October 22, 2014

Some tips from a graduate of Utah’s New Lawyer Training Program

Last year, the Utah Bar Association for the first time implemented the “New Lawyer Training Program,” (NLTP) a requirement for new lawyers in Utah.

The goal of the Utah NLTP is to match new lawyers with more experienced lawyers for training during their first year of practice in professionalism, ethics, and civility; to assist new lawyers in acquiring the practical skills and judgment necessary to practice in a highly competent manner; and to provide a means for all Utah attorneys to learn the importance of organizational mentoring, including the building of developmental networks and long-term, multiple mentoring relationships.

Or, more simply put, the Utah Bar will put you with an older lawyer to teach you to play nice with others, while also how to succeed (i.e. make some money, ethically) and avoid ending up on the Attorney Discipline pages of the bar journal.

As a recent graduate of the program myself, I think it’s a useful and wise program. As I’ve noted in just starting this blog, I’m of the opinion that a lot of a new lawyer’s education upon graduation from law school is learned in real practice. We have a J.D., but little experience, and, if Justice Oliver Wendell Holmes is to be believed, “The life of the law has not been logic, but experience.” By paring new lawyers with more experienced lawyers, the opportunities for mistakes are fewer and the wisdom of ages is shared with younger attorneys.

Recently, a friend of mine had the opportunity to share some of the lessons he learned as a result of the program in the Utah Bar Journal. Zach Derr, of Foxhill Legal, LC, has a story not unlike many attorneys who graduated at the same time I did.

I graduated from The George Washington University School of Law in 2009 during the worst legal market since the Great Depression. I was lucky to have an offer at a small firm in Lehi. I took the job, but, because of slow work, the firm could not afford to keep me on salary. For several months, I looked for a job and had some interviews but no offers. As I was looking, a good friend and mentor referred a small business owner to me to write a letter of intent for a contract. This small business owner gave me more work and I gradually picked up a few more clients. In May, I stopped sending out resumes, and set up my firm, Foxhall Legal, LC.

It’s a story I’ve heard a dozen times over the last year, and in many ways, Zach is one of the lucky, if not enterprising attorneys, I’ve heard it from. He works hard, he can hustle, and he’s a good attorney.

He offers some great advice, as well as some interesting insights, about why the mentor program worked for him. I think it is worth noting that an attorney, or any person, doesn’t need a formal mentor program to have a mentor. Perhaps it helps if formalized, but, as Zach notes, there’s no reason you can’t reach out to your network for insights and experience you don’t have.

When I was at a firm, I could walk down the hall and ask other attorneys questions. As a solo practitioner, I have learned to rely on emails, instant messaging, and phone calls to colleagues. Fortunately, I received advice, forms, and assistance from mentors, law school friends, and attorneys I met through networking. It’s nice to talk through things with another attorney to see if I am on the right track. My mentor helped talk me through some tough situations and prepare for hearings.

Using a mentor isn’t just about advice, either. A lot of the law is about getting the language right, whether for a pleading, a form, or a contract.

Getting the right forms has saved me a lot of work and helped me in drafting documents. Most of my work has been transactional and getting the right forms has made all of the difference in developing my practice. However, I’ve found it’s important to know how to use the forms and how to change them to fit the needs of clients. Forms can be dangerous. Even with the right forms, areas can be more complicated than they appear on the surface. I would advise anyone using forms to spend the necessary time getting familiar with the area of practice before using the form. My mentor helped me find forms and the underlying legal concepts.

Forms and the law aside, an attorney must still make a living. One of the more difficult aspects for new attorneys, especially solo practitioners, is the business side of a law practice. There aren’t many classes about how to bill clients, track expenses, market yourself, and so on. In fact, I don’t know that there were any at my school (fellow graduates of SJ Quinney can correct me, now, if they’re reading this). We were taught the ethics of what we could and could not do, but knowing the formal ethics of legal marketing is a world away from managing and marketing a law firm, which is exactly what a new lawyer needs.

On this point, Zach makes two observations: 1. Spend Money Wisely, and 2. Avoid Non-Payment. On the first point, he uses a virtual office that helps him avoid the costs of a full office lease and staff. On the second, he recommends getting payment up front.

It only takes not being paid once for most attorneys to change the way they bill clients. Although it may scare some clients away, a retainer protects the attorney and ensures prompt payment. Although most of my clients have paid, some have waited a month or two to send payment. A retainer provides immediate payment; after billing the client, I can simply withdraw earned fees. When charging a flat fee, get the money upfront to avoid headache down the road.

Zach, as far as I can tell, likes what he does, and he likes the freedom that his practice allows him to have. He skis more often than I do, and I know he loves spending time with his family, especially since he can put the kids to bed at night, and go back to work without leaving the house. Could his practice have worked if Zach went it alone? Probably. But has he benefited from a community of associates and a great mentor? No doubt about it.

Mad props  to those mentors who take the time out from their practice to help younger lawyers learn the ropes. They do credit to both themselves and the profession.

(Thanks to Zach Derr for his help on this post. You can reach him at www.foxhalllegal.com and by email to zderr@foxhalllegal.com.

Law Practice Tip #4: read “The Curmudgeon’s Guide to Practicing Law”

Whether you’re a newly minted lawyer or a third year associate, a solo practitioner or one of hundreds in a national firm, you should regularly  review of the basics of practicing law. Research, writing, presentation, argument, and knowledge of the law are just tools of our trade, and keeping them sharp is as important to our practice as  it is for any carpenter sharpening chisels, saws, and blades.

This month I am reading the short and handy “The Curmudgeon’s Guide to Practicing Law” by Mark Herrmann. With quick, practical, and to the point tips on everything from how to write a clear and concise brief to the etiquette of voice messages, it has proven, so far, to be both a delightful and refreshing reminder of the basics of legal practice, not to mention a good laugh.

Some examples:

  • The Ten Most Common Mistaken Assumptions Made by New Lawyers (including #10: “So long as it’s clearly marked “DRAFT,” no one will care if it’s incomprehensible.”)
  • What They Didn’t Teach You in Law School (I found this particularly interesting, and I might someday add some bits of it here)
  • The Curmudgeon’s Law Dictionary (including this definition of Business Development: “Playing golf with old college buddies. As in: ‘Of course I charged the firm for my business development trip to Scotland.'” Or this one for Will Contest: “A judicial procedure in which disappointed legatees attempt to prove that their beloved testator was drunk, incompetent, or unduly influenced at the time the estate plan was made.”)
  • The Curmudgeon on Clients, wherein the Curmudgeon reminds us that we are not in the legal industry, but the service industry, and it is our job to make clients’ lives easier.
  • And so on…
Pick it up. Published by the ABA or available online at Amazon, it’s worth your read, both for the chuckles and the real, and very practical, advice for success as a lawyer.

Law Practice Tip #3: Declining Representation

If you’re like me, you occasionally get calls from family or friends about legal issues, and not because they want to hire you. Additionally, because you’re a lawyer, you get those occasional legal questions while out and about socially. People making conversation. Or so you think.

Until suddenly you get a notice from the court indicating that someone was claiming you as their lawyer.

While attorney-client relationships are not supposed to happen unless there is a mutual understanding between the attorney and the individual, it’s a pitfall that happens. Avoiding the inadvertent relationship means a little extra care by the attorney, but it’s not too difficult to do. In an article for the ABA,  Evan L. Loeffler provides a few great tips on keeping everything above board and avoiding those tricky situations.

  • Don’t give legal advice outside of your field of expertise.
  • Don’t give legal advice on a situation pending in a jurisdiction where you are not licensed to practice.
  • If you determine the other party already has a lawyer, resist the urge to second guess.
  • Make it clear the person may have a legal problem that he or she should consult with a lawyer about (good for those cocktail party questions). “If that lawyer is you, offer to schedule an appointment in your office and discuss what you will charge.”
  • Encourage the questioner to seek formal advice quickly, especially if there is a statute of limitations affecting a possible claim.
  • Always follow up in writing.
  • Remember that whatever the client told you is presumed to be in strictest confidence.

Check the whole article, published in July/August 2010 issue, here at the ABA. The article also has a sample letter for declining representation, a copy of which should be kept on file each time it is sent out.

Law Practice Tip #1: Market Yourself Non-Stop

One thing they spend very little time teaching in law school, if any at all, is how to make money as a lawyer. Which is ironic, because all of us have heard the jokes about lawyers and their greed. How do you make a penny into a wire? Give it to a lawyer. Or how about this one?

An elderly and somewhat hard-of-hearing man was sitting in a stylish downtown attorney’s office as his lawyer handed him his will. “Your estate is very complex,” said the lawyer, “but I’ve made sure that all of your wishes will be executed. Due to the complexity, my fee is $4500.”

Just then, the phone rang and the lawyer got involved with a long call. Thinking the lawyer had said “$500,” the old man wrote out his check and left.

When she got off the phone and realized the old man’s mistake, the lawyer ran after him down the stairs and into the parking lot just as he drove away. Feeling frustrated, the lawyer looked at the check and decided to accept the situation philosophically. “Oh well,” she said to herself, “$500 for half an hour’s work isn’t bad.”

Really, though, turning law school into a paying skill is more difficult for a lot of lawyers than our reputation says. Many of us went to law school in the first place because a) we got a bad grade in organic chemistry and were not sanguine about taking the MCAT, or b) we didn’t have the math skills to slam the GMAT and go to b-school. By default, law school was the logical alternative (yeah, all that baloney about “loving the constitution” and “wanting to help people” is just that–baloney. Sure we want to help people, sure we love the constitution, but we also want to eat, and a law degree seemed a logical means to that end…or at least it seemed it was when I was asking my father-in-law for his blessing to marry his daughter).

So we pass through law school, or it passes through us, we graduate in over-priced robes that we’ll never wear again, we listen to graduation speakers about lofty ideals and human rights attorneys, then walk out the front door to our waiting parents/spouse/in-laws and their questions: where will you be working? Because life isn’t cheap, and neither are the student loans we took out to get through law school. Graduating during the “great recession” doesn’t make it any easier.

I’m not a solo practitioner, but  I have a lot of friends who are, because law firms weren’t hiring. So a lot of us went solo, or did office shares and the like.  A very “eat what you kill” environment. It meant that, despite wanting to practice one type of law (constitutional law, human rights law, corporate mergers and acquisitions, etc), we usually end up doing something that has higher case volume–individual bankruptcy, criminal defense, family law, wills and probate or personal injury (not including products liability or medical malpractice. Those are case types that generally require more than a young solo prac can offer.), etc. And, as I’ve reiterated, attorneys are natural businessmen. Or at least many of us are not.

Fortunately, as they say, “it can be taught!”  Constantly watching for the day my own employer comes to me and tells me that business is just that bad, I’m always trying to watch, read, and learn the entrepreneurial side of the law. And today I think I’ve hit on several great suggestions for solo pracs, especially those just starting out. The key to staying in business, and eating, for a solo practitioner is paying clients. Emphasis on the paying part of that. Bill Gibson, in the November/December issue of the ABA’s Law Practice, had four suggestions and, interestingly, none of them had anything to do with the practice of law itself. Your success, he says, depends on several critical factors:

  • How thoughtfully you develop and execute a sound business plan
  • How well you look for, create and seize upon business opportunities
  • How well you surround yourself with people who are committed to succeeding
  • How well you manage your finances

I recommend Bill’s whole column. It’s commonsense advice, the most important of which I thought was this: market yourself non-stop. Oh, and you can succeed. Nothing about the law in that, but plenty about good business principles, about which there are whole libraries of books out there to help you find and navigate your way to business

Influencer: the Power to Change Anything

success. One I’m reading right now is called “Influencer: the Power to Change Anything,” written by Kerry Patterson and Joseph Grenny. Patterson is also the author of “Crucial Conversations,” another great book for business or personal improvement. Check out the business or self-improvement shelf of any Barnes and Noble or Borders bookstore, and you are bound to find the one that fits your need at the moment.

While your over at the November/December Issue of Law Practice, take a moment and look at their excellent tips on managing your law firm’s finances, “Finance Tips: 25 Quick Tips for a Healthier Bottom Line.” One of the most intimidating things about starting a practice is the nuts and bolts, and the tips the ABA offers are very useful. Don’t miss Tip #11: don’t work for clients who don’t won’t pay.

Last word: the economy will turn around, and if you’re working hard now to get ahead, the pay off will be that much greater when business is better for everyone. In the mean time, work hard, rise early, and strike oil.

Lawyers don’t produce anything.

This is the one in which a lawyer produces something.  But first, this from Antonin Scalia:

[L]awyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table…

And now, cut to the part where a lawyer does produce something.  Enter Kate Carrara, who makes cupcakes.  Darn good ones, too, if she can be trusted. And having a lot more fun than when she was actually practicing law.

Everyone in my family is a lawyer — my father’s a lawyer; my grandfather’s a lawyer. So I went to law school and spent six years working as a trial lawyer for my family’s firm. Then I did coding for two years at another law firm, which was insanely boring.

So, according to Above the Law, she started trying out cupcake recipes on her coworkers.  Today, she owns a “cupcake mobile” that cruises the streets of Philadelphia appeasing hungry stomachs. Not too shabby…and definitely more delicious than the billable hour.

(thanks to Above the Law)

Opening up the books on post-grad employment

Remember graduating from law school?  Remember studying for the bar, and then taking the bar, and then that long wait for results?  And, if you were in my class, just starting to realize that the economy’s nose dive affected the legal industry, too, there was during all of that the constant hunt for a job.  Because those student loans weren’t going to pay themselves, see?

Rewind four years earlier: when this writer was considering which law school to attend, prime among my considerations what the employment rate of graduates within six months of graduation.  Let’s assume I had been accepted to an ample  set of choice schools (though none in the top 15, which would make this whole discussion moot, anyway), and I was trying to decide which school would give me the best opportunity to pay off those then only anticipated student loans.  With the average law school debt load ending up somewhere between $100k and $140k, the ability to repay the loans is among the prime considerations in selecting the school.

Enter the law school employment office and their oblique “employment statistics.” Two Vanderbilt students are taking on the system:

In a paper published at SSRN, [Patrick Lynch and Kyle McEntee] argue that summaries for each law school in the ABA’s official guide can be confusing. Prospective students looking at the summary table for a law school will see the number of grads employed in law firms, but they won’t be able to tell whether they were working as attorneys, law clerks, paralegals, contract attorneys or administrators, Lynch and McEntee write. The national summary report, however, shows that 6.9 percent of all law school graduates in the class of 2008 working at law firms actually held nonlawyer positions.

Similarly, would-be students who check out the number of graduates employed in business and industry will find that “in-house counsel [are grouped] with short-order cooks at Waffle House,” Lynch and McEntee say.

So let’s say I’m in-house counsel.  And I am grouped with short-order cooks.  Nice.  At least I have an office.

Is that fair?  (not that I am being grouped with short-order cooks, but that prospective student’s are basing their decisions on it).  Essentially, when the prospective student looks at those numbers, trying to evaluate the prospects for post-graduation employment, they want to know where alumni have ended up.  Based on how the numbers are now, little do they know that the stats are cooked to show a favorable impression of the school.

Personal experience supports this.  As I approached graduation and was trying to find out where my fellow students were going, as well as were they had gone in years past, and even after graduation when I asked where we had all landed, at each request I was met with opaque responses citing “confidentiality.”  I’d buy that, except that the graduation survey that I was hounded to complete, even before I was fully employed, explicitly listed me with the option of either being employed, or not employed, but gave no option for partial employment or non-law related employment.  Even when I expressed my hesitancy to complete the survey because it did not seem to reflect my experience, the employment counselor pressed me because “it helps the school’s recruiting to show employment, and besides, this is only for statistical purposes.”

And what might those purposes be? Recruitment.  Only.  As if it were so benign.

Which brings me back to Lynch and McEntee, our enterprising Vanderbilt 2Ls. They say that

[...] law schools hide their employment data in aggregate form, the National Law Journal reports. “You may know that 50 percent of graduates got jobs at law firms, but you don’t know what types of firms and types of jobs they got,” McEntee, a 2L, told the publication.

The two students have created a website called Law School Transparency where they hope to publish more specifics. They want to describe in more detail where law school graduates end up working each year and how much value they received from their degree.

In particular, they want each school to provide information about each student nine months after graduation that includes employer type, employer name, position name, whether bar passage is required or preferred, full-time or part-time status, office location, whether the student worked on a law journal, and salary.

Lynch and McEntee aren’t asking for each student’s grade point average or class rank out of privacy concerns, but they believe law journal information will suggest whether students were at the top of their class.

It’s a great idea, and it may do something to open the law school market up to better education, better employment offices (as in, they actually try to help all of their students, not just the top 10% who are headed to the big, shiny firms), and better networking.  Competition is good for everyone, and opening the windows to transparency will only enhance prospective students’ ability to make informed choices.

I know I would have been more discriminating if I had known more about my school’s employment office before I paid down my deposit.

(via ABAJournal)

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