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2015 WSSFC Plenary – Session 4

The Future of the Solo Practice

Carolyn Elefant, The Law Offices of Carolyn Elefant, Washington, D.C. About the Presenter...

Carolyn Elefant, The Law Offices of Carolyn Elefant, Washington, D.C. Carolyn Elefant 2200 Pennsylvania Ave. NW, Fourth Flr. E Washington, DC 20037 202-297-6100 [email protected]

To purchase the full, downloadable version of the Art, Science and Ethics of the 21st Century Retainer Agreement, click here

Bonus #2: Extracted Clauses to Cut and Paste BONUS #2: CUT AND PASTE INSERTS

Both this ebook and the appendix contain full sample retainer agreements and links to other agreements online. However, various sample clauses that you might want to include in some of these agreements are sprinkled throughout the book. To make it easier to add these clauses to your own retainer, I’ve listed them here separately by topic. Although this document is a PDF file, you should be able to cut and paste these clauses into a text file with minimal formatting and modify them as you wish.

Note: It’s important to understand the reason for each clause. If you’re unsure of the purpose for a clause, please refer back to the text of the ebook for explanation.

I. Chapter 1 Clauses: Scope of Work and Unbundling

A. Sample scope of work for limited services representation:

This is a contract for limited scope legal services between the ABC Law Firm and you, [client name] for preparation of a petition for uncontested divorce. The X State Bar permits lawyers to offer limited scope services and the ABC Law Firm has determined that your case is appropriate for limited scope services based on the information provided in the initial interview. Under this contract, the ABC Law Firm will prepare an uncontested divorce petition based on the information that you provided to us in the initial interview and in the attached questionnaire. Once the petition is completed, the Firm will provide it to you with instructions on how to file it in court. The ABC Law Firm is not responsible for filing the uncontested divorce petition. You understand that you will be responsible for filing the petition and further, that if you do not file the petition, the divorce will not take effect. ______(CLIENT INITIALS]C If, during the course of this agreement, the ABC Law Firm determines that an uncontested divorce is no longer a reasonable course of action for your circumstances, we will notify you immediately and provide a full refund of any fees paid.

Variation of unbundled services: legal advice by phone or email only:

As a convenience to our small business start up clients, the Law Firm of ABC offers 30 minute phone consultation services for a fee of $______. During these sessions, we can answer basic questions and provide advice regarding incorporation of your business, tax matters, social media policies and other issues common to small business clients. You understand that any advice that we offer during these conversations is based solely on information that you provide, and further that providing incomplete or inaccurate information will impact the accuracy of the advice that the Firm provides.

B. Sample language for limited types of communication:

The services provided under this agreement do not include any phone calls or in-person meetings. The Firm will communicate with the client exclusively by [specify: email/client portal]. [Optional language: Any in-person meetings, office visits or phone calls will be billed at an additional rate of $______]

C. Sample language for a subscription service agreement:

This is an agreement for Small Business Advisory services between the Law Firm of XYZ and AB Corporation under the firm’s Gold Membership Subscription Plan. Under the Gold Plan, each month, the AB Corporation is entitled to (a) review and edits of up to three contracts 50 pages in length or less; (b) up to four hours of phone consultation and (c) up to fifteen email interactions. Services are provided on a “use it or lose it” basis and do not roll over to the subsequent month. The charge for the Gold Plan is $150/month, and requires a minimum three-month subscription plan. Any additional services outside the Gold Plan may be provided at your request under a supplement to this agreement, at a discounted billing rate of $______.

Subscription service, variation 1 (incorporation by reference of existing service menu)

This is an agreement between the Law Firm of XYZ and AB Corporation for the Start-Up Entrepreneur Platinum Service described at [website/or attached as Addendum A to this agreement]. D. Phased approach and deliverables:

Phased approach:

I. Preliminary Phase o Preparation of motion to intervene o Preparation of Entry of Appearance o Appearance at Pre-Hearing Conference before the [Regulatory Agency]

II. Pre-Hearing Phase o Discovery requests on issues relevant to [Issue X] o Pre-filed testimony (direct and rebuttal) on [Issue X] o Focused review of filed testimony on [Issue X] o Up to two motions to compel or other pre-hearing motions or responses (additional motions or responses subject to additional fee)

III. Settlement (if no hearing, or if hearing but parties decide to settle) o Settlement discussions/negotiations; o Drafting proposed condition/settlement agreement language; o -Advice and analysis on settlement agreement

IV. Hearing (if settlement fails) o Witness preparation o Participation/attendance of hearing o Post hearing briefs on [X issue] This estimate includes the following:

o All costs, including computerized legal research, messenger fees, photocopying, travel and parking fees, postage and other administrative costs for up to five intervenors. Costs for additional intervenors (photocopies, postage and administrative) will be billed directly will no mark-ups.

o All communications with client regarding the case, including emails, conference calls, progress reports and strategy sessions.

NOTE: This scope of work assumes that the proceeding will include five intervenors, in addition to the applicants and 10 relevant witnesses. The firm reserves the right to charge additional administrative fees in the event that review of additional witness testimony or discovery requests are required.

Deliverables:

Deliverables: The firm will prepare an Employment Manual for ABC Corporation and an accompanying memorandum explaining key legal developments on social media in the work place. A draft of the manual and memorandum will be provided no later than [XXX] and a final version no later than [XXX]

E. Agreement by email

“Joe” : You asked about my availability and fees for reviewing a permit application. For a single, standard permit application by a single company, I charge a flat fee of XXX for the permit application "lifecycle." This includes reviewing the permit to ensure compliance with applicable regulations, assisting with responses to any additional information requests after the permit is filed, filing the application electronically docket and responding to any other issues that may come up prior to the agency’s acceptance of the permit application and issuance of public notice. The standard flat fee does not apply to [scenarios x or y]. I don't think that your proposal falls into either of these exceptions. This email will serve as a retainer agreement if the terms are acceptable. Please let me know.

BONUS: Advance conflict waiver:

I, [Client name] acknowledge that I have been informed by that concurrent representation by the Law Firm of XXX of our interests constitutes the representation of potentially conflicting interests, to the extent that our separate interests may potentially become adverse. I nevertheless knowingly and voluntarily consent to such concurrent representation.

I acknowledge that I have been advised that I have the right to seek independent legal counsel in connection with the advisability of waiving said conflict, and that I have had a reasonable opportunity to do so.

CHAPTER 2: See the fee

A. Flat fee with milestone approach:

The fee for this [driving under the influence/DUI] case is $X, which must be paid in full at the time that you return this signed retainer agreement in order for the firm to begin representation. The fee will be deposited into the firm’s trust account. The fee of ($X) will be deemed earned and transferred to the firm’s operating account as follows:

Milestone 1: Client interview and preparation of case strategy – 50 percent of fee or $X Milestone 2: Preliminary hearing/first court appearance – 30 percent of fee or $X Milestone 3: Trial – 20 percent of fee or $X

Option 1 - If the case is resolved to your satisfaction before any of these milestones are reached, the entire fee will be deemed earned at that time. Option 2 – If the case is resolved to your satisfaction before Milestone 2 or 3 are reached, the entire fee will be deemed earned at that time. If the case is resolved to your satisfaction before Milestone 1, the fee will be deemed earned at that time, however, client will be entitled to a refund/discount of $_____.

Anticipating client termination of flat fee agreement:

Fees will be deemed earned and released from the trust account to the firm as each of the following milestones is reached: [Milestones]

If you choose to terminate this agreement, the firm is entitled to retain the fees collected after each Milestone is retained, [OPTIONAL - plus any fees for additional work performed towards the accomplishment of the next Milestone.] The firm will refund to you any unearned funds remaining in the trust account.

B. Phased billing:

Discovery: $X Up to 2 motions to compel: $X Summary judgment motion: $X Trial $X Post-trial briefs $X

The firm will invoice for each of the tasks, with payment due two weeks after the invoice is received. Any additional work beyond the scope of these tasks will be billed separately [on an hourly basis/at an agreed upon price]

Note: Tasks [X, Y, Z] are optional and may be pursued at the option of the client, upon advice of the Firm. Tasks [A, B, C] are mission critical. Your failure to pay for these tasks after receipt of an invoice shall serve as grounds for withdrawal.

C. Reverse contingency, no property interest:

The firm will be compensated in the amount of 40% of the savings achieved. Savings are defined as the difference between [Client’s expected amount] and amount of settlement.

You are responsible for the costs of the case and agree to pay [XXX] which will be put into our trust fund and released as costs are incurred. When the retainer amount reaches $X you will be asked to replenish the funds to the original amount of $X.

D. Subscription fees:

You have registered for the Platinum Outsourced General Counsel subscription plan for a fee of $500/month which will be charged to your credit card at the beginning of each month. Under this plan, each the month, the firm will provide up to five hours of legal advice by phone, email or a combination of both, and will review up to two contracts.

There is no minimum subscription length; you may start or stop the service at any time. If you do not use any of the hours and drafting services during a given month, you may roll over three hours of advice time and one contract review until the following month. [NOTE – this provision ensures that the client will get value from the agreement even in those months where they don’t use the service at all.]

E. Groupon or Daily Deals

This agreement applies to the services provided in connection with the coupon for a $99 will purchased at [xxx] and attached. I have already received the payment for the service and [if required by bar – deposited it into my trust account]. As described in the terms of I will provide the following work [describe]. [I will not perform…]

After I review the responses to the questionnaire, I may determine that a [type of service] is not appropriate for your circumstances and may recommend another option. If the preferred option exceeds the amount paid for the daily deal, the amount already paid will be credited towards the new option. I will provide a full refund of the amount paid for the daily deal if I determine that your situation is inappropriate for the services proposed in the deal and you do not wish to retain me for another option.

Chapter 3: Electronic expectations

Email communications

The firm communicates with clients by phone and email. Protecting the confidentiality of our communications with you is extremely important. Therefore, you agree to take the following precautions if you would like to communicate by email with the firm. First, you agree to provide a secure email for a password protected account that belongs to you (and not your employer or other person) and that no one else can access. Second, you agree to refrain from accessing email on any device (such as a computer, tablet or smart phone) belonging to your employer or that you share with another person.

Alternatively, you can simply state:

The firm will communicate with clients by email, provided that they have a secure password protected account and agree not to access email on any device belong to their employer or shared with another person.

Client portal communications only (different clauses)

To manage costs, the firm communicates with clients only by email and does not provide a phone number to clients. [Optional - The firm will respond to emails within 24 hours of receipt].

Primary communications are done through this website over Secure HTTP, which provides Client with the highest industry standard protection available on the web.

The firm does not use email, texting or social media to communicate with clients because we believe these platforms are not sufficiently secure and could compromise confidentiality of communications. The firm will not respond to any communications received from clients by email, text or through a social media platform

Encryption requirements:

To comply with [identify laws], the firm uses encrypted email to transmit personal information such as [define what it includes in your state]. [Describe if encrypted transmissions will require special instructions and if so, how you’ll communicate them to the client]

Electronic billing:

Stand alone: The firm will invoice you [electronically/via email/through the client portal] on a monthly basis. We can accommodate requests to send invoices by mail.

Part of Trust Account Language: The firm will place the retainer fee/advance into a trust account, and apply these funds to fees owed for services. Prior to releasing funds, the firm will remit an invoice electronically for amounts owed. Upon request, the firm will send invoices by mail.

Credit card payment clauses:

Option 1: Thereafter Attorney is authorized under the attached Credit Card Payment Authorization to charge Client’s credit card for the full amount due. If Attorney is unable to process Client’s payment by credit card, Attorney will notify Client immediately. Client will then be responsible for arranging an alternate form of payment in full within days.

Option 2: Client is responsible for paying [his/her] bill in full within XX days of the statement date. If payment is not received on a timely basis, Attorney is authorized under the attached Credit Card Payment Authorization to charge Client’s credit card for the full amount due. If attorney is unable to process Client’s payment by credit card, Attorney will notify Client immediately. Client will then be required to pay the full balance of [his/her] bill in [specify payment method, such as “cash” “wire transfer,” or “check”] within XX days.

Option (credit card is held): Clients may pay their bills via credit card. The X Law Office [X cards]. If you choose to pay by credit card, please complete the form below: I authorize the X Law Office, to charge the amount of $______on my credit card. Credit card type______Credit card number______Signature______Exp. date______Verification code____ Billing

Option (credit cards not retained) All payments are processed by either personal or business check, money order or Cardholder Information Security Program (CISP) complaint credit card processors. No credit card or payment account numbers are stored on our servers.

Efile retention:

Option 1: Our office maintains all client files and documents in digital format only. If you have paper copies or original documents, we will scan your documents and return them to you immediately.

Option 2: Our office will retain original and digital copies of your file, including all documents that you provide to us. At the conclusion of our representation, we will return the original files and retain the digital copy for [X years – consistent with applicable state ethics rules].

Our office retains only digital copies of your case file. At the conclusion of representation, we will provide you with your files on a CD, flash drive or other digital storage device. [Option 1: At the conclusion of representation, we will maintain digital copies of your records for up to XX years, which will be made available to you upon request. Option 2: Upon request, we will produce a hard copy of your records for a service charge of XXX [Note: consult bar rules to confirm that service charge for hard copies is permitted].

Chapter 4: The Cloud

Client disclosure re: cloud usage To enhance the efficiency of our practice, the firm uses a variety of technology, including third party cloud based platforms, to store documents, communicate with clients and other activities. We have exercised due care in selecting vendors whose security and management practices meet or exceed applicable ethics requirements and engage in ongoing monitoring and oversight of their services. You consent to our use of these services to store your files, communicate with you and carry out other necessary tasks related to representation.

Chapter 5: Outing Outsourcing Disclosure provisions: You are hiring the firm for representation and not any particular individual. The firm may assemble the team of professionals best suited to serve your needs at each stage of your matter, including professionals who may reside outside of the United States. [OPTIONAL IF NEEDED IN YOUR JURISDICTION] The Firm may share with these professionals information about your case as necessary for them to carry out their responsibilities. All non-firm personnel are subject to the Firm’s ongoing supervision and applicable ethics regulations. You expressly consent to the firm’s use of these professionals and to disclosure of information as necessary for them to serve your needs.

Confidentiality provisions for contract lawyers: The Firm has disclosed to the Contract Lawyer all parties involved in the matter for which Contract Lawyer will provide services. The Contract Lawyer has undertaken a conflicts check and has no conflict. While engaged by the hiring firm, the Contract Lawyer will not undertake or pursue any matters that would give rise to a conflict of interest.

The Firm may disclose confidential or privileged information to Contract lawyer/Contractor as necessary to discharge your responsibilities under this agreement. Contract lawyer agrees to preserve the confidentiality of this information in accordance with applicable rules of professional responsibility.

Work for hire: This Agreement is a work-for-hire. The hiring attorney shall own all rights to the materials provided by the Contractor for the Project [add description if needed]

Collection of Articles Re: Future of Solo Practice Carolyn Elefant myshingle.com http://myshingle.com/2014/01/articles/ethics-issues/whats-needed-solos-smalls-innovate-legal-ethics-safe-harbor-crowdsourcing-ethics/

What’s Needed for Solos & Smalls To Innovate? A Legal Ethics Safe Harbor & Crowdsourced Ethics

Carolyn January 24, 2014 Elefant

Solo and small firm lawyers account for roughly sixty-five percent of all attorneys. Unfortunately, as I’ve written before , solos and smalls are grossly underrepresented in the Reinvent Law space – even though solos and smalls have traditionally been (and in my view, still are) the driving force of innovation in the legal profession.

Still, not all solos and smalls innovate and there’s nothing wrong with that either. Some are simply too busy serving clients; others are too practical to innovate just for the sake of looking cool. But there’s another far more serious obstacle to solo and small firm innovation that many futurists overlook: ethics regulations which have a chilling effect on solo and small firm lawyers.

It’s no coincidence that many of the innovations in the legal profession – the Axioms or RocketLawyers and matchmaking platforms are non-law firm entities that aren’t subject to ethics rules. As a result, these companies can push the ethics envelope without fear of serious repercussions. By contrast, if a solo or small firms experiment with a new approach to serving clients, like a virtual office space or a networking arrangement, they can lose their license or reputation if it turns out they made the wrong call (like the Connecticut solos who were prosecuted for ethics violations for participating in Total Attorneys’ lead gen program).

Futurists ignore these very real constraints on solos and smalls. And why not? It’s far more provocative to portray solos and smalls as a bunch of luddites with a guild mentality rather than as responsible business owners reasonably assessing risk in a heavily regulated environment. And frankly, many futurists — particularly those interested in access to venture capital — stand to benefit from the ethics hurdles that keep solos and smalls in their place. After all, if ethics rules stymie solos and smalls from competing with new business models, that simply makes it easier for these #altlaw ventures to push solos and smalls right out of the market.

So how can we provide solos and smalls with guidance as well as insulation from punishment making the wrong decision? Two ways: ethics safe harbors and crowdsourcing ethics opinions. Here’s how these would work.

Ethics Safe Harbor

States would create a safe harbor within ethics rules to protect lawyers from disciplinary sanctions if they can demonstrate that they were diligent in researching the ethics rules associated with their action and made a reasonable decision based on their analysis. A call to the ethics hotline would not suffice to trigger the safe harbor; rather, lawyers would need to produce a formal opinion letter from an ethics attorney or submit their own research and analysis of the issues.

Safe harbors are a common approach across sectors to mitigate regulatory uncertainty or encourage adoption of new innovations. For example, without the safe harbor provisions of the Digital Millennium Copyright Act (DCMA), many entrepreneurs may have been deterred from establishing content platforms because of the potential for of liability for users’ copyright infringement. As companies move from paper to electronic storage of documents, Rule 37(e) of the FRCP provide a safe harbor from sanction for parties “who fail to provide electronically stored information lost as a result of route, good-faith operation of an electronic information system.” Fifteen years ago, Richard Zorza, a legal innovator in his own right, floated the concept of safe harbors to encourage experimentation and innovation to meet the goals of ethics rules, in his article, Reconceptualizing the Relationship Between Legal Ethics and Technology. Crowdsourced Ethics

A safe harbor protects solos and smalls who make the wrong choice – but it won’t necessarily advance the state of the law or provide broader guidance. That’s where ethics crowdsourcing comes in. Right now, most bars lack the resources to offer timely opinions on new developments. So why not crowdsource ethics analysis? The ABA and bar hotlines could maintain a site – like an Ethics Quora – where they would post the ethics questions they receive via the hotline and through the formal opinion process. Lawyers could then select a question to research and analyze in exchange for CLE credit. Lawyers from different jurisdictions could also work together to collaborate on a single analysis instead of having a separate decision issue from each state. Over time, the profession would develop a body of advisory law on ethics that would evolve with new technologic developments while educating lawyers and providing them with real guidance.

Some would argue that the future has no place for the risk-averse and as such, we shouldn’t accommodate lawyers who don’t have the guts to experiment. After all, there are more than enough lawyers willing to defy or simply ignore ethics rules to innovate. But are the unethical lawyers who flout ethics rules the ones who we really want to reward or embrace in the future of law (if the answer is yes, then it’s probably time to pack up and go home)?

Another option is to ignore ethics entirely by opening the door to outside investment in law firms, thereby giving them more latitude to depart from traditional ethics analysis. That’s a common battle cry of the futurist movement too – though I have yet to see anyone address how we protect consumers and the public from the fallout of outside investment gone wrong.

Still, if we don’t hurry up and innovate ethics, outside investment or surrendering the profession to those who don’t care about ethics are the inevitable result. To its credit, the ABA just completed its Ethics 2020 program designed to revisit existing ethics rules in light of technology changes. But Ethics 2020 merely proposed new regulations; it didn’t develop a new paradigm for legal ethics in disruptive and transformative times.

If we really want innovation to happen while protecting what makes our profession (yup, used the “P” word) special (confidentiality, loyalty to the client, competency and zealous representation, among other things), we need to make legal ethics and compliance more manageable. And if we really want to improve the way that lawyers serve clients, we can’t write off 65 percent of practicing lawyers from the future of law, particularly when they might be open to new ideas if they could hear the downsides as well as the upside and didn’t have to put their law license on the line to enjoy some of the benefits. Ethics safe harbors and crowdsourcing ethics analysis are one way to bring more lawyers on board and more importantly, to preserve what’s best about the legal profession rather than destroy it entirely. 10/19/2015 Ethics Is Only 1/5 of What Lawyers Need to Know For A Digital & Dynamic Practice - My Shingle myshingle.com http://myshingle.com/2015/04/articles/trends/ethics­is­only­15­of­what­lawyers­need­to­know­for­a­digital­dynamic­practice/

Ethics Is Only 1/5 of What Lawyers Need to Know For A Digital & Dynamic Practice

Carolyn Elefant April 13, 2015

Like law, the energy and utility industry where I spend my days has traditionally been heavily regulated. What that means is that rules for participants or relief for consumers come by way of regulatory commissions rather than statute or contract. But that model changed when utilities dipped their toes into social media where as this slide (from one of my presentations) whimsically illustrates, regulation accounts for only one fifth of the authority that companies must abide.

Likewise, as legal technology advancements enable more digital and dynamic law practices, lawyers cannot depend on legal ethics alone to govern our conduct. Instead, now that we lawyers are playing in the real world of digital commerce, we’re subject to real laws on deceptive advertising, data breach disclosures, customer privacy (for firms that harvest big data), independent contractor laws (for lawyers who rely on freelance help) and terms of service (for anyone engaging social media or other third party platforms).

Nearly every jurisdiction with mandatory CLE requires a course on legal ethics. Heck, that’s something lawyers actually learned in law school. What lawyers need more and what the bars don’t offer (because after all, it would acknowledge their loss of relevance) is training on the other 4/5ths of what today’s lawyers need to know to survive.

http://myshingle.com/2015/04/articles/trends/ethics-is-only-15-of-what-lawyers-need-to-know-for-a-digital-dynamic-practice/ 1/1 myshingle.com http://myshingle.com/2014/05/articles/setting-and-collecting-fees/want-lower-cost-legal-services-lets-ditch-trust-accounts/

Want to Lower the Cost of Legal Services? Let’s Ditch Trust Accounts.

Carolyn May 27, 2014 Elefant

Last month over at Attorney at Work, practice management consultant Peggy Gruenke shared her Mini-Checklist for Trust Account Management. Gruenke’s list is an exhaustive compilation of the do’s and don’ts and best practices for trust account management and therein lies the problem. Because in a digital age when most firms accept electronic payments and credit cards, aren’t the protections afforded by trust accounting utterly obsolete and ridiculously burdensome?

Just to clarify, my critique concerns situations where trust accounts are used to hold advance payments from clients for legal services – and not funds from third parties, such as proceeds of settlements or large escrow payments. In these types of situations, all or the bulk of the funds held belongs to the client – and under existing ethics rules, lawyers have an obligation to safeguard client property. Moreover, settlement proceeds and escrow often involve large amounts of cash, so the formality and added safeguards, such as bar oversight, of trust accounting in these circumstances makes sense.

But requiring lawyers to deposit retainers or other advance payments of fees by clients simply doesn’t make any sense in today’s world. For starters, many clients often use credit cards to pay for legal services – which in theory, should be a convenience not only for clients, but for lawyers. Yet trust accounting requirements add layers of complexity to an otherwise simple transaction: to accept credit cards for advance payments, lawyers need to set up not only a trust account but a separate operating account to cover fees associated with credit card charges and chargebacks. So complex are trust accounting rules that they delayed the use of credit cards for legal services and continue to deter some lawyers form accepting credit card payments.

Yet here’s the irony. Credit cards and digital payments offer better protection against ne’er do well attorneys than trust accounts. How so? Consumers dissatisfied with legal services can seek a charge back or lodge a request for dispute resolution with most credit card companies or digital payment platforms. By contrast, all the trust account rules in the world won’t stop unscrupulous lawyers from stealing client money.

Trust accounts also complicate – and minimize the benefits associated with flat fees, which more clients are demanding. In some jurisdictions, flat fees are considered “earned on receipt” and may be deposited into a lawyers’ operating count and spent immediately. This is so even if the lawyer, for example, accepts a $50,000 flat fee for a complex matter that may take two years to resolve.

By contrast, in the majority of jurisdictions, flat fees are not considered earned until all work is completed – meaning that the lawyer charging $50,000 for a complex but protracted matter technically must put the funds into a trust account and hold them for two years until the case is over. Of course, there are ways around; as I recommend in Twenty-First Century Retainer Agreement, lawyers can establish milestones in their representation agreements where fees are deemed earned on receipt (e.g., 40% of the fee is deemed earned after first meeting, 30% after preliminary hearing and 30% upon resolution of the matter). So essentially, jurisdictions that hold that flat fees are not earned until a matter is completed encourages lawyers to create the legal fiction of milestones to enable them to recover payment as work is performed and avoid cash flow problems of tying up dollars until the case is complete.

Trust accounting imposes administrative burdens and adds extra costs to solo and small firm lawyers. To be sure, practice management systems facilitate trust accounting to some extent, but lawyers are still responsible for the minutia of three-way reconciliations and accounting for clients’ balance described in Gruenke’s list. And then there’s the added cost of maintaining multiple accounts to process credit cards or using one of the lawyer-specific credit card services that take care of segregating accounts but also charge a higher fee than commercial services. Finally, bars bear the cost of monitoring trust accounts, with the cost of oversight passed on to lawyers in the form of higher bar dues.

Given that trust accounting is so incredibly onerous and expensive, why hasn’t anyone called for an end to this largely outdated practice? To be sure, inertia partly explains why trust account requirements have overstayed their need. But the larger problem is self-interest of the vendors – lawyer credit card services, consultants, grievance lawyers and even some banks – that profit from trust accounting requirements.

Then there’s IOLTA (interest on lawyer trust accounts) programs, which siphon off the interest from client trust accounts to provide aid for legal services programs. With interest rates at an all time low for several years, funds from IOLTA programs for legal services programs have been substantially reduced – and if trust account requirements were eliminated for all but settlements and escrow, these amounts would decline even more. Even so, ensuring adequate funding for legal services is the responsibility of the profession at large, and not just the solo and small firm lawyers who suffer most from the added hassle and cost of trust accounting requirements.

To be sure, today’s LPM platforms coupled with the rise of innovative credit card processing services have made it easier than ever before for solos and smalls to comply with trust account rules. But these new developments don’t go far enough because they merely mitigate the burdensome effects of trust accounting rather than getting rid of the problem at the source – which is a direction worth exploring. What do you think? myshingle.com http://myshingle.com/2015/04/articles/new-ideas/will-the-future-of-law-look-like-the-future-of-medical-practice/

Will the Future of Law Look Like the Future of Medical Practice?

Carolyn April 30, 2015 Elefant

As with the legal profession, medicine is rapidly changing, driven by technological advancements, cost pressures and physician shortages. Healthline reports on some of the new business models cropping up in response.

One company, Turntable Health is a subscription service. A flat fee of $80 per month buys an adult an unlimited amount of monthly visits – not just with doctors, but also health coaches or participation in yoga and healthy cooking classes. Another service, Heal will dispatch a doctor and medical assistant for a house call, perform bloodwork or tests and authorize a prescription if needed – all for $99.

The new business models serve several goals. First, they make reduce the cost to access a doctor, so even those individuals with high-deductible health plans can still afford a visit. And in turn, by encouraging individuals to seek treatment for minor problems, these new services can resolve these matters before they become more serious and more costly to treat.

I’ve always thought that services like these make sense to address access to justice. From my experience with pro bono matters, many clients are, sadly, repeat customers because they continue to make the same mistakes. Perhaps many of these unfortunate choices – the usurious car loans and crooked debt settlement deals — that lead to collection or repo actions could be avoided if a client had access to legal counsel before making a decision. Will be exciting to see what develops in both medicine and law and what our professions can learn from each other.