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PRESIDENT'S PERSPECTIVE 2 MESSAGE FROM THE SPECIAL EDITOR 4 ------m ------

Enhancing the Value of Membership

became amember of the New Jer- line with other states, but will put the legal community on par sey State Bar Association in 1975, with other professions. In addition, efforts should be made to as soon as I graduated law school. ensure the finality of decisions by administrative law judges, Initially, my decision to join the who deserve tenure and the protections of an independent statewide organization was some- Judiciary. what of a knee-jerk reaction-as a Our outreach efforts will not just be about evaluating leg- newly minted attorney, it just seemed like islation and advocating our position, they will also be about the right thing to do. But I quickly real- building lasting relationships. That's just what we expect to ized just how valuable membership in happen at our upcoming town hall meeting. It's an event that the NJSBA can be, whether you are new to the legal profession brings together Trenton insiders with our members to devel- or a seasoned professional, whether you practice as a solo or as op new ways for the association to foster change on behalf of a member of a large firm. the legal profession and the public. The benefits of membership in the NJSBA run the gamut, And this fall, we will hold an NJSBA Day in Trenton, giving and have grown considerably in the three decades since I first our members a chance to meet one-on-one with politicians, signed up. A complete listing of everything available to mem- government officials and lobbyists so we can highlight the bers, from discounts on continuing legal education programs, legislative goals of the association, as well as the value we can legal research and insurance to office management and mar- bring to the decision-making process which began at the keting guidance, as well as invaluable networking opportuni- Annual Meeting in Atlantic City. ties, can be found on the state bar website, at www.njsba.com. I am also pleased to announce a new partnership between As I begin my term as president of the NJSBA, my goal for the NJSBA and the New Jersey Judiciary to foster a better pub- the coming year is to work toward making the association lic understanding of civics and the essential role the courts even more valuable to the membership tomorrow than it is play in a vibrant democracy. The program is called the Bench- today. My attention will be focused in two areas: ensuring the marks Civics Project, and I would like to extend a special state bar remains the leading voice of the profession in Tren- thank-you to Chief Justice Stuart Rabner and Judge Glenn A. ton and enhancing public awareness of the legal profession Grant for their efforts in making it possible. and legal system through public service and civics education. The Benchmarks Civics Project aims to inform the public One of the most important roles the NJSBA plays for its about the way the courts work; what it means to be a citizen; members is serving as the voice of the profession in Trenton. and the importance of an independent, fair and impartial jus- Our members have testified on hundreds of bills, and our in- tice system. It is easy for us to take these points for granted. house lobbying efforts have garnered national awards. We They are, after all, how we spend our days and earn our liveli- also have an extremely strong amicus effort. In the months hood. But they are fundamental values, and it is essential to ahead, we will continue fighting for legislation that matters our mission to ensure the public fully understands their most to lawyers. That work includes securing passage of the importance. professional malpractice legislation that would benefit all Through the project, lawyers will receive professionalism lawyers by reducing the statute of limitations on legal mal- continuing legal education credits (CLEs) when they attend a practice claims from six to two years and the attorneys' fee training session about speaking on civics issues to communi- requirement. The change will not only bring New Jersey in ty groups. Once trained, attorneys who go out and speak with

2 NEW JERSEY LAWYER IJune 2012 WWW.NJSBA.COM groups can earn additional professionalism CLE credits. We are one of only a handful of states, including Florida, New Hamp- shire and Colorado, to start such a program. It marks one more way New Jer- sey's Judiciary and legal community are on the cutting edge, and presents a special opportunity for all of us to get more involved in our communities and foster a better understanding of the important role lawyers and the court system play in our society. I look forward to a successful year working together to improve the practice of law in New Jersey, for the NJSBA membership as well as our clients and the general public. &A

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 3 ------NEW JERSEY LAWYER

Jun. 201251No.Z76 a tie So you want to be a solo Solos will STAFF practitioner. Or maybe you also benefit Angela C. Scheck Publisher were gently pushed in that from the per- Cheryl Baisden Managing Editor ceptive advice Janet Gallo Graphic Designer direction. Either way, you're of Bob McAn- Paula Portner Display Advertising in good company: Over 40 drew, who percent of all attorneys in explains why EDITORIAL BOARD New Jersey are with one- and JamesJ. Ferrelli Chair it is important Michael F.Schaff Vice Chair two-lawyer firms. to plan ahead Senwan Akhtar and be organ- Mitchell H. Cobert he collection of articles ized. Learning from other's mistakes is John C. Connell in this issue of New Jer- Jacob Hudnut's valuable message. Angela Foster sey Lawyer Magazine was One article that must be read by all Mimi Huang Susan R. Kaplan compiled to let you solos was written by Craig Aronow, Brian R. Lehrer know there are others David Rubin and David Duggan on the Robert Olejar out there who have bona fide office rule. The proposed rules Asaad Siddiqi dealt with the same challenges you face, have serious ramifications for every solo Susan Storch and are willing to help you establish and practitioner. Susan Stryker fine-tune your practice. Focused on helping attorneys at all Lisa Trembly Our thanks to the authors, all solo or levels hone their skills, we also have an very small-firm practitioners, who have article on the value of mentoring pro- NJSBA EXECUTIVE COMMITTEE taken precious time from their busy grams. Of note, six states now have Kevin P. McCann President Ralph J. Lamparello President-Elect schedules to share helpful hints, practi- mandatory mentor programs and seven Paris P. Eliades First Vice President cal advice, and their personal experi- other states allow mandatory continu- Miles S. Winder III Second Vice President ences. Special thanks also goes to the ing legal education (MCLE) credit to Angela W. Dalton Treasurer solo practice committee of the New Jer- mentors and mentees who participate. It Thomas Hoff Prol Secretary sey State Bar Association and its chair, may be time for New Jersey to consider Susan A. Feeney Immediate Past President Craig Aronow, for helping to put this granting MCLE credit for mentoring. issue together. The article by Ken Vercammen is Alice Plastoris has written a practical important as a reference to websites on guide to important business and ethical the Internet that lawyers can utilize for New Jersey Lawyer Magazine (ISSN-0195-0983) Is published six times per year.Permit number 380-680. * Subscription isIncluded considerations affecting all solos. Brian business generation, research and expo- in dues to members of the New Jersey State Bar Association ($10.50); those ineligible for NJSBAmembership may subscribe at Fruehling identifies applicable RPCs we sure. And last, but certainly not least, $60 per year There is a charge of $2.50 per copy for providing copies of Individual articles * Published by the New Jesey State Bar need to be aware of, and provides advice we provide two articles highlighting Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey 08901-1520. * Periodicals postage paid on how to identify and avoid ethics the networking, referral, and social at New Brunswick, New Jersey 08901 and at additional mailing offices. POSTMASTERSend address cianges to New JerseyLawyer complaints. benefits of joining the New Jersey State Magazine, NewJersey State BarAssociation, NewJersey Law Center, One Constitution Square, New Brunswick, New Jersey 08901-1520. Mary Jane LeLand, Susan Kleiner, Bar Association and your county bar * Copyright ©2012 New Jersey State BarAssociation. All rights reserved. Any copying of material herein, In whole or In part, Kristen Perry and Jeff Brookner elo- association. " and by any means without written permission is prohibited. Requests for such permission should be sent to New JerseyLawyer quently share their personal experi- Magazine, New Jersey State BarAssociation, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey 08901-1520. ences, allowing us to relive, with them, Mitchell H. Cohert is a solo practitioner * New JerseyLawyer invites contributions of articles or other Items. Views and opinions expressed herein are not to be taken as the sacrifices they made to practice law in Morristown with an emphasis on securi- official expressions of the New Jersey State BarAssociation or the authors law firm or employer unless so stated. Publication of any while balancing the pressures of their ties law. He is a past president of the Morris articles herein does not necessarily imply endorsement In any way of the views expressed or legal advice. * Printed In U.S.A.* personal lives. They remind us how hard County Bar Association and a member of Official Headquarters: New Jersey Lawyer Magazine, New Jersey State Bar Association, New Jersey Law Center, One Constitution it is to be a solo, but also how rewarding the New Jersey Lawyer Magazine Editori- Square, New Brunswick, New Jersey 08901-1520. 732-249-5000* Advertising Display 73265-7560. it can be when we persevere. al Board.

4 NEW JERSEY LAWYER IJune 2012 WWW.NJSBA.COM Financial Dealings with Clients by Alice M. Plastoris

The practice of law, no matter how noble an Scope of the Representation endeavor, is still a business, and the goal of Once the lawyer has met with the client and determined any business is to be profitable. Lawyers, who the client is, the type of legal matter and what services are whether sole proprietors or in a firm, are to be performed, the lawyer and the client must agree upon the scope and objectives of the representation. RPC 1.2(a) pro- entitled to be and should be compensated vides that a lawyer shall abide by the client's decision concern- for the services they provide. In order for ing the scope and objectives of the representation. A lawyer that to happen, lawyers should, within the may limit the scope of the representation if doing so is reason- confines of the ethics rules and court rules, able under the circumstances, and the client gives consent. 2 use good business sense and practices in Any limitation should be thoroughly discussed with the running their practice, and in their financial client and set forth in the retainer agreement. For example, in the Laufer case the attorney limited the representation to the dealings with clients. drafting of the marital settlement agreement in a divorce based on the representations of the client.4 fter determining who or what isthe target client base and obtaining that business, Retainer Agreements there are certain business practices that At the outset of an attorney-client relationship, the attor- must be in place to govern how clients ney should provide the client with a written retainer agree- retain the lawyer, and how the lawyer will ment to be signed by the client and the attorney.' This docu- get paid during the representation and after ment benefits both the client and the lawyer by setting forth the representation has concluded. In order to accomplish this, the scope of the representation, the services to be provided, the lawyer should address the following points: 1) retainer and the type of fees to be charged. The retainer agreement agreements and determining the scope of the representation; will govern the expectations and duties of both parties to the 2) the method of payment including credit cards; and 3) col- agreement. It also serves as a basis of the contract for servic- lecting his or her fees for services rendered. es to be rendered and the payment by the client for those services. The retainer agreement should clearly set forth the Disclosure and the Initial Consultation scope of the representation, including the services to be ren- RPC 1.4(b) requires an attorney to provide the client with dered, the services not being rendered and the type of fees enough information reasonably necessary to permit them to and costs to be charged.' make informed decisions regarding the representation. The The fees charged to the client must be reasonable.' The attorney must discuss this with the client during the initial con- type of fee arrangement and the amount of the fee must be sultation, addressing issues including the fee arrangement and reasonable. The factors to be considered in determining rea- scope of the representation. If the lawyer decides to decline the sonableness are set forth in RPC 1.5.8 representation, it should be addressed in writing to the client.' Depending on the type of matter, the fee arrangement may

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 5 vary. A lawyer may charge an initial firm. Fee sharing is permitted only if all 1. a description of the legal services to consultation fee.' In general, the types of the following factors are met: 1) the be provided; of fee arrangements are as follows: division of the fee is proportionate to 2. a description of legal services not the services performed by each attorney; encompassed by the agreement, such 1. contingency fee; 2) the client is notified in writing of the as real estate transactions, municipal 2. hourly rate; fee division; 3) the client consents; and court, tort claims, appeals, domestic 3. flat fee; or 4) the total fee is reasonable." violence proceedings, etc. 4. hybrid of hourly fee or flat fee and 3. the method by which the fee will be contingency fee. Independence of Lawyer computed; In today's economy, more and more 4. the amount of the initial retainer RPC 1.5(h) simply requires a written parents are paying for the legal fees of and how it will be applied; fee agreement with the client when a their children. In those circumstances, 5. when bills are rendered, which shall lawyer has not regularly represented the please keep in mind that the third party be no less frequently than once client. However, it is prudent business paying the legal fees is not the client, every 90 days, provided services are practice to have a written fee agreement and should not control the representa- rendered within the period; with a client for every representation. tion. The duty is to the client, and the 6. the name of the primary attorney attorney-client privilege applies solely having responsibility for the repre- Contingency Fee to the client. RPC 5.4 governs the pro- sentation and hourly rate; A written fee agreement is mandato- fessional independence of a lawyer. A 7. whether and in what manner the ry in contingency fee cases' and in civil lawyer shall not permit a person who initial retainer is required to be family actions. 1 RPC 1.5(c) provides the recommends, employs or pays for legal replenished; requirements of a contingency fee services for another to direct or regulate 8. when payments are to be made; arrangement with a client that must be the lawyer's professional judgment in 9. whether interest will be charged, followed. Contingency fee arrange- rendering legal services." However, as a including the rate; ments are not allowed in civil family practical matter, the third party agreeing 10. statement of expenses and disburse- actions or criminal cases.' Contingent to pay the legal fees should execute the ments for which the client is respon- fees pursuant to Rule 1:21-7 in civil retainer agreement as the guarantor, in sible and how they will be billed; family actions are only permitted addition to the actual client. 11. the effect of counsel fees awarded on regarding claims based on tortuous con- application to the court pursuant to duct of another, and shall have a sepa- Costs Rule 5:3-5(c) and Rule 4:42-9; rate fee agreement. 3 A retainer agreement should also set 12. the availability of complementary A contingency fee arrangement must forth what costs and out-of-pocket dispute resolution (CDR) programs. contain the percentages for compensa- expenses the client will be responsible tion to the attorney.'4 It must state the for paying during the representation. Limitations on Retainer Agreements method by which the fee is to be deter- The costs charged should be reasonable As previously stated, contingency mined and other expenses to be deduct- and necessary." fees are prohibited in criminal and fam- ed from the recovery to be paid to the ily actions. The court rules also prohibit lawyer.' Upon the conclusion of the Civil Family Actions a lawyer from holding a security interest contingent fee matter, the lawyer shall Retainer agreements in civil family or mortgage or other lien on the client's provide the client with a written state- actions are specifically governed by Rule property interest to insure payment of ment stating the outcome of the matter, 5:3-5. Every agreement for legal services fees during the representation. 24 A and if there is a recovery, showing the must be in writing and signed by both lawyer may take a security interest in remittance to the client and the method the attorney and the client. The client the property of a former client after the of its determination.'6 must receive a fully executed copy.20 conclusion of the matter, in accordance The retainer agreement must have with RPC 1.8(c). 5 Fee Sharing annexed to it the Statement of Clients In a civil family action, the retainer In general, fee sharing with another Rights and Responsibilities signed by the agreement shall not include a provision lawyer not in the same firm is prohibit- client, in the form appearing in Appen- for a non-refundable retainer.2 6 ed. RPC 1.5(e) governs fee sharing dix XVIII of the court rules."' A lawyer also shall not limit the between lawyers not in the same law The retainer agreement must include:52 lawyer's liability to the client for mal-

6 NEW JERSEY LAWYER IJune 2012 WWW.NJSBA.COM practice in the retainer agreement.2 Method of Payment ment by the client. A lawyer shall not acquire a propri- In running a practice or law firm, a A lawyer must also decide whether etary interest in the cause of action or lawyer must determine the method of the credit card charges will be electroni- subject matter of the litigation the lawyer payment to be accepted from clients. Of cally deposited into their business is conducting for the client, except 2 course the most obvious method of pay- account, trust account or a combination ment from a client is cash or check. When of both, when setting up the merchant 1. a lien granted by law to secure a receiving payments from clients, a lawyer services account. This will depend on lawyer's fee and expenses; or" must abide by Rule 1:21-6 regarding book- the type of transactions anticipated, and 2. a contract for a reasonable contin- keeping records for their business and the cost to acquire the equipment. gency fee." trust accounts. A lawyer is also required to Many merchant services companies retain these records for seven years after only lease equipment, or require there Award of Counsel Fees the event or representation, including be a separate machine for each account. In certain instances, the court may copies of all retainer agreements, client Diligent inquiry and negotiation is pru- award counsel fees to a party.' A retain- statements and bills rendered.33 dent when embarking on the merchant er agreement should provide that even if Many lawyers and law firms accept services adventure. fees are awarded by the court to be paid credit cards such as Visa, MasterCard, There is, however, a serious pitfall to be by another party to the litigation, the American Express and Discover card. In considered when accepting credit cards. client is still responsible for payment of order to accept credit cards, the lawyer Lawyers should be aware that the con- the attorneys fees for services rendered must enter into a merchant services sumer has the right to dispute the transac- to them by the lawyer or law firm, unless agreement with a bank or other merchant tion or report a fraudulent use of the cred- the matter is a contingency fee case or services provider. The fees for accepting it card (even when there is none). For other arrangements are made with the credit cards vary depending on the insti- example, a client charges a retainer or client regarding the attorney fee award. tution providing the service and the type makes a payment and then becomes of card being accepted. For example, Visa unhappy and does not want to pay the Withdrawing From Representation and MasterCard fees are typically one to attorney's fees, so they dispute the charge A retainer agreement should also 1.5 percent of the charged amount, but with Visa. If this happens, the merchant advise the client of all reasons why a American Express can be as high as three services company will take the funds from lawyer may withdraw from the repre- percent or more. A lawyer or law firm the account where they were deposited. sentation of the client.32 A lawyer may must also decide whether to purchase the The credit will occur prior to receiving withdraw either by consent of the client credit card machine or lease it. written notice of the dispute, which or by requesting permission from the Accepting credit cards improves cash arrives in the mail approximately 14 days court, if litigation is pending, and for flow, and many times can insure pay- later. In the meantime, the bank account the following reasons: ment. It also lessens the risk of having and cash flow is seriously disrupted. If the the lawyer's fees discharged in bank- deposit was made to the attorney trust 1. the client insists the lawyer do some- ruptcy because the lawyer has already account and already disbursed, this can thing illegal; been paid, so the client will list the cred- cause a serious problem for the lawyer. 2. the client does not follow the it card in the bankruptcy. When sending An even more serious problem occurs lawyer's advice; statements and bills to the client, more frequently in civil family actions, 3. the client does not answer telephone include a form advising that the firm where the parties have a joint credit card. calls or letters; accepts credit card payments, and pro- For example, one spouse charges the 4. the client does not cooperate; vide a space for the client to fill in the retainer for legal fees to the joint credit 5. the client tells a lie under oath or tells credit card information to pay the bill. card. The other spouse notifies the credit the lawyer the client will do so; The fees associated with the credit card company that the transaction with 6. the client fails to pay for legal servic- card charges to the merchant services the law firm was "fraudulent." This situ- es on time; or provider are essentially bank charges, ation initially is a nightmare, especially if 7. for other good or valid reasons. and deductible business expenses. The the funds were deposited into the minimal processing cost to the lawyer of lawyer's trust account. Because the trans- If litigation is not pending, a lawyer accepting credit cards is far outweighed action is reported as fraudulent, the mer- may withdraw upon notice to the client by the dual benefits of improved cash chant services company will put a hold for any of the reasons stated above. flow into the business and ensuring pay- on all charge transactions to your firm,

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 7 even if the other charge transactions are Getting Paid 5:3-5. The fees must also be reasonable undisputed payments made by other Ensuring an attorney will get paid for pursuant to RPC 1.5, and the affidavit clients. The result is major cash flow dis- providing legal services to clients begins must set forth the requirements con- ruption, bounced checks because the at the outset of the representation. First, tained in RPC 1.5(a). funds are removed from the bank discuss the representation and the account and credits given to other clients responsibility of the client to pay for Attorney Charging Lien for payments made are put on hold services rendered. Second, prepare a Once a representation has terminat- because you have not received the funds. retainer agreement, review it with the ed, an attorney is entitled to an attorney This hold under the merchant services client, and have it executed; having a lien for services rendered. Pursuant to agreement can last as long as 364 days. signed retainer agreement is the bedrock N.J.S.A. 2A:13-5 and 2A:13-6, an attor- If this happens, the following steps of getting paid. Also, send regular bills ney is entitled to a lien for services ren- must be taken: to the client for services rendered, and dered in the action. The lien attaches to regularly communicate with the client any proceeds or property received by 1. Immediately respond in writing to the regarding the fees that are due to avoid the client by way of settlement, judg- merchant services company with a carrying a large receivable, resulting in ment, decision or final order. Notice copy of the retainer agreement, the need to sue the client later. should be given by the attorney of the invoice for services rendered and In contingency cases, an attorney lien and the amount sought to the signed receipt by the client (the assumes some risk because the outcome client, successor counsel, if any, and authorized joint card holder), and of the case determines the compensa- opposing counsel. In many instances, a explain the representation and pro- tion for the lawyer. So upon the initial motion should be filed with the court to viding of services to the client. meeting with the client, garner enough perfect the lien. Any application for a 2. Immediately notify the client that information to determine the merits of lien must comply with Rule 1:20A-6 made the payment with the credit the case and the likelihood of success (pre-action notice). card, requesting they contact the and getting paid. credit card company and advising An attorney must also be aware of Collection of Fees that the payment will not be credited actions in which a fee is allowable, Before a lawyer can sue a client for to the retainer or outstanding bal- which are governed by Rule 4:42-9. fees owed for services rendered, Rule ance owed. Attorney fees may be awarded in the fol- 1:20A-6 requires that the client be 3. If there is a court order requiring the lowing types of matters: served with a pre-action notice. payment of fees, provide a copy of Rule 1:20A-6 provides as follows: the order. 1. family actions;" 4. Make an application to the court to 2. out of a fund in court; No lawsuit to recover fees may be filed compel payment and withdrawal of 3. in a probate action; until the expiration of the 30 day peri- the fraud charge. If the fraud charge is 4. in an action for the foreclosure of a od herein giving Pre-Action Notice to made by the other spouse or other mortgage; the client; however, this shall not pre- cardholder, ask the court to require 5. in an action to foreclose a tax certifi- vent a lawyer from instituting an ancil- that party to pay all damages incurred cate(s); lary legal action. Pre-Action Notice (i.e., bank charges) and compel that 6. in an action upon a liability or shall be given in writing, which shall the party takes all steps to withdraw indemnity policy of insurance in be sent by certified and regular mail to the fraud complaint immediately and favor of a successful claimant; the last known address of the client, remove the hold on the merchant 7. as expressly provided by these rules or, alternatively, hand delivered to the services account and restore all funds. with respect to any action; and client... Then send this order to the merchant 8. in all cases where attorney's fees are services company. permitted by statute. The notice must also contain the name and address of the current secre- It is very important, when accepting In all application for fees pursuant to tary of the fee committee in the district credit cards, to have a signed retainer Rule 4:42-9 or other rule or statute, a where the lawyer maintains an office. agreement with each client, and to keep lawyer must submit an affidavit of serv- The notice must specifically advise the all bills, statements and signed receipts ices that complies with Rule 4:42-9(b) client of the right to request fee arbitra- by the client. and (c) and in family actions with Rule tion within 30 days; if the client does

8 NEW JFRSEY LAWYER IJune 2012 WWW.NJSBA.COM not promptly do so, he or she will lose may be entered as a judgment in the ness of a fee include the following: the right to initiate fee arbitration. 6 If collection suit (that was stayed) or by a 1) the time and labor required, the the client does not request fee arbitra- summary action pursuant to Rule 4:67 novelty and difficulty of the tion, and the lawyer files a collection to obtain a judgment in the amount of questions involved, and the skill suit against the client for fees, the com- the fee award. requisite to perform the legal plaint must allege giving the pre-action If the court in the underlying action services properly; notice to the client or be dismissed.3 7 entered an order for the attorney charg- 2) the likelihood, if apparent to the A collection complaint against a ing lien, then the order to show cause client, that the acceptance of a client should contain a separate count for entry of a judgment in the amount particular employment will pre- based on contract, book account, quan- of the fee award should be filed with clude other employment by the tum meruit and reasonable value of serv- that court in a summary fashion. If a lawyer; ices. The complaint should allege and collection action was filed and stayed by 3) the fee customarily charged in the attach the retainer agreement signed by the fee arbitration, a motion for summa- locality for similar legal services; the client and attorney, the pre-action ry judgment should be filed in the col- 4) the amount involved and the notice with proof of service and the lection suit to enter judgment. If no results obtained; statements sent to the client for services prior proceedings were filed and stayed 5) the time limitations imposed by rendered and the failure of the client to by the fee arbitration, then a summary the client or by the circumstances; make payment. Depending on the action by way of order to show cause 6) the nature and length of the pro- amount of fees owed, the complaint and complaint pursuant to Rule 4:67 fessional relationship with the should be filed in either the New Jersey should be filed with the court to enter client; Superior Court, Law Division or Special judgment in the amount of the award. 7) the experience, reputation, and Civil Part. Once judgment has been entered, it ability of the lawyer or lawyers should be docketed with the New Jersey performing the services; Fee Arbitration Superior Court in Trenton as a statewide 8) whether the fee is fixed or con- Rule 1:20A-3 governs fee arbitration lien/judgment, and the attorney should tingent. proceedings with the client. If a collec- utilize all remedies to collect the judg- 9. RPC 7.1(a)(4)(i). tion action has been filed or a fee hear- ment, such as a writ of execution on 10. RPC 1.5; R. 1:21-7. ing ordered on an attorney lien applica- assets or wage garnishment, to name 11. R. 5:3-5. tion, the filing of a fee arbitration by the two.43 Once the judgment is entered, 12. RPC 1.5(d). client stays the collection proceedings post-judgment interest will accrue on 13. R. 1:21-7. until there is a fee determination." The the amount owed until paid.44 14. R. 1:21-7(c). lawyer has the obligation to notify the When the judgment is paid by the 15. RPC 1.5(c). court of the stay pending the outcome client, a warrant to satisfy the judgment 16. RPC 1.5(c). of the fee arbitration. must be provided by the lawyer. & 17. RPC 1.5(e). Fee arbitration determinations are 18. RPC 5.4. binding on the client and the attorney, Endnotes 19. R. 4:42-8. and once the proceedings have com- 1. RPC 1.16. 20. R. 5:3-5(a). menced it is the sole forum to deter- 2. RPC 1.2(c). 21. Sylvia Pressler and Peter Verniero, mine the reasonableness of the fee.39 All 3. Lemer v. Laufer, 359 N.J. Super. 201 Current N.J. Court Rules (Gann fee arbitration proceedings are confi- (App. Div. 2003), certif. denied, 177 2011), Appendix XVIII, p 2601. dential.40 There are limited grounds for N.J. 233 (2003). 22. R. 5:3-5(a)(1) through (10). appeal of a fee arbitration award. All 4. Id. 23. This is a good practice for any houriy appeals are made to the Disciplinary 5. RPC 1.5; R. 5:3-5; R. 1:21-7. rate retention when providing legal Review Board 4 No court has jurisdic- 6. Lerner, 359 NJ. Super. 201 (App. services. It aliows the client to see the tion to review the fee arbitration deter- Div. 2003), certif denied, 177 NJ. services rendered, the costs and mination. 42 233 (2003). expenses incurred and increases reg- Rule 1:20A-3(e) governs the enforce- 7. RPC 1.5. ular cash flow to the lawyer. ment of a fee arbitration award. If the 8. RPC 1.5(a) A lawyer's fee shall be 24. RPC 1.8; R.5:3-5(b). fee determination by the committee is reasonable. The factors to be consid- 25. R. 5:3-5(b). not paid within 30 days, the amount ered in determining the reasonable- 26. R. 5:3-5(b).

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 9 27. RPC 1.8(h). 28. RPC 1.8(i). 29. N.J.S.A. 2A:13-5 and 2A:13-6. 30. RPC 1.5. 31. R. 4:42-9; R.5:3-5(c). 32. RPC 1.16; R. 5:3-5. 33. R. 1:21-6(c). 34. R. 5:3-5(c). 35. R. 1:20A-6. 36. R. 1:20A-6. 37. R. 1:20A-6. 38. R. 1:20A-3(a). 39. R. 1:20A-3. 40. R. 1:20A-5. 41. R. 1:20A-3(d). 42. R. 1:20A-3(e). 43. R. 4:56. 44. R. 4:42-11.

Alice M. Plastoris is a sole practitioner in Morristown, primarily practicing matrimonial and family law, municipal court and chancery practice, including foreclosure defense and estate litigation. She is a current member of the District X Fee Arbitra- tion Committee and former member of the DistrictX Ethics Committee.

10 NEW JERSEY LAWYER IJune 2012 WWW.NJSBA.COM Attorney Ethics Considerations for the Solo by Brian J. Fruehling

For many newly minted attorneys, or those All attorneys, regardless of their level of experience, must be attorneys who have left large firms and aware of and comply with the Rules of Professional Responsi- recently hung out their own shingle, dealing bility governing the bar of New Jersey, and should read and directly with clients can present certain periodically review the RPCs. Lawyers are presumed to know challenges. The newly solo or small-firm the RPCs, advisory opinions issued by the New Jersey Supreme practitioner must be vigilant in complying Court's Committee on Advisory Opinions, ethics opinions with attorney ethics requirements, and would applying the RPCs, and the Rules of Court. Intent to violate an ethics rule, except for very limited circumstances, is not a pre- be well served to spend some time reviewing requisite to the finding of an ethics breach. In other words, the Rules of Professional Conduct (RPCs). ignorance of the RPCs is not a defense to an ethics violation. Particular attention should l)e given to the rules governing client communications. Client Communication Under RPC 1.4 Of particular importance in the handling of client commu- t large law firms, often there is a buffer or nications is RPC 1.4, which requires all attorneys to: (a) fully bureaucracy separating the young attorney inform a prospective client of how, when and where the client from the client. The large law firm typically may communicate with the lawyer; (b) keep a client reasonably has a partner in charge of a 'client matter.' informed about the status of a matter and promptly comply In fact, in some instances the associate attor- with reasonable requests for information; (c) explain a matter ney never meets or even speaks with the to the extent reasonably necessary to permit the client to make client. The associate might report to a junior partner, who in informed decisions regarding the representation; and (d) when turn reports to a senior partner, for example. In a large firm, a lawyer knows a client expects assistance not permitted by the therefore, the responsibility for maintaining client communi- Rules of Professional Conduct or other law, advise the client of cation and satisfaction rests not with the associate attorney the relevant limitations on the lawyer's conduct. but with those higher up in the law firm. Compliance with RPC 1.4 by the solo practitioner is not Associate attorneys who only remain at large firms for one just an ethics requirement; it can be an excellent tool in cre- or two years, probably will not have had the opportunity to ating a rewarding relationship with clients. As contemplated master the skill of dealing directly with clients in a lawyerly by RPC 1.4, setting reasonable goals and expectations with manner. As a result, the associate attorney is likely not well the client from the outset will pay dividends in the long haul. equipped to handle client needs and demands. Similarly, the At the initial client conference, after assessing the facts of recently admitted solo practitioner may lack experience in the case and determining whether a valid cause of action dealing directly with clients. Therefore, inexperienced newly exists, the attorney should clearly and openly "explain a mat- solo or small-firm attorneys would be well advised to seek ter to the extent reasonably necessary to permit the client to mentoring from seasoned practitioners, whether it be in the make informed decisions regarding the representation."1 The form of attending seminars or simply contacting their senior attorney should then educate the client about the 'reasonable brethren by telephone, or through other informal settings, to expectations' of the case. discuss office concerns. The following are some tips to keep the assessment and

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 11 objectives of the representation on matters must be in writing, as required client's best interests as the focal point point and within the understanding of by Rule 5:3-5(a). of the representation. Typically, the the client: In any event, the fee agreement must client will be satisfied if he or she be fair and, "may not provide for an believes in the attorney's commitment * Educate the client generally about unreasonable fee or any other unreason- to the case and if the attorney has been the law as it applies to the facts of his able waiver of the client's rights." 2 Han- updating the client on a regular basis, or her case, even if the client is savvy dling of client retainer funds must be thereby alleviating any surprises or and appears to already understand treated in accordance with the terms of problems the client was not expecting. the process. the legal services agreement.3 The This all leads back to great communica- * Explain the attorney's role in the client retainer funds must be earned before tions between attorney and client. matter, so the client's expectations of they are paid over to the attorney,4 and the attorney's representation in the RPC 1.16(d) requires that upon termina- Conclusion matter are reasonable, including the tion of representation the lawyer must Year after year, the majority of ethics billing structure, and the manner and refund any advance payment of fees complaints are based on attorneys' fail- expected frequency of communica- that have not been earned. ing to adequately communicate with tions between attorney and client. Within the legal services agreement, clients. A majority of these ethics griev- * Explain the process, including the the solo practitioner should advise the ances are filed against solo practitioners likely timeframe, legal procedures, client when he or she will receive or small law firms, possibly because solo motions expected, and anticipated updates on their billing status. In certain practitioners and small firms often limitations on what the attorney can matters, it would be appropriate for the engage in the type of practice areas ripe achieve in the case. Do not sugar-coat attorney to provide monthly statements for complaints, such as divorce, real the matter or over-promise what can of account, keeping the client constant- estate and general practice work. be gained by virtue of the lawsuit. ly aware of their financial status with the Fortunately, there is a ready solution attorney. If a client is regularly updated for the newly solo practitioner and Overall, good communications will on their account, the element of surprise small-firm lawyer: Complying with RPC serve the solo practitioner well in run- and dissatisfaction with progress on 1.4, educating the client about their ning a successful law practice. Clients their case can be averted. A client who legal position, managing the client's expect their attorneys to be very respon- regularly receives detailed legal invoices expectations about legal proceedings sive to telephone calls and emails, and from his or her attorney will not only be and potential outcomes, and providing otherwise require constant communica- aware of the costs associated with the the client with a sufficiently detailed tion and updates about their legal mat- representation, but will have (by virtue legal services agreement whereby the ters. As long as the client's requests for of the detailed invoice) a written report client is updated regularly, will serve information are reasonable, the lawyer of everything the attorney has done. both the attorney and the client well. & is obligated to keep the lines of commu- In the event a client makes excessive nication open and respond to the and unreasonable demands for informa- Endnotes client's requests according to RPC 1.4. tion about their file, the attorney should 1. RPC 1.4(c). confront the client about the problem 2. Cohen v. Radio-Electronics Officers, Getting it in Writing without delay. Attorneys will rarely have 146 NJ. 140,156 (1996). For clients new to the firm, a written to address this issue (e.g., excessive or 3. Inre Stern, 92 N.J. 611, 619 (1983); legal services agreement must be made, daily calls about a case that is not at the In re Youmans, 118 N.J. 622, 636 as required under RPC 1.5(b). The solo trial level, for example) if they initially (1990). practitioner should explain to the client explain the frequency with which clients 4. In re Spagnoli, 115 NJ. 504, 516 in the legal services agreement, exactly should expect to be updated. If the client (1989). what services the attorney will perform, is regularly updated, the instances of terms of payment, treatment of retainer client unhappiness will likely be minimal. Brian J. Enabling is a solo practitioner funds, and the client's responsibilities to The client's overall satisfaction with in Madison, former chair of the DistrictX the attorney during the representation the attorney is often not based on the Ethics Committee, and handles employ- period. If the matter is a contingency fee outcome of the matter, but on whether ment, commercial and personal injury liti- case, compliance with Rule 1:21-7 is also he or she believes the attorney has gation. He also represents attorneys in mandatory. All retainers in matrimonial worked hard on the case and kept the ethics cases.

12 NEW JERSEY LAWYER IJune 2012 WWW.NJSBA.COM Starting a Law Firm Later in Life by Mary Jane Leland

I was 50-something when I told a friend I had. decided to go to law school. Her response, which I have to say I understood, was: "Don't you think that would have been a better idea when you were 25?" But I only discovered my passion for the law after working for the New Jersey juvenile Justice Commission. There were no obligations to hold me back: My children were self-sufficient adults; my parents had passed away and I felt com.pelled to pursue the law. There was simply no reason not to go to law school.

easing out my townhouse, I rented a share in a Retaining my enthusiasm, I decided to pursue a position in three-bedroom apartment in Queens with a smaller firm. The two partners at one firm where I inter- another law student and a couple. My new viewed looked visibly shocked when I entered the room. roommates might have been considerably While pursuing another opening, I was inadvertently copied younger than me, but I felt more like a trailblaz- on an email from one attorney to another, asking if anyone at er than a latecomer. the firm knew me. Whether the concern was the fact that I I graduated from Rutgers Law-Camden, and was fortunate was a woman, older, or outside their circle of contacts, I was to be hired as law clerk for the Honorable Edward V. Torack in clearly experiencing some form of discrimination. Bergen County. It was a pre-dissolution court with the largest After such a rigorous clerkship, it seemed odd and unfair, but docket of cases in the family part. With a heavy motion cal- in retrospect, those rejections led me to a position as associate endar, I often left the courthouse at midnight; the security to a certified elder law attorney in Jersey City. Many of the guards became my best friends. Beyond the fact that some clients were in my age range, and dealing with issues concern- people marveled that I went to law school "at my age," and ing their elderly parents. Having dealt with those issues myself, expressed that they "could never do that," I doubt my experi- I could easily relate to them, and understood the conflicts and ence was different from most other law clerks, which left me complexities they faced. I noticed that even in my first week on totally unprepared for the responses I received when I started the job, the attorney did not hesitate to place me in consulta- knocking on law firm doors. tions with families, if only to listen to the prospective clients and gather information. It appeared that a younger associate Age Discrimination isOut There was reserved for other, less hands-on, tasks. The corporate counsel at a hospital where I was an extern for a full semester had warned me that "age discrimination is lips from a Seminar Proved Invaluable out there," but I refused to believe it. With a few years behind me, I decided to start my own As my clerkship began winding down, I started looking for practice. I attended a seminar titled "Building Your Practice employment in large firms, along with a number of other, from the Ground Up," and used the information I obtained younger, candidates. A young law clerk, in what appeared to be there to launch my business plan. a much less demanding family clerkship, was hired by a sizable The panel suggested opening a practice in an office build- firm in Newark. Another family part law clerk, who had a repu- ing with other law firms, where they either: 1) offer comple- tation for slacking off the whole year, joined an equally presti- mentary services, or 2) offer the same kind of legal services. gious firm. I couldn't get an interview in either place, despite my Being surrounded by complementary services, there would be tactical efforts. the likelihood of referrals. Being near firms practicing like

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 13 areas of law, you could get overflow I conducted an a cappella women's practice, compared with a more seasoned work. I chose to establish the firm in chorus for 15 years, and had built won- attorney choosing to open a solo practice. Monmouth County, where I had lived derful relationships with the singers and The attorney who has worked a decade or for several years prior to law school, and our audiences. more in another firm might start out with where my children had grown up. I knew 350 congregants from the a considerable client base, a substantial After researching many locations, I temple I had worked at for four years. number of colleagues from whom he or selected the Ellis Law Center. The build- I started my practice with a certain she can reasonably expect referrals, and ing's appearance was inviting; it was close level of credibility with many of these possibly the ability to hire staff from the to the court and my home; and it was people, who became great resources for outset. The seasoned attorney may have a filled with firms practicing criminal, per- clients and referrals. Through this net- coterie of colleagues who pursue a part- sonal injury, and bankruptcy, but not work, I was becoming the go-to person nership or welcome adjoining his or her family, law. Not only was I excited, but for varying kinds of legal issues, refer- practice to theirs. The newer practitioner the other attorneys in the building ring individuals to the appropriate is highly unlikely to be courted in the seemed genuinely enthusiastic about attorneys who, in turn, referred prospec- same way, and is less likely to be known incorporating my practice into the center. tive clients to me. And so, once again, to the legal community. The lawyer with I knew this was where I was meant to be. age was on my side. seniority in law has less risk by virtue of While I promptly took the seminar But while this circle of contacts was already being established, and having a panelists' advice on location, I was more invaluable, I had to keep in mind the reputation in the field. reticent about their suggestion to retain a need to advertise for business outside Starting from the position of an business manager to supply a check list; my comfort zone. Here again, a business unknown and relatively new to practice, sift through minutia; furnish the office; manager can offer great advice. I knew the competition of larger firms evaluate merchant services (VISA, Master- would be another given. Reputation and Card and/or American Express); select Collections-Not What I Signed Up For staff can have a magnetic pull on cases business software; direct me to reliable When it comes to business operations, involving well-known people or great companies providing vital services at one thing I learned relatively quickly is complexity. The absence of name recog- good prices; and make recommendations that age does not provide immunization nition until you find ways to gain expo- for prudent investments in marketing. against someone taking advantage of you. sure for the firm compels you to highly Because this entrepreneurial adventure I was told more than once to "always get prioritize networking with both old and consumed time, energy, and funds, the a significant retainer," and that "there are new contacts, both in and outside of the expense of a business manager seemed no partial retainers." Despite this advice, I profession. Without a bankroll or part- extravagant. In hindsight, I see it as a had to learn the hard way. Heart-wrench- ner of means, financial constraints necessity. ing tales have moved me to take on some make every option a challenge. clients who later revealed themselves to Shout it from the Hilltops be more shrewd than needy. The Value of Life Experience One of the areas where age would Discerning when to be flexible with In my case, where professional experi- pay off became apparent as I began fees is not an attribute that automatically ence was not yet abundant, personal life sending out announcements for my comes with maturity. At times it remains experience was considerable. As a family new business venture. I realized I had a challenge for me. Mentors had advised law practitioner, most of my files involve scores of contacts from all walks of life. me to expect a considerable amount of divorce and post-judgment of divorce. As the mother of two, my kids' school time to pass before red would not be the Having my marriage dissolved after 16 years resulted in contacts with teachers, predominant color of the ink on my years, I have a good idea of what my administrators, other parents, leaders of books, but over time the magic of a good clients are experiencing. When working extra-curricular activities, and children reputation and the kindness of colleagues with a potential client who is contemplat- who were now adults. For example, two can put you on the fast track to black ink. ing ending a marriage, I can relate to both of my children's friends from middle the practical and emotional aspects of school contacted me through my firm's Seasoned v. Newer to the Field of Law their case. Similarly, my empathy for sin- Facebook page with their legal issues. Experience and reputation are two gle parents comes from living that role. Being an area homeowner and con- things a relative newcomer to the legal Having worked in several businesses, sumer for years, I knew retailers, doc- profession, like I was, has to compete bought and sold property, been presi- tors, bankers, realtors, etc. against when it comes to launching a dent of a small company, and had many

14 NEW JERSEY LAWYER IJune 2012 WWW.NJSBA.COM other types of employment along the way, my experience and maturity have become my partners in serving clients. Shared backgrounds and experiences foster a natural bond and trust.

Time Management I quickly learned that building a practice requires constant care. Like a first- time mother with her newborn, you are consumed 24/7 by its needs. If there is any flexibility in scheduling when starting a firm, it is what I laughingly refer to as "the days the office is closed." Calls and texts arrive every day, and at any hour. It would be self-defeating for me to have a phone message announce hours of operation. As a solo, I am on duty at all times. As a result, juggling family, social commitments, and work becomes more challenging, particularly since a solo attorney performs every task in the firm, at least in the first several months. Fam- ily and friends will begin to realize your priorities have changed, and both they and you need to adjust. Even with the unforeseen demands and challenges along the way, there is no doubt about it: starting a solo firm later in life is exhilarating. And if I had started out in law school at 25, I probably would have still made my way into solo practice in the end. 6t

Mary Jane Leland is a family law attorney in Freehold, a barrister of the Haydn ProctorInn of Court and a board member of CelebrateNJ, a nonprofit that provides supplemental classroom initiatives for elemen- tary school students.

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 15 Finding the Balance A Solo's Tale by Susan Schieck Kleiner

The challenges of being a solo practitioner Assembling a Team and a mother of two small children are Solo does not, and cannot, mean being alone. In order to surpassed. only by its rewards. Balancing a juggle many hats, it is important to rely on others to help legal practice and a family life-or any life at make it happen. One of my biggest fears when leaving 'biglaw' was that I would no longer be able to send mass all outside the law-can be daunting. The key emails out to the entire firm asking, "has anyone ever briefed to managing both is flexibility. xyz issue" or "does anyone have a form for abc?" However, as a solo practitioner, I can still rely on my friends in 'biglaw' to lthough some sort of balance iswhat I hope help me out. And, importantly, I have established a network for in the aggregate, on a day-to-day basis it of attorneys in small firms/solo practices who regularly share is not so much a balance as a pendulum: sample forms and briefs, and take the time to explain their clients, family, networking, the business of own experiences in dealing with a particular issue. In turn, I being in business for yourself, and even the also give freely to them. While I was fearful about the lack of occasional social outing-all in turn make community in solo practice, I have found exactly the oppo- their clear and unequivocal claims as the pendulum swings site: My colleagues have been more than happy to help me day by day and hour by hour, and must be served. strategize about cases, listen to me vent about a difficult case But besides the business aspect of being a solo, all of this or client, and provide me with a sounding board on running could easily have been said of practicing at a large firm as well. my business. We help each other. The law is a particularly demanding life, requiring, at times, The key is, an attorney leaving a firm to start his or her one's complete and undivided intellectual and emotional own practice should not only not bum bridges, but should, in attention in ways that few other things do. Perhaps the pri- fact, build them and carefully keep them well maintained. mary difference in being a solo is the utter dissolution of the I have been fortunate enough to also develop a dedicated discretely contained workday. Through technology, the joy of staff. In the first few weeks of practice, I realized I couldn't do modern worklife is that much of what must be done can be it all. Even with modern technology, all of the administrative done from anywhere-and leaving the office does not mean aspects of running a firm were particularly daunting. As my leaving work. With a smart phone and a secretary I can have practice grew, the importance of enlisting others in the cause lunch with a prospective client or pick the kids up from became thoroughly apparent as I attempted to juggle 16 work school while still minding the store remotely. In addition, my issues-some of them small and tedious, but nonetheless children are sung to sleep each night at 9 p.m., and with a lap- urgent-while good potential new business lay there for the top, Internet, and complete access to my office network, taking. A committed team allows me the freedom to do those many a brief has been written or finished as they dream about things I do best-devote myself to my clients, give good coun- Pillow Pets, Selena Gomez and whatever else it is that six- and sel, and when necessary, fight the good fight. eight-year-olds think about while they snore. And for those who take the word "solo" to heart, it's worth

16 NEW JERSEY LAWYER IJune 2012 1 WWW.NJSBA.COM noting that even boxers, those most overly large expense, especially consid- moment, in search of work. I keep in solitary of practitioners, have trainers, ering the billable hours they allow, but touch with career services at Seton Hall, managers, cut men and sparring part- they are often crucial in facilitating and find them both responsive and ners, as well as promotional teams. work that simply must be done. helpful. As a solo building a practice, I The rewards? As a solo, I cannot don't have a great deal of money to Where Do You Find a Team? afford to pay 'biglaw' salaries. But offer, but I do have experience-and One of the other joys of modern legal because of my flexibility and my will- that in itself can be a major asset in this worklife is that so many attorneys are in ingness to make these small accommo- economy. Plus, as I've grown, I simply the same or similar boats. The workforce dations, I'm able to hire and work with have more work than I can handle. is filled with smart men and women try- top-flight legal talent at discounted I recently hired a Seton Hall clerk I ing to juggle a family life and the law. rates-sometimes on a contract basis met while working a case in Somerset Many women (and some men) who and sometimes as part-time employees, County. She was impressive in court, have left firms to raise a family have 10 depending on the individual circum- and has proven even more so in my or 20 hours a week to fully commit to stances. My clients reap the benefits in office. In addition to an admirable com- the practice of law-much of which can ways they are all too happy to report- petence, skill and determination to be done from home. A smart solo, if to me and their relatives, friends and excel, she brings an exuberance and flexible, can harness serious intellectual associates; my contract and part-time freshness to her work that is refreshing. capital in a mutually advantageous way. associates have what amounts to a As someone who has been practicing The legal market has changed signifi- decent supplementary income and, per- law for almost 20 years, it's often a joy cantly over the last few decades, and the haps just as important, the intellectual to see the law through her eyes; and tak- number of women with law degrees has engagement the law brings when a ing the time to mentor her has already risen dramatically. According to the backdrop to their day is generally the paid real dividends. Of course, even American Bar Association, women made sing-song inanity of children's TV, PTA with the clerkship there is a learning up roughly 47 percent of all first-year meetings and the often less-than-com- curve, but her ability to research, write a law students in 2009-2010.1 Statistically pelling duties of housework. And if brief's first draft, fix citations, make speaking, a number of these women these associates ever decide to re-enter phone calls and handle some of the have left or will leave practice in order the world of law full-time, the appear- more mundane tasks of practice to have and raise a family.2 The onsite ance of my firm's name on their resume, (though not yet mundane to her), leaves demands of 'biglaw' or even 'medium- as opposed to that big nine-year blank me available to service my clients and law' do not readily cater to the time-eat- spot, may prove invaluable. garner new business that would other- ing demands of small children-but in Another serious wealth of legal talent wise be left, by necessity, on the vine. solo practice those demands can be can be found in judicial clerks. Having And what does she gain? She has her accommodated. With planning and a had the privilege of clerking for New Jer- first law job, outside of her clerkship. few important infrastructural and tem- sey Supreme Court Chief Justice Robert Over time she has grown, and will con- poral accommodations, I can make Wilentz, I am a firm believer in judicial tinue to grow, into a life in the law. If these arrangements work for my clients, clerkships. After graduation from law she were to someday leave for greener my firm, and my associates. And I have. school, the clerkship experience serves pastures, I am sure she will remain a It may be as simple as writing that in many ways as a finishing school for trusted colleague and the potential brief together via email and cell phones newly minted J.D.s. Being at the heart of source and recipient of sounding board after the children have all gone to sleep. the day-to-day machinations of the phone calls, practice advice and even It may require babysitters. It may court teaches in ways that are hard to potential clients. The law world is a require children coming into the office equal. And with the recent downturn in small one, and to live in it with allies, for awhile-and when they do, there the economy and legal work in general, especially homegrown ones, makes it all may need to be a filing cabinet dedicat- 'biglaw's' loss can be a solo's gain,. that much easier and fulfilling. ed to their needs, filled with quiet toys, My alma mater, Seton Hall Law And of course, I regularly team with games, coloring books, etc. to keep School, is a big believer in clerkships- other solos as well, marshalling their them occupied, or a cable TV hookup in with over 30 percent of their graduating expertise for cases outside of mine, as a small room in the office with a DVD class entering the ranks of the legal they do with me. Some I've known from player and some age-appropriate world as judicial clerks each year,3 the back in my 'biglaw' days, and some I've movies. None of these constitute an downturn has left a few, for the met as a solo, often in networking

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 17 groups and sometimes in court. In one These groups have been a marvelous there. instance, another solo who saw me source of referrals. Additionally, I belong I have learned the hard way that try- argue a case felt compelled to come to to a business networking referral group. ing to do too many things at one time me afterward, and a few kind words It meets weekly, too early in the morn- can lead to frustration. I need to be pres- turned into a lunch and an understanding, but has proved to be a particularly ent for my family and for my clients. ing that, although she had a completely rich source of both referrals and servic- And, while I sometimes have to multi- different practice than mine, we were es. As a solo, a single mother and a task (and try to address both at once), I complementary. And as luck would homeowner, I have a broad range of find that I do better with both when I have it, the next case that walked in my needs. And part of work/life balance is schedule time to be fully present. Often door was in her practice area. We having those needs-whether informa- the mere contact and the commitment teamed on the case and over the years tion technology (IT) issues or a leaky to be there at a set time, whether its have developed a working relationship faucet-met in a timely and profession- "Mommy will be with you in just two that has resulted in many cases and al manner. Simply put, I have a network minutes," or text messaging "I can meet mutually billable hours, as well as a of professionals available to me to fix with you tomorrow in the afternoon to strong friendship. She is there for me, as things that need to be fixed. Fortunate- discuss this, schedule with my secre- I am for her. We read each other's briefs, ly, the members of this networking tary," is enough to calm the jagged talk strategy and have shared a holiday group have needs as well, as do their nerves and demands of those who need dinner or two. clients, colleagues, friends and fami- my attention. In this instance, like so many others, lies-some of which are legal. We, in a But the moment the Internet crashes my worklife has merged with the per- sense, partner with each other, serving or Microsoft Word crashes in a loud sonal, resulting in a balance all its own. our own best interests while serving angry thud, I'm out of business. At Perhaps one of the greatest lessons I've each other and our clients as well. 'biglaw,' there were amazing people that derived from this particular relationship Again, this combination of work and staffed the helpdesk and IT department is that a willingness to be open to the personal life assists with creating that who would come to the rescue when possibilities of even a chance meeting balance-or at least striving for that bal- such problems occurred. Much to my can go a long way. ance. dismay, I no longer have an entire IT However, all professional relation- department to drop everything and help ships cannot be left to chance. I belong IT Issues when my computer crashes just as I put to a number of networking groups, legal It might as well be known as "it," the finishing touches on a brief-I sim- and nonlegal, and have found them to since without IT my practice-and most ply cannot afford them. If you go solo, be invaluable in growing my business. practices, would be thoroughly lost-a you will not be able to afford to bring As a solo, I am my own rainmaker. From house of cards fallen by the wayside them with you either. the legal groups such as the New Jersey without billable hours. Information Paramount to your success will be Women Lawyers Association (NJWLA), technology, in all its various forms, is having someone for whom binary, bites, and the New Jersey State Bar Associa- what makes a law office and a schedule and boot sector are a primary language. tion's Women in the Profession Section, function successfully. All machines break; as lawyers we are, in I gain collaborators, practice tips, and a Without modern technology, it a sense, the purveyors of highly contex- cheerleading squad when I need it. would be almost virtually impossible to tualized, painstakingly individualized For example, when I first went solo, I run my often virtual law office. In fact, I and exceedingly time-sensitive informa- found the accounting/billing/time entry can see no way I could juggle my family tion. When your source of much of that system to be particularly challenging. and social life without gadgets and information breaks, you need to be able An administrator from another solo's devices. With a smart phone and a lap- to rely on a techie-and preferably one office-whom I had met through top (and as long as I monitor my voice with whom you have taken the time to NJWLA-came to my office and spent mail), I can be available 24/7 for my forge a good relationship. five hours fixing the horrible mess I had clients-a service that has endeared me Thankfully, through my networking made. She refused payment. I have since to my clients in very important ways. In group I have established a personal rela- made myself available in a similar man- many instances, my reply may just be a tionship with my IT consultant. That ner for other group members, never for- quick text message setting up a phone means the moment I download some getting the kindness shown to me when call or meeting when I can be complete- kind of virus on my laptop while doing it mattered most. ly focused on the issue at hand. But I'm background research, I am able to text

18 NEW JERSEY LAWYER IJune 2012 WWW.NJSBA.COM my IT support, get an immediate diag- is a time and a place, but outside of the ment and Degrees Awarded 1963- nosis along with the all-important com- constraints of court, as a solo that time 2010, www.americanbar.org/con- mand to "stop trying to fix" so I don't and place is marked primarily by its flex- tent/dam/aba/administrative/legal make it worse, and a promptly sched- ibility. education and admissions to the uled time to clean my computer and bar/stats_1.authcheckdam.pdf save my data. In turn, when my IT con- Finding Balance 2. Stephanie A. Scharf and Barbara M. sultant has a legal issue-and he has Certainly, the demands of work and Flom, Report of the 2010 NAWL Sur- contracts, disputes, and collection issues family can be extremely challenging at vey on the Retention and Promo- regularly enough-he knows that he times. With help from others-in family tion of Women in Law Firms, Octo- can depend on me to offer good, life and in work life-I try each day to ber 2010, http://nawl.timberlake prompt advice/service, and/or steer him be the best parent, lawyer, friend, sister publishing.com/files/NAWL%20201 in the right direction. and daughter I can be. It may not 0%20Final(1).pdf require a village, but it does require a 3. Seton Hall Law, Information for Clients team. And just as I play parts both large Prospective Students from the Clients, the lifeblood of practice, can and small on the teams of so many oth- Office of Career Services, http:// also be a source of balance-and balance ers, many others do the same for me. In law.shu.edu/publications/upload/ca can be a source of clients. One of the the end, being a solo is a shared journey, reer-services-factsRemove.pdf. things I really enjoy about having my and one I wouldn't miss for the world. own firm and calling my own shots is Solo balance? It's not always easy. Susan Schleck Klelner is the founder of knowing that typically, a conflict won't And even as I write this article, I am fret- Law Offices of Susan Schleck Kleiner in prevent me from taking on a new client. ting about the interrogatories that are Metuchen. Before going solo, she was a And, my fee structure is such that I can coming due, the fact that we didn't fin- partner at an environmental litigation firn be flexible with rates (and even some- ish my daughter's science project over based in Philadelphia and an associate at times payment plans). This means my the weekend, and the fact that my Drinker Biddle & Reath LLP and Lowen- clients can come from anywhere-from accountant needs all of my year-end fig- stein Sandler. She wishes to thank Michael parents at the PTA meeting who have an ures so that I can get my taxes squared Ricciardelli, J.D., for his invaluable assis- issue with their general contractor, to away. While I sometimes bask in that tance in writing this article. my dry cleaner who has some questions gracious feeling of 'balance,' I'm more about his lease, to a friend of a friend apt to feel, at any given moment, pulled who got sued for a business dealing in one direction or another. But that's a gone bad, to my friends at 'biglaw' who life in the law, a life I've chosen and have a case that is too small for them to built, and one I'd choose again without handle or presents a conflict for them. a moment's hesitation. The same goes The world is literally my legal oyster, for being a mother and a solo. and clients and potential clients are My daughters often shower me with everywhere. cards and pictures they make in their For me, getting clients has been and after-school program to let me know always will be highly personal-such how much they love me. My clients that the very art of rainmaking goes send me cards and thank-you gifts along hand-in-hand with work/life balance. with their payments, incredibly grateful Clients become friends, and the friends that I have been able to help them of those friends become clients, as the through a difficult legal situation. My way of the world pushes us all inex- accountant tells me I'll be ok. And the orably toward a legal problem of some interrogatories are scheduled for Thurs- sort or another eventually. Colleagues day, 2 p.m. and former colleagues become lunch And the pendulum swings.. ..All in dates and a chance to catch up, laugh all, I wouldn't have it any other way. & awhile (the law can be very funny), and swap referrals. 'Strictly business' is not Endnotes something to which I aspire. Yes, there 1. American Bar Association, Enroll-

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 19 Starting a Solo Practice Soon Out of Law School by Kristen A. Perry

I hadn't intended to start a solo practice less planning, creativity and resourcefulness needed to launch a than. a year out of law school. In fact, the business. The big question was, what legal skill set did I have, beginnings were a bit inauspicious, certainly or could I develop, to establish a successful practice and effec- unplanned, and the circumstances, at the tively compete with other attorneys? And, would I be able to time, were unwelcomed. But some 10 years pick up the phone, knock on the door, pursue new clients and manage any doubts, while attending to the business end of a later, I wouldn't change a thing. Had events law practice? not unfolded exactly as they did, I might riot As I was well aware, this sort of honest self-assessment be as professionally satisfied as I am.today. must be taken seriously. I thought about what I already had learned by working for other lawyers, and what tools I had picked up while in law Big Firm Beginnings school. I thought about what interested me, and about what I attended Seton Hall in the evenings and, as is frequently skills I had that could generate income. In my case, I had been the case with night students, had been working for many working for years in the intellectual property (IP) and technol- years beforehand. While in law school I worked first in a ogy practice of a sizable firm, and was confident in the skills I small, niche law office, eventually moving to a mid-sized 60- was honing. But was there an instant market for my skills? attorney firm, anticipating staying on there after law school. I did not have the luxury of unlimited resources to tide me While there, the IP/Tech group was purchased by an out-of- over until the business started rolling in. I had maintained my state firm; I continued working for this firm while finishing knowledge and worked to expand it, but I had to face the facts law school. By the time I returned to begin my first year as an that practically speaking, I might not hit the ground running as associate, the office had begun jettisoning attorneys as a result a Hunterdon County IP attorney. That would have to wait a bit. of the tech bubble bursting. In February of my first year, I And so, I inventoried what I could do immediately, and received the news that my remaining days at the firm were identified two sources of revenue: brief writing and real estate. numbered (90 to be exact). I was an efficient and efficacious researcher, and enjoyed the First-year associates, within a month or so of being admitted, process of brief writing. I decided one way I could get started are not particularly sought after by prospective employers. And was to offer these services on a per diem basis. I was confident in my case, I was not only a first-year associate, but a pregnant in my ability to take the work on and deliver a quality prod- one at that. While my former colleagues helped me secure a uct, so I reached out to attorneys I had worked with previous- number of interviews, I certainly could not hide my status, and ly, and explained what I was doing. They made introductions did not expect to land a position while being so 'encumbered.' that led to writing opportunities. While pursuing possible positions, I took advantage of the firm's offer for career counseling, where I was encouraged to Paying Attention Pays Off explore starting my own practice. Together, the counselors and Before becoming a law clerk at the New Jersey firm, I had I took an honest look at my strengths and weaknesses-a cru- extensive experience in real estate. I did not go to law school cial first step for anyone considering this path. dreaming of becoming a residential real estate lawyer. And lit- tie did I know that my economic existence might rely upon Looking Within what I was learning at the time. I am glad I was paying atten- First we discussed entrepreneurism. I had a small business tion; it's a lesson I keep with me today. I made the commit- in my 20s, so I was aware of the self-confidence, courage, ment, and focused on developing these two practice areas.

20 NEW JERSEY LAWYER IJune 2012 WWW.NJSBA.COM While general practice may be right a few moments of the lawyer's time, and others talk about theirs. Tell them it was for some, I did not want to stretch she graciously obliged, telling me how a pleasure meeting them. Keep in touch, myself too thin. I had little courtroom she wound up in Oldwick and what solo and ask them whether they would like to experience, no matrimonial law mentor, practice was like for her. We became get together for coffee (short meetings no criminal defense background. Decid- friends, and she opened her office to and in the early morning are often most ing what areas to avoid required a care- me, referring clients and serving as a convenient). Listen to them, and don't ful assessment as well, from the perspec- mentor. interrupt. We all learn more by listening tive of ethics; professional responsibility; I remain grateful to her to this day, than by talking. clients, colleagues and myself. and have repaid her generosity the best Beyond taking stock of my legal abil- way I know how: by extending the same The Waiting Game Pays Off ities and interests, and whether they to others. You may question it when you first could provide the basis for a practice, I To be sure, not everyone responded so open your doors, but the work will start had to take stock of who I was, and who graciously to my knocks. Some people coming in. I've found that persistence I would need to be in order take on cer- were unwilling to share information, and commitment to doing the best in tain duties. Primarily, that meant gener- insight and experience when approached. every aspect of the business is a key to ating business. But I never failed to thank them for their success. time, and I meant it. We are all busy peo- Ten years after knocking on those Knocking on Doors ple. Random calls come in all day long. To first few doors, I am still practicing on I knew from past experience that I take my call and/or return it was a favor, my own. And over time I managed to was sufficiently extroverted to knock on not an obligation. Still, I take those calls bring my practice full circle, returning doors; being well received is another now whenever I can. my focus to intellectual property by matter. Being outgoing may pry the gradually taking on more of the work I door open, but what would it take to get Do Unto Others started out wanting to do, while contin- invited in and asked to return? I've learned it's important to be uing to manage the real estate and other I have found that being sensitive to mindful of opportunities to help those transactional work that brought me suc- others is key. Being a skilled listener is who have extended their hand to you. cess as a solo practitioner. This unex- more important than being a learned When I come across an article someone pected path has led to a thoroughly speaker. Being a good conversationalist might find of interest, I send it along. rewarding career. is more important that having some- When a neighbor approaches me with thing to say. Engaging others is not an issue that falls outside my scope of Kristen A. Perry practices intellectual about making my know-how the center representation, I ask whether they property, business, licensing and estate of attention. Above all, sincerity trumps would like to call one of my trusted and planning law in Clinton, and is entering her savvy every time. capable mentors. 10th year as a solo practitioner. So I knocked on doors. Literally. For- Being available as a sounding board is tunately, one was opened by someone also invaluable. Having had the firm who helped me tremendously. experience, I know the value of being Back when I was working at that mid- able to walk down the hall to bounce an sized firm, I drove by a small law office idea off of someone else. Finding office every day, situated in the beautiful vil- space where there are other attorneys lage of Oldwick. The shingle hung out- amenable to such visits is one way to cap- side a classic colonial. There was a white ture that resource. But developing rela- picket fence. Flowering roses thrived in tionships outside the office works just as season. There were candles in the win- well, and is an interaction you should be dows. I always thought "she knows how prepared to engage in on both ends. to practice law." One day, I thought, I'd You don't know any lawyers, you say? like to leave big firm life and set up an Meet them. Join the state bar association office like that. and the local one in your county. Attend So when I was pregnant and inter- dinners. Introduce yourself. Bring your viewing, I stopped by her office. I intro- cards. Be prepared to discuss your areas duced myself to her assistant. I asked for of practice, and be prepared to listen to

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 21 Transitioning From Law Firm Associate to Solo Practitioner by Jeffrey J. Brookner

As an associate at a big law firm, I enjoyed the relative comfort of having a reliable flow of work to kee) me busy, an extensive su.i)iort staff to help me work efficiertly, and a steady income to feed my family. I was occasionally tempted by the prospect of greater freedom and shorter hours as a solo practitioner. But leaving the comfortable, if sometimes restrictive, cocoon of a big law firm for the comparatively chaotic life of a solo practitioner was a daunting prospect. Eventually, though, I took the plunge.

stantially exceed their former salary. Those months will come, but erable research and planning. During the there will also be months, or even quarters, with little if any process, I was pleasantly surprised to find a income. If you don't think you can handle the stress of waiting wealth of free, readily available information for the next client to hire you, or the next check to come in, you on establishing a solo practice. Advice about a might want to keep the steady salary your current job offers. widedecision variety to ofgo topics,solo was from the resultoffice ofdevelop- consid- You also have to decide whether you can make enough to ment to marketing,T-%he is just a Google search away. Rather than support your lifestyle. It isn't easy, but it isn't as hard as you focusing narrowly on any one of these topics, this article may think. I have heard it said that the typical breakeven addresses the process of going solo from the unique perspec- point comes when you can bill (and collect for) 50 percent as tive of a law firm associate. many hours at 60 percent the rate. This is only a rule of thumb, but it has been consistent with my experience. Are You Ready to Take the Plunge? Consider, for example, an associate who bills 2,000 hours The first decision is whether you really want to head out at $250 per hour. Assuming a 90 percent collection rate, the on your own. For most associates considering the move to firm's revenue is $450,000, but the associate's salary would solo practice, the primary lure is the opportunity to be your probably be in the range of $100,000. If that associate own boss. Solo practice offers the freedom to set your own becomes a solo and can bill 1,000 hours (50 percent) at $150 hours, the freedom to accept or reject client engagements, the per hour (60 percent), his or her billings will be $150,000. Net freedom to wear whatever clothes make you feel comfortable, of unpaid receivables, modest expenses, and healthcare costs, etc. But these new freedoms also come with new responsibili- the solo practitioner can expect to make roughly what he or ties. Being your own boss must be weighed against being your she did before-despite working half as many hours. own secretary, paralegal, librarian, copy service, etc. While Incremental increases in these percentages impact the bot- you might envision building a practice that can afford the tom line disproportionately. If the hypothetical associate can luxury of a support staff, few novice solos start out with one. bill 70 percent as many hours (1,400) at 80 percent the hourly You also must consider whether you can stomach having a rate ($200), billings will be $280,000 and take-home pay will be balance sheet that resembles a yo-yo. As an associate, you proba- more than twice his or her previous salary. Of course, finding bly take for granted getting the same paycheck every two weeks. clients who will pay you 80 percent as much for 70 percent as Solos fervently pray for great months in which their incomes sub- many hours is easier said than done. Only you can decide

22 NEW JERSEY LAWYER IJune 2012 1 WWW.NJSBA.COM whether you want to take the risk. late brief out the door. I think I made the predict the reaction if you take a particu- right decision. My colleagues noticed, lar client with you to your new firm. Don't Jump Too Soon and so did several clients. While I won't say that you should If you decide to take the plunge, you never step on toes, I will say that you have to get serious about your business Breaking the News to Clients should tread lightly. If leaving a client plan. There are many details to attend Deciding when and how to tell clients behind will help keep you in good to-forming a corporate entity, getting a you are leaving is often a touchy issue. In graces with your former firm, consider taxpayer ID number, deciding where to fact, the ABA Joumal identified this as one your options carefully. locate your office, purchasing a comput- of its top 10 ethics traps.' You should If you are unsure how an attorney er and software, opening bank accounts, resist the urge to tell clients you are leav- will react if you try to take a particular registering with IOLTA, getting business ing until after you tell the firm. Scheming client away, talk with him or her. When cards, arranging for insurance coverage, behind your employer's back to divert I left my job, I had one case that was etc.-before you open your doors for corporate opportunities to your new prac- weeks away from trial. Requiring anoth- business. You should get your arms tice is sleazy at best, tortious at worst.2 er attorney to get up to speed would around these details while you still have When you do inform clients you are have been horribly inefficient. I went to the security of a steady income. Saving leaving, the notice should be entirely the originating partner and asked him them for the lame-duck two weeks after neutral. Under RPC 7.1, communications what I should do. He advised the client you give notice is much too late. to a potential client cannot "compare to hire my new firm for the trial, which Instead, make use of the lame-duck [your] services with another lawyer's she did. But if he had wanted to reassign period to cultivate relationships. Being a services," or otherwise be "false or mis- the matter to another associate at the successful solo is all about relation- leading." Additionally, a communication firm, I wouldn't have made any attempt ships-with former colleagues, former that asks a client to follow you to your to secure the business. The long-term adversaries, former clients, former class- new firm will be treated as an advertise- relationship was far more important to mates, etc. Your colleagues at the firm ment, subject to the strict rules in RPC me than the one-time revenue. can be an invaluable resource after you 7.3(b)(5). Thus, it is preferable to send a Regardless, whether you are trying to leave. They can serve as mentors. They neutral letter (perhaps even jointly with take existing matters with you, or you can answer questions outside your spe- the firm) that says little more than you merely want to remain in consideration cialty. They can help reunite you with are leaving and provides details on how for future matters, it is critical you consid- research you conducted or forms you you can be reached. Yes, there is some er the impact your departure may have prepared years ago. Plus, they might risk that the firm will 'get to' the clients on your clients. Explain to them what refer clients to you. All too often, first, perhaps firming up the relationship your departure means for them. Offer to departing associates destroy these valu- before you have a chance to reach out to do whatever is necessary to make the able relationships by burning bridges on them. But that is better than finding process painless-and costless-for them. their way out. Developing a practice will yourself before an ethics panel trying to take years. Getting a good start is impor- justify your actions, or in a courtroom Packing Your Bags tant, but not as important as establish- fighting over whether a temporary Another consideration to keep in ing and maintaining relationships. restraining order should be entered. mind as you develop you business plan One common mistake is leaving too Another issue to think about is is what to take with you on your new hastily, paying short shrift to exit memos whether you should even try to reach out adventure. As discussed earlier, most and other file-transition tasks. Many to certain clients in connection with your new solos will find they don't need to associates mentally check out after giving new firm. I'm not talking about undesir- (or can't afford to) hire an employee. But their notice; they arrive late and depart able clients; I'm talking about clients you if you do plan to hire staff immediately, early for the obligatory two weeks. Doing did not bring to the firm in the first place. you will save yourself a lot of stress, and so is a huge mistake. I gave notice that I Legally and ethically, you can represent training time, by taking a secretary or was leaving to set up my own firm, but I any client of the firm who chooses to fol- paralegal from the firm with you. They didn't specify a departure date. I ended low you. But trying to 'steal' a client who will already know your files, your clients, up staying on for almost five more weeks, 'belongs' to another attorney in the firm and your idiosyncrasies. And it is unlike- making sure all of the loose ends in my will sour your relationship with that ly your former firm will be nearly as con- files were properly tied up. I worked past attorney, if not the entire firm. Only you cerned about losing an employee as they midnight several nights to get an appel- know your firm's culture well enough to would be about losing clients. They may

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 23 even be glad you saved them the burden of reassigning, or terminating, an employee who is no longer needed in his or her former position. Taking forms and continuing legal education materials, on the other hand, can be problematic. Having a good bank of forms and research files is nice in most practice areas, and invaluable in some. Resist the urge to download the firm's form database on your way out the door. The odds are low that you will ever get caught, but that does not make it right. If you have your own personal files, you are probably entitled to take them with you, although some would argue that the files belong to the firm if they were compiled on firm time. I don't know the right answer to this one, but you should give it some thought.

A Few Final Thoughts There are no hard-and-fast rules to guide you on moving from a position as a law firm associate to a solo practitioner; every situation, and every attorney, is unique. But keeping the concepts out- lined here in mind will help make the transition smoother. Overall, keeping your eye on the goal is the key, and focusing on gathering rather than alienating colleagues and clients is essential to both your short- and long-term success. A

Endnotes 1. Top 10 Ethics Traps, ABA Journal, Nov. 2007, found at www.abajour- nal.com/magazine/article/top_10_e thics_traps. 2. See generally Meehan v. Shaughnessy, 535 N.E.2d 1255 (Mass. 1989).

Jeffrey J. Brookuer left his employment with Wilentz, Goldman & Spitzer in Jan. 2010, to found his solo practice, Brookner Law Offices, LLC, in Bridgewater. His practice focuses on trial and appellate litigation, as well as estate planning.

24 NEW JERSEY LAWYER IJune 2012 WWW.NJSBA.COM Successful Planning The Key to a Successful Practice by Robert W. McAndrew

There is a very good reason why the adage All of these issues may seem mundane and somewhat obvi- "failing to plan is plan.n.ing to fail" has been ous; however, failing to take the time to address each one around for so long. As it turns out, it's based could leave you ineffective and unable to develop and main- in reality, and particularly holds true when it tain a successful practice. comes to launch.ing your own business. Income and Outgo Before you open a solo practice or a small firm, you should unning a small or solo law practice is not a have a solid grasp of exactly how much revenue you will need task to be taken lightly. Planning in several to generate each month in order to cover your expenses. areas is a prerequisite for success. For exam- Those expenses will include, at a minimum: office rent; ple, in addition to addressing the big picture salary/draw (yours and any other full- or part-time employ- of how to generate business, solo attorneys ees); phone/fax/DSL; leased or rented office equipment; soft- and small-firm members must take the time ware for the programs needed to produce your work and your to focus on countless seemingly small points that together invoices; supplies; postage/lawyers service; library/electronic ensure a smooth-running office on a daily basis. research service; professional services (e.g., bookkeeping/CPA); For example: website expenses; debt service (for your line of credit if you must use it); malpractice insurance; bar association dues; con- * How will the phone be answered, and by whom? tinuing legal education expenses; and (if your practice * Where will you do your work? In a shared or individual includes litigation) sufficient funds to pay filing fees, deposi- office? In a home office? tion expenses and other miscellaneous disbursements that * What office equipment will you need to get you work done will be required to advance a client's matter. (such as desks, chairs, computers, printers, scanners, When you have itemized all of your monthly expenses and copiers, postage meters, staplers, paper, pads, pens, pencils, tallied them up, you will have a clear picture of what the busi- markers, and waste baskets)? ness must generate in fees in order to avoid going into debt, * How will the work be produced? Will you need a secretary or worse. Only at this point are you ready to begin planning and/or paralegal, or will you produce your own work how to meet those expenses. entirely? Will you need a part-time assistant? * How will you handle your diary? (Court rules require you Drumming Up Business to have one.) The first question to ask yourself is where will your busi- * What kind of conflict check procedure will you use? ness come from? Do you already have clients who require * Who will be your backup in the event of prolonged illness, your services on a regular basis? If so, will the fees generated disability or death? be sufficient to cover your monthly expenses? If not, where will the additional revenues come from? Will you obtain a

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 25 business line of credit? Do you know fort zone. Instead, refer these matters other attorneys who are willing to refer to other attorneys in your network matters to you? Is per diem work an who have the expertise to handle them option? competently. This will pay off in the After analyzing where your business long run, when matters in your prac- will come from, make a conservative tice area are referred back to you, and estimate of the fees your business will clients return to you thankful that you generate each month. If there is a short- referred them to a reliable attorney. fall in income, you should consider what, if any, expenses you can Above all, provide first-rate service to reduce/eliminate until income has your clients. There is no better source of grown. If you cannot reduce expenses, business than clients who know you you must make a plan to increase worked hard for them and cared about income. their problems. Anyone who has practiced You can do that in several ways: for more than a few years will confirm that good service leads to more business. * Consider whether there are additional services you can provide to exist- Conclusion ing clients. By planning out your practice, you will * Can existing clients refer new clients be planning to succeed, not failing by who are in need of similar services? default. During the planning process, For example, if you are a tax attorney keep in mind that a plan must be flexible. providing services to small business- Do not just write out your plan and toss it es, there is a good possibility that in your desk drawer or file it away in a some of your clients know of other computer folder. As you progress, com- small business owners who would pare it with your actual results on a regu- benefit from your services. (It may lar basis-at least once each quarter. Make not be appropriate for you to solicit adjustments in each area where there has these potential clients directly, but been a noticeable deviation from what there is nothing wrong with your you expected. Then adjust your plan clients recommending you to their accordingly (e.g., if revenue is not meet- colleagues and friends.) ing expenses, reduce expenses further and * Are you able to expand your existing examine your ability to increase business; practice into a new area of the law, if revenues are consistently exceeding where you know your services will be expectations, raise your salary). in demand? For example, if you pri- There is nothing magical about plan- marily handle real estate transac- ning. Your results will be uniformly better tions, can you expand into handling when you have made a sound plan and elder law matters or foreclosures? followed it. On the other hand, failing to * Become active in the New Jersey State plan is a surefire recipe for failure. &b Bar Association, as well as your county bar association. Both are great sources Robert W McAndrew spent 12 years as of referrals, especially if you sign up for a solo practitioner before launching a two- membership in a section or conimittee attorney firm in Morristown with his dedicated to your practice area. daughter. A past president of the Morris * Be alert for opportunities to expand County Bar Association, he was named your personal network of fellow solo Morris County Professional Lawyer of the and small-firm attorneys. Year in 2011 by the New Jersey Commis- * Steadfastly avoid taking on matters in sion on Professionalism in the Law. areas of the law outside of your com-

26 NEW JERSEY LAWYER IJune 2012 WWW.NJSBA.COM Ten Tips Learned the Hard Way by Jacob V.Hudnut

At first, a three-month road trip to the West Coast and back may not appear to have a lot in common with starting a solo law practice. But having done both, I can tell you they share a great deal. Both were among the most exciting and rewarding adventures of my life, because each led to unexpected places, introduced me to fascinating people, and imparted important lessons.

et, planning for the road trip was consider- would save considerable time standing in line at the bank to ably easier than embarking on a solo career. I make transfers between my trust and operating accounts. simply plugged my destination cities into Well, I was wrong. Who would have known that even the Google Maps, hit print, and climbed in the happiest client just can't seem to reach for that checkbook, car. As it turns out, there are no analogous even after you've saved the day? So, unless you're a major turn-by-turn directions for launching your Sopranos fan with a burning desire to spend your days making own law practice. Sure, there are great references out there, collections across greater New Jersey, get a retainer upfront- such as Carolyn Elefant's Solo by Choice and Jay Foonberg's no matter how small the fee. And, of course, follow the appro- How to Start & Build a Law Practice. But these books can be priate professional rules when managing that retainer. pricey when purchased, and hard to track down at a library. And even with these guides in hand, there's no standardized 2.Share office space with other attorneys. checklist for getting a solo's dream off the ground. My first office as a solo attorney was on a remote desert Apparently the same is true to some extent for road trips as island-the top floor of an office building full of doctors, only well; even those snazzy Google Map directions didn't warn five convenient blocks from my apartment but over 10 uphill me that postcard-esque Salina, Utah, on Interstate 70, would blocks from both the courts and other law offices. I lasted be my last chance to fill up the gas tank for over 100 miles. A about six months before moving to a suite of other attorneys. tip from friends in Denver clued me in on that fact before it Turns out-even with phone and email-there is no substitute was too late. I was fortunate enough to be able to turn to peo- for basing your practice in close proximity to your bar col- ple in the know for guidance as I embarked on my adventure leagues. Increased face-to-face interaction not only leads to into solo practice as well. unparalleled opportunities for overflow work and general Of course, even with the benefit of that guidance, I advice, but also heightened morale. nonetheless encountered bumps in the road. Following are 10 Even though going solo may be the most daunting chal- tips on going solo that I learned the hard way. Hopefully, they lenge of an attorney's life, no one should lose sight of the fact will save new solos precious time and energy during the that it's an option as old as the legal profession itself. There is promising journey that lies ahead. value in simply being near others who have embarked on the journey too, and are surviving and thriving a little farther 1.Get retainers; use your trust account. down that same road. When I launched my solo practice, I had the big, bright idea that not obtaining a retainer upfront-and thus refrain- 3.Never buy books. ing from billing until the end of my services-would be less There are a handful of resourceful books on going solo, and work. The way I saw it was that by not requiring a retainer I hundreds more practice guides that will be useful, if not cru-

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 27 cial, during a solo's journey. But they're many uphill roads, lined with unexpect- often is a sales call. And every one of pricey (even when bought used) and can ed twists and turns. I surely had my those salespeople purports to have the quickly compound a new solo's over- share of tough moments during my first copy machine, courier service, advertis- head. My belief is they should never be months. Heck, I still do. So how do I ing package, or even binder clip that-if purchased. (Nor should they be stolen.) pull through? I have a playlist designed purchased-will send your business Instead, check a nearby law school's especially for those occasions; every solo straight through the roof. Save yourself library. The library stacks you perhaps should. Soloing is arguably the biggest some time and get off these calls as rarely visited as a law student will leap you can take. It's cinematic, and quickly as possible. Your politeness can become a favorite haunt as a solo practi- therefore deserving of its very own snowball into a 30-minute conversa- tioner. What's more-if your experiences movie score. Each solo's soundtrack will tion, amounting to little more than lost are anything like my recent visits to vary, but I'm happy to provide a few billable time. If there is a tool or Seton Hall Law's Peter Rodino Library- suggestions. If you're a solo with a soft resource your solo practice needs, you'll find the staff will be more than spot for pop music, then try Jason Deru- another solo attorney can recommend a happy to help with special requests. lo's "Ridin' Solo." Fleetwood Mac's "Go vetted salesperson. Your Own Way" is perfect for the solo- 4. Marketing takes time; by-day/classic-rock-enthusiast-by-night. 9.Watch out for per diem pitfalls. don't feel guilty. And "Defying Gravity" from Wicked is Per diem work is a great way to make When I first opened my office, for great for any solo Broadway buffs at bar. ends meet. But if you're new to it, every hour of billable work I did, I also beware. I mostly practice criminal spent at least another non-billable hour 7. You won't always know the answer. defense, and did some per diem appear- designing marketing materials, getting While this point technically applies ances in criminal matters when I initial- listed in print and online directories, to every lawyer, unlike an attorney in a ly went solo. "It's only a status confer- writing website content, blogging, etc. larger firm, solos don't have a building, ence-just get a new date," was the At first, I was uncomfortable with this. I floor, or even suite full of associates who extent of the instruction I typically felt like I was doing something wrong. can quickly jump in when you draw a received. Sounded easy enough, but I But think about it: Many solo attorneys blank in front of a client. So, how can a quickly learned it's never just a new date. (especially those new to the solo adven- solo prepare for this? Simple: Acknowl- Nine times out of 10, it's plea cut off. ture) are burdened with the responsibil- edge it when it happens. Don't blow And you find yourself tap dancing ities of each and every role that would be smoke in your client's face. Instead, be before a judge who is hungry for a dis- filled by separate individuals at a larger honest; your candor will be appreciated position and in no mood for an law firm. This, of course, includes mar- and respected. Of course, feel free to adjournment, however brief. The solu- keting, and eventually it will pay off. A give your best educated guess, but don't tion? Know the case. Never do a per diem new solo should rest assured that a non- go out of your way to avoid admitting appearance without the file in hand, as billable hour of work can be just as valu- you have a little research ahead of you well as a substantive conversation with able as a billable one. before you're sure. And you can always the attorney of record first. If this is not comfort clients by assuring them that possible, then don't take the gig. The 5. Get comfortable with your they won't be paying for your learning fast cash won't be worth the damage cell phone. curve. That'll be music to their ears. your reputation will suffer from a poor A solo's cell phone can be a powerful performance in court. tool-a little office in the palm of your 8. Learn to dodge solicitation calls. hand. Email, office calls, faxes, files, Many of the most disappointing 10. Not even the happiest client statutes, and more can all either be moments during the first months of my will be...happy. accessed from or forwarded to a smart solo practice began with the excitement This is another point that applies to phone. This level of remote access to of an unrecognized number coming every lawyer. But if you're a solo who your firm may be unnerving at first, but through on my phone. I just knew it had scores a big win and doesn't get that it ulfimately enhances your ability to to be a potential client. Dollar signs high-five from the client whose day you practice prosperously, so embrace it. seemed to float right off the phone's just saved, then who will be there to screen as it vibrated. But it turns out, share that victory? This past February, I 6. Get a soundtrack. while an unrecognized number can be- successful argued at sentencing for a The journey of a solo encompasses and often is-a potential client, it just as three-year third-degree custodial sen-

28 NEW JERSEY LAWYER IJune 2012 WWW.NJSBA.COM tence on a second-degree aggravated assault plea, in which the initial indict- ment included first-degree carjacking. I stepped into the hall with the defen- dant's family, expecting them to scoop me up and carry me out of the courthouse on their shoulders. It didn't play out that way. Instead, they insisted the judge's tone at sentencing was disre- spectful (it wasn't) and demanded I do something about it (I didn't). When a client or a client's loved ones behave this way, what can you do? Well, I always think about that cross-country road trip, when a tire went flat in the Rocky Mountains. After pulling off the interstate and finding the help I desperately needed at a mom and pop service station, I took a deep breath. I pictured my next destination (Las Vegas!) and the exciting possibilities ahead. If you're a solo who survives an unexpected detour, then do exactly the same thing. Keep your chin up. Pull out your calendar or to-do list. See what's coming up next. On a solo's journey, there's always another adventure-and with it a victory to score- right around the corner.A

Jacob V. Hudnut is the founding attorney of Hudnut Law, LLC, in Jersey City, specializing in criminal defense, civil litigation, and small business legal services. Prior to launching his solo practice, he was law clerk to the Honorable Peter . Vazquez, P.J.Cr. (Essex Vicinage) and a special assistant to a commissioner of the Port Authori- ty of New York & New Jersey.

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 29 The Bona Fide Office Rule Will Virtual Offices Be Allowed? by Craig M.Aronow, David B. Rubin and David H. Dugan III

A substantial number of attorneys practicing and have no option but to open their own shop, when big in New Jersey are solo practitioners. In 2010, firms are laying off experienced associates and partners, and there were 35,867 la wyers engaged in the when mothers are looking to go back to work to help their private practice of law, 21,51. 1 of whom. households, the authors view the bona fide office rule as an practice full time.) Of the 35,867, a total of unnecessary and antiquated impediment to operating a cost- 11,373 were solos and 3,454 were members of effective practice while meeting clients' needs. While once viewed as a rule to protect the New Jersey attor- two-person. firms.2 Few court rules have as ney from having their practice swallowed up by New Yorkers significant an impact on the solo and small and Philadelphians," the rule now may hamper the New Jer- firm's ability to practice as the bona fide office sey solo's ability to practice law within the state due to cost. rule. The rule has been around, in some form. There may, however, be light at the end of the proverbial tun- or other, for over 30 years, and it has always nel, by way of the New Jersey Supreme Court's Professional brought with it controversy. Responsibility Rules Committee's (PRRC) recent report adopt- ing a rule change proposal from the New Jersey State Bar Asso- n the 1995 In re Kasson decision, the state Supreme ciation. Court discussed the versions of the rule up to that This article examines the current rule and its interpreta- time, and the trend toward relaxing the rule's require- tion, the pending proposed rule change, and the implications ments through each subsequent amendment. For for practitioners under both the current rule and the proposed example, several early versions of the rule required all change. practicing attorneys to be domiciliaries of the state, and to maintain a principal office as a condition of practic- The Current Rule and ACPE Opinion 718ICAA Opinion 41 ing. When Kasson was issued, the Court spoke about amend- The rule is found at New Jersey Court Rule 1.21-1(a), and ments to the prior versions of the rule, which "removed the states that every attorney who currently practices law in New distinction between domiciliaries and non-domiciliaries," in Jersey must have a bona flde office, which is defined as: order to allow "interstate movement [of attorneys] while at the same time assuring a sufficient degree of competence, ...a place where clients are met, files are kept, the telephone is accessibility and accountability." The more recent versions of answered, mail is received and the attorney or a responsible the rule have continued this trend, but still impose what the person acting on the attorney's behalf can be reached in per- authors see as unnecessary restrictions on the manner in son and by telephone during normal business hours to answer which attorneys may set up their practices. questions posed by the courts, clients or adversaries and to The effects of the rule have come to the forefront of the ensure that competent advice from the attorney can be solo's world, in particular, due to the current state of the econ- obtained within a reasonable period of time...." [Emphasis omy. At a time when new lawyers cannot find employment added]

30 NEW JERSEY LAWYER IJune 2012 1 WWW.NJSBA.COM This rule, which in varying forms has Kevin Michels, New Jersey's leading In 2003, when the Supreme Court been part of New Jersey law for over 30 ethics scholar, supports the joint opin- was considering issues relating to the years, can be troublesome. Taken literal- ion's position on the rule's place bona fide office rule, the New Jersey State ly, its place and person requirements can requirement. However, he strongly dis- Bar Association chose to support the be financially burdensome for solo and agrees with the opinion's approach to rule's place and person requirements. small-firm lawyers, and possibly prohib- person: Since then, however, the state bar's posi- itive for lawyers who prefer to practice tion has shifted, reflecting major only part time. Moreover, if the purpose The opinion creates difficulty for part- advances in office technology, as well as of the place and person requirements is time practitioners who do not have a the financial hardship the current rule to ensure that attorneys are available full-time person 'present at the office' imposes upon lawyers with modest or and can be found by clients, courts and during business hours. In the electron- marginal practices. In June 2010, the adversaries,' then the rule is out of step ic age, which allows practitioners to be board of trustees of the New Jersey State with modern technology, which can reached from nearly every location Bar Association submitted to the render lawyers readily accessible at any both by voice and email, it seems Supreme Court a proposed amendment time or place. extraordinary that the Committee to Rulel:21-1(a), which would give In 2010, two advisory committees of would require a practitioner to shoul- lawyers flexibility in satisfying the the New Jersey Supreme Court, the der the expense of a full-time support objectives of lawyer accessibility and Advisory Committee on Professional person to maintain a physical presence responsiveness. Ethics (ACPE) and the Committee on throughout the day. For part-time Attorney Advertising (CAA), issued a practitioners, the economics of such an The NJSBA's Proposal joint opinion, ACPE Opinion 718/CAA arrangement may prove prohibitive. In the wake of ACPE Opinion Opinion 41 (2010), in response to an Lawyers need to be available and 718/CAA Opinion 41 (2010), the New inquiry about whether a home office or responsive, but their physical presence Jersey State Bar Association formed a a "virtual office" can qualify as a bona is required only for specific undertak- subcommittee of its Solo and Small-Firm fide office.8 ings and not throughout the day. The Section and Professional Responsibility The committees took a literal requirement of a bona fide office, and Unlawful Practice Committee to approach to the rule. Regarding the whether at home or elsewhere, study the bona fide office requirement of place requirement, they determined remains valid. The insistence on the Rule 1:21-1(a), and to recommend any that a home office is acceptable if confi- physical presence of an attorney or changes that it deemed appropriate in dentiality is preserved, but that a virtual support person at the office through- light of recent developments in technol- office, serving as the lawyer's only out the business day (other than occa- ogy and law firm practice management. office, is unacceptable. The type of vir- sionally) is an indirect and unnecessar- The subcommittee began its task by tual office they had in mind in their ily burdensome means to ensure identifying the underlying policy objec- opinion was a time-share arrangement, accessibility. The Court should demand tives the bona fide office rule was intend- whereby a lawyer reserves space in an accessibility, eliminate the require- ed to advance, then addressing the most office building as needed, in order to ment of a physical presence, and insist effective way to accomplish those objec- meet with clients, but generally con- that attorneys be reachable by elec- tives to honor the reasonable expecta- ducts business from outside the office. tronic or other means within a reason- tions of clients in the digital age. Regarding the person requirement, able (or prescribed) period of time dur- The rule's obvious purpose was to the committees determined that a ing regular business hours.9 assure that attorneys are promptly lawyer could occasionally leave the accessible and responsive to clients, office unattended, provided he or she George Conk, a member of one of the judicial tribunals, government agencies was accessible by cell phone or other advisory committees that produced the and bar regulatory authorities. One hand-held device. However, if the 2010 joint opinion, believes virtual problem with the current rule was it lawyer were regularly out of the office lawyering is a widespread reality, with appeared to assume most attorneys are during normal business hours, there lawyers increasingly operating in a com- lifigators who spend their days in court, must be a back-up person physically puter 'cloud.' 0 This worries Conk, who then return to the office to meet with present; the lawyer's remote accessibility maintains that for the public to have clients. This practice model may have would not be sufficient to satisfy the confidence in lawyers, they must main- been prevalent in the days of Perry rule. tain a physical presence." Mason, but hardly reflects the profes-

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 31 sional lifestyle of most litigators today. The subcommittee agreed that attor- including disciplinary actions, that may Another problem was that the rule neys may need to designate physical arise out of the practice of law and seemed oblivious to transactional attor- locations for specific purposes, such as activities related thereto, in the event neys and other non-litigators, who may Office of Attorney Ethics audits and that service cannot otherwise be effec- spend no time 'at the office' because service of process. For the day-to-day tuated pursuant to the appropriate they have no need for one, at least not servicing of clients, however, it could Rules of Court. the traditional version contemplated by discern no persuasive policy basis for (ii) An attorney who is not domi- the rule. continuing the requirement of a bona ciled in this State, but who meets all After considerable discussion, the fide office, as presently defined. The sub- the qualifications for the practice of subcommittee unanimously found that committee noted in passing that the law set forth herein must designate a fixed, physical office location, regular- current rule undoubtedly increases the the Clerk of the Supreme Court as ly staffed during normal business hours, cost of legal services to the public. That agent upon whom service of process was not the only reliable way to achieve would not be reason in itself to dispense may be made for the purposes set the accessibility and responsiveness nec- with the rule if it were necessary to pro- forth in the preceding subsection. The essary to fulfill an attorney's profession- tect clients' interests, but the subcom- designation of the Clerk as agent shall al obligations. mittee believed that, if that ever were be made on a form approved by the Yet another problem was that the the case, it no longer is. Supreme Court. rule had been liberalized over the years The subcommittee proposed that (iii) The system of prompt and reli- to stay ahead of one constitutional chal- Rule 1:21-1(a) be amended to read as able communication required by this lenge after another, to the point where follows: rule may be achieved through mainte- it now permits a licensed New Jersey nance of telephone service staffed by attorney to reside in Puerto Rico and 1:21-1. WHO MAY PRACTICE; individuals with whom the attorney is maintain a bona fide office in Guam. The APPEARANCE IN COURT in regular contact during normal busi- subcommittee concluded that if the rule (a) Qualifications. Except as provid- ness hours, through promptly returned ever did serve a useful purpose, it no ed below, no person shall practice law voicemail or electronic mail service, or longer does, at least not in its current in this State unless that person is an through any other means demonstra- form. There also was a concern about attorney holding a plenary license to bly likely to meet the standard enunci- too much undesired accessibility for practice in this State, has complied ated in subsection (a)(i). attorneys practicing from their homes, with the Rule 1:26 skills and methods (iv) An attorney shall be reasonably who have legitimate concerns about pri- course requirement in effect on the available for in-person consultations vacy and safety. date of the attorney's admission, is in requested by clients at mutually con- In a written report to the state bar's good standing, and complies with the venient times and places. trustees, the subcommittee emphasized following requirements: that the 'traditional' law office was by (i) An attorney need not maintain a The subcommittee's proposed revi- no means a relic of a bygone era. It fixed, physical office location, but must sion to the rule placed front and center, remains a viable choice for attorneys structure his or her practice in such more so than even the current rule, the and firms who believe this practice manner as to assure prompt and reli- goals of attorney accessibility and model best reflects their professional able communication with, and accessi- responsiveness that remain as valid as style and identity, and most effectively bility by clients, other counsel, and judi- ever, while offering attorneys flexibility meets the needs of their clientele. But cial or administrative tribunals before in how those objectives may be for many attorneys and their clients, which the attorney may practice; pro- achieved. It established a functional test smartphones, email and video confer- vided, that an attorney must designate the subcommittee was confident could encing offer opportunities for commu- one or more fixed, physical locations be understood by attorneys, and nication and information-gathering far where client files, and business and enforced by the Judiciary. more suited to their needs than a physi- financial records, may be inspected on The proposal was promptly endorsed cal office location the attorney does not short notice by duly authorized regula- by the state bar's board of trustees, and require to perform most of the daily tory authorities, where mail or hand- forwarded to the Supreme Court for tasks of lawyering, and that busy, far- deliveries may be made and promptly consideration. On Jan. 9, 2012, the flung clients may have no interest in received, and where process may be Supreme Court's Professional Responsi- visiting. served upon the attorney for all actions, bility Rules Committee issued its 2010-

32 NEW JERSEY LAWYER IJune 2012 WWW.NJSBA.COM 2012 Rules Cycle Report, "largely agree- titioners under the current rule. the joint opinion, citing that solos, part- ing" with the state bar subcommittee's The heart of the current rule is acces- time attorneys and some small firms do proposal, and recommending that the sibility at the physical location. For an not have the means to pay for the type Court accept it with several modifica- attorney to be in compliance with the of arrangement the rule requires. Believ- tions, including a requirement that the rule, he or she, or someone on his or her ing that these requirements do not fur- site of the designated "fixed, physical behalf, must be at the physical location ther the intent of the rule, the authors location" for file inspection, hand-deliv- and accessible "during normal business argue that the proposed rule changes eries, and process service be located in hours," with only "occasional" should be made. New Jersey. The Court invited public absences." The joint opinion specifical- The joint opinion also provides that comment by April 2, 2012, and formal ly states that a receptionist in an office- an attorney's advertising material must action on the proposal is expected later sharing arrangement does not satisfy not be misleading regarding the nature this year. the rule's criteria, as such a person of the physical office location. This In its Jan. 2012 Rules Cycle Report, "would not be privy to legal matters essentially means that if an attorney is the New Jersey Supreme Court's Profes- being handled by the attorney and not accessible during regular business sional Responsibility Rules Committee would be unable to 'act on the attor- hours, all advertising material must note proposed the following new rule, desig- ney's behalf in any matter."" that the office is "by appointment only." nated as Rule 1:21-1(a)(i): In the joint opinion, the ACPE goes This emphasizes the committees' inter- so far as to state that "in general, an pretation that a "virtual office" or An attorney need not maintain a fixed, attorney should not permit the recep- "shared office" is not sufficient to be in physical location, but must structure his tionist of a 'virtual office' to field tele- compliance with the rule, and that attor- or her practice in such a manner as to phone calls to the attorney." The pri- neys are not permitted to advertise as if assure prompt and reliable communica- mary concern is that a client might they are in compliance with the rule. tion as set forth in RPC 1.4 with, and assume the receptionist is an employee Under the proposed rules, much of accessibility by clients, other counsel, of the attorney, and disclose confiden- the constricting requirements would be and judicial and administrative tri- tial information. removed. The intent of the rule would bunals before which the attorney may The rule is clear: An attorney must be accomplished without the need for practice; provided, that an attorney either be available at his or her physical staffing a physical location throughout must designate one or more fixed, location or must have someone avail- the normal business day. An attorney physical locations in New Jersey where able at that location on his or her would be in compliance if he or she has client files, and business and financial behalf, and not simply serving as an a physical location where client files can records, may be inspected on short answering service or routing phone calls be inspected, business and financial notice by duly authorized regulatory to voicemail. records can be maintained, and service authorities, where mail or hand-deliver- There, of course, is gray area in the can be accomplished. ies may be made and promptly rule. What does "occasional" mean? The proposed rule requires that attor- received, and where process may be How many solo attorneys can one neys provide means for prompt and reli- served upon the attorney for all actions, receptionist/staff member work for able communication, as required under including disciplinary actions, that may before they are considered akin to an the Rules of Professional Conduct. Cell arise out of the practice of law and "answering service"? There are no clear phone and email accessibility would eas- activities related thereto, in the event answers to these questions; they are the ily satisfy these requirements. Mobile service cannot be effectuated pursuant areas solos will need to explore when communication devices and a fixed to the appropriate Rule of Court. determining what office arrangement to office in New Jersey, shared or otherwise, choose and how best to comply with would ensure compliance under the pro- Where We Are and Where We the rule. With respect to the latter, the posed rule. It would enable attorneys May Be Going key appears to be preserving confiden- with struggling practices or new prac- For now, New Jersey attorneys are tiality and the receptionist/staff mem- tices to get up and running, and enable still operating under the current rule, ber working on clients' cases having attorneys to provide legal services to and there are, of course, no guarantees knowledge sufficient to assist clients if clients in a more cost-effective manner. the bona fide office rule will change. the attorney is not available. While the joint opinion is explicit, fol- The authors view these as the most Penalties lowing are several points to guide prac- cost-prohibitive portions of the rule and When an attorney is not in compli-

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 33 ance with the bona fide office rule, and aggressive critique of New Jersey's that is the sole violation, an admonition bona fide office rule by an advocate is the common discipline." However, if of virtual lawyering, see Stephanie an attorney fails to maintain a bona fide Kimbro, Practicing Law Without an office there may be other violations as Office Address: How the Bona Fide well, such as failing to maintain a Office Requirement Affects Virtual required trust account in a New Jersey Law Practice, 36 Dayton L. Rev. 27 bank.16 In such a case, a reprimand is (2010). more common." Another significant 11. Cloud computing refers to comput- ethical breach that could accompany a er users sharing resources over a net- bona fide office rule violation is breach work instead of purchasing tradi- of confidentiality. tional hardware and installing it at their physical location. For exam- Conclusion ple, instead of having a large-capac- In the authors' view, the bona fide ity server at their office, a user can office rule, as it now stands, dispropor- store their data over a network at an tionately affects solo and small-firm off-site location. practitioners in the state. Technology 12. ACPE Opinion 718/CAA Opinion may be changing the manner in which 41, pp.2 -3 (2010). the Supreme Court chooses to achieve 13. Id. the requirements of attorney accessibili- 14. Id. at p.4. ty and accountability. The proposed rule 15. In re Witherspoon, 203 NJ. 343, 359 would retain these requirements while (2010); Matter of Young, 144 NJ.165 allowing virtual offices. &6 (1996); Matter of Beck, 143 NJ. 308 (1996). Endnotes 16. See RPC 1.15; 1:21-6. 1. Office of Attorney Ethics, State of 17. See Matter of Gajewski, 139 NJ. 389 the Attorney Disciplinary System (1995). See Section 4:5, Michels, New Report, pp.66-67 (2010). Jersey Attorney Ethics (Gann Law 2. Id. Books, Newark, 2000). 3. In re Kasson, 141 NJ. 83 (1995). 4. 141 NJ. at 86 (citing In re Sackman, Craig M. Aronow is a partner at Rebe- 90 NJ. 521, 526 (1982)). nack, Aronow & Mascolo, LLP, and former 5. See Id. (quoting 90 NJ. at 533). chair of the New Jersey State Bar Associa- 6. Jill Capuzzo, Balancing Life and tion Solo and Small-Firm Section. He prac- Practice: Bars Battle Back the Bona tices personal injury law with offices in Fide Office Rule, New York Times, Somerville and New Brunswick. David B. 2002 at Rubin, of David B. Rubin, P.C., in http://www.lexisone.com/balanc- Metuchen, is a solo practitionerand chair ing/articles/nO92OO2d.html. of the state bar association's Professional 7. Committee on Attorney Advertising Responsibility and Unlawful Practice Com- Opinion 19 (1994). mittee. He primarilypractices civil law and 8. ACPE Opinion 718/CAA Opinion defends attorneys in professional discipline 41 (2010). matters. David H. Dugan I isa solo 9. Kevin Michels, New Jersey Attorney practitionerand member of state bar's Pro- Ethics, section 4:5, pp.4 8 -4 9 (Gann fessional Responsibility and Unlawful Prac- Law Books, 2012 Edition). tice Committee. He defends attorneys in 10. George Conk, We're All Virtual professional discipline matters and has Lawyers Now, New Jersey Lawyer, offices in Medford. December 2011, pp.1 9 -2 3 . For an

34 NEW JERSEY LAWYER IJune 2012 WWW.NJSBA.COM Mentor Programs A Safety Net for Solos by Mitchell H. Cobert

What if your law firm just let you go and you have no alternative but to set up your own solo practice? What if you have two toddlers at home, your husband just got laid off, and no law firm is willing to hire you? We all remember that lonely, exhilarating, exhausting, rewarding, terrifying (pick two) first year as a solo practitioner. Whether you are a solo by choice or circumstance, one year or 10 years out of law school, there are always times, even today, when you need or would love a. second opinion or words of advice frori someone more exi)erienced.

Following are a few examples of who can benefit from a attorneys (mentees) resolve these and other legal and ethical mentor program: concerns. What is mentoring? It is an attempt to pass on the skills, knowledge, wisdom, and practical advice experienced EXAMPLE: You are a new associate at a large, prestigious law attorneys have gained over the years to the next generation of firm. You are reviewing thousands of pages of email discovery professionals. prior to production to opposing counsel and you come across One of the mentors in the Morris County Bar Association one that appears to be damaging to your client's interests. The program recounted a situation that highlights not only the partner who gave you the assignment directs you to withhold benefit of the program to the mentee, but also to the mentor. the email as "non-responsive." What do you do? Three or four years ago he was introduced to a lawyer who was EXAMPLE: You are a newly hired female associate working 'between jobs.' The younger lawyer expressed a willingness to for the general counsel of a large, multi-national corporation. work in whatever capacity was available. The mentor hired Working late one night, the general counsel makes sexually the new attorney to do some research, including the drafting explicit remarks you consider highly inappropriate. What do of an appellate brief, and was very satisfied with the work you do? done. When the newly admitted attorney went on interviews, EXAMPLE: You have just formed your own law firm as a solo the mentor provided him with a very nice letter of reference. practitioner and receive a referral for a new client with a The newly admitted attorney subsequently found employ- strong personal injury case. You have never handled a person- ment at a small law firm in the area, and several months later al injury case and have no experience as a personal injury lit- called the mentor to refer a significant matter that could not igator. What do you do? be handled by his law firm. They worked on it together with EXAMPLE: You are treading water in your practice, not par- a very good result, splitting the legal fees in proportion to ticularly successful in business generation, and would love to their participation. concentrate on a particular area of law you have no experi- Associates in firms of any size may hesitate to ask questions ence in. What do you do? they feel display their lack of knowledge, or that might be politically sensitive. They may be embarrassed, or shy, or All of the above situations are real, and they are exactly intimidated. Going back to basics, mentoring is a way to why mentoring programs have been instituted by the New restore the time-honored system where mature, experienced Jersey State Bar Association and several county bar associa- senior partners take new associates under their wings and, by tions. In each case, the confidential advice and guidance of example, show them how to act and what to do. But mentor- experienced attorneys (mentors) has helped less experienced ing is not meant just for the newly admitted attorney. Attor-

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 35 neys who want to expand their practice county bar associations have started viewed as paramount, in order to into a new area of law have benefited their own mentor programs. Today, the encourage mentees to discuss sensitive from mentor programs by being Young Lawyers' Division of the New Jer- issues without fear of retribution, or assigned to a mentor who practices in sey State Bar Association has its own embarrassing disclosure. The feedback the desired area. mentor program. 2 The requirement for from the few mentees who have partici- Mentoring is especially important mentors is 15-plus years of practical pated in this program has so far support- these days, when more than 40 percent experience, 10 of which should be as ed this decision. Mentees fill out a con- of all attorneys in New Jersey are in members of the state bar association. fidential questionnaire, which enables firms of two lawyers or less. There are no Young lawyers wishing to take advan- the bar office to match the mentee with fees for joining a mentor program, and tage of this program must be members the most suitable mentor. it has always been strictly voluntary. of the state bar association. In Morris County, as in Middlesex, The Hispanic Bar Association of New there has never been a problem obtain- Past and Present New Jersey Mentor Jersey also has a mentor program. It ing qualified mentors for the program. Programs matches Latino law students with Lati- Initially, in Morris County, the require- In 1998, the New Jersey Commission no legal professionals.3 In one recent ment for mentors was at least 10 years on Professionalism in the Law devel- year, the Hispanic Bar Association experience, proof of malpractice insur- oped a model mentor program.1 The received over 50 applications from stu- ance, and the intangible of being commission is a cooperative venture dents requesting mentors. The website known and respected in the legal com- between the New Jersey State Bar Associ- of the Hispanic Bar Association notes munity. The requirement for 10 years ation, the New Jersey Supreme Court, that the popularity of this program is experience has been eliminated, howev- and the state's three law schools-Seton due in large measure to the positive er, because it was found that many Hall, Rutgers-Newark, and Rutgers- feedback received from past mentees. lawyers in practice less than 10 years Camden. Rutgers-Camden 4 participates in a were excellent mentors and had skills The program offered by the commis- mentoring program involving its alum- (e.g., computer, Internet, and electronic sion in 1998 was intended as a guide to ni career network.s discovery) that attorneys who were be used by individual county bar associ- The Middlesex County Bar Associa- practicing longer lacked. ations. The commission made available tion offers the Honorable Rosemary Each mentor is assigned for a one- technical and logistical support in the Carcher-Reavy Mentor Program, in year term. If, at the end of that year, form of recruitment letters, sample fly- place since the late 1990s.6 To enroll, both mentor and mentee agree, the ers and promotional pieces. Goals and prospective mentees view the biogra- arrangement can continue for a second guidelines were established for the selec- phies of participating mentors on the year. Otherwise, there will be a referral tion of mentors and the recruitment of association's website. The mentee then to another mentor. mentees. The suggested minimum num- selects and contacts a prospective men- A mentee's formal participation in ber of years in practice for a mentor was tor directly. A few years ago, attempts the program is limited to two years, from five to 10. The commission sug- were made to generate interest in the although it is hoped that relationships gested that each assignment be for one program by having meet and greet begun in the program can continue and year, and that the participants, both social functions. These were not as well flourish. The program is not limited to mentors and mentees, take part in ori- attended as hoped, and the program is, members of the Morris County Bar Asso- entation sessions with a nice social despite everyone's best efforts, only ciation; anyone can become a mentee. function serving as a kick-off. minimally successful today. Why? Even so, like Middlesex, this program All of this sounded great on paper, Again, due to a lack of mentees. has been only minimally successful but how is this worthy program working The Morris County Bar Association because of the small number of mentees today? Unfortunately, it isn't. Despite has had a mentor program in place since seeking to participate. the best of intentions, it is no longer in 1998.7 Its stated goal is "to demonstrate operation. Why? Because of lack of par- to you [the mentee], first hand, the Expectations ticipation. Not enough mentees asked civility and demeanor we expect of our- Before joining a program and select- for guidance, which eventually led to selves, so we can, together, learn how to ing a mentor, mentees should first ask the program's demise. The word just better serve our profession." From the themselves: Where am I in my career? wasn't getting out. beginning of this program, confidential- Where would I like to be? What are my In its wake, some specialized and ity of the identity of the mentees was strengths and weaknesses? What is the

36 NEW JERSEY LAWYER IJune 2012 WWW.NJSBA.COM specific problem I cannot resolve on my Six States Have Mandatory Mentor Obtaining the Necessary Forms to own? Programs Get a Mentor Program Started The more specific the goal or identi- If voluntary mentor programs strug- Regardless of how formal or informal fication of the problem, the easier it will gle to get mentees, the question arises: a mentor program is, it is helpful to be to select the right mentor, and the Should mentor programs be mandato- send some form of introductory letter to greater the benefit to be derived from ry? Six states have now made mentor both mentors and mentees containing joining a mentoring program. programs mandatory for new attorneys: instructions on how to participate and The mentee should be clear in what Oregon, Georgia, Utah, South Carolina, what to expect. Although they are not he or she wants to achieve from what Wyoming and Nevada. required, any attorney interested in hopefully will become described as a In Nevada, new attorneys do not obtaining a full set of forms can call the 'relationship,' since a bond often devel- have to participate if they have already Morris County Bar Association at 973- ops between the mentor and the mentee practiced in another jurisdiction for at 267-2089 or email sjohnson@mor- that can lead to a lasting friendship, least five years. riscountybar.com. referrals to other attorneys, and possibly In South Carolina and Georgia the It is suggested that the length of time even employment opportunities. programs were made mandatory after to be assigned to a mentor should be Although a specific issue may lead an trial programs proved overwhelmingly established and a mechanism should be attorney to seek a mentor, ultimately successful. A survey conducted at one- in place to replace a mentor if the chem- the process is not just about one isolat- year intervals during Georgia's two-year istry between mentor and mentee is ed issue. More often than not, it will pilot project revealed that "approxi- lacking. Questionnaires can be used at evolve into questions of law firm man- mately 85% of both the mentors and the outset to gather information for use agement, work/life balance, ethics beginning lawyers rated the Pilot Project in the selection process. Once the ques- issues, billing, insurance, and other per- as satisfactory in varying degrees."8 The tionnaire is completed and the initial tinent concerns. survey revealed that career satisfaction information is gathered, the director/ The mentor, recognizing that the increased over the course of the pilot chair of the mentoring program can pair mentee might feel uncomfortable at project. These mentor programs have the mentee with the most suitable men- first, should be sensitive to setting the sufficient flexibility to allow "inside tor in the area of law and/or issue iden- right tone to put the mentee at ease. mentors" in firm or organizational set- tified. After a mentor is identified, a let- Both the mentor and the mentee should tings, and "group mentoring" if the new ter can be sent to the mentor providing not hesitate to reach out to the direc- lawyer is unemployed or does not work the name and contact information of tor/chair of the mentoring program to in a legal setting. Some elements may be the mentee, and vice versa. resolve any issues that might arise. compulsory, such as advocacy experi- It should be up to the mentor to Communication is always key. A two- ence, if the mentee appears in contested quickly contact the mentee to make the way relationship involves full participa- civil or criminal matters, but each pro- introduction and to schedule an initial tion by both parties. If there is no chem- gram has flexibility over the specific meeting. The goal should be for all men- istry, there should be a change in areas to be covered.9 tor program administrators to share mentors. Additionally, a mentee can their experiences with other mentor sometimes have multiple mentors, Many States Allow MCLE Credit to program administrators to improve the although most mentor programs limit Mentors and Mentees overall process. participation to only one mentor at a Openly acknowledging the success of time. Interaction may be face-to-face, or mandatory mentoring programs in the Conclusion it can be by telephone or email. What- six states mentioned above, seven addi- Mentoring is an effective way to pass ever arrangement works for the partici- tional states have edged in that direc- on skills, knowledge and experience in pants is usually acceptable to those in tion by allowing mentors and mentees order to train the next generation of charge of administering the program. to receive mandatory continuing legal professionals. As more and more attor- The goal is the same: To enable lawyers education (MCLE) credit. Alaska, Ari- neys learn of and take advantage of this to enhance and improve their skills so zona, Colorado, Illinois, Indiana, Ohio, valuable resource, and as more and they become an integral part of the pro- Texas and Washington allow partici- more states make mentor programs fession. When that happens, everyone pants to earn up to six MCLE credits mandatory and grant MCLE credits for benefits. each year for participating either as participation, the advantages should mentors or mentees.'0 become even more apparent. "

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 37 Endnotes 1. The New Jersey Commission on Pro- fessionalism: 732-937-7504. 2. The Young Lawyers' Division of the New Jersey State Bar Association: 732-249-5000; forms available from the Young Lawyers' Division website under newsletters to members of the division who sign in using their member identification information. 3. The Hispanic Bar Association of New Jersey: www.njhba.org; 202- 223-4777, ext 306. 4. Rutgers Law School-Camden: 217 North Fifth Street, Camden, NJ 08102; 856-225-6375. 5. Rutgers Alumni Career Network: http://careersl.rutgers.edu/alumni/main.asp. 6. Middlesex County Bar Association: 87 Bayard Street, New Brunswick, NJ 07901; 732-828-3433. 7. Morris County Bar Association: 245 South Street, Unit 1, Morristown, NJ 07960: 973-267-2089. 8. http://bestpracticeslegaled.albany- lawblogs.org/211/01/31/mentoring- programs-in-the-u-s/. 9. Id. 10. http://ginascleblog.typepad.com/ ginascleblog/2011/08/growing- trend-mentors-and-mente.

Mitchell H. Cobert is a solo practitioner in Morristown with an emphasis on securi- ties law. He is a past president of the Mor- ris County Bar Association and a member of the New Jersey Lawyer Magazine Edi- torial Board.

38 NEW JERSEY LAWYER IJune 2012 WWW.NJSBA.COM Social Networking Websites for Business and Exposure by Kenneth A. Vercarnmen

The latest way to connect with. friends and municate with clients and other lawyers.3 obtain business is to establish and maintain Google+ is Google's attempt to compete with Facebook, an online presence. There are many free integrating social service sites such as Google Profiles and online websites for attorneys to list their Google Buzz. Opened to the public in Sept. 2011, it already 4 names, practice areas and contact has a user base of 90 million. Twitter is an online social networking and micro-blog- information, as well as social media sites ging service that enables users to send and read text-based where it is easy to stay connected with. old posts of up to 140 characters, known as tweets. Many of the friends, colleagues and acquaintances and get sites listed below will permit the user to forward a tweet to your name out to the general public. Twitter for free, setting forth new webpages and page updates. Twitter now boasts 300 million users.5 The Main Contenders YouTube is a way to get your videos published by upload- Facebook is presently the largest free social networking ing, tagging, and sharing them worldwide. Founded in Feb. service and website, where users can create personal profiles, 2005, YouTube allows billions of people to watch and share keep people updated on accomplishments and activities, and originally created videos. YouTube provides a forum for people even establish a fan page for their business.' Since the site is to connect, inform, and inspire others across the globe. It acts most commonly used for social networking among friends, it as a distribution platform for original content creators and is important to remember to keep a professional tone on your advertisers of all sizes. A one-paragraph narrative can be added page if you plan to open it to existing or potential clients. as a description to the video.6 LinkedIn is a business-related social networking site, and is mainly used for professional networking. As of Nov. 2011, Free Legal Sites LinkedIn reported more than 135 million registered users in JD Supra is a repository of free legal information shared by more than 200 countries. Members can create business pro- those professionals who utilize it. Users can create profiles, and files, and instead of linking 'friends,' like Facebook, LinkedIn share documents, articles, forms, and pleadings. Users can share users can invite other members to 'connect' with them. legal documents, court filings, and decisions, whether their LinkedIn also supports the formation of interest groups; as of own or relevant to their practice. JD Supra users can also auto- March 2011, there were 870,612 such groups with member- matically share documents, with connections, on LinkedIn and ships varying from one to 377,000.2 Facebook.7 LinkedIn boasts that 75 of the Fortune 100 companies are Avvo provides a basic listing of all the licensed attorneys in clients, and that it is the new "global talent marketplace," and New Jersey. Once you claim your profile, you can add to it as has, in fact, become an important way to connect and com- often as you want, to give prospective clients, competitors,

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 39 and the media a clear picture of your dard cost. Additionally, the site allows members."' resume and expertise. The website also lawyers to market their legal services by Orkut is a social networking site includes lawyer-submitted legal guides, sharing expert advice and engaging in owned by Google, and has over 60 mil- attorney profiles, and unbiased ratings. discussions. The site's technology uti- lion users worldwide.21 Free access draws over 2.5 million visi- lizes a personalized search algorithm to FriendFeed is a real-time feed aggre- tors to Avvo every month. The site match companies with relevant lawyers gator that consolidates the updates from draws an enormous pool of consumers to provide answers to their specific legal social media and social networking web- by offering them information on attor- questions." sites, social bookmarking websites, blogs neys, including whether they have faced Meet the Elite allows attorneys, and micro-blogging sites, as well as any any ethical discipline. Attorneys have accountants, insurance agents and other type of RSS/Atom feed. the opportunity to reach prospective financial planners the ability to create a Gather has 4.5 million monthly clients through free and paid marketing free web profile to network and promote U.S. visitors and 4.4 million global solutions. Avvo averages more than their services." members who receive their own sub- 160,000 lawyer contacts per month.8 LawLink is a social network for the domain and can publish articles and Justia Lawyer Directory users can legal community with over 8,000 mem- share comments. Members can create participate in the Justia community by bers nationwide. LawLink states it now groups related to their own efforts or to creating a free account. Claim and receives over 150,000 visitors a month. any other topic. update your Justia Legal Directory pro- The site consists of four separate but Plaxo is an online address book, file, ask or answer questions in Justia's interconnected social networks: 1) The which was formerly a social networking Legal Answers, or participate in Justia Attorney Network; 2) The Expert Wit- service. Legal Birds and Blawgsearch communi- ness Network; 3) The Law Student Net- Virb.com users receive a personal ties. By registering, you can also choose work; and 4) The Law Professional Net- profile page where they can post blogs, to receive announcements of new free work." photographs and videos. Additionally, services. Justia permits attorneys the use Mylegal.conm helps lawyers make users may add others as friends and send of publications, blogs, Twitter, social smart buying decisions by offering mer- them messages, as well as update their networks, and videos.' chandise from legal vendors around the personal profiles to notify friends of Martindale.com Connected is a world.'6 their activities.' free site for attorneys to post newsletters Rocket Lawyer, Inc. is an online Digg is a social news website that and articles and set up a profile.'0 legal forms and services company based allows people to vote on stories, either AttorneyPages.com helps lawyers in San Francisco. Rocket Lawyer's pri- digging (liking) or burying (disliking) gain exposure on the Internet quickly mary service allows users to create, them.' and at little or no cost, via one of the store, share, and e-sign legal documents MetaCafe began much like other respected online directories of con- from a single account dashboard. Rock- video-viewing websites, such as sumer-oriented lawyers. With a focus on et Lawyer also connects users with attor- YouTube or Dailymotion, but has trans- performance, AttorneyPages offers an neys for legal document review. Attor- formed itself into a short-form video affordable law firm marketing solution neys can sign on for free and potentially entertainment site showcasing curated, that generates good results." get cases from individuals who realize exclusive and original premium enter- Legal Playground is a social net- online forms may not solve their prob- tainment-related video content.' working website that allows members of lems.7 Bebo is an acronym for blog early, the legal community to connect with Veoh allows users to post short law blog often. Users receive a personal prospective clients. This web applica- videos.'8 profile page where they can post blogs, tion helps people search for lawyers by photographs, music, videos and ques- name, organization, practice area, or Non-legal Sites tionnaires other users may respond to. location. Thus you, or your client, can Myspace is considered by many to Additionally, users may add friends and view profiles, photos, videos and blogs.2 be the original social networking site; send them messages, as well as update LawPivot is a legal question and however, Facebook has overtaken it in their personal profiles to notify friends answer website that enables companies, popularity.' about their activities. Bebo is similar to especially startups, to confidentially Flickr users share photos and short other social networking sites, like Face- receive legal answers from highly quali- videos. Flickr owner Yahoo claims the book.27 fied lawyers for a fraction of the stan- site has a total of 51 million registered MyYearBook is a social discovery

40 NEW JERSEY LAWYER IJune 2012 WWW.NJSBA.COM website providing users the opportunity ice that allows users to share media- Blogdigger.? One site with many listings to interact and meet new people.? such as photos, videos and blog of interest to law students and lawyers for StumbleUpon is a discovery engine entries-via a 'real-world' network. It is information gathering; networking and (a form of web search engine) that finds currently the biggest social site in jobs; sharing; forums; and miscellaneous 3 and recommends web content to users. Southeast Asia, with over 125,000 mer- material is Criminal Justice USA. 1 At Its features allow users to locate and rate chants and 20 million visitors. In addi- web pages, photos, and videos that are tion to a profile, users can post videos."6 Endnotes personalized to their tastes and interests YELLOWPAGES.com is an Internet 1. www.facebook.com. using peer-sourcing and social-network- website operated by AT&T Interactive. 6 2. www.linkedin.com ing principles." 3. Ryan Johnson, ABA LawPractice. Delicious (formerly del.icio.us) is a Blogs News, February/March 2012. social bookmarking web service for stor- Blogs represent another way to pur- 4. www.google.com. ing, sharing, and discovering web book- sue a free Internet presence. An attorney 5. www.twitter.com. marks. 0 can set up a blog on any type of prac- 6. www.youtube.com. Yelp for Business Owners is a tice, and can open up comments to any- 7. www.jdsupra.com. company that operates yelp.com, a one interested in participating in the 8. www.avvo.com. social networking, user review, and local conversation, or only limit comments 9. www.lawyers.justia.com. search website. Yelp.com claims it has to friends/followers. 10. http://community.martindale.com more than 54 million monthly visitors Blogger is a blog-publishing service, /members/2445864/default.aspx. as of late 2010. Yelp provides online now owned by Google, which allows 11. http://attorneypages.com/law- local search capabilities for its visitors. A private or multi-user blogs with time- firm/593012060929.htm. typical search includes what the user is stamped entries. Generally, the blogs are 12. www.legalplayground.com. seeking (e.g., a barber shop) and the hosted by Google at a sub-domain of 13. https://www.lawpivot.com. location from which the search is to be blogspot.com. It is not social media per 14. www.MeetTheElite.net. performed, entered as a specific address, se, but attorneys can permit readers to 15. www.lawlink.com. neighborhood, city/state combination, comment on their posts. For example, 16. www.mylegal.com/MyWall/tabid/ or zip code. Each business listing result an attorney who handles primarily 81/asuid/47535/Default.aspx. contains a five-point rating, reviews immigration law can add immigration 17. www.rocketlawyer.com. from other site visitors, and details such cases to the blog on a weekly basis. 18. www.veoh.com. as the business address, hours, accessi- Potential clients do a Google search, and 19. www.myspace.com. bility, and parking. Site visitors can aid since Google owns Blogger, the immi- 20. www.flickr.com. in keeping the business listings updated, gration law post will appear higher in a 21. www.orkut.com. with moderator approval, and business search than an old immigration website. 22. http://friendfeed.com. owners can directly update their own It is simple to create a free blog in 23. http://myplaxo.com. business listing information. 1 your practice field. To create a blog: 24. http://virb.com. Squidoo is a community website 1. Go to the website www.blogger. 25. http://digg.com. that allows users to create pages (called com/start to create a free account. 26. www.metacafe.com. lenses) for subjects of interest. Squidoo 2. Click "Sign into Blogger" and cre- 27. www.bebo.com. had 1.5 million hand-built lenses as of ate a user name and password. 28. www.myyearbook.com. Oct. 2010.3 3. Click on "Create a Blog," then fill 29. www.stumbleupon.com. Chamber.com is a business net- in the blanks. 30. http://delicious.com. working site with approximately 2,000 4. Then click "New Post" and follow 31. https://biz.yelp.com. members. the instructions. 32. www.squidoo.com. Spoke is a business directory and Other blogging platforms besides 33. http://chamber.com. social networking site mainly used for Blogger include TypePod, WordPress 34. http://centertspoke.com. professional networking. The site col- and (for law blogs) LexBlog. 35. http://multiply.com. lects and aggregates information from When searching for a blog, keep in 36. www.yellowpages.com. public sources, private databases and mind that several search engines search 37. http://jurylaw.typepod.com/delib- member uploads. 4 numerous blogs at once, such as Techno- erations/social networking.html. Multiply is a social networking serv- rati, Google Blog Search, Feedster, and 38. www.criminaljusticeusa.com/blog/

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 41 2009/50-terrific-social-sites-forlaw- students-and-lawyers.

Kenneth A. Vercammen is an Edison trial attorney handling criminal, probate, civil litigation and estate matters. He serves as the editor of the legal website www.nflaws.com.

42 NEW JERSEY LAWYER IJune 2012 WWW.NJSBA.COM Enhance Your Solo or Small-Firm Practice With Your New Jersey State Bar Association Membership by Richard H. Steen

As a longtime rmermber of the New Jersey State Bar Association, I have had countless opportunities to get value from my membership and to enhance my practice. When I was admitted to practice in 1975, one of the first things I did was to join the bar association. I believe it is an important part of being a professional and becoming a better lawyer.

AM any of us made lifelong friends in evant to your practice area is particularly important for solo law school, and the Young Lawyers and small-firm attorneys, as it creates opportunities to speak Division of the state bar is also a with and learn from other practitioners in a collegial setting, place where strong friendships with and can provide you with practical insight into ways to colleagues can be forged. As young become a better practitioner and provide more value to your lawyers working together (and play- clients. While practicing in a solo or small-firm setting may ing together) you have opportunities to share insights into provide more flexibility and control, it tends to be more insu- your new role as attorneys and gain valuable tools to help you lar, and lawyers may feel more out of touch with other prac- become a better practitioner. You can get answers to your titioners and with the profession. Participation in bar activi- questions about working with other associates and partners in ties provides many opportunities to spend time with other your firm, client relations and representing your clients in professionals, and can alleviate the sometimes confining court. Networking opportunities with other young lawyers nature of certain practice areas. For those lawyers who are into can also allow you to explore new and different practice areas social networking, members of the association can communi- and other employment opportunities in the law. cate through the state bar's online communities. Over the years, I have come to value my membership in My own involvement in the work of two sections and com- many ways. Probably the foremost advantage of state bar mittees that were particularly relevant to my practice began association membership is the ability to network with col- when I was in the corporate world in the engineering and leagues and, through membership in a section or committee, construction field. At that time, construction law was relative- gain valuable experience and credentials in your practice area. ly new as a separate and distinct practice area, and my Active membership in a section or committee is often one of involvement with the Construction and Public Contract Law the best ways to keep current with developments in your prac- Committee, which later became a section, was important for tice, meet and work with other lawyers who practice in your my growth in the field. I was able to get wise counsel and field and hone your practice skills through working with oth- advice from knowledgeable colleagues, and was able to ers in continuing legal education (CLE) programs, mentoring, increase my visibility in the field through publishing, speak- writing and publishing, working on legislative initiatives and ing on CLE programs and editing the section newsletter. commenting on proposed court rules and initiatives. The second area of legal practice that was of interest to me Active membership in the section or committee that is rel- and relevant to the work I was doing was the emerging field

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 43 of alternative dispute resolution. Again, sections and committees. Lawyers who highlight of my career. I especially active involvement in the state bar's are new to solo and small-firm practice enjoyed the opportunity to travel Dispute Resolution Committee, which have benefited from joining the Solo throughout New Jersey and beyond to later became the Dispute Resolution Sec- and Small-Firm Section, and have meet and spend time with practitioners, tion, allow me to develop my practice in flocked to the association's popular judges and court staff. My long-held this area of the law in a number of ways. annual Solo and Small-Firm Conference belief that lawyers are genuinely caring, Through my work in the section I had and Suddenly Solo programs. interested in their clients, enthusiastic opportunities to speak and write, and In addition to the benefits member- about the practice, hardworking and also to obtain an appointment to the ship in the association can provide in generous with their time and energies Supreme Court Complementary Dispute your substantive practice area, joining was reinforced again and again. Resolution Committee, which was the state bar also offers a wide range of I urge you to take advantage of all of working on many court initiatives to general benefits and services, particular- the benefits of active membership in the introduce new alternative dispute reso- ly to solo practitioners and small firms. New Jersey State Bar Association. I hope lution programs in the court system. One of the most significant benefits of that you will find the experience as When I made the decision in 2000 to membership is access to Fastcase, pro- rewarding as I have, and that your mem- open my own practice, I was able to do viding legal research specific to New Jer- bership provides you with genuine value so not only as a result of the substantive sey for free and to all 50 states for only for your practice and your career. 63 experience I had in construction law $195 per year. Association members also and alternative dispute resolution, but get substantial discounts on a variety of Richard H. Steen is a former president also because of the practitioners I had other products and services, including of the New Jersey State Bar Association and met through the state bar association continuing legal education through the a solo practitionerin Princeton. and the credentials I gained through my New Jersey Institute for Continuing bar work. Legal Education, law office manage- Being able to give back to one's pro- ment software and services, the New Jer- fession is an important part of being a sey Law Journal, and services to market professional. The work of the state bar and grow your practice. association in the context of legislation The association is committed to and court rules is important to your being accessible and relevant to your practice, your clients, the courts and the practice and your profession, and to public. Both through lobbying for the providing real value for its members. association early in my career, and as You can access information on all of the chair of the legislative committee for benefits and services of the association many years, I had a first-hand look at through its state-of-the-art website. The the importance of helping to fashion sections and committees of the associa- legislative initiatives that advanced the tion have online webpages and commu- law in many practice areas and helped nities to enhance rapid communication, to protect the profession and the public. facilitate the exchange of questions and Many solo and small-firm practition- ideas, share news that is important to ers have been particularly hard hit by your practice area and provide informa- the economic problems of the last sever- tion on upcoming events and activities. al years. New attorneys coming out of I have found my participation in the law school, and lawyers who have been work of the New Jersey State Bar Associ- out for a while and find themselves vic- ation to be personally rewarding as well. tim of the economic times, have found The lifelong friendships and acquain- that networking through the state bar tances I have made through being association has provided many opportu- involved in association activities, espe- nities. Lawyers who are interested in cially the annual and mid-year meet- exploring new areas of practice can ings, have been a real treasure. Having learn a lot about those areas of practice had the honor of serving as the presi- by participating in the relevant state bar dent of the association was certainly a

44 NEW JERSEY LAWYER IJune 2012 WWW.NJSBA.COM A Local County Bar Association Can Help Fill in the Gaps inYour Solo Practice by Nancy M. Bangiola

Going solo can be an. extremely rewarding Lawyer Referrals way to practice law. I practiced law as a solo One of the most effective ways to grow a client base is for over 10 years. After enjoying that through a a lawyer referral service (LRS). Joining a LRS is sim- challenge, I found myself looking to make a ple. Any county bar association member in good standing, change; fortunately for me, the position of who has active professional liability insurance, can, for an additional fee, register with the county bar's LRS. executive director of the Morris County Bar The lawyer can choose up to three specialties for which Association opened up, and I jumped at the they would like to receive referrals. The county bar advertises opportunity. My experience as a lawyer in a the service to the public in multiple arenas, and, in the case solo practice has been invaluable to me in mv of Morris County, receives hundreds of calls for referrals each new career. I also find I have learned things as week. These calls are fielded by an LRS specialist, who is the executive director of a local county bar charged with ascertaining the nature of the legal question and association I wish I knew when I was then refers to the list of LRS members to provide the potential client with three attorneys who specialize in that area of law. practicing law. The LRS specialist cycles through the lists so each attorney receives a random, but even number of referrals. hose of us who choose a solo practice do so As part of the Morris County LRS arrangement, attorneys because it provides independence, a sense of agree to a 30-minute minimal fee consultation with the autonomy, and ultimately the freedom to potential client. If the call results in retention of the lawyer, conduct a law practice in a way that suits our and if the fee in the case is ultimately in access of $750, the needs. On the down side, independence can attorney agrees to forward 15 percent to the bar association. be isolating. Autonomy can mean fewer The attorney also agrees to complete and file a biannual resources and clients. Freedom can translate into a lack of report on the status of the referrals received that year. connection with fellow lawyers and the community. Overall, the service provides solo lawyers with access to Joining a local county bar can help fill in those gaps, pro- members of the public who need legal assistance, but who viding the solo practitioner with resources and connections may never have found the solo firm on their own. that may otherwise be lacking. Through a county bar association practitioners have access to a geographically specific Continuing Legal Education lawyer referral service; the opportunity to take advantage of As professionals, attorneys have always had a duty to con- ongoing inexpensive local continuing legal education pro- tinually educate themselves and update their understanding grams; social interaction and connection to local members of of current trends and changes in the substance and procedure the Judiciary; access to local lawyers specializing in a range of of the law. Two years ago, that duty was quantified by the practice areas; and a chance to connect with and become Supreme Court of New Jersey in the form of mandatory con- involved in the local community. All of these activities will tinuing legal education (MCLE). Under Rule 1:42, the enhance and improve a solo's practice, as well as the pleasure Supreme Court mandated that each attorney practicing in the and enjoyment an attorney garners from that practice. state of New Jersey shall complete 24 credits of continuing legal education in a given two-year period. In addition, the

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 45 Supreme Court requires that four of grams. They are also frequent attendees need to see lawyers as the guardians of those credit hours must be in profes- of county bar functions. No one is going the law and as public servants. County sionalism and ethics. to win a motion or gain the upper hand bar associations offer an opportunity to As part of its mandate, the Supreme in negotiations because they said hello participate in this mission within the Court specifically addressed the need to to a given jurist at a social function. But, local community by speaking to the provide local, inexpensive, quality con- casual and cordial interaction does help public, donating time and service to tinuing legal education. Local county remind attorneys and the judges they help litigants, providing pro bono service bars were encouraged to apply to appear before that legal matters involve to people in real need, and by support- become preapproved providers of real people on both sides. ing local charities and causes. By partic- MCLE, in the hope they would provide ipating in a local county bar association, local and inexpensive quality courses to Social Networking a solo practitioner can reach beyond the New Jersey lawyers. Today, the majority The potential social benefits of local office and have a greater impact on the of specialty and county bar associations, bar association involvement should not community he or she already serves. along with the state bar association, are be overlooked either. It has been said now doing just that. These courses are that the law is a jealous mistress, asking Conclusion often taught by local experts in various more and more of a committed practi- Solo practice can be extremely practice areas, and are provided locally. tioner. Over time, this can leave attor- rewarding. It provides a lawyer with an As a result, the opportunity to come neys feeling drained and exhausted, invaluable sense of autonomy, inde- together in small groups and learn from sometimes even questioning the deci- pendence and freedom, while working one another has had an immeasurable sion to enter the legal profession. in one of the most demanding profes- impact on the feeling of community Because of this, it's important to break sions. But nothing is perfect, and the and collegiality in the bar, particularly away from the office, and even the choice to go it alone brings stress and for the solo lawyer. courthouse, now and then, in order to challenges. Local bar associations can The MCLE programming offers the achieve a better balance in life. help solo practitioners on the road to solo practitioner an opportunity to step The friendship and camaraderie of overcome, or at the very least, success- out of the office and learn with fellow professionals who understand the stress fully manage those challenges. &' lawyers. Lawyers in attendance benefit and challenges of the law is invaluable. from shared questions and concerns A good laugh, a shared story, even just a Nancy M. Banglola is the executive that can be addressed by experts in the simple change of scenery, can alter an director of the Morris County Bar Associa- field in a live conversation. Often, local attorney's whole outlook. Coming tion. judges take part in the expert panels, together to celebrate one another's sharing insight about changes in the law achievements can inspire practitioners and practical information about how to accomplish more themselves. the law is put into practice in current Through this group setting they might cases. These types of programs help mentor a colleague, or assist in winding even the playing field for the solo, giv- down a practice of an aging or sick ing him or her the same access to other lawyer. These opportunities link practi- views and past experience as the large- tioners together, and assure that when firm lawyer. It has also given practition- they need help and understanding, it ers an opportunity to interact with one will be available to them as well. another outside the heat of litigation and negotiation. Give Back to the Community A local county bar association can Finally, local county bar associations also help to even the playing field by can link attorneys to the community providing opportunities to interact with they serve, and allow the public an county superior court judges on an opportunity to see the dignity and pro- informal basis, away from motions, set- fessionalism of lawyers. Now more than tlement hearings and trials. County ever, the public needs to gain an under- superior court judges are often lecturers standing of the critical role of the rule of at local continuing legal education pro- law in the American way of life. They

46 NEW JERSEY LAWYER IJune 2012 WWW.NJSBA.COM In Pursuit of Professionalism Among Business Lawyers

by Gianfranco A. Pietrafesa

s lawyers, we strive to act professionally. may, or should, do more than simply observe the Rules of Pro- Many of us believe we act professionally in fessional Conduct in the practice of law. In this regard, more our practices. But what is professionalism? than 25 years ago, the American Bar Association noted: How do you describe it? If you act ethically by following the Rules of Professional Con- Lawyers have tended to take the rules more seriously because duct, are you acting with professionalism? of an increased fear of disciplinary prosecutions and malpractice There is an important difference between ethics and pro- suits. However, lawyers have also tended to look at nothing but fessionalism. "[E]thics prescribe what a lawyer must do while the rules; if conduct meets the minimum standard, lawyers tend professionalism prescribes what a lawyer should do."1 Stated to ignore exhortations to set their standards at a higher level.4 differently, "ethics is a minimum standard which is required of all lawyers while professionalism is a higher standard expected Since then, the rigors of practicing law have only intensi- of all lawyers."2 Therefore, an attorney can act ethically by fol- fied, with lawyering becoming more of a business and less of lowing the Rules of Professional Conduct, yet fail to act with a profession. As a result, there has been a continuing erosion professionalism. of professionalism among lawyers. Among the factors con- How does an attorney know if he or she is acting with pro- tributing to this erosion are: fessionalism? "Professionalism starts from the proposition that there are * The requirement of more billable hours often alternative ways of addressing various situations, none of * An increasing number of lawyers which, strictly speaking, would violate one of the Rules of Pro- * Lawyers being less loyal, and moving from firm to firm fessional Conduct. The question then becomes what course of * Lawyers having less time to mentor younger lawyers action is the most professional way to address these situations." * Clients retaining attorneys for selected matters, rather than The difference between ethics and professionalism can be on a continuing basis illustrated by an example. You represent the seller of business * Use of technology (e.g., email and smart phones) creating assets. In negotiations with the buyer's lawyer, it becomes clear client expectations of instantaneous service from lawyers to you that he does not understand that he should submit a * Unrealistic client expectations about results (i.e., winner notice of sale, transfer or assignment in bulk to the New Jersey takes all) and the amount of legal fees Division of Taxation. By failing to do so, the division will not * Use of technology allowing lawyers to remain in their offices issue a tax escrow letter requiring the buyer's lawyer to hold a instead of going out and interacting with other lawyers portion of the purchase price in escrow, nor will it issue a tax * Negotiating and closing transactions remotely (i.e., by clearance letter. As a result, the buyer will be responsible for any email) instead of in person5 state tax liabilities of the seller. What must, or should, you do? Nothing in the Rules of Professional Conduct obligates you The decline in professionalism was and is most evident in to notify opposing counsel that the notice should be submit- the lack of civility and personal integrity among lawyers. It has ted to the division. The Rules of Professional Conduct do not spawned the birth of the 'Rambo lawyer,' who is alive and well. require a lawyer to do the work of his or her adversary. You act A lawyer's word is no longer his or her bond. Now, even trivial ethically by remaining silent, but your reputation and integri- matters must be confirmed in writing. ty-two characteristics of professionalism-will suffer. As a What can be done to turn the tide and restore professional- professional, you should strive toward a higher standard, and ism? To begin with, lawyers can strive to follow the principles of notify your adversary about filing the notice with the division. professionalism issued by the NewJersey Commission on Profes- Lawyers' opinions can differ on the subject of professional- sionalism in the Law. These principles are aspirational in nature, ism. Indeed, many lawyers are probably unaware that they and designed to assist and encourage lawyers (and judges) to set

WWW.NJSBA.COM NEW JERSEY LAWYER IJune 2012 47 their standards at a higher level.' in an atmosphere of cooperation business.... [and,] the practice of law is In addition, business lawyers can and informed mutual agreement. not easy. Attorneys are frequently faced observe certain guidelines or principles of 6. I will strive to draft understandable with difficult decisions. They must professionalism that have been customar- documents that reflect the agree- make the right decision."7 ily followed by many experienced practi- ment of the parties and that are For business lawyers, making the tioners. The Professionalism Committee appropriate for the transaction. right decision should mean striving to of the New Jersey State Bar Association's 7. In negotiations and in the prepara- conduct ourselves with professionalism. Business Law Section is developing such tion of documents, I will concen- Professionalism begins where the Rules guidelines, and will be publishing them trate on substance and content, and of Professional Conduct end. The New as supplemental principles of profession- not on form or style. Jersey commission's principles of profes- alism for business lawyers. 8. When requested, I will clearly mark or sionalism, and the proposed supple- The author has drafted proposed sup- identify for other counsel all revisions mental principles of professionalism for plemental principles of professionalism. that I have made in all documents. business lawyers, can serve as guidelines They are the author's personal views and 9. I will disclose to other counsel obvi- of conduct for all attorneys. t not the official position of the Business ous drafting errors inconsistent with Law Section or its Professionalism Com- the agreement of the parties. Endnotes mittee. These principles are not original 10. In making due diligence requests, I 1. Report of the American College of or unique to New Jersey. In fact, many of will endeavor to request only rele- Real Estate Lawyers (ACREL) Work- them are derived from the excellent work vant and necessary documents and ing Group on Ethics and Profession- done by other bar associations and pro- information appropriate to the type alism (Sept. 27, 2004), at n.9 (cita- fessional organizations, including the and size of the transaction. tions omitted; emphasis in original). American College of Real Estate Lawyers 11. When requesting a legal opinion, I 2. Chief Justice's Commission on Pro- (ACREL); the North Carolina Bar Associa- will follow the Golden Rule, and fessionalism to the Supreme Court tion Business Law Section; and the Tort, not ask for an opinion that I would of Georgia, §10, at 4 (1996) (empha- Trial and Insurance Practice Section of the not give myself. sis in original). American Bar Association. An effort was 3. State Bar of Arizona Instructor's made not to repeat the principles that With respect to the legal profession and the Manual for the Professionalism already appear in the New Jersey commis- community: Course (May 9, 2005), at 3. sion's principles of professionalism. 12. I will keep current in the areas of law 4. ABA Commission on Professional- The author's proposed supplemental in which I practice and, when neces- ism, In the Spirit of Public Service: A principles of professionalism for busi- sary, I will associate with, or refer my Blueprint for the Rekindling of ness lawyers are: client to, counsel knowledgeable in Lawyer Professionalism, 112 F.R.D. another field of practice. 243, 259 (1986). With respect to clients: 13. I will participate as a speaker in con- 5. See, e.g., Maryland Judicial Task 1. I will endeavor to understand and be tinuing legal education programs in Force on Professionalism Report and guided by my client's lawful objec- the areas of law in which I practice, Recommendations (Nov. 23, 2003). tives in business transactions. and will endeavor to train and men- 6. The principles of professionalism 2. I will endeavor to achieve my client's tor younger business lawyers. can be found on the website of the objectives as expeditiously and eco- 14. I will strive to participate in organ- New Jersey State Bar Association. See nomically as possible. ized bar activities to improve busi- www.njsba.com/resources/njcop/nj 3. I will explain all relevant legal issues ness laws. cop-principle-prof .html. to my client and advise my client of 15. I will strive to improve business 7. Davin v. Daham, 329 N.J. Super. 54, important legal risks. development by providing pro bono 76 & 78 (App. Div. 2000). legal services to deserving individu- With respect to working with other lawyers: als, businesses and nonprofit organ- Gianfranco A. Pietrafesa is a member 4. I will not make misleading state- izations. of Archer & Greiner P.C., in Hackensack, ments of fact or law, including by where he handles business transactions and omission or inference. As noted by the Appellate Division of related litigation. He is the immediate past 5. I will endeavor to negotiate, docu- the New Jersey Superior Court: "The chair of the Business Law Section of the ment and consummate transactions practice of law is a profession, not a New Jersey State Bar Association.

48 NEW JERSEY LAWYER IJune 2012 WWW.NJSBA.COM