Associate Bonus When an Associate Leaves to Take Another Position?
"Attorney" has been a productive employee in a small firm or many years. Compensation plan included a generous base salary plus a percentage bonus for all work generated from a satellite office that she started several years ago. Bonus has been paid quarterly and would be due to be paid again on September 30th. Tomorrow is the attorney's last day of employment as she accepted a much higher paying offer from a larger firm in a neighboring town. We will probably lose a significant amount of business that will follow her. When an employee leaves voluntarily, do they lose pending bonus money? Should the full bonus still be paid? Something in between? It was never documented that employee had to remain employed in order to receive bonus. The arrangement was documented in a short email outlining compensation package and simply what I've done for a few years now.
Dear Leaving Employee:
This concerns your bonus. This firm's understanding of our agreement is that you have to be employed on the last day of the quarter to be entitled to your quarterly bonus. You are leaving before the end of the quarter. But in order to keep good relations we have decided that we will pay you the quarterly bonus as if you had been so employed. We wish you good luck in your new position. Please keep in touch. We may have work to refer to you and we would be open to receiving referrals from you.
Roger Rosen, California
Let me start by saying she is nuts for leaving two weeks before bonus payout. Especially when it’s not clearly defined in agreement.
For years my husband has held huge bonus positions. Pretty much every professional decision he makes revolves around his bonus. That blows my mind that someone would cut out two weeks prior.
In the business world, bonuses are normally only received if you are employed at the time they are given out. So, in my husband’s case, bonuses are based on the calendar year, January 1 - December 31. However, they are not settled and awarded until March 1st. So not only does he have to work the whole calendar year, but he has to still be working there on March 1 to get the bonus from the previous year. If he works the whole bonus period Jan - Dec, but leaves the job in February, he forfeits the ENTIRE previous years bonus that was fully earned by him.
He has at times been enticed into leaving jobs and forfeiting partial bonuses, but the new employer pays for it in a fat signing bonus to make up for what he walks away from.
That’s important to consider and I would ask her if she’s getting a signing bonus. If she is, she has likely worked that out with new employer with the expectation that she’ll lose some of her bonus with you.
The exact answer is normally defined in your employment agreement. Since your agreement does not specify it will surely be a point of debate.
In your situation this is going to come down to negotiating between the two of you what is fair and reasonable under the circumstances. This opinion is all based on personal experience. I have never litigated this issue. Possibly someone else here has and can give more precise legal advice.
My five cents:
In addition to the legalities of the situation, please also consider that your firm will continue to be working with the departing attorney in one way or another. I would highly recommend that you pay this attorney what is fair, even if you are not legally obligated to do so.
What state? I can talk about California law.
Mark H. Wagner
Val is smart
Roger M. Rosen
A bonus is designed to give incentives to remain at work. If you leave, you generally waive the bonus. (Check state law, of course.)
Also, it makes no sense. Why on earth would you pay a bonus to someone who is leaving?
Erik Hammarlund, Massachusetts
I think this bonus is based on bringing in work - not a "subjective" bonus based on firm performance / employee retention -- if the leaving attorney brought in work until the time of resignation & this benefitted the firm, I would pay the bonus (or possibly prorated). If you get into a dispute with said attorney, it will cost more to defend and/or burn a bridge. It is also not unusual for attorneys that leave one place, go to a bigger place and hate the culture / demands, and come back -- if you would consider bringing this person back, why burn it over a few dollars (especially since they seemed to be a good attorney).
Murtaza Sutarwalla< Texas
A bonus may be designed as an incentive to work harder or remain at work.
You asked, "Why on earth would you pay a bonus to someone who is leaving?" Maybe because you appreciated the work that was done. Or because you want your associate to leave with good feelings as opposed to a tale to tell about how you screwed your associate out of an earned bonus by quitting a few days too early. Why burn a bridge that you may need going forward? I'm a big believer in doing the right thing even when it is not required. That position has paid off for me many times over.
Deborah Matthews, Virginia
I vote no bonus 😞.
Randy Birch, Utah
As I read the question:
0) She knows when bonuses get paid.
1) She's leaving, and chose her own departure date.
2) Her departure will cost the firm a fair amount of money, which she surely knows.
3) She has already been fairly paid for the work which she has completed (or will complete) through the departure date.
4) The bonus isn't a wage. Which is to say, if the owner decided not to give it even if the associate stayed, the owner would be in the right (even if the associate would be upset.)
I'm all for bonuses. They are a good way to reward loyal and productive employees. In fact, the delayed payment aspect of a bonus (as opposed to a commission or wage) is often designed to reward loyalty to the employer, since you generally have to be around to get it.
The question then is: Should the owner, who is already losing money and business, be obliged to give extra money to the person who is leaving, and who is directly causing the loss? This is a zero-sum game; either the owner has the money or the ex-employee has the money. And my answer: An employee who leaves, takes clients with them, and who costs you money is, obviously, not "loyal" in the traditional sense of the word. In fact they are technically a direct competitor. If the owner wants to help their direct competitor and their direct competitor's employees, they are welcome to do so, of course, but it's hard to suggest that declining to do so is either "screwing someone out of money they are entitled to" or "not doing the right thing."
In fact, given that this employee is obviously intelligent and competent (they run a satellite office and are moving up, job-wise) it seems at least possible that they deliberately timed their departure so as NOT to get the bonus, perhaps to lessen the considerable impact to their ex-employer.
If the employee demands payment, I'd probably pay it rather than be sued.
If the employee left for some other reason not in the post--illness of a family member, for example--I'd pay it anyway, just to be kind. But if they're smart enough to take business with them, I bet they're smart enough to have taken the "no bonus" into account.
Pay the prorated bonus. This doesn't sound like a bonus anyway, more like a commission based on a percentage of business, calculated quarterly since that happened to be easier for the parties.
If you don't want to pay a future employee a bonus in a similar circumstance, make it clear in the initial compensation memo that if Associate leaves prior to bonus time, they forfeit any pending bonus they would have been entitled to. Of course, you have to make sure your local and state labor laws allow that. As I said, this smells more like a commission than a bonus to me.
Corrine Bielejeski, California
I don't see this as a zero-sum game. In the long-term, keeping good relations with the departing employee may be worth paying her something that the employer is not legally bound to pay her. Only the poster can decide if it is worth it, long-term, to pay the departing employee something that the poster does not legally owe. We don't know the community, the personalities, the likelihood of future contacts back and forth, etc. So, even if the consensus that the bonus is not owing is correct [maybe, maybe not], or if the view that a pro-rated amount only may be owing is correct [maybe, maybe not], still, the long-term relationship should be evaluated in making the decision.
Advice on Turning Down Client
I’ve got a call scheduled this afternoon with a would-be client. After looking into her case for appellate issues, I saw that her trial attorney withdrew before her motion for rehearing was ruled on. He cited irreconcilable differences, her insistence upon taking actions he deemed “repugnant,” and her failure to abide by the terms of their agreement.
As a newbie to all this, what’s a polite way of turning down a client who seems to be a liability? Obviously, I can’t tell her that she doesn’t have any appealable issues, because she very well might. So how to I explain my refusal to even look into her case without offending her?
Any thoughts would be much appreciated.
Thank you for your interest in my firm handling your case. However, at this time, I cannot represent you in this matter.
Please note that the law has certain time requirements. Please be advised that specific time deadlines apply to various legal matters. While some of these deadlines might be measured in terms of years, other deadlines can be quite short. There are also conflicts within individual cases, such that various time limitations may apply to the same event or circumstance, or such that insurance policy provisions require timely action to be taken in order to avoid the loss of benefits. With very few exceptions, failure to comply with any of these time periods will cause the loss of certain rights, and may prevent the recovery of anything and/or the ability to prosecute (or defend) your case. Additionally, there may be factual, evidentiary, or other matters requiring prompt attention. To protect your rights, you should act expeditiously.
You should promptly consult with another lawyer. Another lawyer may wish to undertake your representation or may give you other advice.
You might consult with another lawyer by obtaining a personal referral, calling attorneys listed in the telephone yellow pages, or contacting the County’s lawyer referral service.
Jonathan Stein, California
You really don't have to give any reason at all if you don't want to. But I often give the "given my current caseload" response. Also, it looks like The Florida Bar has a lawyer referral service. This is part of the response I use in Virginia:
"If you do not know of another attorney, you might consider contacting the Virginia Lawyer Referral Service at (804) 775-0808. They are able to refer to lawyers throughout Virginia."
Make sure to stress the time-sensitive nature of their matter and that they can and should speak with another attorney immediately. In this instance, I would just also state that you are canceling today's appointment. There's no need to get into a prolonged back-and-forth. There have been a handful of times where people get testy after receiving that response. But, you'll soon find that most appreciate that you are getting back to them so promptly and not wasting their time.
Ryan Young, Virginia
Jonathan's letter is good. Don't explain. Just decline the case politely.
Also, there are many good non-engagement letters online. I have my standard ones stored and I just cut and paste when needed.
Here are a couple of good ones:
Just pick the points you like from the various forms and keep it on hand for the next time this arises for you.
*Additional practice pointer:* I am a bit surprised by the amount of information the previous attorney put into the Motion in your case. In the handful of times I've had to withdraw, I put that I needed to withdraw due to "professional considerations" and then simply cited the relevant withdrawal rules. I've never had any judge question this. Caveat: I only handle civil matters (mostly estate litigation). Once, I put "professional considerations" in my Motion. We got to Court and the mentally ill client began yelling at the judge while red in the face. But, any later attorney would only see that I needed to withdraw due to "professional considerations". This potential/unwanted client might now have difficulty getting a new attorney because of the language used in the motion.
Take control of the conversation. Make it clear that you will not be proceeding. Consider whether a formal declination should take the place of the conversation.
Be unequivocal, clear, direct, short. Recommend the local bar association referral service if one is available. Get off the line if you get on the call after making your points. Make sure you document that you will not be representing the person. Document your advice to seek other counsel.
If contacted further by the same potential client, have a canned response reiterating the same information. Copying and pasting the prior declination will work.
Darrell G. Stewart, Texas
Thanks, everyone, for the great advice!
Are we voting on these approaches? I vote for Jonathan's suggestion.
Clear, concise, polite... and keeps you out of trouble. Yes, explaining why you don't want to take a case will almost always get you in trouble.
Laurie Axinn Gienapp, Massachusetts
First, you don't worry about niceties when rejecting a client. You simply tell the client that the case is not one for you and send her on. In addition to telling her, write her a letter and send it via some type of traceable letter. Also email her. To hell with niceties.
Robert "Robby" W. Hughes, Jr. Georgia
One more suggestion: I have a very simple program called PhraseExpress:
https://www.phraseexpress.com/ I highly recommend it. It's a text expander and autotext software. So, when I want to give a polite nonengagement response, I have a few options that are already stored in the program. For example, when I want to blame it on caseload, all I have to type is "caseload" and then hit tab. Voilà! My notice immediately pops up in an email. If you want to give a blunt response, you could draft one and have it stored as "bluntresp". I also use the program for explaining how to make an appointment or pay an invoice. It's a major timesaver.
Pardon me if this repeats recommendations already provided.
When I turn down, I try to remember to remind the caller about statutes of limitation problems.
I repeat that I am not taking the case nor opining about anything just urging them to get counsel and to be concerned about limitations.
If you are attending the American Bar Family Law conference in Austin, Texas, this week at the Fairmont Hotel, Thursday to Saturday, look me up to say hi.
Rob Robertson, Texas
While I agree you do not have to give a reason for turning down a client, we usually try to give some direction - aside and apart from SOL - for two
reasons: (1) most other attorneys give just the "we can't take this" with no niceties and this helps you stand out a little more from the crowd, and
(2) these people can become referral sources or come back to you later if you handle the rejection appropriately.
I have one guy who we rejected due to a lack of specific medical evidence and he has, over the past 3 years, referred us 5 good cases. He specifically told us he appreciated knowing why his case kept getting rejected by others and he sends us people he knows because we took some time to help him understand.
In some cases, we tell the POC what it will take for us to take the case and if they do it, to give us a callback when XYZ is done, and about 30% of those people do call us back.
So, while niceties are not required - they should not be discounted out of hand.
Loyd J. Bourgeois, Jr., Louisiana
Lexis Advance v. Westlaw Edge
I'm considering a switch to West. I'm a solid researcher w/ good search skills, currently using Lexis Advance and happy with it--but West is much cheaper (probably to try to lure me away.)
How well does Edge handle the West equivalent of Shepardizing?
Be sure to check out Casetext: https://casetext.com/
They offer a free trial to see if it works for you.
Dave Rakowski, Pennsylvania
My bread and butter is research and writing for other lawyers, and I use Casemaker which comes with my membership in the Vermont Bar Association. Is it as good as Westlaw? No because it doesn't have Key Numbers or ALR, both of which I find abundantly useful. BUT I get all fifty states, all opinions and all statutes, and it does the equivalent of Shepardizing so I know when a holding has been overruled. And my voluntary bar membership is something like $225 annually, whereas both Westlaw and Lexis want a small fortune from me every month, at least they did when last I checked. Now when their representatives want to pitch to me, I just ignore the emails.
L. Maxwell Taylor, Vermont
At this point I don't need Westlaw on a consistent enough basis to subscribe like I used to, but it happens to be available for free at a nearby public library so I still have access to it. Agreed it is still the gold standard... and they know it. That's why it costs more.
Amy A. Breyer. California
I use WestlawNext (not the latest). I find that the case history information is as good as Shepards. Headnotes, key numbers (digest topics), and a ton of other non-case resources (e.g., restatements, ALRs, etc.) are vital to my practice.
David Masters, Colorado
I think I also get Casemaker through Mass. Bar Association, but I haven't been inclined to try it.
I think I'm probably going to stay with Westis/Lexlaw. I'm working on some big cases and I just want the tools which will make it easier to win them.
This is also why I have things like Acrobat DC and Office 365 even though I am perfectly capable of trying to learn some sort of OpenOffice or other similar tool.
Erik Hammarlund, Massachusetts
I'm with you, Dave.
I tried not having anything for years, relying on Google Scholar and the free Case law (?) With Fla Bar membership, plus trips to law library.
Having WL Next, even though I pay a small fortune for it (to me it’s a small fortune) is well worth it. I wish I could afford to get more secondary sources, though.
Barry Kaufman, Florida
Barry nailed one of my 2 biggest gripes about Westlaw Next -- need more secondary sources. I recently made the jump from West -> Lexis after being a subscriber to West for about 5 years. We had a pretty bare-bones plan -- KY state and fed + 6th Cir. + SCOTUS + KY Secondary. I really wish I could sort of pick-and-choose certain other non-jdx-specific secondary sources though, like form books or treatises etc. but (according to my account rep anyway) that wasn't an option. I wish I could at least preview some of the other secondary stuff, then I might be more inclined to pay more to add it to a subscription.
The other HUGE gripe I have with Westlaw is that whenever I run a keyword search for something and I get to the results page, there is no way to filter the results to show only those items that are within your subscription. Instead, you get the whole shebang -- my guess is West hopes you'll see something enticing and either impulse-buy out-of-plan or be willing to pay more per month to get it. Like if I search for "joint tenancy" my results will include everything under the sun e.g. what the Univ. of Wisconsin Law Review has published about that subject --- thanks, I'm sure it's good information and all, just not relevant to a matter governed by Kentucky law is all. No idea the rationale, but I communicated this gripe to my Lexis rep and he advised me that is one if not the most frequent complaint that they get from people about West. Fortunately, Lexis allows this type of filtering which is super helpful IMO.
Seth Combs, Kentucky
No argument. My plan is bare bones: Florida and Fla secondary. I have many Fla books (Fla civil Practice, Fla. Construction, Fla DUI, etc. etc.) in secondary sources, so no complaint there. But as you alluded, a search for X may yield an appellate brief on X in a Fla court of appeal, or a cite on ALR for X, or a cite to a Kentucky case on X.
I'd like to be able to get the appellate brief as part of my subscription.
The other stuff I can get elsewhere, but now I know where to look. Fla fed district court and 11th Dir would be nice at times, but I don’t use federal law enough to pay on subscription. A one-time download of a federal case I wanted last week was over $125. Screw that, I googled...
Divorce & Bankruptcy
I represent Wife in a recently filed divorce. She had husband have a lot of debt. Wife just consulted with a bankruptcy attorney and was advised not file for bankruptcy. I've communicated that to Husband's divorce attorney, but it looks like he may still pursue bankruptcy.
Can I file a motion in the divorce case asking that he be prohibited from filing for bankruptcy? It seems like the divorce judge shouldn't be able to prohibit him from taking other legal action, but not sure where I'm getting that from. Is it a due process issue?
Any creative thoughts on how to deal with this? So far my best plan is to just get the issue in front of the Judge and Husband's attorney one way or another so they can strongly recommend that he not file for bankruptcy.
I do not see how you can stop a person from filing. It is a constitutional right, isn't it? What would the basis be for him be ordered not to file? Basis for her not file could be related to whose name debts are in. Can you share reason W told not to file?
Is H's BK attorney different than the divorce attorney? If so, have you spoke to divorce attorney?
I am dealing with a divorce where my client had to file BK during the case. It complicated the divorce at the time. We agreed best to stay the divorce entirely and not bifurcate. H was going to join in the BK (would have made some things easier), but decided not to.
Phil A. Taylor, Massachusetts
If they have tons of debt, they either both file during the divorce or wait to file afterwards.
Here is what happens.
Husband files bankruptcy, divorce is stayed.
His name is removed from all joint creditors and any debts solely in his name are gone (and thus no longer marital debts), wife's name remains on the joint debts and her sole debts remain. Her sole debts are still potential marital debt.
Now the divorce proceeds and the divorce court divides up the marital debt between the spouses. There is the potential that there is less debt or the potential that the debt is exactly the same. And then husband is ordered to pay some portion of the marital debt.
This is because while his responsibility to the CREDITOR is removed, his responsibility to the now EX is not yet even created until the judgment is entered and thus is a new "debt" post-bankruptcy.
Filing bankruptcy won't get a spouse out of paying their share of the marital debt unless the debt goes away completely.
Also, in some states, if you declare bankruptcy after the divorce, that allows for the division of property to be reopened and reconsidered in light of the new circumstances. Here in Ohio we have the choice of saying it does or doesn't.
The best use of bankruptcy is for the party wanting to declare bankruptcy to have most of the debt in their own name, take on the debt as part of the settlement (and potentially not have something else offset or not owe support payments to the other spouse) and then file after divorce to get rid of the debt. Unless you’re in a state that can cause it to be reopened (and the judgment allows for reopening).
Erin M. Schmidt, Ohio
No judge can prohibit a person from filing BK.
It is called a voluntary petition for a reason.
You cannot twist H's arm over this, except in indirect ways perhaps.
The reason it is not recommended to file BK for both H and W now is that it can become quite complicated and costly to both parties.
Chapter 7s are the problem and this is what people with a lot of debt and an impending divorce typically file.
There are many issues that come up that will require W and H to retain BK attorneys (in addition to their family law attorneys).
Some of those issues are:
automatic stay issues (and exceptions to stay);
exemption issues (depending on what assets are there to protect);
of course, the 800-pound gorilla, the C7 BK trustee (two of them if each party files their own case), who can trigger another set of problems for both W and H.
I would write a nice letter to H's counsel, telling him of all these issues and also mentioning that (assuming divorce decree not issued yet) H may not avail himself of all exemptions because the divorce has not been finalized. I am not sure how it works in IL, but it is quite often it is state law that provides for what property may be protected in BK (many states have opted out of the federal exemption scheme).
In any event, under some circumstances, if the BK debtor wants to use what are called special exemption (not too many real property assets to protect), H cannot avail himself of those unless W signs a waiver that she won't use those exemptions if she files for BK (as they are still husband and wife). I would also point out to H's counsel that once H files a 7 BK, he cannot dismiss it unilaterally (like C13s, for example). H may end up getting stuck in a BK case prematurely and not be able to protect all his assets anyway.
It makes no sense to file also because H does not know yet what assets will be awarded to him by the family court yet.
These can make a quite compelling argument to H not to file for BK until divorce is finalized.
You did not ask for this, but will let you know anyway.
Here is the big issue for your client if H files BK later, after property divided by family court and divorce finalized.
Division of the property by the family court may not be exactly what the BK trustee likes and s/he may challenge that division later in something called an avoidance action (typically would be a fraudulent conveyance action under both federal and state law). I use to do this when represented trustees. It was quite effective. To protect W from such an action later, I would strongly recommend that you have the family court involved in the division of the property and that the family court make specific findings that the way it is dividing the property between W and H is not just equitable, but it is also adequate consideration as far as what W and H are each respectively giving up. A suit by the BK trustee will be later based on less than adequate consideration received by H on account something given to W. You can later use such findings of fact to assert issue preclusion against the BK trustee.
State court entering an order not to file bankruptcy would be of no effect, even if you could get a judge to sign. Bankruptcy is a federal filing and would supersede.
Wife will likely need both a bankruptcy attorney and family law attorney. There are potential traps and tricks. Most commonly divorce is delayed, but state by state variance in family law means no overview is possible.
I would also check if wife's decision to file bankruptcy should be reviewed in light of husband filing. An analysis of a joint filing might also be practical.
Darrell G. Stewart, Texas
I have some comments on Erin's analysis.
Please see below.
On Wed, Sep 18, 2019 at 11:44 AM Erin Schmidt <email@example.com> wrote:
> If they have tons of debt they either both file during the divorce or
> wait to file afterwards.
> Here is what happens.
> Husband files bankruptcy, divorce is stayed.
Divorce is not stayed in its entirety. Under 11 USC 362(b)(2)(iv), there is no stay "for the dissolution of a marriage, except to the extent that such proceeding seeks to determine the division of property that is property of the estate."
> His name is removed from all joint creditors and any debts solely in
> his name are gone (and thus no longer marital debts), wife's name
> remains on the joint debts and her sole debts remain. Her sole debts
> are still potential marital debt.
H cannot be sought personally to satisfy any debt in existence as of the BK petition date (assuming C7 BK). 11 USC Sec. 524(a).> Now the divorce proceeds and the divorce court divides up the marital
> debt between the spouses.
There is nothing to divide because the debt (both H's marital debt and his separate debt) was administered in the BK (both H's marital debt and his separated debt). When the BK is over, unless something is specifically excepted from discharge, all of H's debt, both marital and separate is discharged. H's personal liability on such debt is gone. See exception to stay exception in Sec. 362(b)(2)(iv) above; see also 11 USC Sec. 524(a).
> There is the potential that there is less debt or the potential that
> the debt is exactly the same. And then husband is ordered to pay some
> portion of the marital debt.
I do not know how a family court can order H who just received a BK discharge from all debt to pay some of that debt. See 11 USC Sec. 524(a).
> This is because while his responsibility to the CREDITOR is removed,
> his responsibility to the now EX is not yet even created until the
> judgment is entered and thus is a new "debt" post bankruptcy.
Here we have to distinguish between debt to creditors and debt to spouse.
Many times, debt is divided where H is simply ordered to pay off a credit card.
The family court cannot create new debt based on old debt that is discharged. This would violate the BK federal injunction.
With respect to debt to EX, created before BK or during BK but debt arose pre-petition for purposes of the BK, in the BK that debt is recognized as nondischargeable.
11 USC Sec 523(a)(15): No discharge of individual debtor from a debt "to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit;"
Filing bankruptcy won't get a spouse out of paying their share of the
> marital debt unless the debt goes away completely.
> Also, in some states, if you declare bankruptcy after the divorce,
> that allows for the division of property to be reopened and
> reconsidered in light of the new circumstances. Here in Ohio we have
> the choice of saying it does or doesn't.
> The best use of bankruptcy is for the party wanting to declare
> bankruptcy to have most of the debt in their own name, take on the
> debt as part of the settlement (and potentially not have something
> else offset or not owe support payments to the other spouse) and then
> file after divorce to get rid of the debt. Unless your in a state
> that can cause it to be reopened (and the judgment allows for reopening).
BK trustee can still avoid settlement as a fraudulent conveyance. BK debtor received a bunch of debt and no assets to offset debt. It is less than reasonably equivalent value.
The problem with joint filing is that many divorce decrees relate back to a point in the post (e.g., separate date), which may make the couple not married as of the BK petition filing date, making them retroactively ineligible for a joint BK petition.
On top of everything discussed, something to consider for your client:
Look over 11 USC Sec 523(a)(5) and (15) and try to make all debt fit within these categories.
This way, such debt is no affected by later BK by H.
Otherwise, if H is ordered in family court to just pay off some debt directly (to the creditor) and then he does not, W may be stuck with that debt, as the creditor will turn to her. She may have to file her own BK just to deal with the debt H was ordered to pay but he did not.
(It seems in IL there is no silent/phantom debt discharge. Sec. 524(a)(3) applies only to CP states.) But, if such debt is ordered owed to W and then W to pay it off, Sec
523(a)(15) makes it automatically nondischargeable (not even need to file AP).
In most instances, it stays the entire divorce because the courts do not like to divorce folks and not have the assets divided.
The bankruptcy does not discharge the spouse's responsibilities under family law nor does it discharge the family laws court to determine what is/isn't martial assets/debts AND to then divide those assets/debts, as it sees fit AFTER the bankruptcy. Stop conflating being released from your responsibility to the actual creditor as being the same as what goes on in family law. So long as the debit continues to exist, it can be classified as a marital debt and the court has the power to divide it.
Family law is an equitable court, that court doesn't give a fig who's name the debt or asset is held in. It has equitable ability to make those divisions REGARDLESS of how it is titled/owned/owed.
So, while the husband isn't liable to the CREDITOR, they can still be made liable to the SPOUSE by nature of the equitable nature of the family law court.
If what you say was true, then the family law court could not divide an asset held solely in one person's name, or a debt held solely in one person's name. But they can.
And if you really want to screw with someone looking at bankruptcy post-divorce, then you have the judgment read that anything and everything they are ordered to do is done as a support order and therefore it is not dischargeable in bankruptcy. This is usually done when attorney fees are ordered for one side to be paid and a way to prevent them from later discharging that order in bankruptcy
Erin M. Schmidt
Again, that will depend on the court. If H fails to pay it wife can file a motion for contempt and sanctions (of course this doesn’t always work because they have no money).
And in many states even orders to pay the creditor directly can be classified as support orders and thus non-dischargeable. It is all in how you word the judgment.
Erin M. Schmidt
Whose name is on assets is just simply form over substance.
Neither family court, nor BK court are concerned about that.
If BK is first, BK estate is concerned with administering both assets and liabilities.
The BK trustee will liquidate all nonexempt marital assets to pay marital debt, as this is the debt that is owed by the Debtor and hence is debt of the estate.
The BK trustee will go after all nonexempt separate property assets as well.
By the time the divorce action is filed, there will be nothing left for family court to divide except exempt assets.
In many ways, if there is a dispute over what is a marital asset and what is a separate asset, the BK court may decide that too (assuming nothing pending in state concerning this issue).
I disagree that a family court can simply ignore the federal bankruptcy discharge injunction and impose a personal liability on the former debtor for pre-petition debts. Think of it this way. The BK discharge injunction is actually a federal court judgment. State courts are bound by such judgments. There are many ways to arrive at this conclusion: Preemption / Supremacy Clause. Every court, including the BK court, can interpret and enforce its own judgments. The BK court is also a court of equity. See 11 USC Sec. 105(a).
If you try to impose discharged debts on the debtor who received the discharge, it can lead to serious sanctions. It is contempt of court standard. Federal authority is replete on this point.
Yes. Have been involved in many fights before the BK court about whether a debt can be classified as 523(a)(5) or (a)(15).
Planning and defining debts and having the family court make findings go a long way here.
One more thing.
Look over the way 523(a)(15) is worded:
"to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is *incurred by the debtor in the course of* a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit."
To fit within this provision, you have to have first gone through the family court.
If the BK came first, how can you fit within this provision.
Debts in BK are determined as of the BK petition date. See 11 USC Sec.
" . . . shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount . . . ."
Bifurcated divorces are a thing in Illinois (or at least when I lived there they were), though they were rare.
Lesley Hoenig, Michigan
Why was she advised not to file?
And yet we do it all the time.
You try telling a family law judge that they do not have the power to divide the debts and assets in front of them, post discharge, in a equitable matter per state law.
Here is your problem, by claiming that the bankruptcy preempts the family law court, the family law court then CANNOT act equitably. They cannot divide whatever is left in an equitable division.
And good luck with the bankruptcy court touching most of the assets since they are, more often than not, held by both parties and thus they cannot liquidate the asset that is actually still owned by someone not party to the bankruptcy.
Bankruptcy does not eliminate or discharge the equitable power of the family law court NOR does it eliminate or discharge the FUTURE contract between the spouses.
Remember that, the contract between the spouses (which is what the division of assets and property actually are) is a FUTURE contract and thus not dischargeable because it does not exist yet.
Erin M. Schmidt
if the divorce came first you do not have to fall within that exception because the liability DID NOT EXIST prior to the bankruptcy and thus could not be discharged in the bankruptcy.
So, it goes like this
Husband and wife have CC together they both owe the creditor Husband files bankruptcy and is discharged off CC, wife still has liability to creditor
6 months after discharge husband files for divorce, 9 months after that Judgment is entered. At the time the judgment is entered, the liability to the now ex-spouse to pay part of the remaining balance on the CC is CREATED.
Bankruptcy cannot discharge FUTURE liability. Even if that future liability is debt that you personally no longer owe on. The bankruptcy makes the debt, now owned SOLELY in the other spouse's name, as a marital debt solely owned and no different in the division.
Erin M. Schmidt
Yes, usually they are done for very specific reasons (someone wants to get remarried before a baby is born, there is something holding up a huge section of the assets/debts, or it's an enormous divorce that the assets are going to take years to flesh out)
Erin M. Schmidt
The family court can divide and act equitably.
All I am saying is that it cannot resurrect debts that have been wiped out by the prior BK.
If this is actually being done, someone is asleep at the wheel.
State law variance – Texas has an on-off switch for status, married or divorced. Parties are married until divorce decree is entered or judicially rendered (ordered from the bench).
Darrell G. Stewart, Texas
New Solo Advice (Not-so-new Solos Should Heed, Too!)
I know we have a few newbies on the list, so I offer you two reminders from my work life this week.
1 - The money isn't yours until you've earned it.
2 - Be firm on your boundaries, because clients (and potential clients and opposing counsel) will push them.
As to #1, you know your area of law and state bar rules as to when you have actually earned your fees. Pretend those funds in your trust account aren't even there until you've earned them.
As to #2, some clients will pressure you using guilt, threats, tears, etc. to get what they want. That could be a faster appointment time, a cheaper fee, or a different result. Set boundaries and keep to them.
Corrine Bielejeski, California
Picking up on Number 2: At the initial conference a client will show you who he or she is. If they want a lower retainer, they will quibble about every statement you ever send them from now until Armageddon. If you make an exception and grant an early or out of hours appointment, they will expect it EVERY time. If you promise anything other that to do your best on their case, they will only remember that you promised a result and you did not fulfill your promise (and therefore, you did not earn your fee and they are not paying)
The practice of law is a full contact sport.
John Martin Miles, Georgia
In the same vein, the best advice I ever received as a new solo was, "The cases you don't take matter just as much as the ones that you do."
*Trust your gut.* At this point in your life you're probably pretty good at automatically detecting sketchy people and situations. In the early days you will be staring at the phone waiting for it to ring when you're not networking. I had several potential clients that immediately set off "danger, danger, Will Robinson" in my head and I declined the representation when I sure could have used the money.
Years later, I am now very happy with that call. I'm sure I've have dealt with some horrible, protracted litigation and a bar complaint or malpractice suit or two if I'd taken some of those cases.
Bryce Davis, Florida
" If they want a lower retainer, they will quibble about every statement you ever send them from now until Armageddon."
I should (and do) know better. I'm dealing with this very same situation now. This one's on me.
Ryan Young, Virginia
In keeping with this theme, I can say that the pareto principle applies well to your clients--that is, 20% of your clients will cause 80% of your headaches. If your practice is one involving repeat customers (as opposed to one-offs like PI cases), consider a yearly evaluation and firing the clients who are your biggest headaches. And regardless of your practice, the better you get at screening out the headaches before they become clients, the happier you will be.
Kevin Grierson, Virginia
Yes yes YES all these things YES!
Fire your biggest PITA client, even if they're the most lucrative. You will make room for other, equally lucrative yet far more appreciative clients.
The boundary thing is a daily struggle for me personally, but I've made great strides this year. We have always charged an expedite fee for these insistent clients. As soon as they find out their service will cost 50% more, suddenly they're not in such a rush. I liken it to the FastPass at Disney. If you want to jump to the head of the line, we have an option, but you have to pay for it.
Gina Bongiovi, Nevada
#3 - Get the money up front. You are not a banker. It's better for the client to owe a bank or family member than to owe you.
#4 - Document everything. Everything. CYA.
Marilou Auer, retired legal clerk/secretary, Virginia
Corrine, it sounds like you have had a WEEK. :) I hope all is well.
I agree with all of the above. Regarding the gut feeling, I just had to let a client go who had a really good case and theoretically would have made me a lot of money. I knew he would be a nightmare after he returned a heavily redlined retainer agreement with alternative paragraphs including a requirement that I obtain "informed consent from client in advance" of incurring any costs to be billed to the client. OMG. A stamp would have required "informed consent" and "justification" according to his proposed terms. Don't ever be lured into taking those. It's not worth it because if the trust isn't there from day 1, it won't be there on day 653.
Listen to your gut, be prepared, don't count the cash until it is in your bank account, and as my old boss would say "know with whom you are having the pleasure" before you take a case.
Deena L. Buchanan, New Mexico
May 1st is Law Day. The day we set aside to celebrate the Rule of Law. What a Client Facing Perspective.
I have had as a tradition for ~my Law Day~ to make it a Lawyer Facing Perspective.
The law is how I feed my family so I inventory my client list and pick one (CT is a No Fault State) to FIRE.
It feels very good.
Two pieces of advice for newly solo
1) hook yourself up with a PI lawyer, someone who pays attorney fees, unless you are doing PI work. This is assuming your jdx allows referral fees.
You may not get rich at this but it can be a significant, if sporadic source of income; you've got clients, they remember you, from time to time they may call asking if you do PI work; or you might have people cold contacting you (it can be a former client says to someone "Oh call Mr. Jones, he was so helpful on probate, maybe he does accidents".
Three quick examples:
Had long time client in my office he came in for a deed. I ask, of course, "how you doing?" and he says "Oh, I'm alright, I'm just getting over the accident I had last year". In a nutshell he was crossing the street as a pedestrian, and was run down, and life-flighted to local trauma center, spent 10 days in ICU. I asked if he had talked to a lawyer, and he said he called local attorney who asked if he had any broken bones and he hadn't. Fine. I send him to my-PI-Buddy-Down-the-Road and I wound up with low 5 figure referral fee.
Second example, got phone call from some guy in Pensacola (300 miles from me); his mother had been in auto accident and needed PI lawyer locally; this gentleman had seen my blog post http://flawyer.us/ProbateThoughts/http:/flawyer.us/ProbateThoughts/personal-injury-in-florida
Which, if you read it doesn't even SAY that I do PI work; because I don't (at least not much of it) and gave me a call. Sent him to my buddy down the road; signed him up, another low 5 figure referral fee.
Third, I was at a CLE in June doing presentation on probate to other probate lawyers, and I mentioned off hand, "ya'll do have relationships with PI lawyers right? Because you can make some $ off of referral fees". At break one of the lawyers came up to me and said her probate firm had made $235,000 off of a PI (probably wrongful death) referral fee. YIKES!
So, point is, you will get inquiries from time to time; cultivate a referral relationship with a PI type.
2) This is contingent upon your geographic area and how long you've been in practice, but please, please, at least consider either building or buying your own dang office. Now, there are parts of the country where it really makes more sense to lease than buy, either because RE prices are insanely high OR because they are economically depressed and you can rent relatively cheaply; and I do get that buying is a heck of a commitment and takes some stability; nonetheless, I know many lawyers who in retrospect kick themselves for renting. Renting is cheap, it's easy, it's convenient but one lawyer I met when I first opened up, at a probate CLE, had been in business for 25 years and he said he liked probate, etc. but his one regret is that he paid rent for 25 years and didn't buy. Likewise, I know a local lawyer, he recently had his landlord double his rent and he had to find cheaper place, but he said he'd been renting for 23 years. And I like the guy but I also thought "geeze, why didn't you buy or build?" That rental money is gone, gone, gone. You buy, sure, there are some headaches, taxes, insurance, upkeep, etc. but you're spending $ on yourself. I do understand it's tough to do so starting out but I started in '97 and built my own office and moved in 2004. Best move I ever made. At some point you need to think about this. Don't just kind of put it off every year.
Ronald Jones, Florida
I'm skimming, apologies for not stitching this to the original post.
I have yet to see any single volume resource that compares with Foonberg's how-to book:
After Foonberg, the Rutter guide for one's practice area is invaluable, leastways for California.Robert Thomas Hayes Link, California
Everyone provided great advice.
I appreciate you all taking the time to provide us newbies with your insight. Some information we know and follow but it is always good to be reminded.
Other information we know but at times it seems difficult to follow or you go against your gut. It is a learning process being on your own. I agree that you should have places in place and you have to follow your own policy.
Having said that I sometimes struggle with initial contact. I am answering the phone myself. People tend to directly ask me questions about their case. I personally am contemplating whether I should actually charge for an initial consultation and if so how do I go about it when I answer the phone and a potential client asks for legal advice.
It was so much easier being a paralegal but now as an attorney the same situation is totally different to me. If I charge for an initial consultation, I am already weeding out the people who are just looking for free advice and have no desire to hire an attorney anyways. People who are willing to pay for a consultation seem to be serious about their issue and are looking for assistance. If they retain me, I am offering to credit the initial consultation fee towards the agreed upon fee to represent them if it is a flat fee agreement. I think this is fair but I only used this method for two potential clients now. One was ok with this arrangement and the other did not follow through with scheduling an appointment.
How do you all handle these situations?
If you are answering your phone are you providing free legal advice?
If you charge for the initial consultation how do you go about it if a potential client is calling you?
Any advice on this is greatly appreciated.
Alexandra Kleinfeldt, Florida
No, no, no: just because you answer your own phone, never, never give advice to a caller. They never give you all the facts, so you are not in a position to give advice. You can give general information that is not legal advice and you can offer to schedule an appointment, to which you will instruct them to bring documents and whatever information is relevant and you can interview them to tease out the information that you need. You may charge or not charge at your option for that initial interview. At that meeting you can decide whether this is a person you can work with or not.
It is so important to get a sense of the potential client to decide whether you want to spend your precious time over the next months or years working with this person.
Once you have given advice, you have formed an attorney-client relationship, setting you up for a malpractice claim. This is the last thing you want to do just on the basis of a telephone call.
Miriam Jacobson, Pennsylvania
Thank you, Miriam.
When I am on the phone, I am trying to keep everything general and explain to the person that I would need to see all the documents in order to provide advice related to this specific case but in general XYZ might happen. Some people still try to get more information and when I ask them to schedule an appointment, they either just hang up or start arguing that they just need this tiny bit of information. Even if I continue to explain that I cannot provide any advice without further information they continue arguing and I do not want to be rude to just hang up like they do but trying to be nice about getting rid of them.
But even if you keep everything general PCs might just think that you represent them even though you have explained to them several times that you don’t.
This more goes back to the original more general thread, but my friend Dave wrote a great article about the things he learned from a colleague of ours who recently retired, and this discussion reminded me of it. The link is here: https://consumerlawsc.com/seven-things-i-learned-from-gene-trotter/ but below is the text of the article:
Seven Things I Learned from Gene Trotter November 19, 2012 Richbar News Articles
Unless you just started practicing in the post-Lady Gaga era, you likely know my partner, Gene Trotter. I still remember the day that Gene interviewed me. It was 1995 and the highlight of my resume was “graduated in top 65% of class.” But he hired me anyway. Besides being lucky enough to have great parents and finding the right girl to marry, getting hired by Gene was the biggest break I’ve ever caught.
In the last 17 years, I’ve learned more from Gene about being a lawyer — and life in general — than I could possibly put into words. Nevertheless, in an effort to honor Gene (and save you new, post-Gaga baby lawyers a few hard knocks) allow me to present…
Seven Things I Learned from Gene:
Being a Lawyer is Easy. As Gene told me my first day, “You only have to do three things: meet the client, solve the problem, and get the money.” See? Easy.
How to “solve the problem.” That’s easy too. Legal problems are resolved by “talking people into doing stuff **.” Juries, opposing counsel, judges. Sometimes our own client. A single skill from which all else follows. ** Ed. note: He didn’t actually use the word “stuff.”
How to get clients. Get really good at 2, above. Eventually the word gets out.
How to select cases. Which cases do you take? Wrong question. As Gene taught me, it’s really about which ones you DON’T take. The best case-selection heuristic of all time is contained in the Gene commandment: “The Juice Must be Worth the Squeeze.”
How to Act. TV lawyers are pensive. They struggle for control over their firms while wearing dark suits. They don’t remove their jackets unless sleeping, which they never actually do because they are always working. That’s what I expected as a 26-year-old lawyer anyway, and for the first month of my employment I rotated the only two suits I owned. Then deer season started. Gene showed up in Carhartts and Mossy Oak camouflage. I didn’t expect a lawyer to do that. And later, just when I thought I had him pegged as the typical S.C. lawyer/hunter, I find a Flo Rida CD in his truck. Go figure. So, how to act? Like yourself.
How Not to Act. Growing up in suburban Atlanta, I had little sense of the connections between people. Gene seemed to know everyone in Columbia and they all loved him. He reminded me early on that “we live in a small state, in a small town.” In other words, don’t be a jerk to opposing counsel, because you are going to meet him again (plus you might discover he’s your cousin).
Take your client’s problems seriously, but don’t take yourself too seriously. Another lawyer once told me a story once about a case where Gene represented an individual plaintiff against multiple corporate defendants. Each defendant was represented by big firm lawyers from big cities. Gene cared deeply about doing a good job for his client, but it was a difficult case. On the day of trial, Gene walked into the courtroom to find eight or ten lawyers staring across the aisle at him. Gene paused, looked them up and down and said, “You must have me figured for a dangerous man.”
Gene was (and is) a dangerous man because he’s an exceptional lawyer. But he’s been much more than that to me, a teacher, a mentor, a peer and most of all a friend.
As some of you know (or will if you read the firm announcements section of this newsletter), Gene and I are parting company after 17 great years together. One of the best things about working with Gene was that, as a young lawyer, he allowed me the freedom to develop my own practice in consumer law. That practice grew into something I became very passionate about, and ultimately compelled to focus on exclusively.
While our practices have grown apart, we have not. We’re eating lunch together later this week, which I hope we’ll continue to do for 17 more years. As for the last 17 years, the juice has definitely been worth the squeeze.
Michael J. Polk, South Carolina
Miriam is spot-on. We've all been there; it's a difficult needle to thread. I'm going to be in the car for the next two or three hours. You're welcome to call (ofc number should ring thru to my cell) if you'd like to chat.
Amy A. Breyer, California
If you can squeeze a name and address out of them, sometimes by offering to send them a general brochure on the topic they're calling about, you can also send them a non-engagement letter, telling them that you have not provided legal advice and have not entered into an attorney-client relationship until you have a written agreement and a retainer payment!
Miriam N. Jacobson
Some lawyers refuse to do telephone consults out of fear of "the client thinking they have a lawyer" no matter the conversation. Others require an address/email at the front of any call so they can send nonrepresentation letter/email (not a bad idea).
Conducting a telephone consultation to evaluate a client or matter is a skill. You get better over time. Being friendly enough to go over the information needed to determine whether a consultation is in order while making it clear that until an agreement is signed and money changed hands, they don't have a lawyer is easier to do the more you practice.
If you get an unreasonable prospect, they are more likely to claim (without basis) that you are their lawyer. Generally, you get a call back later if that is the misconception, so follow up efforts to disabuse them of the notice can be pursued. The faster you can identify the unreasonable (or unbalanced) prospect the shorter the interaction.
Darrell G. Stewart, Texas
Thank you so much for taking the time out of your busy day to talk to me.I very much appreciate your advice, thoughts and suggestions. It was a great conversation and I have learned a lot.
As I have said, I will set my own policy and will be trying to really follow it.
Thank you again and have a great afternoon/ evening!
And safe drive ; )
Sometimes it is difficult to get a name and contact information out of a person.
If I get requests via e-mail, I am responding with two or three available dates and times for an appointment, let them know about my fees, and that I am not representing them unless we have a signed agreement and a retainer or a flat fee has been paid.
I am sure that this process will get easier over time. Having said that, it will certainly become easier if I will have someone else answer the calls. I need to think about this possibility. It has its pros and cons, as usual.
I need to be firmer but still professional in conducting the calls once a PC asks for advice. This leads us back to the policy issue.
I got so many useful information and advice.
Thank you to all who responded and provided their insight into this issue!
You're very welcome and pls keep us posted!
Amy A. Breyer
I will. I am already contemplating about my own policy. I will certainly work on one. And I will work on following that policy….
Alexandra: Several thoughts on this intake/consultation thing.
First, the lawyer NEEDS to control the interview; I know, sometimes this can be tough but the lawyer needs to be clear in their own mind why they are talking to the client, it's not to solve client's problem but to see if you can sign client up and get money.
Second, initial contact, usually by phone is first, screening; and if they pass the screening, MAYBE a bit of intake.
On the screening; first thing is, is this an area of law you practice in or are interested in; that sounds obvious but sometimes clients will ramble on and lawyers will let them; usually clients are straightforward (do you practice child custody/child support/ do divorces/bankruptcies/real estate whatever, but sometimes they start off with a long story; I try to stop them and ask exactly what they need or what they want; and sometimes they don't understand areas of law; they'll say "you're a probate lawyer" and then ask about their boyfriend who is in jail; that's PROBATION and you need a CRIMINAL lawyer, not a PROBATE lawyer.
Then, IF you are interested in it, can you make $? Do you do Evictions? Some. Are you landlord or tenant? Landlord, fine, I'll listen a bit; tenant; I ask why are you being evicted; if it's nonpayment of rent I'll say sorry, and send them to legal aid. Once in a while it's "my landlord hates me and cut off my power/changed my locks" which is tortious under Florida law and gives rise to statutory damages and generous attorney fees; I can make money off of that.
If this is not area of law that I handle I try to point them in right direction; call legal aid, here's their phone number, call family/criminal type, call this gentleman who does bankruptcy, occasionally something else (had gentleman who had bought car from dealer, there was pretty strong evidence that the odometer had been rolled back, told him to call both Florida Dept of Consumer affairs and local State attorney and ask for Intake attorney; gave him number for both.
The point is, you are screening. You can spend less than 5 minutes on most of these calls.
THEN, you do a bit of intake; Do you do Probate? Yes, I do, who died? When did they die? Is there a will? Where did they die? and based on answers you either ask more questions, set an interview or say sorry, I don’t' do that (i.e., mom died in Mississippi; did she own any property in Florida? If yes, then I'll continue the interview; if no, then I'll tell them to call a Mississippi probate attorney)
It's almost a flow chart or decision tree; is this a case I'm potentially interested in; and if so, can I make $? if the answer is "No" at any point, end the interview. Politely, but firmly, end it, maybe make a referral, or not, as appropriate.
You have to do screening; there's no way around it; it’s just cost of doing business. But the key is, to try to screen efficiently; doing it well; spending no more time than necessary on it. Having 'staff' do screening does not mean that you aren't spending time on it; it simply means you are having someone who is paid less than you do it. That may or may not be a good idea. I've told story before of client who had been run down, airlifted to Shands, spent ten days in ICU; he had called the "For the People" People and whoever was screening asked if had any broken bones; he said no, they said they weren't interested; I don't know if they have newbie lawyers doing screening or non-attorneys but they blew that screening.
Third; to charge for initial consult or not. Yes, by charging for initial consult you are going to wind up with more 'serious' clients. And yes, a "lawyers time is his stock in trade". I get that. But someone, maybe Jeff Cooper, said "you miss 100% of the shots you don't take" (actually, googling that phrase it appears as though it was some fellow named Wayne Gretzky, whoever that is. Anyhow)
Well, guess what? You don't sign up 100% of the potential clients you don’t' meet with. You make zero money off of them. The key is, I would rather meet with a potential client, one who has at least had a preliminary screening, and try to sell them my services if needed. Sometimes they don't need my services or won't hire me; in most cases this is apparent right off the bat; at which point I end the interview and wave bye-bye or I might, depending on the facts, offer them some advice if appropriate.
Some of this is practice dependent; some areas of law you need to offer free consults; Personal Injury, for instance. Some areas you almost certainly want to charge; Family law comes to mind, because 1) it helps reduce conflicts; free consults are fine but if they don't hire you then you're conflicted out; and 2) I would imagine that family law consults take a bit of time. But there's areas of law where it depends.
I do a LOT of probate. The fact is, I have about a 98, 99 percent closure rate for clients that actually NEED a probate; if they need a probate, they're hiring me. If they don’t' need a probate, then, well, that's fine. But you don't know unless you at least screen and then meet. I hear from potential clients all the time; they tell me they've called other probate attorneys and the attorney's want initial consult fee, ranging from mid-two to low three figures; just to meet with them. Many, maybe most, potential probate clients are very confused; they're usually grieving, at least if person died recently; they're scared, they don't know what comes next, they definitely do NOT understand the process. I'm willing to meet with anyone to at least see if they need a probate; sometimes they don't; if they don't I give them advice (usually, surviving spouse where they are JTROS/TBE or POD/TOD on real property and accounts and vehicles and such) usually record death certificate, take DC to motor vehicles, take DC to bank and whoever. And I wave bye-bye. If it turns out that they DO need a probate (there's one account that wasn’t TOD/JTROS or whatever) they come back and hire me. IF they DO need a probate then I evaluate the options and give them estimated quote. Decedent dead more than 2 years? Summary admin, this is filing fee, we don't have to advertise, my fee is this, I'll need this information and a check for $XXXX. Decedent on Medicaid, less than 2 years dead? OK, we're probably doing full admin to transfer the exempt house, this is the costs and this is my anticipated fee. Whatever. In nearly ALL cases they hire me. But if I was charging a consult fee, I would NOT meet with a bunch of them. I would not be spending time on people who don't need a probate but I would also not be picking up potential clients who are willing and able to hire me. Look, the initial consult is NOT designed to solve or answer all their legal problems; it's a sales meeting; for me to sell my services to them. Evaluating the case is part of, big part of, the meeting but the whole point is for me to get a check.
I get the point behind initial consult fees; it is very effective at screening out 'bad' clients but it also screens out potential good clients. I suppose it depends in part on how busy you are; if you're booked solid for next three weeks you can be a lot more selective. Just recognize that not everyone who isn't willing to pay consult is necessarily a 'bad' client. They just may not understand what they need; I would rather sell them on it.
And, as an aside, someone mentioned Foonberg; yes, I know Jay seems a bit dated in some respects but I still think his "how to get and keep good clients"' is the best single volume on marketing and selling to clients. Well worth a read, particularly if you can pick up a copy in a law library. E book is $79, hardcover is $99, I'm not saying you should by them but if you get ONE good tip out of it that gets you ONE client, holy heck, it's $79. There's a lot of other people that charge a LOT more for "how to get clients".
First of all, thank you very much for taking so much time and effort into providing your advice, thoughts, insights, and feedback!
I was pondering about answering the phone last night and already made the decision that I will continue to answer my own phone. One reason is the language.
But, based on all responses and your feedback, I need to implement a policy/ manual in how to better take calls and screen potential clients.
My biggest fear is to come across as arrogant or that people have a feeling that I think that I am better than they are. In one respect I am better because I know the law whereas they need assistance. Otherwise they would not contact an attorney.
Once I have set my rules for intakes, I need to work on myself. I have to be firm but polite. Time is money. And while I feel sympathetic to clients’ stories, I still need to get to the point much faster and see what they are really calling about. Once I have done that, I will need to remind myself to offer to meet with them in person to discuss their matter.
Whether or not charging a consultation fee I still need to think about. I see your point, Ronald. But on the other hand, I offer to credit that amount if they retain me. Additionally, I often do research upfront before meeting with them to get a better idea about their case if there is a case pending in court. Or I check on their specific issue to ensure everything is up to date.
Maybe, offering a 15-minute consult for free might be an option like other Sezzers mentioned. However, if potential clients already back out once you start mentioning to schedule an appointment to meet in person discussing the case you know that they are just looking for free advice. Also, I have to pay for the conference room. If I meet with a potential client and PC does not retain me, I am actually already behind in money. Yes, it is a business expense but it adds up if I am not getting retained.
While I am clear on some of the steps I need to take, I am still thinking about others. All of you offered valuable advice and information, which will certainly influence and help me with working out my own policy in how to handle calls best. I am aware that each one of us has his/ her own style and no one should try anything they are not comfortable with. And, whatever works for A might not work for Z. Like you mentioned, Ronald, it also depends on the areas of law one practices.
There is much more thinking needed in regard to initial consultation fees…
Thank you everyone!
Thank you again, Ronald.
So far I never had complaints about coming across as arrogant but the fear still exists. I want to better the image of attorneys and not confirm the conception.
I agree that clients in probate cases need a different approach. Most of them are still trying to comprehend what had happened.
Once I do these intakes more often, I will get used to the routine I am looking for now. And yes, we all get these clients who just cannot get to the point. Trying to navigate them into the right direction while still coming across being polite is sometimes difficult.
Checking out official records or property appraiser’s website, I do that as well during the call if they provide me with all information. While I am aware that I do need to do more research on certain assignments compared to a more experienced attorney I won’t charge for the extra time. I always see this as an opportunity to learn and further my education.
Ronald Jones is absolutely fantastic. He's probably one of the most prolific posters on this listserv and has helped me out of more than one legal quagmire in return for nothing more than a thank you. It's a very rare sort of lawyer-to-lawyer *noblesse oblige* you don't see too much these days; I don't think you'll go wrong listening to what he says.
I've been in solo practice roughly 5 years, so I'm a little closer to your situation. I'll just throw out some thoughts on what has worked for me:
*Consult Fees:* Ron is right in that you'll definitely miss out on clients if you charge a consult fee. However, you'll also be blissfully free of a lot of tire kickers this way. In the early days of my practice I never charged a consult fee and I spent a ton of unpaid time answering questions and doing research and drafting non-retention letters to people. I think this was actually a really valuable learning tool and I'm glad I did it.
Unless you're just absolutely slammed with work, I'd take just about every consult you can get your hands on right now (remember, you certainly don't have to work with them if you don't want to or detect red flags). It's really helpful to learn how to effectively interview people and issue spot.
These days I can afford to be a little more selective and I take a kind of a middle of the road approach with consult fees. I'll charge something like
$50 - $100 depending on the area of law and state that it will be credited towards their fee in the event they hire me. I think this has a nice psychological "buy in" effect and I have yet to feel like I've missed out on many potential clients due to it.
Tangentially related, but another thing I love to do is have people fill out intake paperwork. Once I get someone to fill out my estate planning intake paperwork I am virtually always retained in that area.
*Initial Consult:* I can remember my first few consults as a real lawyer. I was incredibly nervous before them, almost as nervous as the first time I appeared in open court as a 3L CLI. Would I advise these people wrong?
Would I get sued for malpractice and lose my law license?I think it's these types of thoughts where a lot of "arrogance" comes from and puts off clients. We probably feel a bit too overzealous to wow potential clients with legal knowledge, particularly if we are younger or inexperienced. Don't feel like you need to impress them; they are already impressed enough by virtue of the fact they are sitting in your office and asking you for help with their legal problem. I almost always adopt a very conversational, laid back, casual tone with people (the only exception is when I can tell the client is super formal and deathly serious, which is easy to spot because they show up to your office in a suit or formal looking dress and don't really smile) and they seem to like it. I mean, yes, at some point you will need to drop your legal knowledge on them, but it doesn't need to be with the formality of a Supreme Court oral argument.
If you're solo, you're the boss. This stuff is pretty fun.
*Phone Calls: *I probably have a slightly different approach to this than most, but I really, really despise talking to potential clients on the phone. The connection drops out, it's hard to understand what they're saying sometimes, you often need to consult documents they typically don't have on hand...it's just a nightmare. So I'll screen my calls almost every time if there's no one at the front desk. I have a pleasant, but to-the-point voicemail message. Leave your name, number, and a brief description of your legal problem and I'll call you back as soon as I can.
99% of the time I can tell from the voicemail whether this is someone I want to get in for a consult or someone I'm referring out. As far as I am concerned the phone is entirely a vehicle for deciding if someone is worth having a consult with, and I will not go beyond that binary decision of "refer out" or "schedule consult." Once you get into conducting the actual consult over the phone or providing legal advice it just becomes difficult to manage. This is the one area where I will be kind of a jerk and really focus people onto what their legal problem is. Probably the best possible phrase for this is, *"So what do you want to happen?"* This phrase is solid gold (Gold, Jerry! Gold!), because it has an uncanny ability to enable a non-lawyer to exactly specify their legal issue (e.g., "I want my mom's house in my name", "I want this guy to pay me $X").
And yeah, if your practice is something like PI or criminal defense, this probably won't work for you (they're just going to call the next lawyer in the phonebook or whatever). But for the areas of law I practice if somebody is calling me it's likely because they already know who I am, they're interested in talking to me specifically, and they're going to wait a few hours or until tomorrow for that callback.
Good luck! Feel free to contact me off-list if you have any specific questions.
p.s. You definitely want to get the Foonberg books.
What Bryce said. Especially the part about how awesome Ron Jones is. I only wish our offices were geographically closer together so I could buy him lunch more often. :-)
Andrew C. McDannold, Florida
Intake paperwork can be very useful; particularly in things like Bankruptcy and family law (back when I did those). Intake paperwork does three things; 1) it gets the client to 'buy in', even if they're not paying you for consult it takes them some time; it will tend to weed out a lot of tire kickers 2) it helps you gather information, obviously; 3) it also helps you control the interview; even if it is incompletely filled out you focus your questions on what isn't filled out, rather than have the client ramble on and on. It helps you control the interview.
Now, having said that, I haven't used either probate or EP intake forms in decades, I did both when I started out but I quickly developed my own style; I know what questions to ask and keep the interview focused; it helps that I was welfare caseworker for 4 years prior to law school and I did, literally, THOUSANDS of intake interviews regarding family relationships, living circumstances and financial situations; by and large those skills transferred fairly seamlessly to doing law intake interviews; but not everyone has that experience.
And Bryce is right about initial consult fees; they will weed out tire kickers and the ones who do pay it are usually committed to hiring you; nonetheless, you will miss a certain percentage of people who need your services and can be SOLD your services if you pitch them right; and if you are not that busy, you need the experience of doing interviews; That's the only way to gain experience is by doing the stuff. You will get more efficient with practice. I, me, myself, personally, rarely charge consult fees but I also tend to be pretty efficient and ruthless when it comes to the screenings; if it's apparent they don't need me or are unlikely to pay me, then bye-bye, here's the number for legal aid, or whatever, thank you for contacting me.
Thank you for all your input! Special thanks to Ronald!
I will be answering separately once this week is over but is has become very busy (which is good, I am not complaining) but also put me behind on certain things. So please accept my apologies for the delay in responding to all I have not had a chance to get back to yet!
But I still appreciate everyone’s insight and advice!
You've got a lot of good advice here. If you go back and review the archives, you'll find that "free consultations" have been hotly debated since the beginning. At the end of the day, you just have to find what works for you. It could be dependent on the case or the caller. Many of us are always looking for improvement. I can't say that I have all the answers. But, I do know that I would much rather just knock off early than waste another moment with someone who is just calling offices looking to get as many free consults as possible. I had two people this week alone tell me that was their objective. I appreciate the honesty, but I politely declined. Whatever you decide, I think you should also consider your values and the quality of life you want to have. Good luck!
Ryan Young, Virginia
Here's my advice:
1. KEEP YOUR MONTHLY EXPENSES AT A MINIMUM!
2. See #1
3. Invest in a robust office PC (about $800 - I still run Win 7 Pro), a decent B&W laser printer (about $250) and an excellent scanner (I use an Epson DS-510), plus contact management, time & billing, and doc management software (I use ACT!, Timeslips, and Paperport). 65Mb/sec has worked for me for Internet access, with a wireless router.
4. Fuggedaboud WestLaw/Lexis. If you *absolutely* need an in-office research tool, there are many alternatives. (I use TheLaw.Net - about $550/year). The local law library has the added benefit of networking possibilities.
5. Other than, maybe, local /state Rules, do not buy any books.
6. Get secondhand furniture. Habitat for Humanity probably has a ReStore near you.
7. Get VOIP phone service - MagicJack is fine (about $40/year).
8. Spend a little extra time and $ on stationery and cards - buy from a local printer and get engraved if possible.
9. There are open source versions of most MS Office programs that are more than sufficient for most purposes.
10. When in doubt, see #1.
Russ Carmichael, Pennsylvania
Generally, I agree with Russ' comments -- it doesn't take a lot of money to get started -- but my view is that some books are VERY beneficial.
Here in Florida, at least, our state bar puts out some very good practice manuals that are invaluable for a new solo In particular, I've found the Florida practice manuals on Probate, Guardianship, Probate Litigation, and Civil Practice (both before and during trial) to be immensely helpful.
Also, I have a copy of Trawick's Practice and Procedure Forms that has come in very handy on several occasions. I bought them all used, and am periodically updating them as the budget allows. Also, the Florida rules are freely downloadable in PDF format, so every year or so I just hit the website and download the new versions.
Andrew C. McDannold
Good advice. Virginia also has a two-volume, multidisciplinary guide on pretty much all aspects of practice here in the state that I found very helpful early on in my practice.
This might have been mentioned before, but I suggest Google Voice for your separate line for work. You can program it to ring any phone you want. I have used it for 10 years now and for the most part just have business calls ring my cell phone.
Kevin Grierson, Virginia
Yes, he is. I am very thankful for his advice as well as everyone else’s on this list.
Thank you for your offer. I might take you up on that.
Going back to consult fees… This will still be up for internal discussion with myself. Just an example:
This past Friday I had scheduled a 30-minute free consultation. I rented the conference room. PC did not show up.
And situations like these happen very often in my area. You schedule an appointment and PC does not show up. If you have your own office, I assume it is not as bad even though you get frustrated. If you always have to pay for the conference room and PC does not show up it adds up in business expenses. Therefore, my reasoning was to offer PC to credit this amount to their fees should they decide to retain me. Which I still think is fair.
Yes, I tried the intake paperwork. No one ever fills it out and brings it to the appointment. This also becomes very frustrating at one point. But I will try and continue.
I assume that most of us newbies are thinking about these questions. Wrong advice; malpractice. If you would not care I think something is wrong with you. No one who starts practicing law knows everything. Ronald mentioned it to me that we all learn from experience. I can only talk for myself, but guess this is true for most of us, it does not happen fast enough.
During my consultations or meetings with clients I am always approachable and also remember things from their personal life and ask them about it to create a more relaxed environment. I understand that it is stressful for PCs and clients alike to meet with a lawyer. I am trying to talk in a less lawyer fashion to them to not scare them off. So far, I think I did a good job but I always feel like I could do more. If I am meeting with an elderly woman and she wants to hug me I am ok with that. Most of the time they do not have a lot of social contact anymore and I understand that they are glad to be able to talk to someone. I love talking to them and hope that I can bring a little bit of sunshine into their lives despite what is going on. Yes, some phone calls might drop or the reception is bad. Some people talk with a very low voice and it is tough to understand what they are saying. At times there is no other way because the client lives across the Atlantic so the phone is the only means of having a live conversation. I have my voicemail set up similar to yours. I also feel that if someone does not leave a message than I cannot help them.
Thank you again,
Yes, I agree that intake paperwork is very helpful. Unfortunately, the people around here do not agree. They just do not fill out the intakes I send to them. Only on very rare occasions I receive a filled in intake. So, I rather ask questions during the appointment and ask them to think about anything they might not have thought about during the meeting. Once I get more experience in this I will hopefully have gathered all information during the first consultation.
And yes, I see the pattern: experience…
Yes, I had been told about the archives. Thank you for pointing me into this direction as well.
I agree with you that each one of us has to make the decision of whether charging for the initial consult or not. It is a tough decision and reading about each one’s experience helps. But yes, I have to find out what works down here for me. I will try and see how people react to the consultation fee. I might miss out on potential clients but it might also save me some headaches. And I also appreciate the honesty of people actually mentioning that they are just looking for free advice. Makes it easier and probably quicker.
I like your approach.
I am actually trying to keep my expenses as low as possible.
Right now, I am still using my law school laptop but I will be looking into an office PC within the next months.As of now, I am still lucky to have free Westlaw access until the end of this year. After that, I do not know but I am shying away of investing into Westlaw or Lexis. The law library has Westlaw access and I believe we have some good deals through the Florida Bar for Fastcase. I will look into this when it is time.
Thank you for your advice!
I will always go with no. 1.
So far, I was always looking to Westlaw for research on certain topics but I might need to invest into some books soon.
But I also love that the Florida Rules are always updates and easily accessible.
Thank you for the insight, Andrew.
What would happen if these same people showed up to a doctor's appointment without completing whatever initial paperwork is required? More than likely, they would be asked to sit in the waiting room until they've completed the forms. Why should their experience with the attorney be any different?
If you insist that your clients fill out an intake form, then they will either do so or they won't get to see the attorney. If they call someone else instead, will he or she make them complete intake forms? Probably - and with good reason. I completely understand that you don't want to lose a client when you're just starting out, but you should also consider what's best for your practice long-term.
Andrew C. McDannold
Thank you, Kevin.
Unfortunately, when I wanted to get a google voice number for my area there was none available.
After looking into several options for phone provider I ended up with Ultra Mobile because of its international calling feature. Most of the European countries I do business with are included in the fees. My phone has dual sim card slots so I have my personal and my business number in one phone. I use different ring tones but once I receive a call the sim card who is being called will show up in the display.
Funny that you mention a doctor’s office, Andrew.
I am thinking of comparing going to a layer with going to a doctor. The doctor will charge you (or your insurance carrier but you might have to pay co-pay or deductible) for the consultation. You receive (or not receive but that is a different topic) a diagnosis. When you leave the attorney’s office you should know what to do in your matter.
So besides experience it also come to being polite but firm…
Re Intake Paperwork
We did a fair amount of divorces. One thing Virginia requires upon entry of a divorce decree is a Vital Statistics form that the clerk collects and forwards to the state capital for records purposes, called a VS-4 Form. No VS-4, no final decree. It includes blanks for things that were not on our intake form, like highest grade completed, birthplace, number of marriages for each party, dates of birth for both parties, etc. So I made a separate form just for divorces that exactly paralleled the VS-4 Form. Some of it was redundant with our main form, but it saved me a lot of time preparing the VS-4, and I didn't have to waste time calling the client to ask more questions.
If the new client didn't know all the answers at the time of the appointment, he or she left my office with a checklist to be completed.
Worked like a charm.
Marilou Auer (retired legal clerk/secretary), Virginia
"If you always have to pay for the conference room and PC does not show up it adds up in business expenses."
Yeah, definitely don't go out of pocket on someone you've never met.
If you don't have any free conference room resources or an office space yet, perhaps try meeting informally at first with someone in a local coffee shop. Especially if you're finding that potential clients don't want to fill out forms, maybe just meet for half an hour so they can get to know you. And being in a public place should help curtail them from talking about anything too personal. After 25 minutes say you need to leave for another meeting. Spend 5 minutes explaining that if they'd like to proceed, they'll need to fill out certain forms and pay a consult fee (which gets wrapped into the rest of the fee, etc.). If they're interested, hand them the forms. (Beforehand you will have figured out a system that works for you where they can pdf email/dropbox/etc. the forms back to you AND online pre-pay a consult fee.) Make sure your forms say that BOTH the form and fee need to be returned BEFORE an appt time will be set up. That fee can either include enough to cover the cost of a conference room rental if you want to meet again in person, or, since you've already eyeballed each other, can just be a phone or video chat meeting. And then take a deep breath and actually leave at the 30-minute mark. Some people will try to continue to engage you in conversation, but ultimately everyone will respect you for being in control of your time.
Amy A. Breyer
Open Source Software for Law Office?
I need to upgrade the computers in my office soon. I was just thinking about maybe using open source software like Apache for my office software to replace Microsoft word, PowerPoint, Excel. Has anyone done this before? I need to share documents with my clients and they make edits to it that I incorporate, will this be difficult to do with Apache writer if they use MS word? Any thoughts would be appreciated.
I use LibreOffice and have not had any issues sharing with clients or other attorneys. I set all the defaults to save as MS Word/Excel.
How is Apache’s option?
I have not found an open source pdf option yet (to edit, etc. not just read), so I’m open to suggestions there.
Phil A. Taylor
Ehhh, it's been a couple years since I used OpenOffice, so take this with a grain of salt, but it's slightly clunky, particularly if you need to do something like make a TOC and then share that with someone using Office. I frequently had complaints of weird formatting problems and broken tables, so I just bit the bullet and started using MS Word.
With an Office 365 subscription it's pretty affordable for a solo, but it could become burdensome if you're talking about using it on a bunch of different computers simultaneously.
Bryce Davis, Florida
Phil, I am not that familiar with what’s available as far as open source. I just picked Apache because it seemed like a popular open source suite of programs.
Does LibreOffice let you share redline versions with Word users?
Michael A. Blake
Given your particular line of work, you may want to consider carefully this blog post by Carl Oppedahl:
If what he says is a real issue, it may make your decision for you. (I have no personal knowledge, but Carl usually knows of what he speaks.)
James S. Tyre, California
Sorry to sound snarky, but is this a joke?
Imagine that someone said to you: Hey, if you only buy an extra 12-pack of rollerball pens and enjoy a sandwich once per month, I’ll make sure you have the latest and greatest software, handle all updates, toss in some free email and online storage, and make sure you can file share with 99% of the planet."
Would you say no? Of course not. But Office 365 Small Business Premium is $12.50/month and includes online storage, exchange email, and every single office program. That's about the price of a dozen Pilot rollerballs.
Acrobat Pro DC is $15/month. That's probably what you spend to buy the occasional expensive sandwich. If you care that much you can save $2/month and get Standard.
If I add up my Office 365 and Adobe yearly for my office it's about, hmm, less than 2 billable hours per year. And it just WORKS. Also, everyone knows how to use it (including me) and there are 100,000,000 sources of free detailed help for everything I want to know. From books to YouTube to forums, everyone will help you with Word. I'd waste 10x more time just getting to my current level of expertise, you probably will as well.
Not to mention the other side benefits and features. Like, the other day I decided I wanted to have a document e-signed, and--whaddya know--that feature was already built into Acrobat, and thanks to the super clear help and functionality I was able to get it signed in about 5 minutes. And Acrobat has good OCR. And it has portfolios. And bates stamping. And so on.
Really, if you are willing to reorganize your whole electronic system to save yourself $27.50 per month per person, a/k/a $330/year, then you need to reconsider your firms financial priorities. Efficiency is GOLD in this industry, and those programs are efficient as hell. Another way to think of it: If you're like me, you probably spend at least 1,500 hours/year using those programs. If you only lose 1% efficiency-which is not much!--that's 15 hours. Do you want to lose 15 hours to save $330?
Erik Hammarlund, Massachusetts
What he said. Say what you want about MS, the Office suite is the de facto industry standard. If you exchange documents with anyone outside your office, odds are they will want either a Word document or a PDF. And if you do markups and/or have any kind of outline formatting (as with 99% of contracts these days) you really can’t count on anything besides Word to properly handle the formatting. The MS Office 365 suite is about as cheap as software gets. Can you get by with LibreOffice or OpenOffice? Sure, but why would you scrimp on the tools for your practice that you use every day, especially when the industry standard is as cheap as office is?
Kevin Grierson, Virginia
I know a few offices running Linux and open source software. Being in a small minority, they have to do workarounds when interacting electronically with others. Programming and technical knowledge helps. Staff training also needs to be exceptional.
Similarly, a larger percentage works with Apple products. They too have to do workarounds, but the market has support. Since support exists, technical requirements are not as high.
The mainstream runs on MS. People assume you have it. File transfers are relatively seamless.
Personally, I keep WordPerfect and LibreOffice on computers in addition to Microsoft Office. I also maintain several different PDF software types. One of the reasons is that keeping cross-trained and current can be helpful when gremlins are afoot in document formatting or other issues.
Frankly I prefer PDF alternatives to Adobe. I get by with an older license or two of Adobe and currently prefer Nuance's product. If you are going to be an outlier in your selections, make sure your workarounds work.
Darrell G. Stewart, Texas
For me, when considering open source, the first proviso that comes to mind is that, if you're considering an open source operating system, keep in mind that you're acquiring the foundational software on which everything else relies. Because it's open source, there are legions of programmers working on it - to fix it AND to break it.
I would not install and run open source unless I had someone competent to handle my IT, at least insofar as keeping up with bug fixes and the like is critical there; someone who knows when to install a patch or update, and when to wait.
Running open source apps is *somewhat* less critical in that regard. If configured properly at the outset, most open source apps play perfectly well with others.
Richard J. Rutledge, Jr., North Carolina
I use LibreOffice for word processing and spreadsheets, for about a year now, and I haven't had any complaints. It took 2-3 months to get used to it just because of the different menus and functions. A lot of just looking for something I needed and then googling it. I have yet to find anything I need that it won't do but Office will.
Rick is correct, when you move into these programs you either need professional help handy or you start learning really fast. I'm computer savvy so I enjoy it.
Be careful how you save the files, .odt, .doc, ,docx, .xls, .csv, etc...
All these extensions become a lot more important when you know the file will be opened by a different program.
I would suggest running both programs in parallel. Take a test document and open it in one program, make edits, save it, open it in the other, make edits, save it, repeat as needed and see if it messes up your formatting.
Once you ditch M Office you can always use OneDrive in your browser for Word, Excel, etc.. . just like Google Docs.
D. Mathew Blackburn