General Practice, Solo, and Small Firm Division The Compleat Lawyer
Winter 1998 © American Bar Association. All rights reserved.
Skills and Systems
The Secrets to Better Law Office Management
BY PHIL J. SHUEY
Phil J. Shuey has been a practicing lawyer in Colorado since 1969. He is president of Shuey Robinson, an international legal technology and management consulting organization, which is now his primary professional practice. He is a past chair of the ABA Law Practice Management Section, and has been a chair of Techshow for four of its 11 years.
Many of the problems associated with malpractice claims or exposure are associated with poor law office management techniques and procedures. Fortunately, creation of good systems and regular use of them can minimize malpractice exposure.
No tasks are more important than these law office management procedures. The cost to a firm for assertions of malpractice, or even a grievance procedure, is so substantial that it should be avoided by all means possible.
Can We Talk?
While it is simplistic to say that a client will never sue a lawyer considered a friend, a good professional relationship with the client will minimize exposure to malpractice claims. The ABA's Curran surveys indicate that one of the most important issues for the client is the concern of the lawyer for the client's matter. Every effort should be made to create procedures that convey concern for the client's case.
Part of building and maintaining excellent client relations is to establish good communication policies. Keep the client informed. While all representations have lag periods when no legal activity is required, the client may not understand that period of inactivity. Therefore, it is essential to arrange to contact clients regularly on the status of their matter, even with nothing more than a short explanation of the lack of activity. In most instances, that communication should not be charged to the client, but should be reflected in billings as work provided without charge.
It is a good office practice to create a recurring tickler or reminder to contact the client—perhaps as often as every 30 days. If your office has an established procedure for regular contact, tell the client at the initial meeting. Then, the firm should keep to that schedule.
The content of the communication is less important than the regular contact. If the communication can be personalized for the client, it is more valuable. To assist in this area, maintain a database of personalized information on clients that can be utilized where appropriate.
When you begin to represent a client, provide the client with a file folder to hold all communications from your office, whether facsimile transmissions, letters, or documents. The cost to the firm is nominal, but this simple act conveys the message that the firm intends to communicate regularly and would like those valuable communications to be preserved.
Thereafter, make it a standard procedure that everything produced on behalf of the client should be copied and sent to the client. If providing copies of everything causes any concern for the firm, then ask what about the document(s) cannot be shared with the client. If it clearly should not be sent to the client, should it be sent to anyone?
The most common method of communication is the telephone. Effective systems for telephone management are essential for good client relationships. Return all client telephone calls promptly. If you cannot return a call no later than the next business day, then have someone in the office return the call immediately. Seek to employ staff with good telephone skills; it is a very valuable firm asset.
Good communication begins at the first meeting. It is true that you have but one opportunity to make a good first impression. It is critical that the lawyer listens to the client without jumping to conclusions with only a portion of the facts. Good listening skills should be carefully developed by everyone in the firm. The client will be satisfied with the representation if the stated need of the client was met, not merely a satisfactory result.
At the conclusion of the initial meeting, introduce the client to everyone involved in providing the legal services, including legal assistants and secretaries who will be involved. That can be very good marketing for a small law firm—the very size of the small firm may convey a sense of personal identification with the client and his or her matter.
Make sure that you have, use, and update a client intake form that provides all of the key information required for full identification of the matter, addresses, telephone numbers, e-mail addresses, facsimile numbers, conflict of interest checking, docket control, reminders, required "next steps," and the fee arrangement with the client. Ask the client what means of communication he or she prefers and assure that everyone involved in the firm understands that choice.
Do not accept representation until this initial information is thoroughly checked. It is better to delay the commencement of work on the file for a few days to avoid problems like conflicts than to have to back out of an ill-advised representation.
Unrealistic expectations can create hard feelings at best, and at worst can expose the firm to malpractice assertions. Be very careful to set reasonable expectations with the client, even if you are sure of the legal grounds and basis for the client. Give yourself the opportunity to carefully examine the facts of the representation. Many factors beyond a lawyer's control will impact a result, so it is foolhardy to "guarantee" any result, even if the legal basis seems unassailable.
There are many reasons to have effective docket and calendar systems in your office, including to meet any statute of limitations imposed in the case, and to meet good time requirements to accomplish the work, even if a statute of limitations does not apply.
It is important to meet the expectations of the client for conclusion of the engagement, if those are reasonable. A docket/calendar system can assure that your milestones are met in a timely fashion and that the client has work product when promised. If the same system is used for calendar items as well as deadlines, make sure that there is a mechanism to separate the critical dates from important, but not essential, dates. A missed appointment is troubling; a missed deadline is threatening.
A docket/calendar system can help promote good public/client relations by assuring that work is delivered when promised, and that the firm does not always have to labor under an "eleventh hour" rush. Crisis work production provides more opportunity for errors and causes additional and unnecessary stress for lawyers and staff. While procrastination is common in the profession, commit to minimizing it. Procrastination can be offset by assuring that everyone associated with a case or matter receives copies of the reminders or ticklers to guarantee that important dates are not missed.
It is helpful to use realistic reminder dates. If set too far in advance of the deadline, reminders tend to be ignored as premature; if too close to the deadline, everyone will be placed under undesirable pressure. Assume that the worst possible thing will happen—will the system in place protect the client and the firm?
Naturally, there is a financial component to good docket/calendar management. The sooner work is completed, the sooner a final statement of account can be generated and payment re-ceived. Most lawyers make poor bankers—get the work, and then the bill, out the door!
Centralized responsibility for docket/calendar control is essential, because it avoids the possibility of critical deadlines being missed. A system or process, uniformly followed, is the safest procedure to avoid missed dates.
There is also an element of peace of mind that comes from the knowledge that critical dates will not be lost, overlooked, or misplaced because of a reliance on any one person's memory. Make sure that you have both a primary and a backup system for all docket/calendar matters. A standard form should be used for entry of information into the system to assure that essential dates and information such as responsible parties are not overlooked.
It is not enough to have a backup system; periodically, the dates in the primary and secondary systems have to be compared for completeness and accuracy. The best computerized system is worthless if it is "down," and it is prudent to have both an automated and a manual system.
For the computerized system, select a docket/calendar system that provides a "docket rule" feature. The docket rule feature allows a critical event in any substantive area to have predefined reminder dates set by the initial posting of the critical date. Hence, if a task needs to be accomplished 30 days before the critical date, the system will automatically calculate the date 30 days prior to the critical date and generate a reminder for that contingent date, as well as all other related tasks. It is helpful if the system generates past due reports on demand, and "nags" with reminders that do not go away after the due date until marked as completed.
The backup or manual system can be a well-kept Day-Timer, Day Runner, Franklin Planner, or one of the multi-part paper reminder systems. The office system should provide for entry of data into both systems at the same time. In addition, the office procedure should provide for a shift in docket/calendar responsibility in case the primary staff person is ill, on vacation, or out of the office.
It is impossible to effectively use time and staff, or to avoid the possibility of critical malpractice errors, if everyone in the legal services delivery team does not have access to the same information. The firm must assure that the date(s) selected are clear for all involved. Because docketed matters are of concern to everyone in the firm, it is a typical, firm-wide information need.
The calendar is a variation of the docket system, but the primary motivation is the general efficiency of having the entire firm know that appointments and reminders have been set. Additionally, because firm resources are involved, everyone must know what commitments have been made for the selected date(s). The firm as a whole has to have some sense of the type and timing of obligations.
Check for Conflicts
Conflicts of interest are not always apparent. Always refer to the Code of Professional Responsibility to make sure you have the latest information on potential conflicts of interest. Distribute disciplinary rules or cases to all lawyers, so that conflict exposures can be identified.
Information capture is the key to effective conflicts avoidance. Obtain the names of not only clients but also related family members, corporate officers and directors, "alter ego" or other related business entities, opposing parties, and opposing counsel. Remember, some "conflicts" might not rise to the level required for malpractice exposure, but may be viewed as a "business" conflict by an existing client. Be sensitive to representation of another competitor in the same business or industry area. Such "business conflict" representation should not be rejected automatically, but do not jeopardize important existing relationships by accepting a new matter. Make sure that all of the lawyers in the firm have good and current information on existing clients and matters.
Remember that firm mergers, lateral hires, new staff, co-counsel arrangements, and other "new" persons in the representation create conflicts exposure. The historical conflicts information of all such lawyers must be examined for conflicts. As the practice of law becomes more transient, the need for conflicts checking becomes more important. Remember that many conflict concerns can be resolved by a full and frank discussion with the prospective client. Disclosure is not as good as thorough conflicts checking, but can be helpful if a remote problem surfaces after acceptance of the matter.
Client induction/selection is a management tool that will avoid many potential malpractice exposures. If the client's representation does not feel "right," heed those feelings! A case that seems too good to be true probably is. A client that appears very difficult in the initial conference is unlikely to improve with time.
Similarly, avoid clients with prior multiple lawyer involvement. If the client has had many lawyers involved in a matter, something is probably amiss. There is no value for the firm in being the next name on the list. Finally, avoid clients who should be referred to other firms or agencies, either because of the inability to meet the business requirements of the firm, or because the matter is beyond the expertise of the firm.
Equally important is the matter of nonrepresentation. Any discussion or meeting with a prospective client that does not ripen into actual representation should be concluded with a letter of nonrepresentation. That is particularly critical when a statute of limitation applies, but is good business practice in all instances.
After any initial meeting, particularly one in which the firm wants to examine the matter before deciding on representation, create a calendar entry showing both the statute of limitations (if any) and the date when the prospective client will be advised of the firm's decision on representation. Then, keep all such correspondence, so that a permanent record is available for subsequent assertions of representation. This system should also apply to prospective clients who fail to meet the initial firm request for payment of the retainer.