GPSOLO October/November 2010
Hiring, Training, and Retaining Staff
By Robert A. Kraft
Here’s all you need to know about staffing your law firm in just a few words: Hire good people, train them well, supervise them properly, and keep them happy.
Well, maybe there is just a bit more you need to know, but those are the basic principles to ensure you are following best practices with your staff.
The focus of this month’s magazine is ethics. This article may not specifically mention ethics in each paragraph, but please consider ethics as the underlying tenet when I discuss hiring, training, and retaining staff. It should go without saying that you don’t keep any employee you suspect is acting in an unethical manner. The actual ethics rules governing lawyers and staff are beyond the scope of this article, but I strongly urge you to carefully read your state’s ethics rules and to stay current with any changes. Remember that the lawyer, and specifically the owner or partner, is legally and ethically responsible for the actions of an employee, even if those actions were taken without the consent or even the knowledge of the lawyer.
Unfortunately, I have been forced to terminate several otherwise good employees because of their ethical lapses. Having to take that painful step will certainly reinforce the importance of proper ethics training and supervision. If employees make an error in ethics because they didn’t know better, that’s your fault. But if they make an error knowing that it’s wrong, that’s their fault. You must take precautions to ensure you have systems in place that allow you to catch any ethics violations and to correct them before major harm is done.
Where do you start the hiring process? With the initial application of course, which may come to you by mail, fax, or e-mail. You should almost always rule out any applicants who have numerous spelling or grammar errors in their cover letters or résumés. Sloppiness, or ignorance, at this stage will probably carry over into the applicant’s work, and that can create ethics problems for you.
You also have to watch for other red flags in the résumé or in the initial interview itself. We had one employee many years ago who was excellent—bright, motivated, energetic, and knowledgeable. She was with us for several years in an important capacity. Then a situation arose that caused us to terminate her for ethical reasons. Looking back, I realized I had missed a gap in the employment dates on her résumé. I found out, far too late, that she had been in prison for embezzlement during that time. My bad. Now I always check carefully for gaps in employment, and I question applicants about those gaps. There are many good reasons to be temporarily unemployed, but there are a few bad reasons, also. Make sure you know which your applicant has. In such questioning, though, be careful not to violate any discrimination laws. For instance, you can’t ask if an applicant was out of work because she had a baby.
In my defense, that hiring error was made before the Internet made it easy to do background checks on potential employees. This is a step you should never omit. You should also call people listed as references on the résumé or application. Even though you assume the applicant wouldn’t list someone who would give a bad reference, you can sometimes learn surprising information from these references if you can get them to enter into a friendly chat with you rather than simply asking them to confirm employment dates. You should also take advantage of the growth in Internet social media to check your applicants online. It’s amazing how many people don’t bother to protect their privacy on social media sites.
In the initial interview you will learn how the applicants present themselves, if they are well spoken, and whether they have the basic requirements you have established for the open position. But you need to look for other factors as well. Is the applicant prepared, polite, friendly, outgoing, and self-confident? These are all important attributes.
Don’t hire someone who was unhappy in his or her last job unless you know there was a good reason for the unhappiness. There are a few law firms in our area that are notorious for the way their employees are treated. If we have an applicant who is trying to escape from one of these firms, I will understand. But if an applicant was unhappy at a firm I know to be good and caring, that applicant will probably be unhappy at my firm, also. And an unhappy employee is an ethics accident waiting to happen.
Don’t hire people who have negative attitudes or who seem unfriendly or too quiet. I believe one major key to keeping employees happy is to hire people who are happy to start with, and surround them with other friendly, happy people. It’s hard to keep your morale up if your co-workers are complaining all the time.
Several years ago we had a young woman apply for an attorney position with us. Before the interview I discovered her MySpace page. By reading the comments section I learned she had made quite a few very enthusiastic new friends on a recent vacation to Miami, where she apparently had an immense amount of fun in a short time. During the interview, her jaw dropped visibly when I asked how she enjoyed her trip to Miami.
I hired that lawyer, and she did a good job for us until she was lured away by a large national law firm. Those MySpace comments actually helped my decision. In the interview she came across as rather quiet and shy. But I knew there was another side to her personality, as reflected in the comments of her new friends. Because I look for friendly, happy employees, and because there was no hint of illegal or immoral activity in those comments, her vacation fun convinced me she could fit in at our firm, and she did.
If you hire a new employee without previous law office experience (and sometimes even with that experience), don’t assume the employee knows anything about the rules of client confidentiality, the prohibition on staff giving legal advice, or any of the many other ethics pitfalls. You need to teach these things. If you don’t have the time to do it yourself, have a trusted employee do that training. If you don’t have a trusted employee you’ve already trained, you could purchase one of the law office training videos available from several sources or you could have the new employee watch a webinar on ethics. In my home state, the Texas Bar Association has such webinars available, and that is a great benefit to Texas lawyers.
You should have a detailed manual of office policies and procedures, including information about client confidentiality and other ethics matters. The manual should be personally reviewed in full with each new employee, and each employee should sign a paper stating he or she has received, read, and will abide by the procedures manual.
Special training must be given to employees who work with client trust accounts. Be certain these employees understand the prohibition regarding commingling client and firm funds and the requirement for meticulous records.
You can’t watch an employee every minute, you can’t listen to every phone call the employee makes, and you may not even see every document the employee sends out of your office (although you should try to do that). I recommend doing a lot of walking through the office and picking up bits and pieces of conversations. That will give you some idea of how the employees are talking with clients, opposing counsel, and court personnel.
It is very important that each employee and attorney documents every phone call or meeting with clients and others. Our firm uses a case management program called LawBase that allows us to enter unlimited “activity notes” about such things. Each evening I read all the activity notes from that day. Assuming the employees are following their training and are documenting everything they do, I can read their versions of each phone call or client visit. If I see anything that doesn’t look quite right, I can talk with the employee or ask the office administrator to do so. The employee probably isn’t going to type an activity note stating, “I forged the client’s name on an affidavit.” But reading between the lines is an art you, as an employer, must learn—just as you must develop selective hearing as you walk through the office.
Be certain that all nonlawyer staff make it clear in their conversations and letters that they are not lawyers. Despite our efforts to do that, we occasionally will get a letter or e-mail addressed to “attorney Mary Smith” when Mary is really a para-legal. We always respond by sending a letter or e-mail explaining that Mary is not a lawyer. We don’t want such a misperception to linger, and we want something in writing to prove that we corrected the client’s error immediately.
What does employee happiness have to do with ethics concerns? An unhappy employee will lose interest in the job, might get careless, and might even get vindictive. This can be a disaster from an ethics standpoint.
The secrets of keeping employees happy could be the subject of an entire article, but I’ll mention a few highlights. First, as already stated, hire happy people. It’s much easier to keep a happy person happy than it is to make an unhappy person happy. Look for applicants with positive, optimistic attitudes. I frequently say that I want to be the grumpiest person in the office. I have enough problems already, and I want employees whose attitudes boost me up, not bring me down.
We try to maintain a family atmosphere in our firm. I want the employees to be friends with each other. Friends will gladly cover for someone who is out sick or on vacation, but co-workers who have no personal relationships with their office mates may not be so willing to do that. We encourage employees to eat lunch together in our kitchen, and we have little parties at least once a month to get everyone together for a meal or a dessert. We celebrate most holidays by having luncheons where each employee brings a dish, and we decorate with themes appropriate to the occasion. Anything that brings the employees together in a social setting will help foster friendship (because, remember, we hired happy and pleasant applicants), and people who work with their friends are going to be happier than people who work with strangers.
Employee retention, or lack of turnover, is important also. I have had many long-term employees over the years. As I write this, my small law firm in Dallas has seven employees who have been here between 15 and 26 years, and another who has been with me since my first day as a lawyer, almost 40 years ago. I have had several other employees who were here 20 years or more before leaving for various reasons. So, if nothing else, I have learned a little about retaining employees.
Why would retaining employees be important to ethics matters? The longer that employees are with you, the more they will learn about ethics rules generally and about your own requirements and preferences. Hiring and training employees is time consuming and not a lot of fun. New employees require much more supervision than employees who have worked closely with you for many years. Keeping employees long-term does take some effort, but it is well worth it.
Employees rightly expect to be paid a fair wage, but money is not always the most important factor in keeping your best employees. Everyone wants to be appreciated for good work, and just giving a paycheck twice a month is not adequate to show your appreciation.
I am fortunate to have a creative and talented wife who is an expert seamstress and baker. She makes gifts for our employees on many occasions such as end-of-year holidays, Valentine’s Day, Administrative Professionals Day, and most any other time we find a good excuse. She’s made purses, personalized pillowcases, napkins, guest towels, kitchen towels, laundry bags, and far too many other items for me to list. As a result the employees realize we care about each of them individually and are willing to invest time and work in showing that we care. This carries much more weight than a gift card or other such impersonal token. My wife also makes most of the desserts for our little office parties. More work for her, but less turnover for me.
Contract Lawyers and Virtual Assistants
I admit to having no personal experience with contract lawyers or virtual assistants, but these are becoming more common in small law firms and with solo attorneys. The hiring, training, and supervision tips mentioned previously will still work with these new categories of employees, but the processes may be more difficult. If you do not have the employees physically with you in the office, you can’t observe their interactions with clients, opposing counsel, and court personnel.
Contract lawyers can be a valuable asset to lawyers who don’t have the time for research or brief writing. New York attorney Lisa Solomon, an independent contract lawyer and expert on the ethics issues created by the contract lawyer relationship, has an excellent article on the subject at http://questionoflaw.net/Outsourcing_Legal_Research_and_Writing_Projects.pdf. I highly recommend reading this if you are considering hiring a contract lawyer. Solomon discusses potential effects on your malpractice insurance coverage, confidentiality agreements, conflicts of interest, and the possible duty to disclose such arrangements to your clients.
Virtual assistants, sometimes physically located across the country from the employer, have become a realistic possibility owing to technological advances. They can be quite valuable in some practices, especially for solo lawyers who aren’t able (or willing) to pay a full-time employee. Remember, though, that a virtual assistant will possibly be working for more than one law firm. This makes it especially important to have a written agreement regarding client confidentiality and conflicts of interest.
Documents will probably be sent electronically between the attorney and a virtual assistant, and secure systems should be used for this purpose. Check with your malpractice carrier to be sure the virtual assistant is covered. You may need to decide whether your virtual assistant is an employee or an independent contractor.
Follow all these tips if you can, but remember what I said in the beginning: The best practices with staff are simply to hire good people, train them well, supervise them properly, and keep them happy. Do these things and you will be rewarded with loyal employees who will follow the procedures you set and who will ease your worries about legal ethics.