I'm A Smiling Lawyer - Are You?
I've always been a smiling lawyer. During the later round of my first year moot court competition (where I made it, out of 80 students, to the finals!), one of the judges told me that he appreciated my smile when I started my argument and since then, I've always smiled in court, to juries and even lawyers who I absolutely can't stand. I smile in my website photo and other news photos (except one hideous picture that appeared in the ABA journal because the photographer told me that the Journal editors would prefer a serious shot). I find the smile particularly effective with dour judges because it disarms them and I can take advantage without having to be particularly aggressive or rude. And smiling forces you to feel happy even when you're not.
Turns out, my smiling may be good for business as well. In this post at Start Up Nation (thanks, Lexthink), Joel Welsh encourages business owners to "hire the ones that smile." I know that many clients might prefer a scowling, angry lawyer to a smiling one, but that's not necessarily the type of client who I want to attract. I'd rather target those clients who want the smiling lawyer - me.
Doing the Right Thing
All of us solo and small firm lawyers have experience with those "dog" cases that drive us crazy and often lose us money in the process. This article, Spotting the Losers, James McElhaney (ABA Journal June 2005) offers some ways to clear the duds off your desk - or pass off cases that may not be valuable to you to another firm that could profit from them. But what I liked best about this article, was the conclusion. Because even though so many of us have lost money off cases or been burned by difficult clients, the author eloquently reminds us that sometimes, we take a loser case because it's the right thing to do:
Finally, don’t carry any of these ideas to excess. There are some law firms that have the reputation of taking only ‘perfect’ cases with wonderful clients who never act difficult and who always make a good impression with the judge and jury. Some of these firms never take on a hard case or represent an annoying client for any reason. They are lawyers who never know the satisfaction of having made a contribution to the development of the law, or never feel the pride of having given some of their time to make the world a little more fair.
Not every deserving case is a popular cause or earns a big fee,” said Angus. “There are times when you need to take the albatross that walks in your office just because it’s the right thing to do.”
What's the Hourly Cost of Running Your Office?
Have you ever sat down and calculated how much it costs per hour to run your law office? I haven't (though I know what my overhead and expenses are from my tax returns, just haven't reduced them to an hourly rate). Yet it seems that most of us ought to know that number off the top of our heads given that we bill by the hour.
Anyway, apparently, the ABA has crunched some numbers and found in a 2002 report that it costs $67/hour to run a small law office. That figure has been cited by Massachusetts lawyers in support of their argument for higher rates for court appointed lawyers, reported here. I haven't been able to access the ABA report, but $67/hr seems awfully high - it comes to $134,000 per year based on 2000 hours though presumably that figure includes the lawyer's salary as well, and a decent salary at that if you assume $50,000 for overhead. I'd be interested in seeing a copy of the ABA report, if anyone has access to it - and if it's accurate, figuring out ways for attorneys to reduce that overhead to realize more revenue without increasing client fees.
Update: Here's the link to the cost analysis that Donna mentions in her comments below. I guess that 50k doesn't cover overhead if you have a full time legal assistant with benefits.
A Unique Marketing Tips - Free Coffee
Via Matt Homann comes this very cool marketing tip: set yourself up in you local coffee store for a designated hour where anyone can sit down and ask a question about your area of expertise. And, as an added bonus, coffee for anyone in the store is on you for that hour. (That is if your local bar doesn't consider a free coffee a way of unethically buying referrals!) Read more about this technique at Matt's website. But what a terrific and inexpensive way to generate visibility and goodwill.
Billing for Contract Attorneys - My Mixed Views
When I put up this post about the ethics of collecting a profit on fees paid to contract attorneys, I didn't include my own thoughts because my views are mixed.
From an ethical perspective, I'm fairly certain there's no problem with the practice, so long as overall rates are reasonable. In fact, the entire large law firm structure depends upon leveraging young associates who are paid salaries of around $125,000 and might generate billings of three times that ($200/hr billing rate x 2000 hour billable requirement, less any costs associated with training and benefits). After all, you don't get to one billion dollars in revenues by billing associates out at cost. In short, there's no way any bar association on this planet would criticize a model that enables large firms to profit.
In this context, allowing a law firm to profit off contract lawyers or outsourced services is not just ethical, but further, conduct we would want to encourage. If a firm can hire a contract attorney with a decade of experience for $100 an hour and bill her out at $200, then the client gets a far, far better product at a lower cost than if the law firm had used a junior associate. Here, the financial reward to the firm should motivate it to enter into more of these types of arrangements that benefit all parties involved.
[added 6/29/05 - 8 pm] There's another reason why lawyers deserve to mark up contract work: risk. If there's a problem with the work that's been performed, the retaining firm remains liable, not the contract attorney (though some contract attorneys do carry malpractice insurance). ]
But while the ethics of profitting off contract services is clear, I still can't bring myself to wholeheartedly endorse mark-ups on contract service in all cases as a matter of policy. In some ways, I'm torn because the contract question impacts solo and small firm lawyers from both ends, because many solos find ourselves on the giving and receiving end of contract work. As a solo, I have provided services on a contract basis, at fairly lucrative rates (which the retaining attorney most likely marked up to the client). But I've also used contract attorneys to ease my workload - and often, those attorneys have worked on matters where I've agreed to a flat rate or where compensation is contingency or deferred. In this type of case, the contract attorney benefits me by freeing me up to take on revenue generating matters but I can't immediately pass those costs through.
So when firms can profit off contract lawyers, it means that contract lawyers can charge more services. This benefits the solo who provides contract services, but harms the solo who needs to use contract lawyers and can't pass on the costs because it potentially drives up the rates of contract attorneys. Many solo attorneys are already short sighted enough when it comes to paying for help (which is why so many wind up neglecting cases or getting dangerously stressed) - and if it costs too much to hire a contract attorney, they won't, which hurts those attorneys and their clients.
As for me, when I've used contract attorneys and billed them, I've
always passed them on as cost with maybe a 20 percent mark up to
reimburse me for the cost of locating and training the person and the
risk of noncollection since I always pay my contract attorneys whether
or not the client pays. I might act
differently if I relied on contract attorneys more extensively, but
since it's usually a project here or there, they don't provide much of
a revenue source anyway. Frankly, I don't know what percentage mark up
is reasonable for associates. It seems that the biglaw markups
are probably too high though again - what's the benchmark? The rates that a solo charges? The rates that competitors are charges (all pretty much the same anyway?) The mark-ups sure aren't excessive when compared to some of the fees recovered in class actions. How can we even begin to sort out what kind of mark-ups are unreasonable? It's a question that I'll be pondering as the year
progresses and as I begin to grow my firm beyond just me and occasional
per diem workers (more on that later).
As with so many other questions, the ethics part or the legal part is usually easy. It's just that for me it's never enough. I want to do the right thing too - what's right for me but also what's right for my clients. And it's a constant struggle to figure out what that is. Profitting off contract services is ethical in our profession. But the amount of the mark-up an when it applies and the appropriate benchmark for evaluating it are harder questions to which I don't know the answers - and maybe most of us lawyers just don't want to know.
Do You Speak "Partner-Ese?"
Sometimes I just know that I've been practicing solo too long. One reason? I've completely forgotten how to converse in "partner-ese," that obscure language used between partners and associates where associates must read between lines, jump through hoops and do everything else short of just asking direct and time saving questions.
Consider these encounters described in From Appealing to Scary: The Zen of Partner Contact (Sharon Brooks, law.com 6/22/05). In the first, an associate is called into the partner's office with a request to research whether a claim for breach of contract could be brought in a certain state. At that point, horror of horrors, the associate asked if there was a written record of negotiations for the contract so that he could research the issue more effectively. Apparently, a substantive request for context for a research assignment which is ultimately fact dependent (one would think that issues like where negotiations took place or in what state they were initiated would be relevant to a question about jurisdiction for the suit) is a fatal faux pas in partner-ese. Instead, associates should only respond with simple questions regarding when the assignment is due or the appropriate format for submission.
Another associate not fluent in partner-ese also embarrassed herself by having the gall to share her knowlege about a legal research topic that the partner assigned and which she'd happened to have researched for a moot court case during law school. The associate's mistake here: she did not realize that the partner himself had argued the seminal case on this issue and further, that the law had changed. How awful to share your knowledge only to face correction by the partner! And worse, think of the the time that the associate saved (and all those foregone billables) by being corrected on the spot, instead of spending several hours getting up to speed on a matter that the partner already knows about!
Honestly, I had to read this article several times to figure out that it was serious and not intended in jest. No wonder associates are so unhappy at law firms. In addition to long hours on dreary, mundane projects, they have to master an absurd new language which doesn't facilitate communication and interaction but instead, hinders it.
Is There An Ethical Obligation toPass On Cost Savingsfrom Outsourcing?
Are lawyers required to pass on cost savings from legal outsourcing (or any other cost savings measures to clients? Rees Morrison considers this question, first raised in another article on outsourcing to India (Daniel Brook, Legal Affairs, May/June 2005 issue) The article quotes Thomas Morgan, a law professor at GW as stating that bar association ethics rules require law firms to pass on to clients cost savings from outsourcing.
Like Morrison, I'm not familiar with the rule that Morgan mentions. In fact, according to this piece by Lisa Solomon, an attorney specializing in providing outsourcing, the opposite is true: most bars permit lawyers to charge a reasonable premimum or profit for legal research and writing in excess of the actual cost.
If you outsource legal research, do you bill the costs dollar for dollar or take a mark up? And what about outsourced paralegal or secretarial work? Do you charge for that or roll it into overhead, just as many law firms roll the costs of permanent staff into overhead. What's the most equitable -- and ethical -- result?
Some Solo Nostalgia
Fellow small firm lawyer and former solo, David Leffler takes readers on a trip in the Solo Time Machine (GPSolo Magazine - June 2005), revisiting key moments in the history of the Internet. David recalls 1995 - the first year that he put an email address on his stationary (I put email on my business cards back in 1994) and how he began using email to deliver documents to clients rather than fax (email transmission became de rigeur for me in early 1997 when I started doing per diem work for a local attorney). In 1997 and 1998, David wrote articles for the New York Law Journal on useful websites for lawyers and one piece on securities law was cited in a Senate subcommittee report.
Go and read David's piece to find out more about how the Internet changed the practice of law for him - and legal practice continues to evolve as new technologies emerge.
Maryland's LOMA Gets A Blog
Pat Yevics, who heads the Maryland State Bar Asssociation's Law Office Management Assistance (LOMA) Program recently launched the LOMA blog, putting her in good company with law practice specialists Reid Trautz (DC) and Jim Calloway (OK). The bars' law practice management offices are one of the best developments that I've seen to assist solo and small firm lawyers; those offices either didn't exist or were not as robust back in 1993 when I went solo.
The Musical Baton Passes to MyShingle
The musical baton and its five questions that I must answer have made their way to MyShingle, via my fellow bloggers and sezzers Stephen Terrell of Hoosier Lawyer and Bob Kraft of P.I.S.S.D. Since I rarely blog about anything not law related, this baton gives me a chance to share more about myself, including some responses that you probably won't believe...
Question 1: What is my total volume of music?
Well, if you don't count my husband's music collection, my answer would be roughly six cassette tapes that I bought in college and law school (though they may now be corroded beyond functionality). But my husband has about 100 CDs, a pretty good stack of vinyl albums and a 10.6 GB MP3 library of 2947 songs that he's transferred over to my computer. In general, either at home (especially during those periods when I had my own place) or work, I've always preferred listening to radio, either music stations or talk, just because I've always felt more connected to the outside world. Playing music on CD or stereo while home is a little isolating, though when I'm outside walking the dog or on my bike, it's different. There, the cool ipod shuffle that my husband gave me for my birthday a few weeks ago has replaced my dollar store mini radios that never got much reception anyway.
Question 2: What was the last CD you bought? The terrific Free to Be You and Me CD for my daughters for Hanukah back in December. As a kid, we had the vinyl and my sisters and I adored the songs which turn gender stereotypes and other expectations on their head (like Atalanta, the princess who in the end befriends the prince and travels the world alone or William, the boy who wants a doll or the Carol Channing bit where she admits that EVERYONE hates housework. What a revelation!). So I was thrilled when both of my daughters, my eight year old in particular, fell in love with it too. In fact, the only time I've ever bought CDs has been for my daughters; I've never, ever bought a CD for myself. See Response to Question 1.
Question 3: What song is playing right now? It's 1:45 am, which is way too late for music and nothing's on the radio. But today, on my ipod shuffle, the really cute and a little weird I Am In Love With A McDonald's Girl popped up a few times and I liked it (as for me, I was a Burger King girl and I still have my brown polyester uniform to prove it!)
Question 4: What five songs do I listen to a lot because they are special to me? (no special order)
Brown Eyed Girl (Van Morrison) - a must at every Elefant sister (there are four of us) bachelorette party or wedding!
Fast Car (Tracy Chapman) This song played on the radio the summer that I graduated from law school and spent up in beautiful Ithaca, NY studying for the bar. Leaving law school, I was captivated by the magic of careening on an open road towards the unlimited possibilities ahead. It wasn't until after that I discovered that the song is about escaping poverty and the homeless shelter which is a little bit different than escaping law school. Still, whenever I hear the song, it evokes that time in my life when anything was possible and reminds me that anything still is.
Cats in the Cradle (Harry Chapin) I always liked this song, but it took on new significance when my daughters were born. Hearing it always erases any doubts I've had about prioritizing my girls above my law practice.
This One's for the Girls (Martina McBride) - This one's the anthem for my girls and me!
Born to Run (Springsteen) I just love the energy of this song. The first time that I heard it was in college when some guy who was a real Springsteen freak introduced me to it. And on one of our trips the beach when we first started dating, my husband and I agreed that this was one of the great driving songs, thus, making it one of the few songs that we both really like.
Question 5: Five People I'm Passing the Musical Baton To?
David Giacalone at f/k/a, one of my best blogging buddies,
Donna Thompson-Schneider, a solo, mom and blogger, just like me,
Evan Schaeffer, because he has interests outside of the law (or at least, he reads lots of non-legal blogs), he's a small firm lawyer, and no one's tagged him yet,
The Greatest American Lawyer, because he is the coolest independent practitioner I know and
Volokh Conspiracy because I am dying to know whether law professors listen to music and if so, what music it is (plus, I know from my Legal Blog Watch stint that these prolific guys will definitely carry the baton!)