Popular Threads - May 2019

Client Development: D.U.I., Criminal: Family: Social Security Disability

I am trying to establish a D.U.I., Criminal, Family, and Social Security law practice in the Northwest suburbs of Chicago on a very low budget. Does anyone have any advice on marketing and client development?

Yes. Family law: visit all the local hair salons you can find. Amazing what you will learn. DUI: visit all the local bars you can find. talk to the bartenders/staff. Ditto for low end criminal work. go into the back areas of restaurants. Lot of the wait staff will have problems or know people who have problems.

Hope this helps.

Almost forgot: if you are near a college/university, visit the sororities/fraternities for DUIs and offer speeches/talks on how to stay out of trouble.

            David Kaufman, Florida

Nothing specific to your practice areas or geographic area but I do have something for you to think about:

I've mentioned this before; but not recently (like the past several years).

I believe in the ecological theory of law practice; it's a lot easier to get clients in an 'unfilled niche' rather than shoehorn yourself into an existing niche that is already occupied or over occupied.

If there already are 50 lawyers doing the exact same thing you are doing, in the same geographic area, why should anyone hire you, as the 51st lawyer doing the same dang thing? Like it or not, at least in the public view, lawyers are pretty fungible; one lawyer is pretty much the same as any other. It's really tough to shoehorn yourself into an already crowded niche. What usually happens is, the 'new' lawyer decides to compete on price, cut their rates and do it 'cheaper'. You can get clients that way; the problem is they're cheap clients and you make very little money. You're in competition with better established, better funded, more experienced law firms. It is really, really, tough (not impossible, but tough) to get your foot in the door.

A somewhat more sophisticated plan is to figure out what unfilled, unserved, or underserved niches there are. Two examples from my own practice:

1) when I started out, I made a modest amount of money; certainly not a ton of it, but enough money to justify my doing it, doing "consumer law"; in my case it was FDCPA law. Without going into the details, and if you are interested take a look at NCLC materials here: https://www.nclc.org/

Basically I dinged debt collectors; I'd have client basically taunt them into violating FDCPA, then I'd nail them; statutory damages for client, automatic attorney fees for me; and I handled several dozen cases over the years; nearly all the time all I had to do was send demand letter (my client notified you that you were not to contact him; you contacted him once, and then contacted him again; the second contact violated FDCPA; here's copy of letter my client sent you; here's copy of green card showing delivery date to you, here's copy of first, permitted letter, you sent him; note that the date is after you received stop letter; and here's copy of second letter; you owe my client $1000, and you owe me $XXXX for attorney fees; failure to settle this within X days will result in my filing suit under FDCPA) and usually, it's like, OK, here's a release, get client to send release, and where do we send a check. To paraphrase the Marines, "hunting debt collectors is fun and easy". FWIW the ONLY time I had to file suit was where the debt collector was an actual attorney here in Florida; once I filed suit, served him along with BOATLOAD of discovery, (requests for admissions, requests to produce, interrogs) he settled PDQ, paid my client, paid my costs and paid my (considerably increased) fees.

I was also doing Ch 7 Bankruptcies at the time, so it was a good fit; and very few attorneys at least at the time and in my location were doing ANY sort of Consumer Law; there was one guy in Ocala but he shut his office and moved when he got married; I kind of lost interest in it when my Estate and Probate started taking off; but I'll still do this once in a while. And my Consumer Law background has come in VERY handy from time to time; After the 08 collapse of the Real Estate market I kind of ramped things up again defending foreclosures; and made some money off of that for a couple of years (EP and Probate kind of collapsed for a while there, no one had any money and most people were underwater on their mortgages; no one is going to hire you to probate a house where the mortgage is more than the house is worth); plus, Florida's Deceptive and Unfair Trade Practices Act, which I learned about in my consumer law era, has come in VERY handy in several Contract cases; and very, very few Florida attorneys are cognizant of this. You bring it up, show them the caselaw, and it's like "Oh Fudge, we better settle". Point is, I found an underserved niche and filled it.

And there are people on this list, or formerly on this list, who make decent to good money doing Consumer Law: Wendell Finner for one, and Amy Clark, as well.

2) Geography. Most lawyers like to be near the courthouse; I get that. it's convenient (for the lawyer); it's where other lawyers are. Lawyers frequently have a herd mentality; if 50 other lawyers are doing it then I'll do it. However, it isn't necessarily convenient for the client. In my case we've got a giant, enormous, Mega Retirement community, The Villages, that extends across three counties. However, in all three counties, the county seat is some distance from the Villages; they're all 30-45 minutes away depending on where you are. And very few lawyers had offices, even satellite offices, very near the retirement community. Guess where I located my office? about 2 miles from the northern edge of the retirement community. Given a choice between driving 45 minutes or 10 minutes, guess which many potential clients would rather do? Come and see me. I've made a point of directing my marketing to that retirement community. It's deliberate strategy. As I've said in the past, I subscribe to the Willie Sutton School of law office location: I locate my law office where I do because that's where the clients are.

I’m not telling you to do consumer law; I'm not telling you where to locate your law office (but I will give a hint; more convenient to clients beats less convenient to clients) but you need to think about exactly WHAT distinguishes YOU from the other 25 or 50 or 200 or whatever lawyers in your area doing the exact same thing. Or find something that 50 other lawyers are NOT doing. Think long and hard about location and practice areas.

            Ronald Jones, Florida

David, that's good advice regarding bars and restaurants. However, how do you suggest introducing oneself as a DUI/criminal defense attorney to them?

Most of the time when I tell people what I do for work, they reply with revulsion and say something like "Oh dear heavens, I shall not ever need a lawyer like you, I am a perfect citizen."

            Jason T. Komninos, New Jersey

First step is to avoid the kind of bars where people say "oh dear heavens."

Look for places that have bars over the windows or a wise guy out front keeping a lookout. Be polite, don't run your mouth too much, leave a nice tip and a few business cards.

            Duke Drouillard, Nebraska

People who tend to say "Oh dear heavens" can afford my fees :)

            Jason T. Komninos

That is funny :)

            Martha Jo Patterson

Regarding conventional lawyer business cards, most have no information on the back side of the card.

I have no canned terms to include on the back side. Terms for the back side can be tailored to your practice concentration(s).

            Rob Robertson, Texas

Four major practice areas as a solo?

For starters, I'd pick one.

            Nick A. Ortiz, Florida

I'm going to address several points raised by other people:

First, yes; have a two sided card; practice area might determine what info; I have 2 sided card and it has my pic on back. I get them from Moo.com; they are quite pricey but if you check local printer odds are you can get them for less.

Second, yes, four practice areas sounds like a lot; though dui/crim is really one; family law is kind of related to crim and it's not unusual for attorneys to handle both; SS practice, I don't know much about but it strikes me as a 'mill' type, i.e, you don't make much off any particular case but need a lot of them, as well as some automation and staff; but I don't know that for a fact. Might be tough for a solo.

Third, Website and blog. And by website and blog I don't mean generic "Hi I'm Joe blow and I fight for your rights in court". I mean, well written posts to gain clients; that address specific client questions and will get them to contact you. Check out my blog at http://flawyer.us/ProbateThoughts [http://flawyer.us/ProbateThoughts/hi-my-name-is-ronald-jones-im-an-attorney-in-summerfield-florida-near-the-villages-just-a-tiny-bit-about-me-i-was-born-in-philadelphia-raised-in-mt-laurel-new-jersey-and-moved-to-lady-l]

I'm not going to go into detail here but I think too many lawyers have too generic blog posts. Clients have specific questions; if you tailor your posts to those questions you will get hits and clients.

            Ronald Jones

Hi Nick,

I’d be interested in learning whether it is the number of practice areas for a new solo or the distribution that you object to. I agree, to a point, for a variety of reasons. For example, I see that you practice long-term disability, social security disability, and personal injury. I can see how those areas could feed each other and be similar in practice. I imagine that the question I would have for a new attorney seeking to host a similar practice would be whether they should start off more transactional than litigation based to limit the breadth of knowledge required. It is easier to add to an established knowledge base. But I look to you for that answer as I have only performed social security disability claims, not your other two practice areas.

I have run across a lot of solos who start out with criminal (appointments-based at first to get their feet wet) and either family law or personal injury. Family law is hourly work and personal injury is contingency, so the size of personal injury cases would likely be small settlements without court involvement for a start. Again, only my opinion because I have done family law but not personal injury.

The issue I had with social security disability work was, in my opinion, the government’s attitude towards payment based on economic conditions (e.g., Medicare and Social Security funding). Marketing was interesting. I found some advertising hit the friends, family, or individuals in need of services. But there is, apparently, a huge sector of homeless or others in need who may well be lacking either the employment history or medical service history for a decent SSDI claim. Again, I cede to your expertise there.

A new lawyer who wants to do criminal law has a lot to learn. That training comes with court-appointed cases and training seminars across the board. Specializing in DUI is, in my opinion, not a good idea. One first needs to learn the workings of the criminal justice system, the rules of evidence and procedure in their jurisdiction. DUI is a specialty after one knows the basics.

As for the viability of a DUI practice, and to a degree PI, some say that work will be diminishing in the future if autonomous vehicles become a reality. Will you be investing a young career learning curve in a dying area (e.g., bookbinding)?

In my opinion, PI is a huge area. Why not focus on something (i.e., niche) like childhood injuries (of which there are a lot of variety), dog bites, or car accidents? Premises liability? I look to you on that one. Medical malpractice? Again, I look to you for an opinion.

A criminal practice affords a training base and a source of clientele for the new lawyer. Either family law or PI or social security disability would provide a second source of work. But I would be looking to something that could keep the doors open (family law) rather than contingency fee work for which payment is a year or more away (if it pans out). There is a learning curve for opting to take or reject contingency fee work. Finally, a lot of criminal attorneys likely do either family law or PI so networking can be helpful in the learning curve. Do you even want to do it?

Thoughts?

            William M. Driscoll, Massachusetts

I've done PI work. I know a lot of attorneys aspire to PI work. I no longer 'do' PI work; what I do is, I refer the stuff out to a local attorney who pays me a referral fee. Let him do the work; let him be competent in the area, let him take the risk; I make money off of it. Not as much as he does but I also do a heck of a lot less work on the cases than he does. IF your JDX allows referral fees; I'd hook up with good PI attorney who pays referral fees.

            Ronald Jones

Hi Ronald,

Interesting. Know enough about PI to earn a referral fee (e.g., initial case intake) and hand it off. If allowed in the jurisdiction that can be a solid revenue stream without the need to bankroll the case on contingency. In the meantime the lawyer is learning more about PI, particularly how to measure the “value” and needs of a contingency fee case, without the need to jump in and “do it all.”

I believe family law is a popular second practice area for criminal attorneys because both offer a lot of litigation opportunity and share the rules of evidence. There is no replacement for face time learning in front of a judge. I view, correct me if I am wrong, PI as a desk job with rare court appearances. How many solos really litigate PI cases? I know a guy that is processing around 100+ PI cases for negotiated settlements at any one time. If the case needs litigation then he refers it out to a litigator. That works well for him.

            William M. Driscoll

Duke (as usual) has a good point. But "O Dear Heavens" [ODH} people have friends, children, acquaintances re DuI/criminal. think sons and #metoo.

Also, ODH get a lot of divorces and domestic violence issues.

            David Kaufman

Don't sleep on Google Ads, but do your research and as has been said, find a niche. I found an amazing marketing niche (not a practice niche) that has been great for me, and I went all in (for me) on Google Ads. I spend about 3k a month on Google Ads, and get probably ten to fifteen Chapter 7 bankruptcies a month. Before I was averaging maybe one or two bankruptcies.

It allowed me to cut out things I didn't particularly enjoy like traveling all over the state, and family law.

            Seth Crosland, Texas

"Take one for your friends or contacts."

            Darrell G. Stewart, Texas

I will second the hair salon part....the place where I get my haircut has sent me probably 5 clients over the past few years.

            Bobby Lott, Jr., Alabama

On a somewhat tangential point….

Way back when I was in Law School, the mother of one of my roommates was on the “Board” (might have been an advisory Board—I’m not sure) of what was then called the Texas Department of Mental Health and Mental Retardation. She started a program to teach people to recognize signs of depression and other mental health issues, and refer people expressing signs of those issues to free or low-cost service providers.

Her focus at that time was on two groups—bartenders and hairdressers—because she said those were the people who were most likely to hear stories/complaints from patrons. People open up to those two groups about their issues.

As a result, I think David’s advice is good. If only a small portion of the bartenders and hairdressers in your area make referrals to you, you could do well.

            Brian H. Cole, California

"I’d be interested in learning whether it is the number of practice areas for a new solo or the distribution that you object to. I agree, to a point, for a variety of reasons. For example, I see that you practice long-term disability, social security disability, and personal injury. I can see how those areas could feed each other and be similar in practice.

I imagine that the question I would have for a new attorney seeking to host a similar practice would be whether they should start off more transactional than litigation based to limit the breadth of knowledge required. It is easier to add to an established knowledge base. But I look to you for that answer as I have only performed social security disability claims, not your other two practice areas."

We focus on LTD cases now. Hardly do any PI. SSA is getting smaller and smaller - even though I am board certified in it. I think one practice area allows one to be seen as more of a specialist and likely to increase conversions of potential clients.

"In my opinion, PI is a huge area. Why not focus on something (i.e., niche) like childhood injuries (of which there are a lot of variety), dog bites, or car accidents? Premises liability? I look to you on that one.

Medical malpractice? Again, I look to you for an opinion."

If I were to really go after PI, I'd focus on a sub-area like motorcycle accidents or bicycle accidents. At this point, we are walking away from this type of work.

            Nick A. Ortiz

High School Student as Intern

Folks,

One of my wife's current students found out I was an attorney. She wants to go to law school. I haven't been able to talk her out of it - yet.

She wants to do an internship for me this summer. Risks? Downsides? Up sides? What should I look for and what should I worry about?

Thanks!

High school interns can be great. Find out if she has any previous office experience. What tasks you have her do will be based on that.

Just think - you don't have to do any filing anymore.

            Corrine Bielejeski, California

I've been down this road though not in the summer, and I think it was helpful for both of us. Don't overthink it. Give her assignments that she can do, that she can learn from and really feel like she's contributing.

Some of these kids are really smart. Mine did a lot of social media stuff, I kept her away from client stuff but I would talk to her about client stuff. She only worked a couple of days a week for 10 hours max, and she got school credit as an assignment. She recently asked me for a letter of recommendation, so I think it wasn't total hell working for me.

            Bob Arnold

I have a high schooler doing some data filtering for me right now. I just brought him on about a month ago. I don't have an office so he's working remotely which we both agree is beneficial I many ways: He gets to work whenever he feels like it, and since he gets paid a flat rate per unit, he doesn't really have to keep track of time so if his mom needs him to stop to do a chore or eat dinner he doesn't have to remember to record stop/start time.

I pay him better than minimum wage and we had a long conversation with mom present (and mom's approval) that I'm paying him for not only the work, but for confidentiality.

While I know he wants to be an electrician, I hope he'll be working for me for the next 2 years or more. I'm giving him the ability to show future employers that he can be trusted with the very important small stuff. I hope I'll be able to give him more tasks and responsibilities as we get more comfortable in our working relationship.

And of course, I'll be writing recommendation letters as long as he's in good stead with the work.

            AnnMichelle G. Hart

My initial thought would be pay. Hopefully one of the CA labor practitioners (e.g. Gene Lee) can chime in here, but I think an internship can be unpaid if the intern actually learns something meaningful and related to their education. The practical problem, though, is that many people with interns abuse that and the intern does a bunch of useless stuff that doesn't teach them anything at all. That gets in to a situation where you've failed to pay wages properly and CA would draw and quarter you. If you're lucky.

            Andy Chen, California

You have to pay minimum wage. Will you get equal value? Will she save you any time at all that you would otherwise be stuck doing. Only you know what work you have she could do. Scanning? Copying? Typing? Filing?

            Roger M. Rosen, California

Check this Dept of Labor fact sheet https://www.dol.gov/whd/regs/compliance/whdfs71.htm

            Deb Matthews, Virginia

Last week, at the request of a neighbor, I joined a panel of lawyers at her daughter's high school Law Club. The kids, pretty highly motivated students at an all-girls academy, wanted to know about law school and law practice.

Five lawyers had one hour - minus question time. You can imagine we didn't delve too deeply but I found it very rewarding. My advice to them: work hard but have some fun.

So I can't advise on internship but I can say the students were bright, attentive and asked some pretty good questions. Nobody asked about an internship but I would consider it if approached. I think I'd follow Bob Arnold's advice to give appropriate assignments and not overthink it.

            John Leonard

One of my best secretaries, ever, was a girl who was a neighbor, in high school, and who I would not expected much from. She asked me for a job a cpl times The second time my secretary was taking off on vacation so I hired her, part time/temporary. She was bright, friendly and as silly as it sounds, decorated for holidays. While initially a file clerk, within a Cpl years she was running the office and keeping track of me. She married and moved on. That was 15 yrs ago and I still miss her. YMMV.

            Randy Birch, Utah

One of the best secretaries my partner and I had was a high school senior (part-time). Very responsible and motivated to learn. She left to go to college and become a CPA.

            Veronica M. Schnidrig, Oregon

What is data filtering?

            Gerald Gilliard

My law firm has had 3 high school summer interns (paid) through a local Juniors to Jobs program, and has also had a younger college student intern (paid) last summer. I also worked at my father's law firm part-time each summer when I was 14-18 (I had another part-time job at night year-round,) an experience I loved so much that I foolishly vowed not to become an attorney and majored in engineering.

We required submission of a resume and interviewed multiple students each time, as with any other position.

I've had a generally positive experience, but found that you have to be much more specific with folks who have never been in the workforce before and provide some more basic knowledge. Unless they took some sort of class in it, don't expect them to be able to format a letter. This actually was also true for a college graduate I hired years ago, who is now a paralegal at my firm. I'm not a true solo (have a small firm) and found a lot of things worked well when I put my office manager in charge of the intern - things got done, I don't know what, but she was happy for the help in accomplishing stuff like scanning closed files and other projects that during the year just get shoved further down the to-do list.

You need to have a REALLY thorough talk about confidentiality. I do so with all new hires, but make sure you are both general and specific, and put the fear of God in them regarding any breaches, whether deliberate or accidental. I required as a condition of hire, even as an intern, a signed confidentiality agreement. Also you may want to set up some ground rules regarding personal devices and social media, even if it is as simple as "no pictures in the office, and no posting to social media about anything at work" (unless, of course, that is what you want the intern to actually be doing for your firm.) Again, this is really true for all employees, but something you may not have previously thought about.

If I have work to give them, I really enjoy hiring and mentoring folks in late high school or college. We all have to learn somehow how to do actual jobs, and what society's expectations are in offices and such (regardless of whether you agree with them or not.) Having that experience in high school was truly helpful to me on the whole, even if I found the actual work to be boring.

            Cynthia V. Hall, Florida

Methods of Keeping Estate Planning Docs Organized During Signing

For those of you who create wills, trusts, and other estate planning documents, what methods or processes do you use to keep the various documents organized while they're being signed and witnessed? I feel like there's got to be a better way to do this than my current method, which involves simply passing stacks of paper around the table. Pages sometimes get out of order or mixed in with the other document stacks, and it can be a bit messy.

Of course, I could use paper clips or binder clips to temporarily hold the pages together, but that gets unwieldy when many pages within a document need initials or signatures. My current thinking is that I might put the documents in tabbed sleeves or pockets, which could then be passed from person to person for signing. What do you do? Are you happy with your method?

I have the clients sit side by side with one of my assistants on the outside of each.

Cl1: Client 1Cl2: Client 2W1: Witness 1 (Bookkeeper/Probate Paralegal)N/P: Notary Public (Office Mgr/E-P Paralegal) I am second witness

Cl1 [-------------] Cl2 [        ]W1 [-------------] N/P ME(W2)

N/P has all docs paper clipped.

Each client acknowledges the document then signs their respective stack and gives signed version to one of the witnesses.

As paperclips come off, N/P snaps them up.

Witnesses sign/initial as the case may be; then swap stacks.

Signed stack goes to N/P.

N/P quality controls execution as she gathers them.

N/P and witness leave room to stamp, scuff and scan. I confirm whether copies need to go out to any one; collect remaining 50% due.

Tell client that binder will be available in a day or so.

Ask for a referral.

My 0.02

            Michael Sweeney, Connecticut

My post was done on a laptop.

It does NOT translate well to the phone.

            Michael Sweeney, Connecticut

That's roughly similar to how I do it. I prepare a stack of documents for each client, paper-clipped, with the stack held together by a small clamp. If there's a revocable living trust, it and the Certificate of Trust are separate. Order: Will, Declaration of Guardian (these are the only two documents that are witnessed), Appointment of Agent for Disposition, Declaration of Guardian for Children (if needed), Statutory Durable Power of Attorney, Medical Power of Attorney, HIPAA Authorization, and Directive to Physicians. I act as notary, so swear in the testators and witnesses, and go through the will signing ceremony line by line: the testators sign, documents to witnesses, they sign, back to me, I notarize and place in two stacks, one for each testator. Same for Declarations of Guardian.

Then the witnesses are excused (if they wish to leave), and we go through the signings and notarizings of the other documents, placing them one by one on each client's stack.

I make sure documents are signed one by one, so that I can answer questions about the particular document if necessary and keep them in order.

When done, I go through the additional documents, guides, and forms I provide clients at signings, place those in a custom bank bag for holding their originals (I like the flexibility, as opposed to a binder), present them a statement for the remaining half of my fee, and I retain the originals for scanning. I then send the (now stapled) originals to the clients along with a credit card flash drive containing electronic copies of the text documents and scans of the signed documents, plus the forms and guides, and instructions.

I'm pretty happy with my method, though I agree it's a challenge to keep documents together when they're only bound by paper clips. But better that than having to remove staples for scanning.

            Michael A. Koenecke, Texas

I find staples work pretty well. Normally I prestaple everything and then present each document to the client and have them sign/initial in appropriate place(s).

But, I do NOT provide executed copy of will to client after signing and I STRONGLY discourage them from making copy (because they nearly always want to 'provide a copy to my son' or whoever). They got the original; put it away in a safe place, do not make a copy of it to provide to anyone. In the very unlikely event that the will is lost and destroyed under circumstances that would indicate that it was not revoked by TX then I've got electronic copy in my files. And because I very nearly always am present when will is executed, I can act as witness and between my electronic copy and my own testimony I can get copy of will admitted.

But I do NOT want hard copies of the damn will floating around, that leads to mischief.

Living will, deeds, normally my living wills are about 1 or 2 pages; same with deeds, if I want to make copy I can run it off of copier easy enough.

DPOA/HCS, same thing; it depends, if I know client is going to need immediate copy of it, I'll wait till they initial and sign it, then run it thru autofeed of copier, then staple stuff, but normally it is prestapled.

I know you, personally, Andrew, use three ring binders and that's fine but I fricking HATE the 'binder estate planning system'. That's me, but I do think that 3 ring binders are, not malpractice, but problematical and I grit my teeth anytime client brings me estate plan done by a another lawyer in a 3 ring binder.

            Ronald Jones, Florida

Actually, Ron, I don't use 3-ring binders at all. Like you, I also hate them.

Once the documents are signed and notarized, I scan them for my records, assemble the docs (i.e. add blueback and staple), and place them in a nice leatherette expanding wallet https://www.officedepot.com/a/products/263810/Office-Depot-Brand-Polyurethane-Expanding-Wallet/ for the client to take home. Incidentally, I add an adhesive card pocket https://www.officedepot.com/a/products/181074/Office-Depot-Brand-Adhesive-Business-Card/ to the inside flap of the wallet so I can include a few business cards. Of course, Office Depot has recently discontinued the expanding wallets I use, and I can't find any similar items anywhere. I should've bought a gross when I had the chance. Sigh.

Since you pre-staple, I assume you don't make copies of the executed docs.

Haven't you ever needed a copy of the originals?

            Andrew C. McDannold, Florida

We pass stacks of paper around the table. I always have a person running the signing, the notary public, which is often but not always me. Each client executes a document one at a time, then passes the entire document to notary public to give to next person in its entirety. If it is something like a joint trust or joint declaration, then I have one person initial and sign in its entirety, give it to me, then next person initials and signs in its entirety. If a married couple is each signing a similar document, like each has their own living will or POA, then I may have them both sign their respective documents at the same time and only give the instructions once. Portions of documents aren't ever passed around - just like salt and pepper, the whole document travels together, and if my client tries pass portions away, I politely stop them and explain that we have a pattern for doing this to ensure the document is completely signed and doesn't get out of order. I also have each person completely turn the page over after it is signed or initialed - witnesses are there to watch it being signed, and at least for wills the signature has to occur within their sightline, and can't be obscured by other papers.

I (or my employee notary) when it is time for witness signatures, turn the document to the first page where a witness signature is needed, flipping the rest so it is the opposite direction and on the bottom of the stack, then pass it to the first witness. My witnesses are usually either my employees, who have done this hundreds of times, or repeat witnesses who I pay, and who often know what to do, at least with wills and POAs.

While witnesses are signing, if there is a bit of a lull, notary public asks the client about how the originals are to be bound, how many photocopies they want made of each document, whether they want a pdf emailed, etc. All of that information is written down on a post-it and put it on top of the stack of clipped documents to be scanned, so the copy/scanning folks know. If they want multiple copies, depending on the document I may give them further warnings or advice (giving everyone a copy of your will is a bad idea; giving everyone a copy of your living will and HCPOA is generally good idea, and don't forget that you need to give copies to your doctors and maybe have a couple on hand.) Usually one of the witnesses does the scanning and copying for me.

At the end, before notarizing (if notarization is needed) or before copying, I usually go through each document scanning page by page to make sure it is ordered correctly and all pages are present, everything that needs to be initialed is initialed and everything that needs to be signed is signed, and that there aren't any surprises, like weird ink blots or someone getting a bit signature crazy and signing where they aren't supposed to. When we watch carefully, this is rare, but occasionally I'll find something. After notarizing, if needed, or after going through the document if not, I clip document back together for scanning by my assistant. The key is to develop a pattern for how you do it, and be patient. I don't want anyone to be confused here. I want everyone to understand precisely what they are signing, and if that takes an extra minute or two, then I take the extra minute or two.

Having folks sign simultaneously the same document is not worth it to me if documents get all out of order.

            Cynthia V. Hall, Florida

Similar to what I do.

We handle one document at a time; and usually wills first, then other docs second, etc. Because the docs are nearly always stapled we pass around the whole document.

On wills, which are the most complicated, I do a little script first:

Begin Script

Ok, so we’re going to sign wills. I'm picking on Frank because his will is on the top of the pile, but this is how we are going to sign everyone's will. This is a bit complicated because we sign wills twice. This is how we do it.

Frank, I will have you sign your will, and Thelma and Louise (the witnesses) I will ask you to sign below him where I indicate. Then my mother (who is my notary) is going to ask what seems a silly question, she is going to ask whether you, Frank, do swear or affirm that you just signed your last will and testament, and whether you, Thelma and Louise, do swear or affirm that you did just sign franks will as witnesses, and whether everyone did sign in the presence of each other in spite of the fact that we are all sitting around in front of each other and know perfectly well that you did. I need everyone to say "Yes", an audible "Yes", not nod your head or say uh-hunh. And please, I do not want to have to explain to a probate judge that a witness was just joking when they said "oh no, I didn't see it".

Then, I will have frank sign the will a second time, and Thelma and Louise will sign a second time as witnesses and I will pass it to my mother to notarize.

The reason we do it like this is, the first time you sign the will you are validating the will; it's a valid will at that point. But by signing it a second time and notarizing it we are avoiding having to hunt you down and have you go in front of a judge to swear to the will; hopefully we won't be probating this will for frank for some time, people move, people die and no one really wants to have to go to a judge to swear to a will [yeah, I know, technically I'm simplifying it a bit but the explanation is accurate enough]

End Script.

Then the signing itself:

So, Frank [with me physically holding and exhibiting Franks will] This is your last will and testament, I've prepared it at your direction, I've sent you a copy of it, you've read it and understand it, [if appropriate, I've answered your questions about it and made the changes we discussed and sent a copy of the changed will] and it does what you want, right? Frank says "yes, or right". "OK Frank, please sign here". Frank signs. Take will to witnesses; Thelma, please sign on this line, Louise please sign below that, you all are from Summerfield, right" (or Belleview, or whatever). Then I fill in where they are from on the appropriate line.

Then Mommy asks, "Frank, do you swear or affirm that you just signed your last will and testament, and Thelma and Louise, you do swear or affirm that you just signed Franks last will and testament as witnesses, and all of you did sign in the presence of each other" Everybody says yes, or if they don't I glare at them until they do. Then everyone signs again and I hand it to Mother and she completes affidavit, signs it, stamps it, and hands it back to me for review.

Then we do the rest of the wills just like that.

Once we finish the wills, then we do everything else, the POA, Deeds, whatever, following same general format; exhibit doc to signer, ask if I've prepared it at their direction, etc. and if it does what they want, and then sign it, usually with myself and my mother as witnesses. And usually do all of the remaining docs for one person at a time then move on to next person. When I hand them the docs, in a bank bag, I ask for check/cash.

            Ronald Jones

The mechanics here are simple. I go slow and pay attention. I explain that it is important that all is signed appropriately and verified, to complete the process.

If it is one person, I simply go through each document and obtain necessary signatures, also discussing the matters of consequence. If it is, for example, a H and W, then I do the same thing but administer getting each to the right page for each signature or discussion. Frequently I remain standing around a round conference table to better monitor. As documents are signed, they are placed in a stack, and I pull each unsigned document from a separate stack.

Wills are all that are witnessed here, so I have a standard approach there as well. Each page is initialed by testator and the two witnesses. At the end the signatures are affixed and notarized. After wills are signed, witnesses are dismissed and we go through the rest of the documents.

After all documents are signed and notarized, my current practice is to scan them before doing final assembly (blue back, staples and so forth). Originals leave with the client. I keep my electronic scans. If client loses original or wants to change, then a new set is printed out and re-signed and witnessed.

I may have two to four inches of documents per person. I don't have trouble generally keeping track, but I have been meticulously following a protocol for years.

I don't use estate planning binders. Documents go into an appropriate envelope with labels. I have ordered Budco Bank Bags and so am going to start using them.

            Darrell G. Stewart, Texas

I follow similar procedures except I do not have a cadre of assistants to sit next to clients or assist in passing around and explaining what is going on. In fact I do not even have a resident notary public.

Pennsylvania has a statute that permits a witnessing attorney to later go before a notary public and give an Attorney’s acknowledgment, which is what I frequently do.

While I have some casual conversation before the actual signing takes place, to introduce my witnesses to the client, I do not permit any joking or casual conversation once the signing begins. I want to emphasize the seriousness of the occasion and keep everyone focused on the job at hand

I only pass one document around at a time, so that documents are not scrambled. I also have footers on each document that have a code identifying what document and whose it is, so in case somehow pages are scrambled, I can unscramble them.

Only one will is signed, but POAs , advanced directives and health care proxies are usually signed in multiple duplicate originals, so several copies of each of these will be going around the table at any one time. I am watching as the principal and the witnesses are signing so that I can jump in and make sure that the right person is signing on the right line and, where initials are required, that the initials are made in the right place.

Because I do not have a notary present in most cases, I keep all of the documents, take them to a notary to get the notarizations done and take the documents back to my office to scan so that I have my electronic copy. Then I staple documents together and send the originals to the client with instructions on how to distribute them to agents and to doctors etc., also carefully explaining that I have not kept any originals for myself. I provide them with logs so that they can keep track of who was supplied with copies of what documents.

            Miriam Jacobson, Pennsylvania

I appreciate all the ideas. It's nice to get a glimpse into each of your conference rooms, even if only from your written description. Thanks for sharing!

            Andrew C. McDannold

Ditto. I don't ever plan to do estate planning, and I still saved all of the emails in this thread in a little sub-folder, just in case. Thanks all for sharing!

            Amy A. Breyer, California

I usually sit at my desk, with clients opposite. I have a pile of docs for each, and a pile of docs that need to be signed by both. We go through the individual docs first, and I have them initial each page, and fill out any blanks (our AHCDs and POAs have some check boxes, which they complete before signing and initial each mark). As each form is filled out and initialed (but not signed), I take it back (now I have 4 or 5 stacks across in front of me). Then we do the trust and other docs that are signed by both - I usually give one client the trust to initial each page, and give the other client the short-form trust and certification of trust. When both are done, they switch. When all are initialed, they come back to me.

Once all docs are initialed and filled out, I have my notary come in for what we colloquially call the "signing frenzy." (No point in having her hang around while I answer questions, they fill out their docs and initial them.) She stands to the left of my desk. Then I pass the trust to the client on my right to sign, s/he signs and passes it to the other client who signs and passes it to the notary. Same for short-form trust and certification of trust, and any other docs that are signed by both (deeds, etc. - we don't initial each page of deeds, just sign/notarize). Then the notary goes and puts the trust into the scanner (or gives it to the receptionist to start scanning).

Then I pass the clients their individual docs (paper-clipped together - the clips don't usually come off until the docs are completely done and ready to scan). I usually open each document to the signature page, present it to the client telling them what it is ("this is your medical directive" "this is your HIPAA release" etc.), they sign, then either they or I pass it to the notary. She stamps and signs each document and keeps track of which have been done, and stacks them again for scanning.

Once everything is signed but the wills, we have our second witness (another staff member) come in. Then I do the will allocution, where I ask the clients some questions to establish for the witness that they have testamentary capacity (questions about family members, nature and extent of property, do they recognize the document, have they had a chance to read over it and have their questions answered, did anyone force them or persuade them to make it, etc.); then if they confirm that they are OK, I have this little statement that I say ("By your signature on this document, you are attesting to Kate, as notary public, that you are signing this document as your last will and testament, that you are doing so as your free and voluntary act, that you are over the age of 18, of sound mind, and you are under no duress or undue influence; no one is forcing you to do this. If this is true, and you want to execute this will, then go ahead and sign where indicated.... [they sign.] Now, to be valid in Hawaii, a printed will must be signed by two witnesses. Do you want me and Charlene to witness your wills?" [they say yes] While we are signing, I say another statement about how by our signatures, we are attesting to the notary that we saw them sign and each of us, in their presence and hearing, is signing as a witness to their signatures, that to the best of our knowledge they are over 18, of sound mind, and not being forced or pressured to sign their wills.

Then the notary has them sign her notary book, and she disappears to finish scanning the documents. put them on the stick drive, staple them, and bring them back to me to put in the notebook (I keep the notebook because I take the scanning time to explain all the goodies that are in there: trust ID cards, info about our maintenance plan and the DocuBank program, places for them to put deeds, bank statements, beneficiary confirmations, etc.). As I'm going through, I also pull out the invoice and ask for final payment, then stamp it "paid" and put it back into the notebook. We also discuss funding, and I ask if they would like their recorded deeds returned by mail or e-mail, and note that on the file. If they want a follow-up meeting to review funding, we schedule that.

Will plans (no trust) and individual plans are similar but simpler. We still do the initialing first, notary comes in for signing, and the wills last with similar witnessing and allocution.

BTW, I LIKE binders because they provide a centralized place for all of the documents and info that their loved ones will need to "carry on" when they are gone or incapacitated. Mine are NOT the super-heavy, padded leather behemoths, but just Avery heavy-duty binders from Walmart that give off more of a "working" vibe, than a "legacy" vibe. I suggest that they review them every year (a good thing to do on New Year's Day, maybe - that's when I do mine). The documents are all stapled in their respective tabs, which discourages mixing up or removal of individual pages. There is a page summarizing the trust and exhorting them to "DO NOT WRITE ON YOUR DOCUMENTS" and to see an attorney to make changes (I tell them that putting a post-it on if someone's address changes is OK). A binder is harder to lose than a sheaf of individual documents. Though, I do see the POV of those who "hate binders."

We never have an issue with documents coming apart or pages mixed up during the signing.

            Cynthia Hannah-White, Hawaii

I also rely on sticky flags. Although the assignment of colors is random based upon how many sticky flags I have for each color:

After making the mandatory statements before the witnesses, everyone signs.

I have pre-fastened colored flags on all of the documents.

Red= Testator or Trust maker

Blue= Witness #1

Yellow= Witness #2

Purple= notary.

This way, I can check that every signature is filled in.

For added security, I rely on the U.S. Supreme Court sticky notes and flags. It really does enhance your reputation among clients when you use the "U.S. Supreme Court version" of sticky notes and flags.

https://www.supremecourtgifts.org/notebox-stickynotesandflags.aspx

            Bob Gasparro, Pennsylvania

BTW, I LIKE binders because they provide a centralized place for all of the documents and info that their loved ones will need to "carry on" when they are gone or incapacitated. Mine are NOT the super-heavy, padded leather behemoths, but just Avery heavy-duty binders from Walmart that give off more of a "working" vibe, than a "legacy" vibe. I suggest that they review them every year (a good thing to do on New Year's Day, maybe - that's when I do mine). The documents are all stapled in their respective tabs, which discourages mixing up or removal of individual pages. There is a page summarizing the trust and exhorting them to "DO NOT WRITE ON YOUR DOCUMENTS" and to see an attorney to make changes (I tell them that putting a post-it on if someone's address changes is OK). A binder is harder to lose than a sheaf of individual documents. Though, I do see the POV of those who "hate binders."

That makes sense. So long as you're stapling the docs, that's fine; what I hate about binders is (95% of the time) they're just 'loose leaf', unstapled docs and what happens is clients will take the stuff out, shuffle the pages, lose pages, get pages out of order; the punch holes wear thru and the pages come loose. If everything is stapled it pretty much prevents client from messing around with the stuff.

I do find that if I give them bank bag everything stays in bank bag but a binder with stapled docs would work about as well.

            Ronald Jonees

Operating Account and Trust Account

Hello everyone!

In establishing accounts for your firm, do you prefer having both your operating account and trust account at the same bank? Does anyone use different banks so as to avoid any potential mix up (i.e. depositing money into the wrong account)?

I have them at the same bank. But I set up procedures to avoid mix ups.

1. Each account has a different color check. My IOLTA checks are obnoxious yellow. They are annoying. My operating account checks are blue.

2. IOLTA checks are also duplicates. My operating account checks are not duplicates.

3. I started my first IOLTA check at 4000 or so, thus making it different from my operating account checks which started at 100.

4. The binder for each check book is a different color. IOLTA is red.

Operating is black.

5. IOLTA deposits always are done in the branch. Operating account deposits are always done at an ATM.

15 years later, it has worked well for me.

            Jonathan Stein, California

I had not thought of using different banks. I like the idea.

From time to time I have experienced mistakes in depositing checks into the wrong account. The deposit tickets, and going to the same bank and same teller with different transactions, induces an element of risk. Using two different banks might help reduce the risk but not completely avoid it since the mistake can be made in the thought process of deciding which account a check should be deposited into.

            Roger Rosen, California

My system is similar to Jonathan's. I use the same bank. For my trust account, I use the standard bank-provided checks and deposit slips.. checks come in a pad, and deposit slips are preprinted and are at the back of each pad. For my operating account, I buy checks from somewhere (I've used several sources over the years... I just checked, and the current set is from Business Essentials).. and I always get the 'three checks to a page' selection. So not only are they a different color, but they're a different size, and a different format. For deposit slips, I use the blank ones that the bank has in the lobby. They're the same size as what I use for the trust account, but they're NOT preprinted, so I have to complete the info, including account number.

I've been on my own for nearly 25 years, and never had a problem (knock on wood).

            Laurie Axinn Gienapp, Massachusetts

If your accounts are at the same bank then wiring and credit card fees for payments to the trust account can be deducted from the operating account. Not sure if you can do that if the accounts are at different banks.

            Flann Lippincott, New Jersey

I'm not as conscientious as Jonathan. But I have some safeguards:

1. My trust checks and operating checks are different colors. I print the trust checks thru the trust accounting module; handwrite operating acct checks.

2. I can move money electronically between my personal account and op account. No electronic access for the trust account.

3. Deposit slip books are printed by different printers. I write in big letters on the trust account book "TRUST ACCOUNT".

4. On deposit days, I never have deposits for both accounts on the desk at the same time. I do the trust account deposits first, then the operating.

            Barry Kaufman, Florida

Similar to the others.

IOLTA checks and operating checks are different.

IOLTA deposit slip and operating slips are different.

Electronic transfers are done between IOLTA and operating but only when attached to some invoice and record the invoice number and amount so it is easy to audit later.

            David Seto, California

Yes, that's exactly why I have them at separate banks. Almost all of my other business / personal accounts are together. It's very easy to push money from one to another. Too easy, IMHO, if one of those is a IOLTA account.

So I have to log separately into the trust account, and choose to transfer money to the operating account as a distinct action.

            Tim Ackermann, Texas

Everyone has discussed the possibility of the lawyer (or staff) making a mistake; depositing money in the wrong account; and certainly, you can have practices and procedures in place to avoid that (different check colors, styles, etc).

However, way back when, in the last century, when I was taking my Ethics class, our prof put it like this:

The real reason for having trust and operating accounts at different banks is not to avoid a mistake by you; it's to avoid a mistake by the BANK. If you have both operating and trust accounts at the same bank, and IF you should for some reason overdraft your operating account, if you have a stupid teller, the teller may start looking for other accounts of yours to cover the overdraft; the teller sees you have another account there and says "Oh, I can transfer money out of this Trust account to cover the overdraft of the lawyers operating account".

Yeah, you just got a bar IOTA audit, maybe.

Even if it's not your fault, even if the bank is entirely at fault, overdrafts do occur; I’ve never had an overdraft but what if a client bounces a check and you overdraft? Or someone manages to get into your operating account and they cause an overdraft, and an overzealous teller tries to cover it.

Yeah, teller should know that they can't take money out of trust account, but do you really trust the tellers that much? It is unlikely but it can happen.

But you do what you want.

            Ronald Jones, Florida

Thank you...All great suggestions!

I was more concerned with what Ronald brought up...the bank making a mistake. I think you've helped me make a decision. Thank you everyone!

            Christina Wentzel

I have had the experience of the bank making the mistake.

            Roger M. Rosen

Using Venmo or PayPal to Receive Payment

I've been asked recently by my clients if I take Venmo or PayPal. Has anyone had issues with using these apps? My bank says its okay to use and that there aren't any ethical issues or fees if money is transferred from Venmo or PayPal to my Trust account.

Does anyone have warnings or suggestions in doing so? Any advice would be much appreciated. By the way, I'm in California.

Thanks in advance!

310 area code is Los Angeles California I think. I am also in California.

What I was told is you can't use Venmo or PayPal for trust account payments since they go to an intermediate bank PayPal or Venmo company and they sometimes take a cut.

QuickPay/Zelle might be OK.

I believe you can use them for earned fees in California like flat fees or consultations you already performed or expenses you have already paid.

There are a lot of payment processing companies like LawPay, LawCharge, Clio, MyCase etc that make accepting trust account payments frictionless and are cheap and easy to use. Try them and see what you like.

            David Seto, California

I read on another listserve that Venmo's terms of service don't allow it to be used for business purposes. I haven't looked into this personally, but I wouldn't use it. If you run into trouble and their TOS say not to use it for business, then they won't necessarily help you.

I have LawPay, which works well except the transaction fees drive me mad.

Ah well, it's still nice to get paid, and it's specifically set up to allow deposits into a trust account, with any fees charged from the linked operating account. Non-law payment programs aren't set up for that.

            Katie Burghardt Kramer, Vermont

Plus, PayPal makes it way too easy for sender to contest charge and request chargeback. That would make for a nightmare scenario in a trust account.

I'd stay away and use traditional payment processing.

            Nick A. Ortiz, Florida

I've encountered this issue personally when I paid movers using Venmo.

Venmo wound up terminating my account, because Venmo is *only* supposed to be used by people who know each other well (friends/family). It's a violation of their terms of service to use Venmo in connection with a business--even if you're an unknowing customer. It was a pretty frustrating experience.

I also use LawPay and am similarly annoyed by the transaction fees, but there's not really much that can be done about it since they're not too much higher than the interchange rates for specialty credit cards. Specifically, LawPay charges 1.95% + $0.20 (2.95% + $0.20 for specialty cards like AmEx) per transaction on top of the $20/month service fee.

The standard interchange rates are around 0.8% per transaction for debit cards and 2% per transaction for credit cards (up to like 2.7% or so for specialty cards like AmEx, preferred rewards cards, etc.). In other words, there's no escaping these fees.

LawPay's most useful feature is its trust accounting functionality, which allows you to deduct merchant fees from a separate, linked operating account. I just wish LawPay had better invoicing functionality, because I don't want to be using another service just to generate invoices. Some of mine are complex (payment plans and such), so it gets to be a bit of a hassle to keep generating "Quick Bills" on LawPay.

            Kevin Morenski

Have y'all processing payments checked out HeadNote? Heard them on a podcast recently. Seemed like a good option for those that need to process checks and credit cards. No affiliation:

https://headnote.com/pricing/

            Nick A. Ortiz

In terms of integrating invoices and LawPay, I use Time59.com for billing, which integrates with LawPay. I wouldn't say it's seamless, but it's pretty good.

            Katie Burghardt Kramer

I have accounts with both Lawpay and Headnote. Yes, the fees are generally higher than other merchant accounts, but the customer service is fantastic. I recently had an issue with a chargeback, and the Lawpay team guided me through my concerns pretty well.

Some case management programs have a deal with Lawpay that if you do 1 transaction, then the monthly fee is waived.

Headnote is good if you don't process that much (no monthly), and where it really stands out is that you can get the money in your account in 24 hours. Lawpay is 48 business hours for CC, and I think 72 for ACH.

Lawpay integration is great because I can ask for retainers and invoice payments inside my case manager, so I don't have to enter them in manually when they are paid.

I think HN just also released taking CC into trust accounts; they started as ACH only, and now moved into CC processing too.

            Dan X. Nguyen, California

Use LawPay.

            Roger M. Rosen, California

I'm pretty pleased that LawPay has just now inaugurated an eCheck

option: a flat $2.00 per transaction, as opposed to the credit card percentage.

            Michael Koenecke, Texas

Another vote for LawPay. I tried LawCharge, then USPay, and I like LawPay best. The interface for inputting transactions (typed in or swiped), scheduled transactions (we can put our maintenance plan members on "auto-renew" if they want), and the 'QuickBill' option for sending an email link to input their own CC info (which now even allows the invoice to be attached), are all awesome.

I love LawPay. (Sorry Tracy, maybe your gateway has improved, but I can't imagine something sufficiently better than LawPay to make me go through switching again. Tracy Griffin, owner of LawCharge and a sezzer, is a treat to work with, I had absolutely no problem with her or her company at all; I switched to USPay because I *thought* it would be better - it was worse - then tried LawPay because I needed to get away from USPay and so many folks seemed happy with LawPay. Now I'm one of them.)

            Cynthia Hannah-White, Hawaii

I have used PayPal for trust account payments, but it is an accounting nightmare - or at least my bookkeeping firm seems to have trouble with it - because PayPal takes a % before you transfer to your trust account. Did not seem to work so well. Wiring money works well. FWIW

            Susan Burns

We have a number of attorneys using Venmo for their operating account and using LawCharge for their trust account. The question wit Venmo is that it is not for business use.

Cynthia - you are right. You were on a nearly 10 year old platform. We've made many changes since you first began with us. We send out emails and or notices on your statements with every update.

If you ever need anything or have questions re common and uncommon transaction issues feel free to call me. I wish you the best.

            Tracy Griffin, South Carolina

I try to be convenient for clients, and I try to get paid!

I've been using PayPal business since before I opened my firm, with full knowledge of potential pitfalls. Thankfully, I've never had a problem.

Recently, clients have started to use and request QuickPay through Zelle.

Again, thankfully so far, no problems.

Same rules apply, separating Trust from Operating.

            Bob Arnold