General Practice, Solo & Small Firm DivisionMagazine


Volume 15, Number 3
July/August 1999

Making ¢ents:   Find Joy in Your Practice

For Steve Keeva, a senior editor at the ABA Journal, eight years in legal journalism has led to some inescapable conclusions. One—and this is hardly news—is that a lot of lawyers are suffering, feeling split off from themselves and from others, including the very public they seek to serve. A second observation, however, made Keeva feel passionate enough to write a book, Transforming Practices: Finding Joy and Satisfaction in the Legal Life. For all the talk over the years about professionalism, something crucial has been missing from the discussion; something too deep and personal for codes of conduct and calls for civility to touch, something that has to do with the inner life of each individual lawyer. Keeva writes:

"Many lawyers make a crucial error by failing to acknowledge that some problems resist left-brain solutions and that the intellect isn’t the only tool available with which to address their own or their clients’ problems. Because of a heavy investment in their intellectual prowess, they resist the notion that spirituality may have something to do with their dilemma. Like actors who refer to their voices as their ‘instrument’ and assiduously guard against anything that might imperil it, they feel concerned about getting involved in issues beyond the solid, clear, analyzable dimension they are used to—lest it fog their analytical lenses and muddy their thinking.

In truth, the inner life is often left underdeveloped in people who live hurriedly, under the weight of constant deadlines and pressures. This lack of development is particularly unfortunate among lawyers because so many can recall—often with a twinge of sadness for that which has not come to pass—the spiritual impulses that brought them to the law in the first place.

Spiritual impulses? Here’s what I mean: To the extent that you enter it as a calling, the practice of law is about hunger—the hunger for resolution; for healing the lives of individuals, organizations, and communities; for enabling society to function harmoniously and productively; and ultimately, for justice. Spirituality may not always be easy to define, but the concept is certainly embodied in these yearnings, as it is in any quest to deepen your understanding of what it means to live a good and meaningful life. When lawyers express in words and actions that they feel caught between a professional role and who they really are, they are describing a personal spiritual crisis—a crisis that is much talked about in law schools and law firms, albeit in someone different terms.

In society today, evidence of a great search for meaning is everywhere—in the words of popular songs, in the pages of The New York Times and other prominent newspapers and magazines, in movies such as Contact, Michael and Meet Joe Black, and in spiritually oriented books, whose sales increased by 800 percent between 1993 and 1998. It isn’t a matter of high or low culture; this yearning crosses barriers of style and education, race and ethnicity. People simply are looking for new ways of knowing and being.

To a lawyer, the cultivation of a deeper, more vibrant, inner life can promise a great deal, all of it compelling, much of it eminently practical. It can bring meaning and excitement to your practice. It can help you relate better with clients, and allow you to handle the pressures and vicissitudes of law practice with equanimity. It can make you a better, clearer, more focused, and balanced lawyer, and in so doing enhance your value and relevance to a rapidly changing legal profession. Finally, attention to the spiritual, or inner, dimension can help you deepen or reclaim a sense of purpose in your work and make clearer how the path you’re on—the legal path—can enhance and deepen your experience of life."

Transforming Practices: Finding Joy and Satisfaction in the Legal Life ($24.95; Contemporary Books, 1999) can be ordered beginning in August, by calling the ABA Service Center (800/285-2221), or purchased in better bookstores nationwide. Visit the ABA Journal’s website at www.abanet.org/journal/home.html for more information.

Growing Your Law Practice with a Website

Thinking about building or bettering your firm’s website but not sure how to successfully leverage it?

1. Promote your website in print at every opportunity. Your website address is as important as your telephone number.

2. Promote your website actively in cyberspace. It’s not enough simply to create a website and launch it on the World Wide Web. The philosophy that "if you build it, they will come" simply is not true where websites are concerned. You must be proactive in promoting your site.

3. Be patient. Don’t assume that you’ll get a client the day after you launch your site. Your website is one part of your overall marketing plan.

These tips were taken from the 20-page booklet, 123 Great Marketing Ideas to Grow Your Law Practice Using a Web Site, written by Barbara Leff, J.D., president of Legal Web Works, Denver, CO. For a free copy of this booklet, go to www.legalwebworks.com or call 303/337-8900.

Family Drug Courts

Is a family drug court coming soon to your jurisdiction? Family drug courts offer substance abusers intensive drug treatment, as well as a range of support services for family members. Today, approximately 20 jurisdictions in ten states have family drug court programs underway or planned. But as the use of these courts increases, so have the questions surrounding them. Criteria for successful family drug court programs include:

• Eligibility guidelines to determine which cases are appropriate for family drug court supervision.

• Judges who are willing to take the lead by working with families and building relationships with them.

• A focus on the goal of reuniting parents and children.

• An interdisciplinary team composed of judges, social services caseworkers, law enforcement agencies, drug and alcohol treatment providers and other counselors to help assess the parent’s treatment and service needs.

• An emphasis on helping the parent to become self-reliant and self-sufficient.

• A system where judges and a team of professionals monitor the progress and compliance of the parent.

In order for family drug courts to work there must be services available for rehabilitation, sanctions and incentives to ensure participation; and agreement by the parent to participate in follow-up procedures.

For more information on family drug courts, see the March 1999 issue of Child Law Practice, a publication of the ABA Center on Children and the Law. It includes a sample family drug court contract, tips for a successful family drug court program, and advice on how to start a family drug court. Copies are available from Claire Sandt, ABA Center on Children and the Law. She can be reached at 202/662-1724. The cost for a single copy is $10.

Negotiating Better Results for Your Clients

Negotiation behavior affects financial results. Christine S. Filip, a lawyer and the president of Filip & Caminos, Inc., The Success Group, a company that assists law firms with marketing and public relations, says there are three keys to achieving results for clients during negotiations: (1) preparation is paramount, (2) credibility and rapport usually outweigh ego as a negotiating strength, and (3) because the consequences and parties to a negotiation live on, negotiation behavior can affect future dealings.

Focusing on her second key to success, if preparation is the bedrock of achieving good results in a negotiation, establishing credibility and rapport with the other side is just as critical. Getting information from the other side—what they consider essential versus important—starts with analyzing how they have drafted or revised documents, but is even more subtle as the negotiation progresses.

To get better information from the other side, you have to be flexible, adaptive, and read people well. Filip interviewed Steven Tarshis, a business lawyer at Budd Larner in Short Hills, New Jersey. Tarshis commented: "Ego has no place in getting what your client wants. Ego locks you in to one type of behavior or act and you can’t have the same act for every negotiation because you won’t be able to ferret out what the other side wants. It’s like the garbage issue in a failing marriage (‘you never take out the garbage’); but it’s not really about garbage, it’s about something else. You have to know what else."

To build rapport and learn about unrevealed issues, read people, adapt to their style, reveal information, and even reveal a seeming confidence to build trust.

Most negotiation training counsels one to ‘solve’ objections when in reality, one cannot make the roadblock disappear. Understanding the reason for the roadblock is ultimately important, and founded on getting information. When you hit an impasse, Filip suggests that you try these three steps:

1. Be conciliatory. "I realize this issue is important to you, but I need more information about why it is. Can you tell me more so I understand?"

2. Do the Colombo. "I must be missing something here....I’m confused. Tell me why you absolutely need X?"

3. Conjure up the metaphorical judge. "So what you are telling me is (paint the best picture from their view), you want X, Y, and Z. If I did that, how would I explain that to my client and ______ (my managing partner, my client’s accountant, the ethics board, my dog)?" This puts the other side into a corner by making them stand in your shoes in front of your judge. Use this as a last resort, when you’re ready to fold the tent. It can kill a negotiation or add enough levity to move on.

When you know the reasoning, you have a basis for tradeoffs and concessions. Use factual data to support your view, and if you do concede something, make sure you ask for something in return of equal value, even if that’s hard to calculate.

Adapted from the Marketplace Tactics column, New Jersey Lawyer , April 1999. Christine S. Filip can be reached at successnyc@aol.com.

Lawyers May Transmit Client Documents Via E-Mail

Barring special circumstances, a lawyer does not violate a client’s confidentiality privilege by transmitting documents via unencrypted electronic mail, according to a new ethics opinion published by the ABA Standing Committee on Ethics and Professional Responsibility.

Although lawyers have an obligation to take reasonable steps to protect confidential client information against unauthorized use or disclosure, the obligation does not require an absolute expectation of privacy in a communication medium. It requires only a reasonable expectation of privacy.

The committee compared e-mail transmission with use of land-line telephone service, cellular and cordless phone service, fax machines, and ordinary mail. It concluded that e-mail offers reasonable expectations of privacy, even though early state ethics rulings had focused attention on the medium’s potential susceptibility to unauthorized interception.

Comparing e-mail with other communications mediums, the committee noted that mail can be lost, stolen, or misplaced, and telephone conversations can be overheard by wiretap, eavesdropping on multiple extensions, technical phone company errors, or phone company monitors. But use of either mail or telephones still is generally considered to provide reasonable expectations of privacy.

The committee expressly stated it was not addressing use of cellular or cordless phones in its opinion, noting that authority is divided over whether users have a reasonable expectation of privacy in that medium. Also, the committee noted, there is no legal authority that specifically states that use of facsimile transmission is consistent with duties of confidentiality, pointing to a danger of misdirected faxes or possible breaches of privacy as office staff handles faxed materials.

The committee emphasized that a lawyer still has an obligation to consider with a client the sensitivity of information being communicated, the potential costs if confidential information is disclosed, and the relative security of any medium of communication. If a lawyer believes that confidential client information is so highly sensitive that extraordinary measures of protection are warranted, the lawyer should consult the client about means of transmission and follow the client’s instructions.

To see the opinion, go to www.abanet.org/cpr/ethicopinions.html.

Drafting Business Plans

Lawyers who help corporate clients, small businesses, and entrepreneurs to raise capital need to know what investment bankers and private investors look for in business plans. A recent survey by Business Plans International found that a business plan needs to answer just one key question: Will the enterprise make money?

The overwhelming majority of the investment professionals surveyed said that they look specifically at those sections that tell them if the company can generate a significant return for its investors. Most peruse the summary to get an overall idea of the business and then skip to the management resumes and financial projections. If the management is not right for the business or if the prospective return on the investment seems too low, they go no further, which means they might pass over the following sections: history of the company, market, competition, technology description, product line, sales and marketing strategy, and expansion strategy.

So focus your clients’ efforts on demonstrating the business’s potential to give investors a great return on their investment. Oh, and since the survey also found that investors are more likely to pursue an investment if the business plan is well written and organized in sections, make sure to concentrate your energy in that area as well.

Source: Business Plans International, which has helped more than 400 start-up, emerging, and middle market businesses develop plans to raise private equity or debt capital, find an underwriter for a public offering, or assess the feasibility of a new product or service. The company has offices in New York City, Boston, Fort Lauderdale, and Norwalk, Connecticut.

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