Popular Threads - April 2020

iPhone Scanning App

Looking for a good scanning app for creating PDF's on my iPhone.  Any recommendations?

I use FasterScan (by ifunplay) on my iPad and I love it.  Haven't paid for copies in years.  When changes are made to agreements that have been brought to court, I scan the docs... the app lets you fix margins, control lightness/darkness, preview scan.  I then email a copy to client.. and OC if they request (they nearly always do).

Laurie Axinn Gienapp, Massachusetts

I use Tiny Scanner on my Android phone, and I think it's terrific.  I assume there is an iPhone version.

Andrew C. McDannold, Florida

I use Scanner for Me. Works fine. No issues. I can share the result by email, etc. too.  I’d suggest trying some out and seeing what interface/usability works best for you.

Some apps, like Dropbox, may have a built in “scanner” too.

Phil A. Taylor, Massachusetts

Adobe Scan. Free and works great.

Laura S. Mann, New Jersey

oh wow... until now, I never knew DropBox had a built-in scanner.  Color me excited!  While I use DropBox a lot, on my iPad I'm generally accessing what's in there, rather than adding to what's in there.

I'm definitely going to have to try this out.

Thank you, Phil!

Laurie Axinn Gienapp

The DropBox scanner works great. It will even automatically recognize business cards and scan them as such.

Eugene Lee, California

Thanks. I'm going to try these out.  I wasn't aware of the DropBox scanner either!

Peter Bauer, New York

Do you scan on your printer, and DropBox has the software? I don't get it.

Reta, RETA A. McKANNAN

no printer involved.

You open dropbox on your mobile device.  Somewhere (for my ipad, it's bottom left), there's a + sign that says Create. if you click on that, one of the options is Scan Document. You then use the camera feature and take a picture. and it is saved to your dropbox as a PDF.

Laurie Axinn Gienapp

hi, just open up dropbox, hit the big PLUS button to add something new - select picture - then it will automatically take a picture of whatever your camera is pointing at. If it's a business card, it will automatically sense that.

Eugene Lee, California Labor

Is Writing Health Directives for All 50 States UPL?

Hi all, 

I see a strong need for health care workers (and everyone else) to get health directives, living wills, etc. I am a CA attorney (living in Las Vegas) focusing on estate planning- every time I have tried to find out on my own if I could write estate plans for those residing outside of CA, I got a lot of mixed messages and figured the answer was “no.”

My dumb question: Can I write health care/advance directives for anyone in the US, or just CA residents? I want to avoid the unauthorized practice of law, but I ask this now because I own a program that creates plans for all 50 states, and I’d like to really be as helpful as I can right now. Again, I’ve always assumed the answer is “no.” If the answer is “no,” is there any sort of workaround?

When a question about whether I am permitted to do something, I contact the Virginia Bar's ethics hotline.  Be aware too that if the work involves a second jurisdiction, that you may also want to check the ethics rules in that second jurisdiction too.

Deborah Matthews, Virginia

Can you? Probably, so long as you are not advertising to client's outside of your jurisdiction you are not availing yourself of the other jurisdictions’ laws (caveat I am simplifying that)

Should you do this is likely the better question.  Are you prepared to research the laws in multiple states to make sure you are correctly identifying each and every potential problem?  How complicated of a document are you willing to work on to achieve that?

I've done a few documents for family members that complied with their home states and I did the research and looked at older documents they had done.

Further, if I screwed up the documents, it is a no harm no foul situation since it would all fall onto me to make decisions/inherit anyways.

Erin M. Schmidt, Ohio

If I were you, I’d be less concerned about writing documents for residents of states other than California and more concerned with whether I was violating Nevada’s UPL rules by practicing law in Nevada without being licensed there. 

Speaking very broadly, most states’ UPL rules have historically addressed two things: (a) representing a client in the state’s courts (or sometimes other tribunals), and (b) engaging in the “practice of law” while physically present in the state. Note that I did not list there anything about preparing a document governed by the law of another state, not did I list preparing a document governed by the law of the state while not physically present in the state. 

Some of this *may* be changing because of the prevalence of “remote practice” (sometimes known as “virtual practice”), but personally, I wouldn’t bet my license on it (especially considering the requirement to report to the states in which I am licensed any accusations that I have violated the licensing laws of another state). 

Of course, your mileage may vary. 

Brian H. Cole, California

Yup I missed the whole living in Las Vegas part

You cannot do ANY legal work in Nevada, even for CA residents unless you are licensed in Nevada.  You live in Nevada, you have availed yourself of its laws.  You are governed by their legal rules requiring being barred.

You cannot do ANY legal work there.  Not even work from home for a firm in CA doing CA work unless it is work NOT covered by state law (example SSA or other federal work)

There are, of course, caveats to that.  For example, it was not considered UPL for me to take a phone call or work on a client's case while on vacation or visiting another state as it is related back to my work in my licensed state and I am not in the other state for the purpose of doing legal work 

Erin M. Schmidt

Thanks all, I called the CA ethics line per Deb’s suggestion and got the same advice. Trying times for sure.

Thanks again, 

Ashley Tribulato, California

I think in California you are okay as they allow document preparation by non-lawyers, I would limit it to Health care Directives and maybe statutory power of attorney forms.

Martha Jo Patterson, California

I am somewhat of an expert in that area because I practice Elder Law and I teach some health care workers in Pennsylvania, and I give presentations on Advance Healthcare Directives.

In Pennsylvania, we have our own statutory form. It is well known and accepted by doctors, judges. It is a part of the statute.

We have statutes that set out due diligence requirements of agents acting with a form. There are about 84 statutes in the laws that govern the documents.

Our laws are quite different from our neighboring state, New Jersey.

There is so much diversity in the state statutes because by the time the "Uniform Law Commission" came up with a model law, the states had already passed their own laws.

Bob Gasparro, Pennsylvania

In analyzing these types of questions, be careful not to conflate competence (or the presence/absence of malpractice) with UPL. While they may have a slight relationship to one another, they are generally independent.

It is very possible to commit UPL competently, and to commit malpractice while not committing UPL.

Brian H. Cole

I get the part where I cannot perform legal work in a state where I am not licensed to practice law even if it is for clients in the state I am licensed at.

However, assuming the following scenario:

Client lives and works in State B. But client is still registered in State A and also sees herself as a resident of State A.

Client contacts attorney in State A for estate planning purposes while still in State B.

Could attorney, who is licensed in State A, doing business in State A, help client even though client lives and works in State B.

While client is still registered in State A and considers herself as a State A resident, I am having a tough time to see any benefit in client to ask a State A attorney to draft these documents. I do not believe that the DPOA or advanced healthcare directives would work in State B.

And because client lives and works in State B it would be better, in my opinion, to have an attorney from State B to draft these documents.

What do you think?

Thank you and you all stay safe and healthy!

Alexandra Kleinfeldt, Florida

DPOA and Healthcare directives are state specific.  I do not know of a more useless document than a health care directive that the provider won't recognize and usually by that time the "client" is beyond being able to execute a new document.  Have the client seek legal counsel in the state where the documents are most likely to be used.

John Martin Miles, Georgia

John, thank you.

That is what I thought. It doesn’t help her if she has the documents from State A and something happens in State B and the documents are not recognized.

Alexandra Kleinfeldt

As I said before, don’t conflate competence (or malpractice) with UPL. 

In effect, your question is which lawyer (or a lawyer in which state) would be best to advise this particular client about estate-planning documents. Secondarily, you are asking (it seems) what forms of various estate-planning documents (such as a will, trust, or DPOA) would be best for this particular client.

That is an entirely different set of issues from whether any particular lawyer is engaged in UPL. If the lawyer in your scenario is licensed in State A, has no offices outside of State A, never appears in court outside State A, and does not solicit cents outside of State A, I have great difficulty conceiving how the lawyer would be committing UPL. The client in your scenario contacted the lawyer at the lawyer at the lawyer’s office in State A—that is not UPL. 

You seem to think that the lawyer should have advised the client that it would make more sense for the client to speak to a lawyer in State B about preparing the appropriate documents. That may well be, but it does not convert the lawyer’s actions into UPL (whether it is malpractice or not I cannot say). 

Brian H. Cole

I guess that I have a difficult time in categorizing the client’s needs.

The client is requesting assistance with estate planning and advanced directives. Client considers herself to be a resident of State A and is registered in State A. Client provides addresses and asset information for State A.

If we stop right there, I think we all can agree that there is no issue.

But, considering that client tells attorney that she lives and works in State B changes the entire matter.

I assume that there are attorneys out there who would just be drafting the documents, take the client’s money and that’s it.

Which, in my opinion violates the rules of professional conduct and ethics rules. I agree that this is no UPL.

But it most likely opens the door to a malpractice claim in my opinion.

Wouldn’t you agree that a person should have advanced directives for the jurisdiction in which said person lives and works?

If a person lives in State Y but has to cross the border to State Z every day for work, I would go with State Y. But would suggest to additionally get advice for State Z.

I appreciate your thoughts Brian.

Stay safe.

Alexandra Kleinfeldt

I won’t review the laws of each jurisdiction, discussing the issue with an attorney in the neighboring jurisdiction and see if there is a document which will satisfy the requirements of both states or to have two directives. The cost of a second directive is less than the costs incurred to defend the document in state Y.

John Martin Miles

I concur that it is not UPL. 

I don’t know enough about the substantive laws relating to estate planning to comment on what documents are appropriate. 

But I don’t understand why you think this would “violate [] the rules of professional conduct and ethics rules”—perhaps because I don’t understand the substantive law. What specific rules of professional conduct and ethics rules do you think are violated? 

What if the situation were this: 

- Client says she is working on a short-term project in State B, and has rented a house there for the duration of the project because that is more appealing than living in a hotel room for the length of the project.

- Whenever possible (such as long weekends), Client returns to State A, where she maintains what she considers her permanent residence.

- At the end of the project, Client intends to return to State A, and to live there indefinitely. 

- Lawyer explains to Client the potential that some accident could befall Client while Client is physically present in State B, and that documents prepared in accordance with State A law might not be fully effective in State B to carry out Client’s intentions. 

- Client nonetheless instructs Lawyer to prepare documents in accordance with State A law, because that is where the bulk of Client’s assets are located, and where Client intends to live as soon as the current project is finished. 

As I said, I don’t know the applicable substantive law, but it doesn’t strike me that Lawyer would be violating any Rules of Professional Conduct or ethics rules under those circumstances. And, assuming that Lawyer competently prepares estate documents (in accordance with the laws of State A), I don’t see how that is malpractice. 

Of course, I am sure that one could modify those facts and generate a problem, but I haven’t seen it yet. After all, I understand “citizenship” of a state is a function of two things: physical presence in a state and intention to remain there indefinitely. In my hypothetical, Client established citizenship in State A before temporarily moving to State B for purposes of a short-term project. Client may be physically present in State B, but she has no intention of staying there indefinitely, and she has maintained her connections to State A (including intention to remain there). I think this comes up frequently in the context of members of the military, who consider themselves citizens of the state where they plan to return, even though they may be temporarily at a “duty station” in another state. 

Brian H. Cole

My point of a violation was if the attorney knows about the living situation of client and is aware that the documents the attorney is drafting will most likely not be valid in State B and does not inform client accordingly. Attorneys have the role of advisors and this os something an attorney would need to advise the client about. If the client has been informed and still wants to move forward with attorney drafting the documents for State A then the attorney has done everything needed.

In regard for your situation, you are correct. It all comes back to what did attorney tell client. As long as client can make an informed decision based on attorney’s advice it is all good.

I appreciate the thought exchange.

Happy Easter to all!

Alexandra Kleinfeldt

Pictures Degrading

We have a lot of pictures saved on our computer. My wife says that many of the older ones seem to be degrading. They are all saved in .jpg format.

Do they just degrade? Maybe with repeated opening? Or might it be some other issue, with the computer?

Thanks.

While video on magnetic tape and images on film and photo paper will definitely degrade over time, digital images and video cannot do so.  If the digital media on which the files are stored is corrupted, the files will simply be inaccessible.

Andrew C. McDannold, Florida

Your older pictures are likely of lower quality because either what you used to scan them was a much lower DPI then is standard today or the digital camera you took them with was a much lower megapixel.

The average camera phone today is running about 10-15 mega pixel if not higher.  That is what most middle  DSLR cameras were running in the 2000-2010 range (my higher end beginning DSLR was 8 mega pixels)

This will make your older pictures look less clear when compared to newer ones taken on a camera with higher mega pixel.

Kind like if you are used to watching TV in high Definition and go back and watch an original of older films/tv shows, they look grainy and slightly out of focus.  They haven't degraded, you are just used to a much better quality that didn't exist back then.

Erin M. Schmidt, Ohio

These seem to be degrading, or corrupting over time, perhaps each time we view them.

Some are fully accessible. Others we've lost part of the picture. Others just appear less sharp.

Michael D. Caccavo, Vermont

Yes.  Pictures in jpeg format do degrade each time they’re opened.  Only RAW format saves every pixel.

Peter T. Clark, Massachusetts

1. Back up what you currently have.

2. Hopefully you have prior backups.

3.  When ready to proceed, take a duplicate copy and try it using different programs and computers.  Make sure you run malware searches and update the computer you are going to use before attempting.  Run a malware search on the duplicate copy as well prior to use.  See what works and what does not.

JPG does not deteriorate, but may be corrupted.  Corruption source is typically one of three things, malware, program or hardware.  Experimenting with the above approach will narrow cause.

Darrell G. Stewart, Texas

https://www.lifewire.com/jpeg-myths-and-facts-1701548

Above link would be contrary to PTC position.  It goes through explanations on the varied approaches.

Darrell G. Stewart

Also, beware of the software you are using.  The default settings of old versions of Google Picasa as well as cloud storage software may compress image files on the computer to save space (while hopefully storing originals somewhere in the cloud).  That compression would cause a quality degradation.  If you still have the originals stored somewhere, you're OK but you can't uncompress quality back into the images.

Jarrett Silver

Jpegs are compressed.

Every compression throws away some data.  So every time you *re-save* a jpg (for example if you edit the file) it will re-compress it.  Eventually the picture will look worse.

It should not happen when you merely open a file to view it, but (no offense) it's always possible that you're doing something without noticing it.

The solution is to use something like Lightroom, which is a non-destructive photo editor.  Lightroom will never actually touch your root files no matter what you do; it merely stores a set of instructions ("rotate, lighten 10 steps, add some red") and applies those instructions when you export.  It's designed to avoid the problem you describe.

Erik Hammarlund, Massachusetts

Solo to Government Work

HI All,

I have been a relatively successful solo patent and trademark attorney for over 16 years now.  Sometimes I think the grass is greener on the other side, and when I see a position open up with the Patent office, or the Federal Government, I think how nice it would be to have wonderful benefits, and a relatively easy 9-5 job, no more marketing, networking, etc.

Have any of you gone from solo to government work?  How did you handle having a boss?  Was it a good decision, and why?  Thanks.

At this point- I would probably jump in a government job if only for the insurance.

But an added bonus would be the security of a paycheck. This situation has really opened my eyes as to how vulnerable solos are. Those with outstanding March invoices are likely to not get paid anytime soon or at all for work already completed- if you got lax in your evergreen retainers or had clients who always paid at the end of the month so you forgave that requirement in good faith- well- guess what? We have learned from this listserve that the government programs are not really going to help and our Governor has said we attorneys can work from home- which in my opinion cuts is out of any unemployment benefits for the self-employed- making us essentially essential employees but without income. The courts being closed doesn’t help either.

I don’t have an answer but if you have a job offer right now I would seriously think about taking it.  Maybe it’s the uncertainty in me talking because I love the freedom of being solo- but-

Micah G. Guilfoil Payne, Kentucky

I suggest you look at your lifestyle now and consider what you are willing to trade for steadier work and more job security.  For example, in my life with young kids to raise (and now I have to homeschool them until June) a solo practice gives me the flexibility I cannot pass up.  

Do you like to be able to work the hours you choose?  To take time off whenever you need it - even for a personal appointment - without having to get permission?  Will you be happy with the salary and benefits offered?

I have worked in-house and solo and both have their advantages and disadvantages.  Go with what works best for your lifestyle at this point in your career.

If you do apply, good luck!

Christine Kuntz, Pennsylvania

A government check isn't as reliable as it sounds. The federal government shuts down every so often, the latest of course was end of 2018 in to 2019.

I believe all the back pay was eventually sent out when the government re-opened, but you'd have to have a financial cushion to tide you over until then.

My gut feel is that federal government shutdowns are going to be more frequent due to continued division in politics, debt ceiling being reached, etc.

Andy I. Chen, California

I did criminal and juvenile defense as a solo for about 10 years; then I was offered a job as a prosecutor. Handle having a boss? I used to have about 40 bosses; now I have only 1 boss. It was a leap of faith to close down my private practice and accept a job for less money. My primary motivation was to get good health coverage for my wife so she could quit working, but it is nice to have all your expenses paid, no overhead, no tracking your time and billing, paid vacation and sick days, inexpensive Blue Cross, and 12 paid holidays. The down side is less freedom, regular hours, and the view seldom changes. It was an easy adjustment to make as defense/prosecutor are two sides of the same coin, except as a prosecutor I steer the case. Yes, I'm glad I made the choice I did, but not really a case of the grass being greener; just different.

Duke Drouillard, Nebraska

I was an attorney at FEMA for four years, based on disaster assistance nonprofit work I did beforehand. I left more than a year ago to build a cannabis practice.

Joining the agency was on the best things I did in my life to learn how government works and how to influence policy. That more than the connections have proved valuable.

I left after 4 years for the reasons Duke mentioned below. I missed the entrepreneurial spirit and freedom. I was always ok in a chain of command, and accepting that my ideas would only work their way into policy a distant fraction of the time because of the nature of so many actors sharing the same turf and inchoate cultural and agency limitations.

I miss the stability and camaraderie. At the end though, I choose not living with regrets, even If it meant uncertainty or even failure,

Benjamin Rajotte

I worked for a firm and the went to government. I went back into private practice and then migrated to my own firm before going back. The pension is nice. I work from home and have flexibility. I miss the cases though and answering only to myself and the judge.

Mitchell Goldstein, Virginia

I have had several "is that grass greener?" moments over the years.  Looked at a few City attorney/local government attorney positions and almost applied a couple of times.  But for me, that was based out of temporary frustration, not a systemic unhappiness.

I think it happens to everyone in some fashion and in the end, but I wouldn't use the current situation as the metric to hold to.  This is a once-a-century event and while it isn't good for solos (along with everyone else, except Bezos) you really have to think about what you are giving up in the lawn you are in.  With younger kids, the flexibility of a solo was ideal, now that they are teens, I don't need all of the flexibility, but I wonder about being working under someone.

I still might more to a position of greater stability, but having been in larger firms, I would be more likely to opt for the government route because I don't want to bill 2000 a year.

Drew Winghart, California

My 2 cents though: I am retired military and thoroughly enjoyed my stints working for the federal government but as a Title 10 employee - not an attorney.  However, my practice now consists of exclusively representing federal employees, including many attorneys, and as a result I see the bad side of things constantly.  Poor managers, poor decisions, nonsensical orders, bureaucratic mindset and the like.  I've been asked by Agency Counsel before if I would consider coming over to their side, and told them I would if they gave me license to physically assault the client on rare occasion.  I mean, I've seen some really bonehead decision and obstinate senior managers who feel they have to back up their junior managers.  They sympathized, but couldn't agree to such.  

I suspect that's the case in any large organization.  I also see some amazing folks on rare occasions though.  I just helped a NASA Rocket Scientist get disability retirement - talk about some smart folks!  I guess it just depends on who you are working for.  

Sterling L. DeRamus, Alabama

Stamps.com Software vs Stamps.com Online

For many years I have been a happy stamps.com software user.  More recently it has had some issues.  My IT guy is recommending that we move to stamps.com online.  Anyone done this?  If so, I would appreciate hearing about your experience.

Happy Monday.

Do you own a Dymo?  If so, you can use netstamps and skip the stamps.com monthly fee. Just a thought. :) 

Happy Monday!!

Andrea Cannavina, nope notta lawyer, New York

Yes, we have a Dymo.  The $17.99/mo is not an issue.  With netstamps, is there an address book feature or would we have to enter an address each time?

Deborah Matthews, Virginia

Pretty sure you could cover the fee… lol  The Dymo software stores addresses.

Andrea Cannavina

I think my Outlook contacts are integrated into the Dymo address book, if that helps any.

Jim Pardue, North Carolina

I am interested in it.  So, you pay a one-time fee for a machine and the software is free and you just pay for the stams?  Which machines?

It seems cheaper than the $20 a month you pay for the machine from rental companies or other stamp companies. Is this better or just cheaper or both? I was not sure the 17.99 reference below was for this or other things

Mark H. Wagner

You buy the label printer (I suggest the Twin Turbo so you can have address labels on one side and the roll of stamps on the other)... and are offered an account with netstamps.  You have to buy the netstamps labels, but you get a discount for printing your own - I think it's .05 per stamp.  Feel free to give me a call if you want to discuss.

Andrea Cannavina

I pay $17.99 a month for the service.  Postage is extra, but as noted there is a break in cost.  We print on envelopes using our regular printer.

Deborah Matthews

I pay for the service, as well.  I was a beta tester for them, so I've been with them a good long while, even back before you got discounted postal rates.  One year I sat and fed over 200 Christmas card envelopes through the laser printer; it was awesome.

Depending on your volume and the type of mail, paying for the postage labels may make it a breakeven; I print primarily on #9 or #10 envelopes, and 6 x 9" "catalog" envelopes, though I do use larger envelopes and flats occasionally, and if they're too big to fit in my printer, I can print the postage on stamp labels, or on pretty much any generic peel-and-stick labels.  For flats, I generally use the 4-up labels, and pre-print my return address and/or logo on them, along with color admonitions for "Do Not Forward" or "Attorney-Client Mail" where relevant.  I don't think I've bought any postage-specific office supplies in over six months.

The software let you do a couple things that you couldn't do on-line when I used it last, including using your own graphic for the postage imprint, and print addresses and barcodes on envelopes for which you're going to use a standard stamp (some people don't like digital postage on things like condolence cards, etc., but my philosophy is that I generally send things with the hope that they'll get there, so in view of the illegibility of my handwriting, I *always* print the address, etc. on the envelope, so I might as well print the postage).  Those features may be there now.

Overall, the on-line seems to be fine for routine stuff, and seems to handle most of the forms.  (I'm especially fond of their one-page Certified Mail with Return Receipt forms for service on corporate defendants and the like.)  If your browser works well with your printer driver, you're in good shape.  For a while under Windows 8.1, I had some problems with that because my primary printer is an HP LaserJet 2100Tn, which I bought in about 2002, and their web interface didn't like the driver.  I'm not sure if it's still the case, but for a while, the web version was requiring you to install some resident program that helped deal with the printer driver or some such; I was never really clear why they wanted that running all the time, unless it was to work with their add-ins for Word and Outlook.

Richard J. Rutledge, Jr., North Carolina

CORRECTION: you no longer get a free account to print postage with netstamps when you buy a Dymo - only those of us who have had them since they were Dymo Stamps are grandfathered in at the free rate.  Sorry, something made think to call and check  -- apologies for anyone who ran out and bought a Dymo since my last post ;)

Andrea Cannavina

The account is free, but you can no longer use generic labels. You must purchase the OEM labels, which have a code on them, for the free account to work.

Scott I. Barer, California