with staff where I dictated a legal document or asked my assistant to do something and then I forget about it.  I may even have failed to read the letter I had dictated or, perhaps, the assistant simply misunderstood or just plain failed to complete something.

When this happens, I naturally got very frustrated with the mistake.  After all, I had just sent a legal work product that I knew contained mistakes to the client, opposing counsel, or filed with the court.  But, guess what, in the eyes of the law, the mistake was mine.  I signed the document.  I should have slowed down and read the document and corrected the mistake.  If I had realized my level of accountability, I would not have made that mistake.

Finally, I try to think about situations where others failed to be accountable to me and my law firm.  Have you ever, like me, spoken to court staff about a particular issue that they said they would do and, somehow, it never got done.  Have you ever asked for a title search on a parcel of real estate from the title company by Friday and never gotten it?  Have you asked your clients to bring in paperwork, sign a document, or generally be on top of things and they completely blew it off?  I would guess that many of you have experienced this and just shook your head in disbelief.

But, I often think of being a solo lawyer as being a babysitter for the mass of humanity.  People make mistakes and screw stuff up all the time.  I do.  I bet you do.  That is why there are laws and that is why I have a job.  If I can’t accept that I have to be accountable for the silliness of myself, my clients, and the judicial system writ-large, then I should get out of practicing law.  (yes, at times, I have considered it).

In conclusion, I try to be accountable every single day to myself, my clients, and my law firm.  Starting a law firm is a lot of work – but it starts with being accountable from the get go.

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Starting a Law Firm | Blogging for Business

Starting a law firm means that you have to market your law firm.  That is a no-brainer. I would guess that 75% of all legal blog posts out there in the blogosphere are related to law firm marketing in some way.

But, an equally important question is:  how do blog to market my firm?  In my case, there are so many different routes to choose and I question what is the most effective use of my time.  I struggle with these questions every day and I would guess that many fledgling solo practitioners do as well.  After all, time is what we sell.

During my struggle to start and market my law firm, I have been doing quite a bit of blogging.  I have discussed the purposes of legal blogging in the past, but I don’t think I have focused enough on why solo lawyer should blog.  Stated another way, should solo lawyers blog just to blog?  To be honest, I am not even sure that this blog and what I am writing at this very moment is “proper marketing”.  It may not be.

My point is that the blog is not just an outlet for thoughts and ideas about starting a law firm.  Or, rather, it can be about that, but such an effort is not very effective marketing.  If your read enough blogs and posts by other solos related to practicing law, you will probably notice one of two things:  (1) the lawyers actually want to give away good, well-thought-out advice or (2) the lawyers are trying to make money from the advice.  This blog falls into the former group (you may not think my blog is good or well-thought-out, but I am certainly not trying to make any real money from it).

However, I wanted to point out that I have separate blogs on starting a law firm AND for my specific pratice area.  I blog about starting a law firm because I feel like I have advice to give and because I actually enjoy it.  It keeps me a little more focused on what I need to do to be successful as a solo attorney.  But, it doesn’t bring in money.  What does bring in money (if you do it correctly) is blogging about a specific practice area and using key words and search terms related to your locale and practice area.  E.g.:  once I get licensed in Minnesota, my practice blog will focus on family law and/or trusts and estates in my particular area – Minneapolis.  Sadly, several attorney in Minneapolis have picked up on this and I have some competition, but there is still room for me in the market (I think).

If anybody is reading this and taking it actually following my advice, you too should blog.  But, I would recommend blogging about your chosen legal niche practice and then using key words related to your locale.  This is both difficult and fairly easy.  The difficulty is actually blogging consistently and staying true to your search terms.  The easy part is that you know way more than the average person or business who you are marketing to.  If you can write like a lawyer, you should be able to blog like a lawyer.

In this blog, I do it for fun (mostly) and because I hope somebody is being helped.  I felt very lost when I first started practicing and I was upset that the partners at my old firm apparently didn’t feel the need to train me.  Of course, it’s possible I didn’t listen. Furthermore, this blog does provide me with some search engine bonus because I can link to my website and other blogs through it.  I have been doing that effectively up until now because, again, I’m not licensed in Minnesota yet.  Rather, I’m suffering through studying for the bar exam, again.

If anybody wants to comment or ask questions about starting a law firm and blogging or how to set one up through WordPress, Blogger, or any other service, feel free to leave a comment.  The process is fairly simple, but it does take some thought and effort.

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Starting a Law Firm | Bar Exam = Minimum Competency Exam

As I stated in a previous post, before starting a law firm in Minneapolis, MN, I have to take the bar exam in Minnesota and get licensed to practice law all over again.  No, it is not more fun the second time around.

I will admit to being nervous.  I will admit to some paranoia.  I will admit to thinking about the dire consequences of not passing, and wondering what am I going to do with my life, and when will I ever make a living, and can my son be provided for if I don’t earn a living, and so on and so forth.  But, I keep reminding myself this one very important point:  the bar exam is a minimum competency test.  I’ll say it in a different way:  it’s a pass/fail exam.

I don’t know the exact statistics, but I’ll generalize and say that the national passage rate is high.  I’ll even tell you that in the midwestern states (Minnesota) the passage rate is very high.  92% of the first time test takers in Minnesota passed the exam.  Why would this be?  Because, while it is a difficult exam, it really isn’t that difficult to pass.

What is another good thing about this silly exam?  Test takers are competing against other test takers.  Yes, there is a model answer out there.  Yes, it will be better than most test takers’ answers.  Yes, some professor probably wrote it.  So what.  The test takers are not the professor.  The test takers are just like you and me.  Test takers are tired and they are under pressure.  Your fellow test takers also had to cram.  And, even better, I would guess 10% or so of the test takers didn’t study for the exam too much.  Guess what?  You did (or, at least, I did) and you will pass.  I would further venture to guess that those 10% that didn’t study much are the 10% or so who fail the exam.

That is good news for me and good news for all others who have studied.  I don’t know how much studying is necessary, but I do know that I’ve gone through the BarBri study program twice now and it’s tough.  The reason it is tough is not so much the material, it tough because of the time and effort it takes.  The description comparing it to a marathon is apt.  It is an endurance exam and people who want to pass must train.

But, assuming you’ve trained, the odds are that you will be just fine.  Again, you just have to pass.  I would guess that in law school, most student are worried about a certain grade – preferably an A.  On the bar exam, you don’t need an A.  You don’t need a B.  I would argue somewhat that you don’t even need a C.  You just need to pass.

If you are like me and you are anxiously awaiting passage and licensure so that you can start a law firm, I wish you luck.  If you are not like me and you just want to pass, I wish you luck.  I wish everybody luck, but, if you have trained for this exam, you don’t really need luck – you just need to pass.  Remain positive and focused and work hard.  The exam itself is gruelling, but, if you train, you can show your minimum competency and get on with the rest of your law practicing life.

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Starting a Law Firm | Being Patient

Starting a law firm takes a lot of patience and an involves an acceptance of a certain amount of controlled risk.  In other words, in the beginning, you need to be willing to work very hard to receive very little.

I will admit that I get a little melodramatic every time I drive by a restaurant that is no longer open or a store front showing an empty space where once there was a small business.  This got me to thinking about patience and the willingness (stuborness?, stupidity?) to get through the tough times with irregular pay when starting a law firm.

I recently spoke with another solo attorney the other day at a collection hearing.    I was trying to collect a judgment against his client.   We both understood that we were adveraries in terms of representing our respective clients, but there was also a certain amount of comraderie.  This is one of the things I really love about my job – actual professional comraderie in the face of strife.  This attorney also appears to be doing well and appears happy.   Anyway, we got to talking about starting a law firm and the things we didn’t like about large law firm life.  He also mentioned that he is very happy he left his old law firm where he was a partner and that he still very happy being on his own.  The discussion was pretty obvious, but he made some good points about starting and building a law practice.  The main one being the general advice that “it takes a couple of years.”

I have been doing decently at my own solo law practice while I wrap up client cases from clients that came with me from my old firm.  I have had work to do when I want it, but I have realized that networking and marketing needs to be a full-time, ever present job.  It takes time.  It takes a couple of years.  I think I am ok with that.  Luckily, I have always made marketing a big part of my practice – perhaps because I actually enjoy it.  As I’ve already posted, having a law firm marketing plan has helped my firm in a big way. Developing a niche practice has also been a good idea.  But, I have also fazed out my Indiana practice and will be doing this all over again in Minnesota.

In sum, I hope to be more like the attorney who kept at it and is still practicing as a solo attorney.  I also hope that I’m not easily satisfied and that I continue to stick with my desire and goal to build a thriving law practice.  I hope anybody reading this post feels the same way.

It takes time and effort and sometimes it is a difficult mental struggle.  Starting a law firm, is about patience, mental fortitude, and commitment.  In short, it takes a couple of years.

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Starting a Law Firm | Creating Memorable Pleadings

Ok, this post is a cheat.  It isn’t really about starting a law firm.  However, I have been making an effort to share some of the basics of opening a law practice and dealing with the court.

In an effort to provide some humor to this blog (which I realize is often fairly boring), I wanted readers to see what a more experienced and arguably prestigious, big firm lawyer considers appropriate for filing a summary judgement response brief.  Apparently, Mark Cuban (the owner of the Dallas Mavericks, NBA basketball team) has been sued by a minority shareholder who filed a complaint to have Cuban removed as the owner of the Dallas Mavericks because he was allegedly incompetent and running the Mavericks into the ground.  For those of you who don’t know, the Mavericks just won the NBA Championship.

Does the shareholder’s lawsuit seem a little silly now?  I would argue, yes.  Mark Cuban’s lawyer apparently agrees with me because he filed this memorable summary judgment brief.

I don’t condone these kinds of briefs.  I am not sure when the ability to file a humorous brief arises, but my general thought is never.  However, the argument in the brief is, in my opinion, entirely appropriate.

Learning how to start a law firm means getting to know the court and it staff.  It means being diligent and acting in a highly professional manner.  However, at times, it can mean having a little fun.

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Starting a Law Firm | Filing and Withdrawing Your Attorney Appearance

In an effort to talk about some of the more practical aspects of starting a law firm, I wanted to talk about the filing and withdrawing of an attorney appearance on behalf of a client.

When I began practicing, I didn’t have a good grasp on what it meant to file and appearance for a client.  I knew I had to be competent and diligent in executing the case to the best of my ability.  I knew I had to act as an officer of the court.  I (thought) I knew I had to do everything in my power to protect my clients’ interests.  But, I didn’t know that I couldn’t just get out of a case if my client wasn’t paying me or because the client was difficult to deal with.

I am not saying that you cannot withdraw your attorney appearance if the client is not paying you or if the client is being unreasonably difficult which is hindering your good faith representation.  You can – IF the judge says you can.  If you file an appearance on behalf of the client, guess what, you are on the hook for being the voice of your client before the court no matter what.  That is a big responsibility and you should think of it that way.  This also means that client selection is hugely important.  It all really begins with that.

Most jurisdictions, and certainly Indiana (where I am licensed), require you to gain court approval before withdrawing your appearance on behalf of a client.  You must file a motion and support that motion with facts which meet your jurisdiction’s withdrawal standards.  You should also be VERY CAREFUL that you do not include facts that are going to hurt your client’s position because you still have a continuing duty to your client even if you are withdrawing.  Thus, don’t include a silly letter that throws your client under the bus if you are withdrawing.  There is simply no need for this. Furthermore, the judge may even set the withdrawal motion for hearing and you are going to be placed in the precarious position of supporting your withdrawal.

Now, what is the best way to withdraw without creating havoc for yourself, the court, the court staff, and your client?  Get the client’s approval.  Talk to your client about it.  Make sure you are on the same wavelength about the withdrawal.  This is important not only for your law firm and your client, but it helps keep a good reputation in the community.  You don’t want clients feeling dumped and bad mouthing your law firm – even if the client is a total nightmare who doesn’t pay the legal services bill.

Furthermore, you need to put your client withdrawal rights into your engagement letter and/or Agreement for Legal Services.  This is the document you have the clients sign and review when the attorney/client relationship starts.  There should be very clear language in those documents that delineates when and how you will be able to withdraw from representation; e.g. failure to pay you.  This is helpful for both withdrawing your appearance and for legal malpractice reasons.  In fact, I need to write a post entirely dedicated to the importance of the Agreement for Legal Services.

What I am trying to say is that you have to be above pettiness when starting a law firm.  This should sound obvious, but I practice with several local attorneys who sometimes don’t seem to understand this.  Again, as a lawyer, you are an officer of the court and you need to act like it.  I try (and big emphasis on the word try) to rise above the fray and be as ethical and as faithful to my clients’ best interests no matter how much I may want to act otherwise.  That way I hope my new law firm is ahead of the curve.

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Starting a Law Firm | Learning From Our Founding Fathers

I like to imagine that starting a law firm is akin to a great, cosmic struggle for success, legitimacy, and the universal right to achieve.   What better historical event could I use as an example of this struggle than the founding of our nation?

Ok, a little heavy-handed, I know.  But, I was listening to an enlightening interview of the author David McCullough on the Charlie Rose show this weekend.  If you do not know him, David McCullough is a well-decorated author of American historical fiction. To me, he is one of the great story-tellers of our national history.  If you have not checked out any of his books, you should.  In particular, I read his biography of John Adams several months ago and have continued to be struck by John Adams’  sheer determination to do what is just, honest, and right for his family and his country.

Perhaps you are wondering why this is being discussed on this blog.  My answer:  John Adams was a lawyer.  Not only that, John Adams, from all accounts I have read, was an excellent lawyer.  Among other feats, he successfully defended the English militia on a murder charge after the Boston Massacre. Furthermore, for the majority of his practicing career, he was a solo attorney – he started his own law firm.

In the interview, McCullough made a comment to Charlie Rose that, out of all his books, he may have been the most satisfied in writing the John Adams book because he was immersed in the lives of such remarkable and momentous people who drafted our Constitution and shaped our nation.  His comment showed his appreciation for what these men and women were up against and what they managed to achieve.  I find this comment akin to taking a leap of faith and starting your own law firm.

Additionally, many of the founders of our nation were lawyers.  That fact is terribly cool.  They were not only lawyers, but they were the kinds of lawyers that many of us aspire to be. Though flawed, these men were faced with a dire situation which required clear, concise thinking about difficult legal problems.

John Adams, apparently, also did not believe that all men were created equal – he only believed that all people were equal before the law.  I agree with that.  I also take inspiration from Adams’ efforts to do things his way.  He disdained mob culture and following the leader.  Instead, he was the leader.  I agree with this.

Perhaps a little sentimental, but I find inspiration wherever I can.  Starting a law firm is tough and it includes failing.  But, through perseverance and being a nose-to-the grindstone leader, I know I can achieve what I want and so can you.

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Starting a Law Firm | Who Owns the Client File?

Whether leaving and old firm or moving to a new jurisdiction, when starting a law firm, you need to be cognizant of who owns the old client file.  Also, from my review, you need to be cognizant of what jurisdiction you are in because, of course, the rules vary from state to state.

The first place to look is your state’s professional responsibility and/or ethics rules.  Another good place to look for model answers is the American Bar Association (ABA).  In particular, the ABA, in its “Materials and Client File Retention” page, quotes two  model rules:

Model Rule 1.16(d) states:
“Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.”

Model Code
DR 2-110(A)(2) provides that:
“In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled and complying with applicable laws and rules.”

To me the gist of the model rule does necessarily answer the question of who retains the client file.  As lawyers we are paid to interpret.  My interpretation is that, under the model rules, a lawyer must be concerned foremost with the client’s best interest and finishing the representation in a professional, competent, and agreeable manner which avoids any damage to the client.  After that is done, who retains the client file is not so important – it is the work product that goes into creating that file which is of the most importance.

In Indiana, where I am licensed, the Rules of Professional Conduct are similar and do not specifically state who retains the client file.  There are two rules specifically on point, Rule 1.15 and Rule 1.16.

Rule 1.15, entitled “Safekeeping Property”, in pertinent part, provides that:

(a)    A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state where the lawyer’s office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.

Rule 1.16 states, in pertinent part that a lawyer may withdraw from representing a client if:

(1)    withdrawal can be accomplished without material adverse effect on the interests of the client

However, to me, neither of these rules answer the question of who retains the client file.  Is the client file client “property”.  This gets me to start thinking of argument for and against either the lawyer or the client keeping the file.  One argument in favor of the attorney owning the client file is that the attorney should have already made the entire file available to the client during the representation.  I make it a practice of sending a client nearly everything I do so that (1) they know I’m working on their case and (2) the have a copy of everything already.  Thus, the question may also be asked:  What is “the client file”?  Are there multiple client files?  Are there different versions of the client file?

The ABA suggests that the client should always have originals of documents like Wills, Deeds, Contracts, etc.  This seems obvious and I would hope the lawyers aren’t typically keeping originals of those sorts of documents.  There is also some authority a lawyer retaining a client file as security for getting paid.  I don’t necessarily recommend this practice, but, at least in Indiana, it is allowable under certain circumstances.

At the end of the day, I can’t necessarily tell you who owns the client file.  The answer, like some many in the gray hued world of the law is:  it depends.  From my review of the applicable law in my state, and from reviewing the model law, the concern appears to be related more to competency and confidentiality than to actual possession.  My advice, be clear with the client and ask them what they want to do.

Perhaps more importantly, I would suggest some form of electronic storage and putting the retention of the client file into your legal services agreement.  That way there is no confusion  Whether leaving a law firm or starting a law firm, you need to know your ethics and you need to know who gets the client file when the representation has ended.