We have certainly seen many weather-related disasters this year. How long has it been since your law firm reviewed its disaster plan? Disaster Planning: It’s Not Just for Hurricanes is our new Digital Edge podcast.

Jim Calloway and Sharon Nelson get Shawn Holahan’s top tips for disaster planning in legal practice.  Shawn Holahan is Practice Management Counsel and Loss Prevention Counsel for the Louisiana State Bar Association. Being from the Big Easy, she knows a thing or two about dealing with hurricanes and other types of weather disasters.

Her list of items to prioritize in disaster planning is valuable information, even for those of us for whom a tornado or prairie fire is more likely than a hurricane. Shawn emphasizes the importance of keeping your plan simple and explains “No Tech” Binders and the pre-disaster steps all lawyers should take.

Prior to Shawn’s position with the bar, she litigated employment discrimination matters. While with her firm, Hurricane Katrina destroyed the city and her home, which necessitated moving her firm and family to another part of the state for several months before New Orleans could once again support its residents.

There is a transcript of the interview posted at the site for those who prefer to read rather than listen. I imagine some lawyers will copy the transcription into their disaster planning file.

Did you know that roughly 96% of worldwide email traffic is spam? Or that one of the more recent scams is to text someone an innocent or flirtatious message, followed by, “Whoops, wrong number,” in hopes of opening a conversation? Or that iPhone scammers are now using the TestFlight app to avoid Apple’s approval process for new apps and convince people to install malicious software?

“Wrong Numbers, Fake Invoices, and Catfishing: How to Avoid the Top Internet Scams” was recently published by PCMag.com. It covers all those issues and more. It also gives clear and simple instructions on how to avoid scams.

Consider this plan:

  1. Read the article.
  2. Share with your staff (and friends and family).
  3. Consider whether this might give you a chance to do some informal email marketing/client service by sending your active clients the link and a brief email warning about how fraud schemes are increasing. No sales pitch about your services, just a warning from a professional.
  4. Then consider whether to also send that to former clients whose files were closed in the last year.

Practice Pointer: Protect your clients’ privacy! Never send an email to groups of different clients (and their email addresses) in the “To:” line. Always use the “BCC:” line so you aren’t sharing their private information with other recipients of your email. When sending BCC, group emails in small batches to no more than 30 or so recipients to avoid inadvertently being flagged as spam.

As you likely know, Microsoft 365 provides great speech recognition built right into Word, Outlook, PowerPoint and OneNote. You just click on the microphone icon labeled Dictate and begin your dictation.

But to dictate into other applications on your computer, there are other built-in options.

It’s simple on a PC, just use the Windows key + H to open the dictation Windows. (If it hasn’t been enabled, you may receive a link to first enable the feature.) Place your cursor in any text entry box and dictate away. You can also dictate appropriate punctuation. I suggest memorizing this keystroke combo so you can quickly use it when needed. Use this to dictate into Microsoft Excel or a web search engine for example.

I must confess I didn’t know how to do this on a Mac. But longtime technology tipster Kim Komando shared how to do it in a recent feature:

“On a Mac, it requires a bit more setup.

  • Click the Apple logo, then System Preferences.
  • Choose Keyboard > Dictation. Make sure this is set to On. You can set up a shortcut to start dictation here, like hitting the Control key twice.
  • Now, open a document, tap the cursor, then tap your shortcut. You can also select Edit > Start Dictation.
  • A microphone will appear. Hit Done when you’re finished.”

Most of us are doing business in the digital world these days, but protecting your clients’ confidential information must always be top of mind. Two recently released opinions from the Pennsylvania Bar Association Committee On Legal Ethics and Professional Responsibility may provide helpful guidance for lawyers.

Formal Opinion 2022-500 Ethical Considerations for Lawyers Storing Information Relating to the Representation Of A Client On A Smartphone is brief. It highlights how smartphone apps can inadvertently compromise client information without an attorney being aware of the sharing. The conclusion is straightforward:

“If a lawyer stores information governed by Pa.R.P.C. 1.6 on a smartphone, then the lawyer must take steps to prevent access to or disclose of the information. Consequently, a lawyer may not consent to share the information with a smartphone app unless the lawyer concludes that no human being will view that information, and that the information will not be sold or transferred to additional third parties, without the client’s consent.”

Let me suggest that if you have apps on your smartphone that you have not used in a long time, they may have been sold to a third party with a different business model, and you may not know what access they have to information or how they will use it. Just delete them!

Formal Opinion 2022-400 Ethical Obligations for Lawyers Using Email and Transmitting Confidential Information is a 15-page opinion discussing what lawyers may and must do (in the committee’s opinion) to be safe using email with client matters. This is a great resource that should be downloaded and saved. It includes an appendix of selected opinions from other states relating to this topic.

Note: Ethics advisory opinions from other jurisdictions are not binding on Oklahoma Bar members. In fact, “advisory” means they are not binding on lawyers from the issuing jurisdiction. However, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility is well known for insightful and persuasive ethics opinions on lawyers’ use of technology.

The term “billable hour” has long been a topic of discussion in the legal community. However, for such a simple term, it can be used in different ways. The most obvious answer is that hourly billing and the lawyer’s hourly billing rate is the method, likely still the predominant method, of determining how much clients pay their lawyers. The lawyers in the firm have hourly billing rates, keep track of their time, and fees are determined by simple multiplication: hours times the lawyers’ rates.

The cover story of the August 2007 ABA Journal was “The Billable Hour Must Die”¹ by famed lawyer-novelist Scott Turow. No one who has read any of Mr. Turow’s books would be surprised that it is a well-written and persuasive piece. He repeats the phrase “dollars times hours.” Mr. Turow wrote:

Dollars times hours sounds like a formula for fairness. What could be more equitable than basing a fee on how long and hard a litigator worked to resolve a matter? But as a system, it’s a prison. When you are selling your time, there are only three ways to make more money – higher rates, longer hours and more leverage. As the years have gone on, the push has continued on all three fronts.

Mr. Turow’s criticism of the billable hour was stinging: “It rewards inefficiency. It makes clients suspicious. And it may be unethical.”² The billable hour, in case you’ve been keeping track, has not died. I doubt that Mr. Turow thought it would die because of his feature story.

As many readers know, Oklahoma City attorney Mark Robertson and I co-authored two books for the ABA titled Winning Alternatives to the Billable Hour (2nd and 3rd editions). Although both books are now out of print, one edition was one of the top-selling books for the ABA that year. More recently, Mr. Robertson wrote Alternative Fees for Business Lawyers and Their Clients, which is still available from the ABA.

Most lawyers equate alternative billing with flat fees. Flat fees are very popular with consumer clients – but there are many variations. Task-based billing is another alternative where the lawyer bills a fee per task completed. This can be a good method for limited scope representation when the lawyer does one task, like document drafting, and the client decides if they need further assistance for an additional fee.

BILLABLE HOURS AS A MEASURE OF PERFORMANCE 

One of the reasons hourly billing has proved so durable is that it is also often used as a measure of associates’ performance in law firms, particularly larger law firms. Often, law firms have a billable hour target that is disclosed to potential associates during recruitment. An associate who fails to reach the minimum target repeatedly may not be considered for partnership. It is certainly true that this is an objective measurement of performance, and we lawyers do like objective data.

However, it is certainly daunting to have a requirement of billing 2,400 hours or even 2,700 hours annually. As we all appreciate, one cannot bill all their time spent at work, and even larger firms have internal committees requiring a lawyer’s non-billable participation. Then there are items like CLE attendance, meetings with potential clients who do not hire the firm, pro bono service and more that are not billed. But even to ethically bill 2,400 hours a year requires not only a commitment but also good health and a steady stream of work assigned by the partners. Associates trying to hit these numbers often find their personal and family time is significantly impacted.

The signing bonuses and compensation for new associates in top-tier national law firms can be stunning. The time commitment is huge, and of course, if one wants to make partner, developing your own book of business is essential. Certainly, most lawyers in private practice find themselves working long hours, particularly when pretrial preparation for a major trial is underway. But it’s one thing to miss going on a trip for a traveling soccer tournament because you have a week-long jury trial ahead, and another thing to spend all your time at the children’s soccer games talking to clients on your cell phone.

That brings up another use of the term billable hour. It has come to symbolize the massive commitment of hours lawyers might bill and the impact on their personal and family lives. This reflects a personal decision lawyers have to make, but it shouldn’t be done unconsciously. Lawyers and other personnel in the law office are among the firm’s most valuable assets. There are a number of studies showing that the quality of work suffers after more than eight or nine hours are worked in a day.

It was traditionally almost used as bragging rights among lawyers that they went an entire year without a vacation. Large-firm lawyers are trying to meet their billing requirements and properly serve their clients. Small firm lawyers may have another concern that being out of the office for an entire week will impact the number of new clients that month. Any consideration of the number of hours you want to bill or work each month should be informed by the high rates of stress and mental health challenges reported in our profession. As an older lawyer, I note this is one area where the newer generations of lawyers have a better approach to work-life balance. I’ve talked to many lawyers in the twilight of their careers who confessed to me that one of their greatest regrets was the number of their children’s activities they missed while the children were growing up. That is one reason why we are seeing the trend of partners moving on to become in-house counsel for a client. The compensation might be less, but your weekends are generally your own.

It’s not my job to make these personal decisions for you and your career. I just want to encourage lawyers to think about the long-term implications of these decisions, particularly if they are on a law firm’s management team.

EFFICIENCY IMPROVEMENT IS DRIVING BUSINESS OPERATIONS TODAY

Across the world, businesses are increasing the efficiency of their operations, often through increased reliance on technology, and inefficient businesses find that they have trouble competing with innovative competitors. This represents the main challenge related to hourly billing today.

Efficiency in business operations means using technology to create more efficient processes that require less human intervention and rely more on processes and technology. For more businesses, after absorbing the cost of the technology, the result is uniformly positive. If you reduce the hours required for an employee to create a widget from 5 to 2.5 hours, theoretically, the company can produce twice as many widgets for sale.

Implementing a technology process, like automated document assembly, which reduces the time a lawyer must spend on a project, equates to lawyers to a billable hours cut and revenue reduction. It may be a move that is good for the firm and required, but that fact impacts the risk/reward analysis of implementing new technology innovations. However, businesses that don’t keep up with modern technology while their competitors do, often find themselves losing market share and affecting profitability.

Already, many legal documents are created by technology-based processes with supervision and review by the lawyer. That trend will continue. Here’s one example: Suppose the firm has a new client that operates in a dozen states and has many contracts regularly created in each of those states. A few decades ago, that would have been a major (and expensive) legal project to make sure each contract properly complied with state law. And when the client decided to expand to two more states, there was more billable legal work.

Don’t get me wrong, this is still a great deal of work. But today, you can search Google for contract management software and locate articles like PCMag’s “The Best Contract Management Software.” Contract management software covers a wide range of capabilities. How handy would it be for the lawyer to receive a notice from their software/service that Georgia law has recently changed, and that change impacts four existing contracts you should review? The existence of contract management software may be a signal that corporate clients will move more of these functions in-house.

A law firm may be a leader in drafting contracts for a specific industry, and the firm may be able to accomplish monitoring and compliance through the processes they have used for years. But they probably should be aware that a potential threat in the future is a competitor law firm offering to do the same services the law firm provides at a monthly flat fee that is less than the firm’s typical monthly billing. That is just how business operations function today. Technology innovations create winners and losers.

A MODEST PROPOSAL

I’ve noted before in this space that I believe one solution would be that most hourly engagements should have some task-based provisions in them. Tasks that are appropriately done by legal assistants and technology-based processes might be billed at a flat fee within the hourly contract, e.g., draft and file the complaint with the court, send off for service and do other things to ensure a matter is billed at a flat fee. Clients will appreciate it if that flat fee is actually somewhat less than they would have been billed had the lawyer done it on an hourly basis. That becomes a win-win for the attorney and client. As artificial intelligence and automated document assembly products continue to improve and lawyers incorporate templates into their practices, this is not merely a theoretical discussion about the future.

And, yes, this is the first step down a road leading to many more flat fee agreements, especially for consumer clients who will be reassured that there will be no surprise bills.

WHAT IS VALUE?

I recently visited a website for a firm focusing on probate, guardianship, wills and trusts practice. The firm has one lawyer and one paralegal. The domain name of the website contained terms associated with peace of mind. The website featured many pictures of families and children as well as pictures of the lawyer and her legal assistant. The outline of services they offer listed many items we would not consider legal but only legal related. But they all spoke to removing uncertainty for one’s future and encouraging with all the support that the firm provides.

Most lawyers produce quality legal work. They are proud of their documents that reflect years of refinement and experience related to the subject matter. If your audience is a client’s corporate general counsel, the care and craftsmanship of the well-drawn contract will be appreciated. Many consumer clients, however, value the documents a lawyer prepares far less than the time the lawyer individually spends with them and the relief that someone they trusted was advising them and handling the legal work for them.

Increasingly, for consumer clients today, it is the user experience that is the most valuable thing they receive from their lawyers. They may assume their good lawyer will produce good documents. But whether they refer clients to you in the future depends more on how you made them feel than that well-drafted provision in paragraph 14. So, automating your document creation to the extent possible may free the lawyer to have more billable time to counsel with the client and follow up proactively during the representation. And that can be good for the lawyer and the client.

TIPS FOR IMPLEMENTING ALTERNATIVE BILLING

  • Take your time, using “bite-sized” steps.
  • Mine your closed files for objective data. Your recollection may be a bit biased.
  • Start with things that make sense to you and the client – g., a flat fee for courthouse filing, no matter who does it.
  • Written fee agreements and documentation are keys.
  • Pay special attention to areas where you can delegate and automate better.
  • Look at the goals from a client’s viewpoint. Predictability is at least as important as cost.
  • If your firm rewards based on billable hours, consider changing or expanding the focus to dollars billed and received. (We should have done this long ago.)
  • Could one aspect of your practice be transformed? g., corporate formation, minute book and first year’s minutes, up to 2 hours of phone questions answered during the next year, running your new business advice letter, all bundled together. Clients get predictability and “free” calls to the lawyer. You get a year to prove how valuable you are.
  • Keep reviewing and improving the process.

Endnotes

1.  Note that this article is now behind an ABA-member-only paywall.

2. Id.

Originally published in Oklahoma Bar Journal, October 2022

We  had some great tips and content at the Oklahoma Bar Association Solo and Small Firm Conference this summer. I wrote about it in the Oklahoma Bar Journal, but forgot to cross post it here. This piece includes some of the best tips. Thanks so much to Brett Burney and Kenton Brice for the great tips they shared.

The 2022 OBA Solo & Small Firm Conference came back strongly after its two-year hiatus. We had a great attendance and many sponsors supporting the event. Mainly, we all were happy to meet in person again.The conference featured a blend of substantive law programs, practice management and legal technology education. There were programs on the implications of the McGirt decision, cannabis law, estate and succession planning for business owners, guardianships and Professor Robert Spector on recent developments in family law.

The opening session for the conference is always “60 Tips in 60 Minutes,” often noted as one of the high points of the conference in reviews. The 60 in 60 format originated at ABA TECHSHOW and soon spread to many legal technology conferences, as well as solo and small firm state bar conferences. With so many topics covered in a rapid-fire manner, it is hard to not learn something useful. In fact, one attendee came up to me after the session saying she had taken three pages of notes.

This year’s tipsters included Kenton Brice, director of technology innovation at the University of Oklahoma College of Law; Brett Burney, principal of Burney Consultants, an e-discovery consultancy and co-producer of the Apps in Law podcast; OBA MAP Director Jim Calloway; and OBA Practice Management Advisor Julie Bays.

In this month’s column, I thought I’d share a few takeaways from the conference, including several of the 60 tips.

Client development for lawyers used to focus on one-to-one meetings and in-person events. Today, with very few exceptions, solo and small firm lawyers should devote attention to having a good law firm web page and some appropriate social media outreach. Most of us were not trained for any of this. Video is very effective online. Julie Bays noted that www.descript.com is an easy-to-use video and editing tool. The company promotes it as “as easy as editing a doc,” and there seems to be some truth in that claim.

As the co-star of the Apps in Law podcast, Brett Burney was happy to share some of his favorite apps. Notability is an iOS app that makes it easy to save notes whether written or recorded. The app is optimized for use with the Apple Pencil. There is a free version, but Notability Plus may be worth the subscription fee because it includes handwriting recognition and math equation conversion. This app may be an excellent way to save random bits of information to your iPhone or iPad that you need to keep temporarily or permanently.

Brett also singled out the free Microsoft To Do as a simple list-keeping app that synchronizes across all your devices, and it allows you to set due dates and reminders. This functions on all three major phone platforms. Since it has the reminder function, this may be one way to keep personal items off the law office calendar.

Solo and small firm lawyers have a particular responsibility to make certain there is somebody to take care of their clients’ matters in the event of their death or disability. When was the last time your firm updated your succession plan? OBA members can log in to MyOkBar, and on the list at the lower right is the Attorney Transition Planning Guide. Download this free guide to help with your transition planning. Many different state bar associations offer a guide similar to this.

There is free Fastcase training available at www.fastcase.com/support . If you haven’t taken advantage of the free training associated with your bar-provided legal research member benefit, we encourage you to do so. The upgrade to Fastcase 7 changed the interface a bit, and a refresher is always helpful if you haven’t used Fastcase in a while.

In today’s world, when someone hands you an important document, you might take a picture of it with your phone. But for $3.99, iOS users can use the app Scanner Pro to take a picture of a document that is then converted to an OCR’d PDF file and stored on the cloud storage service you have designated. There are many scanning apps, but Brett Burney is not the only knowledgeable individual who gives Scanner Pro high marks. To me, having the documents off your iPhone and into a designated folder is part of the attraction.

Kenton Brice likes mechanical keyboards with their heavy-duty construction. He noted the MX Mechanical from Logitech ($169.99). This sturdy keyboard has received positive reviews.

Kenton also reminded iPhone users of the ability to set up a shortcut to either double-click or triple-click on the back of the phone to perform a function. A short, 45-second video on how to set this up on the iPhone is available.  One attendee commented that it was a great way to take phone screenshots without having to use both hands.

Kenton also shared some real wisdom in his program “Evaluating Technology Tools | A Toolkit for Legal Professionals.” He noted that prior to adopting any significant technology tool, it is very important to understand both the processes and the people involved. “Processes before purchases” is a great slogan for technology projects and upgrades. Thinking that a process is messed up and so you need some technology to fix it is often reverse thinking.

“The first rule of any technology used in a business is that automation applied to an efficient operation will magnify the efficiency. The second is that automation applied to an inefficient operation will magnify the inefficiency,” is Bill Gates’s oft-quoted observation.

But if you want to improve your client intake process, you must outline every step of the process of bringing in a new client, including how file opening and billing setup processes work. Then you ask all the people involved in the process what problems they see or improvements they suggest. Then ask a sampling of clients. Then the tech evaluation and, hopefully, purchase. It sounds time consuming, and potentially is, but not as expensive as a stalled or failed technology project or one that had a successful installation but didn’t address the two main problems with the system.

I updated my article titled “Client: ‘Can My Parents Pay for My Attorney Fees?’, Lawyer: ‘Yes, but…’”  and updated the language to include credit card refunds in my template agreement for use when parents are paying for their child’s divorce and similar situations. The template is a good starting place for you to draft your firm standard agreement. Some others suggest this language should be contained in the fee agreement. But I prefer a brief standalone agreement between attorney, client and litigation funder. If you don’t use one of these agreements and should or haven’t updated yours in a while, please review the article and template.

Do you use a VPN (virtual private network) for additional security either on the road or working from home? If you are looking for a VPN, Brett Burney suggests you check out TunnelBear. It is a VPN with a cute name and good rates. There is a free trial plan, and then unlimited plans start at $3.33 per month.

If you use PowerPoint, Julie Bays has a couple of tips for you. First, you may have already noticed the improved design feature of PowerPoint that automatically suggests designs for your PowerPoints. Julie was working on a slide that included the word “hat,” and when she looked for design suggestions, royalty-free images of hats were suggested. She also noted an improvement in the PowerPoint audio recording feature that now allows you to record your own voice narration with the audio saved slide-by-slide instead of one large continuous audio file.

One tip all the presenters agreed on was the need for the use of a password manager and multifactor authentication as an important security tool. MFA means even if someone learns your password, they still cannot get into your online account because they cannot access the other factor. Kenton suggested OnePassword as his password manager of choice. More sophisticated authentication and zero trust architecture will replace these tools over the next few years, but you should definitely now be using multifactor authentication on bank accounts, brokerage accounts and services containing client information.

We had a great conference. For those who attended, I hope you enjoyed the conference and return next summer. For those who didn’t attend, I hope you locate some valuable tips in this post.

Deep fakes and other fabrications of “synthetic content” (as the FBI labels them) are rapidly improving and present a potential risk to all of us. You have probably seen deep fake videos where the video shows a person speaking but the voice belongs to another. Artificial intelligence tools match the speech with the speaker’s lips, so it looks as if the person is saying those words.

Lawyers have all known that Photoshop and other tools can generate remarkable fake pictures, even though an expert can often determine when an image is inauthentic. We have now seen people falling victim to fake voice or video creations and being scammed. But the next generation of tools is scarier. Imagine a client or opposing counsel contacting you and asking for sensitive information or funds to be transferred. An AI-powered deep fake with enough information can allow someone on the other end to speak and have their voice altered to reflect a celebrity or corporate CEO. So, they can participate in an authentic-sounding conversation with the intended victim.

The ZDNET post The next big security threat is staring us in the face. Tackling it is going to be tough provides background information and a link to the FBI warning. The FBI also notes that cybercriminals are using deep fakes to apply for remote IT support jobs, which could give them access to sensitive consumer information. If you are not certain that you are talking to the actual person, some ideas include asking them something about an obscure bit of information that only you and the actual caller would know (favorite sports teams doesn’t work because fans often post online), asking them if you can hang up and call them in a minute on their cell phone (when they say they left it at home today, proceed with caution) or having a staff company call the client’s place of business to see if the client is actually in Bora Bora.

One cannot combat deep fakes unless you know they exist. Share the ZDNET post with someone you think should know about this.

It is certainly not rare to see lawyers practicing in an office sharing arrangement. Sometimes a law firm that is downsizing finds itself with more office space than it needs, and subletting makes sense. Two or three lawyers might rent an office suite for their individual solo practices. Office sharers can benefit from sharing overhead expenses, such as utility bills and equipment. And there can be many benefits, such as lawyers nearby to discuss issues with or someone filing a pleading for you when they do their own filings, saving you a courthouse trip.

Office sharing is also positive when a lawyer wants to slow down and practice less than full time but still needs a place to interview clients and someone to sign for deliveries and certified mail when the lawyer is out. Sometimes your officemates may be a good source of referrals.

Office sharing may appear to be simple on its face. But for the lawyers who want to comply with all ethical rules, protect themselves and have appropriate and effective business operations, there is a lot to consider.

Foremost among lawyers’ minds will be complying with the Oklahoma Rules of Professional Conduct regarding client confidences, conflicts of interest and the like. Good lawyers will also be concerned about whether they may be opening themselves up to potential liability. So even though office sharing has the potential for positive benefits, some thought and advance preparation is advised.

One must then invest the energy and time-building processes that address each significant area of concern.

BEGIN AT THE BEGINNING
Let’s begin with the formation of the attorney-client relationship. The solo practitioner will be the one representing their client, just like the other officemates are. But while you may share overhead expenses, you don’t want to share any potential liability should a case go poorly. So, let’s reverse engineer this. If you were trying to sue three office-sharing lawyers on a theory of implied partnership or partnership by estoppel, what evidence could you muster?

  • The sign on the front of the building says “Smith, Jones and Wilson, Attorneys at Law.”

This is not to say the sign is determinative in a court proceeding, but three separate signs with individual lawyers’ names are better.

  • Clients waiting for their appointment repeatedly hear the receptionist answer the phone “Smith, Jones and Wilson, Attorneys.”

While I have noted before that “Hello, law office” is not an inspiring way to answer incoming calls, it is common, and I suspect the practice is often inspired by office-sharing arrangements. (Very cautious lawyers might even consider signage in the waiting room: “This is not a law firm partnership. The attorneys who work here each have individual law practices.”)

  • “Their website said ‘Smith, Jones and Wilson.’ It seemed like a partnership to me.”

Normally each solo practitioner should have a separate website. Not only does that possibly relate to liability, but it makes things simpler when someone wants to move to another location. There could be a situation where an office complex might have a website listing the various lawyers who office there. But examine these exceptions to the “rule” with your plaintiff’s lawyer eyes, and you should be able to minimize any risk.

Client billing should come only from the engaged attorney and not from a firm name.

PAPERWORK
Your office-sharing arrangement, in most circumstances, requires a written agreement. This is because there are items you need the other officemates to include in their attorney-client agreements to protect you.

Primarily, every client for every lawyer should be required to sign an attorney-client agreement that states something to the effect that the client is only contracting with attorney Smith for this legal matter, and other lawyers at this address are not responsible for it. If you wish to make this even more prominent, make that provision a single-sentence paragraph with a place for the client to initial. Review the contract’s other provisions about utilizing other attorneys to ensure consistency. After all, if you wake up too sick to appear at that arraignment, your officemates are likely among the first you would call. All participants should also agree never to refer to the practice being a partnership or firm.

There are many other aspects of business that need to be considered.

The lawyers need a detailed outline of everyone’s financial responsibilities and a “prenuptial agreement” providing for how someone withdraws, including security deposits, if any, how much written notice is required to leave and how jointly acquired equipment will be divided. Consider what happens if the copier dies. The lawyer who owned the “paid for” copier may have been happy to accept a dime a page for compensation but may not want to buy a new copier or sign a lengthy copier lease. The simple solution may be for each lawyer to buy their own copier, particularly since there is often less need for huge copy jobs in many law offices today. You may even want to include provisions on sharing common facilities, including day-to-day maintenance and cleanup of those areas.

What is the term of the agreement or is it indefinite? How are changes to the agreement handled? What if there is a tie vote? Each different arrangement may have different concerns. If someone is dead set against doing this in contract form, at least they should agree to the preparation of an unsigned memo as to agreed terms.

Then there’s the matter of liability insurance. The lowest-risk scenario would include an executed agreement between all the officemates, where each agrees to carry a minimum amount of professional liability insurance with the notice given to the other officemates if the policy is ever canceled, just like a lienholder would receive on collateral. If all officemates agree to carry professional liability insurance with the same policy limits from the same provider, this can be an important safeguard. While the prior discussion about avoiding implied partnership is very important, if an individual lawyer’s professional liability insurance policy limits are sufficient to cover a client’s claim, there is reduced motivation to try to bring in another lawyer defendant – particularly one who didn’t work on the matter.

Once you have a good working agreement between all insured officemates and everyone has included the proper provisions in their engagement letters, what’s next?

THE PHONES
For some types of law practices, the phone number may be one of the lawyer’s most valuable assets. This varies based on how long a phone number has been used for a legal business and the amount of advertising that has been invested in publicizing the phone number.

But, whatever the circumstances, it is usually best for each lawyer to have their own phone number, not shared with other lawyers in the building. The primary reason for this, in my opinion, is if the relationship with the other lawyer or lawyers doesn’t work out and one decides to move, there will be no need to obtain a new number and risk losing contact with clients calling the old number.

But having the individual office phone number has other benefits as well. If you pay a person or service to answer your phone, they can answer it with your law firm’s name. If you utilize voicemail, you can have a customized message, including your name. If you invest in marketing efforts that feature your phone number as a part of the information, this makes it less likely you will pay for advertising that could benefit your officemates instead of you.

Once I was in an office-sharing relationship with an attorney who died. His brother, also an attorney, had a different type of law practice and was happy to let the remaining lawyers keep his brother’s phone number. We assigned that number to the last rollover line so we would know when calls coming in were directly coming into it. He must have been very good about giving out his business card because that phone rang with potential client inquiries for years.

So most experienced lawyers will want to keep their own phone numbers. A jointly owned phone number may be quite a bone of contention when an office sharing arrangement terminates. Include how that will be decided in your operating agreement.

SHARING OF STAFF AND CONTRACTORS
Is it appropriate for officemates in an office-sharing relationship to share staff? As we lawyers often have to say, it depends.

If you have a cleaning service for the office, most likely that should be a shared expense. Someone should be responsible for making sure the cleaning crew understands they are not to read any documents they may come across or discuss anything they have seen in the law firm with outsiders. But there’s no apparent business or ethical reason not to split the cost of law office cleaning. But once you get past the shared cleaning services, things are more complicated.

What about the office receptionist? The traditional role of the in-office receptionist is not usually problematic. Welcoming individuals, offering them a seat or perhaps refreshments and letting the lawyer know their appointment has arrived is routine. Any question the client might ask about the legal matter can be answered with, “Ask your lawyer about that in the meeting.”

But the policies regarding the person who answers the phones can be more challenging. Clients or potential clients calling a law firm’s phone number may blurt out confidential information to the person who answers the phone. So that must be addressed with a policy and training about the nature of the office sharing arrangement. If three or four lawyers all want a shared receptionist to answer individual phone lines with different greetings, this could be too challenging for many.

A shared phone line will present the additional challenge of who gets the call from a potential new client wanting to talk with a lawyer, any lawyer. Some sort of shared rotation should be established. To me, the first rule should be if only one lawyer is available to take a call immediately, they get the potential client inquiry simply because if the caller leaves a message and their call is not returned for a few hours, they may already have secured a lawyer. Sometimes there are other considerations. For example, if only one lawyer in the office-sharing arrangement practices criminal law, those inquiries should go to that lawyer.

As we examine the possibilities, the idea of each lawyer having a separate phone number (with a virtual reception service as a backup when they cannot answer the phone) becomes more appealing.

Sharing staff, such as legal assistants and secretaries, increases the complexity. It can be challenging for two partners in a law firm to share a secretary or paralegal, and many a law firm associate has felt that they were second-class citizens compared to the partners as to how staff handled their assignments.

But in those large-firm situations, everyone is still theoretically focused on generating revenue for the firm, while the lawyers in an office sharing arrangement are all focused on their individual bottom lines. While I appreciate that many lawyers have made these situations work well for years, there will be growing pains initially setting this up, particularly if the staff person has a primary role in document creation.

CONFIDENTIALITY CONCERNS
When a client retains a law firm, all those working in the firm are understood to have access to the client’s confidential information. (A law firm may limit access for administrative reasons.) With an office-sharing situation, as suggested above, the clients sign a contract with only one individual lawyer instead of a firm. So shared resources and staff are not assumed but must be examined with an eye toward guarding client confidentiality. Before we cover some of these concerns, let’s discuss a broad office confidentiality policy.

To oversimplify, there are two broad approaches. You can build walls between the practices, so nothing is shared between them and then determine exceptions as needed (e.g., letting the in-office receptionist know whom to expect that day.) Or you can decide that even though the arrangement is not a partnership, it is a better arrangement not to take cases in opposition or conflict with each other. This would require a conflict-checking protocol like that used by any law firm.

To me, there are many reasons not to take matters in direct opposition to your officemates. Lawyers can sometimes get emotionally involved in litigation, and it’s best to avoid that with officemates. As one long-term office sharer remarked to the OBA Office of Ethics Counsel, “We don’t take cases against each other. Too much potential for things to get messy.” But the main reason to me is the Murphy’s Law hypothetical situation, where lawyers do not share schedules. Just imagine two lawyers scheduling pretrial conference preparation with opposing parties in a marital dissolution case at the same time. What if both lawyers are then delayed, and the two clients spend a lot of time in your waiting room glowering at each other? It is quite possible that someone’s trust in their lawyer could be damaged, and/or a client could decide to fire their lawyer just over the waiting room situation.

The lawyers’ agreement will also need to address walk-in clients and how they are assigned a lawyer. Any method of operation has the potential for challenges. The walk-in client who just showed up needing a lawyer – any lawyer – may turn out to have been referred to Lawyer A by a long-time client. But that is far better than dealing with an enraged client who didn’t notice both their attorney and opposing counsel shared the same address.

PAYROLL
Most solo and small firm practices with employees are well served to use a payroll service. But if you are sharing an employee and paying a portion of the employee’s salary, you can be personally responsible should someone else fail to make the employee tax deposits with the authorities. The reports from the payroll service can make that simple.

TRUST ACCOUNT
Trust account management under office sharing scenarios is simple. Each individual lawyer should have their own trust account. There is no good argument to handle it any other way.

First of all, it is simpler to manage a single-lawyer trust account. Even assuming it would ethically be permissible to have a multi-lawyer trust account, it would take someone with very strong accounting skills to properly manage it. That person would have to be compensated. And, of course, the worst-case scenario would be checking on the trust account to find that it was substantially overdrawn, and an overdraft notice had been sent to the OBA Office of General Counsel even though you hadn’t used the trust account for months.

COMPUTER NETWORK
One may need to hire a computer expert to set up your network properly, so each lawyer only has access to their own files. This is not a particularly difficult task for a trained individual to set up.

But the cloud is likely the best option for client file information in any event. Either your practice management software or a service like Microsoft OneDrive can organize and store all your client information, including scanned copies of all documents filed with the court. And just like owning your own phone number, your cloud-based information storage is yours exclusively, as long as you keep paying the subscription fees.

CONCLUSION
I hope this rather detailed piece will not deter you from sharing offices with another lawyer or firm if that is in your best interest. Working through all of this in advance with your officemates may take some time, but planning can avoid potential problems and potential liability.

Many years ago, Oklahoma City attorney Jim Slayton and I taught a CLE on office sharing and published an article as well. Jim noted that some of the most important attributes for making this arrangement work are common courtesy and cleaning up after yourself when you use common areas. Some things do not change.

Originally published in the Oklahoma Bar Journal — September, 2022

Computer crimes continue. Lawyers need to be aware of wire fraud schemes and the many types of phone-based fraud that exist. But we also need to be aware of appropriate cyber security measures. You don’t want to be hacked. But you also don’t want clients, coworkers, friends and family to be hacked.

Wired magazine published a feature 6 Things You Need to Do to Prevent Getting Hacked.

These six items are mostly about personal habits rather than sophisticated IT infrastructure.  This makes it a great item to share with staff, family and friends. Every computer user can handle these items.

Of course, there may be one slight drawback. You may be asked if you “do all of this?” You’ve seen some of these six items before. So hopefully your answer will be either “yes” or “mostly.”

A law firm being hacked has significant consequences for the lawyer and clients alike. We know that most hacks enter the office via email. So that is a good area to address. Recently New York became the first state to require lawyers to take CLE of one hour every two years in cybersecurity, privacy or data protection.

Chrome is the most popular and most widely used browser. Tessa Davis is an educator who regularly posts technology tips on Twitter. Her most recent offering is “10 simple Chrome Tips that will blow your mind.

Did you know if you have a video or audio file you want to play, you can drag and drop it into a tab in Chrome and it will play? No setup or software installation required.

Did you know that if you are annoyed by a tab playing a sound, there is a very simple process to make that speaker icon on the tab a mute/unmute button going forward? (Seriously, every Chrome user should do this.)

Or did you know if you want to share a web page with an important section of text on the page, just highlight the section, right click and use “copy link to highlight” to create a link to that page which will go to the section and show the text you highlighted when your recipient opens the link?

Those are only three of the Chrome tips she shared. You can find them all at: https://twitter.com/tessardavis/status/1554437949579821056?s=21&t=l8UKszPsbnnNFlaiblL30Q