Previous month:
June 2006
Next month:
August 2006

July 2006

When Lightning Blows Your Data Up

Obviously, one of the holes in our system involved data backup. We’ve had some relatively makeshift systems for doing data backup while we have moved to our new Unix Server from some Nas drives. The last two databases on the Nas drives were scheduled to be moved over onto the Unix box with RAID V and other backup systems but just wasn’t quite there when lightning took the data down. We are still sending the Nas drives out to a data recovery company to see what can be retrieved.

Everything they say about data backup is true. Although it’s an "out of site, out of mind" kind of problem, you need to take care of it. It isn’t the end of the world when you lose certain types of data such as we may have. We didn’t lose any file materials. That would have been far more serious. Get your data backup systems in place and don’t forget that lightning can indeed strike.

Challenging Workers to Think Out Of the Box When Lightning Strikes

One of the interesting things that occurred as a result of the lightning strike is that all of the people that work with our firm were forced to think out of the box. The Internet connection is down. How are we going to get email? Accounting information is unavailable, how will we get out bills?

While it is not necessary pleasant, it is certainly good for employees to have to think out of the box and challenge themselves to find solutions to problems which they did not anticipate. For Internet connections, we took turns going across the street, to the coffee shop, and connecting up through our web mail accounts. We made sure nothing fell through the cracks in a "make do" world. Despite the loss of QuickBooks, we quickly went back to the basics for billing. We pulled time on paper, we accumulated it in an Excel spreadsheet and created a custom bill for each client, and we sent out hand bills reminiscent of the practice of law back in the 1970’s. It wasn’t necessarily pretty, but it worked and got the job done.

One of the interesting things that happens when you are forced to think out of the box is that you see new opportunities and avenues for efficiency. Instead of relying on the process that you go through each day, you are forced to rethink whether or not you want to return to that process or modify it. Change presents an opportunity for improvement. There is good and bad in everything.

When Lightning Strikes

I started a post here which started a discussion on our recent lightning strike and the issues we faced as a result. I previously stated that we took the difficulties of the lightning strike and down time, loss of equipment and data, and made improvements in our overall process and systems. I also noted that in the technology age, perseverance and a positive attitude are critical components for survival. With technology, things sometimes go smoothly. But sometimes, things don’t work as planned. All of the efficiencies we gain with technology have to be balanced with the fact that sometimes your email is not working and you have absolutely no idea why.

We are still attempting to recover some of the data off one of the Nas Drives which was blasted when lightning came down our cable connection and made it through part of our system. We had thought that the surge protectors where protecting us. The surge protector on the Internet connection, however, failed to stop the jolt. Despite the fact that all of our heavy-duty equipment is plugged into a UPC, the lightning apparently by passed the surge protecting within the cable line and came straight down into the cable box. Interestingly, we were right in the process of moving from Amicus Attorney and QuickBooks to LexisNexis PCLaw. We have decided to go to a new billing and accounting system because we couldn’t take the fact that QuickBooks really doesn’t do what law firms need it to do. It doesn’t do Trust accounting. It has many features built in which aren’t required for law firms. We wanted to go to an accounting system designed specifically for law firms. When the lightning struck, we already had the software and licenses for PCLaw in our office. While we had planned an August 1 conversion date, we quickly moved up the implementation date. For the month of June, we issued paper bills (of course, Amicus Attorney keeps a local file as well as a server side file allowing access to all the billing information from the client machines). While there was some hiccups in that process, there weren’t too many. We were able to get bills out despite the accounting system being gone. Issuing paper bills based on paper information is not high-tech but is extremely low risk. You know you can do it. You know you can get it out quickly. We made that happen, once it was clear that things weren’t going to come back on line quickly.

We are now on the cusp of fully utilizing our new time, billing, accounting, and management system. Of course, we are putting in new back-up systems and curing the flaws in our previous back-up systems. Overall, things could have been a lot worse. We have used the lightning strike as an opportunity to take large steps forward and reduce our overall risk going forward.

So if lightning strikes you, don’t worry. Take your lessons as they come, shift into another gear, and find workarounds for your problems.

You Wouldn’t Believe What Happened To Me On The Way To Summer Vacation…

Yeah, I know. It’s summertime. Nothing feels better than summer.

A lot has happened since summer began. There’s some things that I have not told you yet. We have had great success and then greatly challenged in a short period of time. We settled over $2 million worth of claims in the last two months. That’s great. We’ve learned that our law clerk, Brian, is going to fit in great here and is already planning to return after he graduates in spring 2007 to become the first Greatest American Partner. (Yes, Brian, I don’t believe in associates). But we have also been struck by lightning, lost databases which have yet to be converted to the new Unix Server (including accounting through QuickBooks and case management through Amicus Attorney). Through it, all the staff stepped up and demonstrated a tremendous ability to work around the technology pieces which were down. Isn’t that what it is all about? Isn’t the simple fact that technology doesn’t always work. Isn’t the difference between good workers and bad workers in today’s economy those who can get beyond the "Poor Me" mentality and simply find a solution to the problem at hand?

Over the next week or so, I will be posting all the different things we did in order to continue operations during the first 16 hours when the Internet was down, during the next 16 hours when the router was down and the next two weeks when the Nas Drive, with QuickBooks and Amicus Attorney, simply disappeared with the hard drives about 16 hours after the lightning strike.

Not only did we survive, we thrived. We used it as an opportunity to overhaul systems, bring in new vendors, transition to new software which had already been purchased…we turned a bolt of lightning into opportunity. And we did it all with ten weeks of vacation right in the middle for GAL.

Stay tuned…to learn how.

Two Questions To Practice By

I just read an article about the varied experiences of Summer Associates (  It reminded of the questions I generally heard from my classmates and other law students before choosing where to spend the summer.  The two most common where: (1) What am I getting paid?; and (2) Where am I going (meaning a well-known firm, a popular location, etc.).  While these are fair questions, especially with law school debt weighing heavily on most law students' shoulders, I think there are two more appropriate questions, especially when looking to the long-term practice of law. 

The first is: What am I getting?, with an emphasis on seeking legal experience, including research, original drafting, client interaction, courtroom exposure, etc.  I have always heard the money will come if you are great at what you do.  So why should a law student jump at the money and sacrifice his/her long-term ability to become great?  That's not to say you can't become great at a major firm, because you can, it just means that greatness comes from experience in this profession.  I have yet to meet a Summer Associate or law clerk getting the kind of experience I am getting at a start-up law firm with one founding partner.  However, my position may be unique considering I am working with the GAL : ).

The second question is: Why am I going?  Instead of focusing on where, as I almost did, I am now focusing more than ever on why.  This second question contains subquestions, so to speak, such as: Why do you want to practice a particular kind of law?; Why am I going to this firm/government position/etc.; Why am I going to this city?  Many law students seek the mega-firm with a large upfront payoff.  However, sometimes it is those who can delay pleasure, or those who were not in the position to capture such an opportunity, that end up the happiest.  Not to mention, the latter also tend to find the success that the former thought they had captured when following the footsteps of so many Summer Associates before them.  It all comes down to evaluating why before you make that initial move.

One final thought, it seems odd to me that the notorious large firm Summer Associate life entails extravagant lunches, outings, after-work cocktails, etc.  Work time is spent doing fun and nights and weekends can be spent doing work, especially when the real associate life kicks in.  Wouldn't you rather work when your supposed to and spend that time at the ballpark or the restaurant or the retreat with the ones that helped get you to where you are, namely your friends and family?  I know I would.  The best of both worlds does exist, and I think I am living in it this summer.  You just have look hard and constantly ask why are you going where you are going.

The Greenest American Lawyer

What's the difference between the "Greenest" (as in the newest with little experience) American Lawyer and the Greatest American Lawyer?  When it comes to ethics, not much.  The Greenest American Lawyer is fresh out of law school, or still in law school, at the very least having taken a Professional Responsibility course and likely passed the MPRE (multi-state professional responsibility exam).  Despite being new, the "green" lawyer knows the rules, has read recent interpretations of the rules from ethics or court opinions, and has yet to see the rules repeatedly ignored in the legal community by the majority of lawyers.  Similarly, the GAL knows the rules, has seen them repeatedly ignored, but chooses to adhere to them and follow the interpretations set forth in the ethics and court opinions.  Thus, while the Greenest American Lawyer has yet to be tainted, the GAL refuses to become tainted.  Although I am a definitely in the category of the Greenest American Lawyer right now, I plan to avoid the tainting en route to becoming the GAL.  ~Brian

Changing The Culture Of Law May Be Easier Than You Think

This post deals with a recent lawsuit filed against GAL by his former firm over ethical conduct by that firm. I truly believe there are more lawyers out there doing it right, than wrong. However, it is the bad lawyers that you hear about most in the halls of the court and at bar events. There are young attorneys who simply never see what the practice of law can be because their only experience is with a traditional hourly billing firm bent on generating profits, not results, for their clients.

So what if you are an attorney who wants to make a difference? Even if you are working for a large firm, you must realize that you can in fact make a difference. Perhaps the most important indicator of our profession is firm culture. Firm culture which constantly talks about the client’s interest, the client’s goals, and working within a client’s expectations or budgets is a firm which will inevitably find itself providing strong ethical service. So what can you do?

You can talk the talk and walk the walk. Even if you are an associate at a large firm, you can ask the right questions and start the right dialog. You can do so with your other associates. You can do so with your paralegals. And for those who are brave, you can even do that with the partners. For those partners out there, you have tremendous leverage to set the tone of the attorney-client experience at your firm. If every conversation you have is from the client’s point of view, others around you will start thinking from the client’s point of view. If you constantly question the ethics of a particular practice and encourage other attorneys to "look it up," you will take away from the stigma which ethics rules now have within firm culture. Instead of being a hindrance to profits, the ethics rules can become guideposts toward a strong client-service oriented firm.

The beauty of my firm and the success the firm has enjoyed is as a direct result of the fact that we are different in our town and nationally. Clients repeatedly tell us how grateful they are for the experience they had being represented by our law firm. They love our "client first" approach. It sets us apart, it brings in business, and yes, it generates profits. My message is this. You don’t have to be a money mongering, greedy, cynical, backstabbing, unethical lawyer to make a good living. You can do it the right way and succeed professionally and financially beyond the business model of greed.

So start blogging about the importance of ethics. Start talking at the water cooler about important client issues. Start questioning the cynicism that you see around you every day concerning the importance of remaining "professional" within our profession. At a minimum, stop participating in the dialog which drives the culture which has dragged us all down to the level of a used car salesperson. And for the brave, vote with your feet. Find a group of like-minded, skilled attorneys and start your own law firm. There is no reason not to. The more firms out there doing it right, the better chance we have of retaking our profession.

If Lawyers Don’t Stand Up For Their Own Profession, Who Will?

This post deals with a recent lawsuit filed against GAL by his former firm over ethical conduct by that firm. One of the problems with allowing attorney grievance commissions to set the bar for lawyer conduct is that very few of the numerous ethical violations, which occur everyday, find their way to the grievance commission. Lawyers are extremely hesitant to report other lawyers for the behavior they see day in and day out, especially in a smaller or medium sized town. You see these same lawyers again and again over the course of your entire career.

The bad lawyers seek to protect their unethical ways, which can’t be explained away by "aggressive representation of the client." As a partner at an old firm, I once had the managing partner continually berate me that I wasn’t billing aggressively on a file that was about to settle. The client had taken charge of the matter and was engaging in one-on-one settlement negotiations with the CEO for the defendant. It was clear for about two months that the matter was going away and that it would be quickly resolved. There is little question that generating billing events simply to trump up fees prior to the conclusion of a case is an ethical violation. Did I report the managing partner of my own firm? No. Should I have? Yes. But the practical reality of the situation precluded me from doing much at all. Of course, I simply nodded my head when he requested updates on our efforts to generate fees, and did nothing to follow up on his repeated demands. When he went to the paralegal to see what billing was being generated, the paralegal came to me and asked what the heck was going on. Together, we ignored the request, the matter concluded, and no trumped up fees were included in the final bill. These types of things go on all the time in law firms across the United States. But I ask again, what can be done given the practical limitations of our system?

Mike at the Crime & Federalism blog makes a great point. He says, "You need to shine the light on these unethical-no, cruel and vicious- lawyers. If you say nothing, then others will be harmed by them. Unethical lawyers will always prosper when good lawyers say nothing." There is little doubt that the bad lawyers control the game at this point in time. If we do want to take back our profession from those whose greed and self-interest dominates the halls of justice, then we must decide to take a stand. The reality is that there is no other way. Average citizens filing grievances against lawyers have had little effect. Judges rarely grieve lawyers. We must commence a strong and vigorous dialog about legal ethics. We must send a message that clients must come first and ensure that message is permeated in the culture of our law firms. We must shun and shine the spotlight on law firms which habitually abuse their clients and the system to their own economic advantage.

I came out of retirement after being completely disenchanted with the legal profession. I came back to change the way law is practiced. It is not lost on me that in addition to doing it right, I must point out when others are doing it wrong.

The Right Way To Quit Your Law Firm

This post deals with a recent lawsuit filed against GAL by his former firm over ethical conduct by that firm. One of the interesting things that I learned when I quit my law firm is that there are a large number of ethical rules which help lawyers understand the right way and wrong way to do it. I will be posting more regularly about the various ethics opinions in this area. Suffice it to say that there are some pretty important ethics principles which apply. The first is that the client always has the choice as to who will represent them. Just because the client signed a retainer with the former firm, does not mean the client has to stay with that firm. In fact, both the departing lawyer and the former firm have an obligation to quickly inform the client of the impending departure and advise the client of their absolute right to choose their counsel. Neither lawyer can do anything to interfere with the client’s right to decide who will represent them.

There are some ethics decisions which may suggest that a departing lawyer cannot contact the firm’s clients and unilaterally inform of their departure. Because of the dangers of improper solicitation, the ethics opinions strongly recommend that a joint letter be sent out from both the departing lawyer and the former firm with a return receipt envelope and checkbox for the client to indicate which law firm they have selected.

When I left my old firm, I immediately looked up the ethical rules. I decided early on that I was going to do it the "right way." I told my partners that I was leaving before taking any actions to start my new firm. I didn’t want them to hear on the street that I was looking for office space or otherwise setting a foundation for departure. Of course, I never even considered soliciting or contacting clients.

On the other hand, my old firm immediately went into emergency mode when they learned I was leaving. Big boss immediately started gathering information about clients and cases, deciding which cases they didn’t want to provide any further representation on (despite their obligation to do so) and which cases they wanted to stay. Instead of sending the clients a letter indicating that I would be departing, they spent all their time and energy counting money and strategizing.

The first agreement I received from my law firm surprised me. I didn’t know that there would be a "contract" concerning my departure. When I read the agreement, I immediately saw that it attempted to divide up clients as though they were playing cards. The firm had actually put together a list and asked me to sign a contract agreeing to how the clients would be divided. In one instance on the case that I am currently getting sued on, they actually sought my agreement that I would not represent the client even if requested to do so by the client.

Of course, I rejected the approach suggested and reminded them of the ethical obligations for all concerned. Unfortunately, I never sensed from the firm that there was any consideration besides their profits. The ethical obligations were simply a nuisance getting in the way of their ultimate goals. While we eventually did send a notice letter to clients, it went out just prior to my departure and, in the case I’m getting sued on, never went out at all.

If you are thinking of leaving your firm, I encourage you to do your best to meet your ethical obligations. Get informed on where the fences are. If your firm is like my old firm, you will have quite a chore staying in bounds. There were many days where I felt like my obligation to let the clients know what was happening was being intentionally thwarted by my old firm. They didn’t hesitate to tell me that they believed it would be an ethical violation for me to contact any of these clients directly. They used the ethics rules as an offensive weapon which would allow them to complete their analysis and decide where each client would go for themselves.

The lawsuit in which I am currently involved will test some of the ethical rules noted above. Will the court care that the client was treated as property and used as leverage in order to line a firm’s pockets with profits? Or will the court see this as an everyday event and treat it as a big "so what." From my point of view, the contested fee belongs to the client. It is the principle that I am after. Does the system even care anymore? Stay tuned…

The Importance Of Independence

The longer I practice in my new firm the more I am convinced that clients will inevitably suffer under the traditional partnership model. When partners have to answer to other partners, clients will lose, maybe not the General Motors Corporation clients, but the everyday companies and people who have a right to expect that their lawyer will protect their interests. Too often, the client’s interest is either directly or indirectly adverse to the partnership in general. The partnership is focused on profits and billables. The partnership wants to be paid immediately. The partnership wants increased retainer agreements before key events. The partnership doesn’t want any risk in the client’s matter. The partnership will hesitate to bring on new workers even when they are needed for fear that demand will go slack three months down the line.

Being an independent practitioner, I don’t have to answer to any partners. I am in a position to put my clients first, to eat billable time when necessary and appropriate and to take risks in the client’s matter. I don’t need approval to add staff or workers if I have a client with an immediate need for more service. Many firms don’t use the traditional partnership model. They act independently within the partnership and simply share overhead and cost. Contingency fee lawyers are typically working in an independent role within their firm as well. We need to continue to explore ways for lawyers to act independently, either by going out on their own or developing new models within the context of partnership which allow lawyers to act first and foremost on behalf of their clients. The current partnership structure and many hourly billing firms cause tremendous conflict for individual lawyers representing their clients. There must be a better way.