by Dave Bilinsky, Practice Management Advisor
What factors cause lawyer burn-out, disillusion and dissatisfaction with the practice of law? In a tongue-in-cheek aside, lawyers will say: "The practice of law would be great were it not for the clients." Implicit in this statement is the assumption that clients, or at least some of them, are demanding, droning time-wasters - that if only the clients would leave you alone, you would have a great practice.
Let us take a moment and turn this statement and its assumptions inside out. Lawyers continually state that they have no time to market - yet seeking to meet the communication and information needs of your clients is marketing on a very personal, one-on-one level. Examine each of your files and ask yourself: do you care about this particular client and his or her problems? Or do you wish the client would just go away?
This is an important moment: if the client and the problems do not resonate with you, if the problems are not touching a chord within you for justice and if the matter falls outside your practice or would prove uneconomical for either of you, do not wait for the client to become disillusioned with the justice system in general and you in particular. The result of client disillusionment, dissatisfaction and unmet needs is clear - complaints, unpaid fees and possibly a negligence claim. That client will certainly not do you any favours in terms of positive referrals - exactly the opposite is likely. Those clients will consume an inordinate amount of your time and your resources and are likely to be dissatisfied in the end result.
How can you make the best of a difficult situation? If you have a client who causes such a heartfelt, negative gut reaction, ask the client to kindly find another lawyer, provided it is legal and ethical for you to do so. This is not being inconsiderate. That client deserves a lawyer who identifies with his or her problem and who can ethically, competently and economically solve it. You, in turn, deserve clients with whom you can build a relationship of mutual trust and good will.
Asking a client to find another lawyer can be done any number of ways - for example, you can arrange a meeting and in a factual manner state that, in your opinion, they would be better served by another lawyer. If they ask why, you can state that your current caseload does not allow you the opportunity to devote the kind of time and attention to their file that it deserves. In most situations, I believe the client is coming to or has already arrived at the same conclusion, hence the persistent telephone calls. Hearing it straight out from you allows both of you to acknowledge the situation and move.
There is a further corollary: seek to understand the profile and personality of these clients and try to prevent further situations by increasing your initial client screening. One way to do this is to permit yourself to think about whether or not to take on a new client. Start the habit of saying to potential clients: Let me think about your case for a day or two. I will send you a letter indicating whether I think I can help you on this (and ensure that you send a letter that clearly sets forth whether you accept or reject the file!) If the client is persistent, irritable or desires you to take action immediately, then this in itself should send up warning flags that are ignored at your peril.
Make file review an annual event - say in December - and acknowledge it as part of a "new year" renewal - to regenerate your interest in and satisfaction from your practice. By carefully pruning your client base, you gain a little control over your practice and your life and start to be your own guardian angel.
Taking affidavits in the US
Question: Can a BC lawyer go to the US and take a client's affidavit on a matter pending in a court proceeding in BC?
Answer: Section 69 of the BC Evidence Act allows a lawyer acting as a Commissioner for Taking Affidavits for British Columbia to take the oath/affirmation of a witness outside of BC on an affidavit for use in proceedings in BC.
Billing WIP after incorporating
Question: I am considering incorporating a law corporation. However, I have a great deal of unbilled WIP accumulated to date. What is the proper way to bill out this WIP after I have formed my law corporation?
Answer: To simply start billing out that accumulated WIP under the law corporation would amount to a transfer of an asset into the law corporation for no consideration. Accordingly, one way to proceed would be to transfer the WIP into the law corporation under s. 85 of the Income Tax Act, in turn taking back a combination of debt and shares.
Valuation of the WIP is also important, as it should be transferred at fair market value. Fair market value can be determined one of two ways: one is based on the percentage of completion of the file applied against the expected value of the file. A second method takes the time value of the WIP (accumulated hours x hourly rate), assuming you keep time records. However you value the WIP, you must be able to demonstrate that the valuation method was "reasonable."
Billing anticipated disbursements
Question: We are running into a situation where we are issuing bills for corporate annual reports that include anticipatory filing fees as disbursements. Is this proper?
Answer: It would not be improper to issue an invoice that includes disbursements that must be incurred as part of the services to be rendered, such as filing annual reports.
Cashing out trust cheques
Question: From time to time, we act for clients who do not have bank accounts. Rather than issuing a cheque to the client, we have been asked to issue the trust cheque payable to a lawyer or a staff member in our firm. It is then cashed and the cash handed over to the client. Is this proper?
Answer: This is not proper, as the funds do not belong to the lawyer or to the staff member. It is also not acceptable to make the cheque payable to "cash" or "bearer": Rule 3-56. In these circumstances, send the client to the issuing bank with the trust cheque payable to the client. It may be necessary to have the cheque certified first. Make arrangements with your bank in advance, to cash the cheque for the client.
Billing quoted disbursements
Question: We have been approached by a client who wishes to enter into a "standard pricing" arrangement - in other words, we agree to charge a fixed amount, fees and disbursements, for doing a "chunk of work." The client has the certainty of billing and the firm has an incentive to do the work efficiently.
The problem is, when we come to billing, our actual disbursements may be higher or lower than the estimated amounts. We propose to just charge our estimated disbursement amounts and not worry about the actual disbursements. Are there any problems under s. 69 of the Legal Profession Act and the Knock v. Owen case? Is this otherwise proper?
Answer: So long as the client was fully and frankly informed, and as long as the agreement was otherwise fairly obtained and the terms were reasonable, this would fall within s. 68 of the Legal Profession Act and should not be a problem. Knock v. Owen would only apply if there were no valid agreement between the lawyer and the client. (Thanks to Gordon Turriff for his assistance in answering this question.)
Billing personal services to a client's company
Question: I have been asked by a client to bill his company for his personal legal services. Should I?
Answer: The client is asking you to "coat" the invoice with a patina that it was for legitimate corporate purposes. If the client is otherwise entitled to be reimbursed by the company for these services, that is something that the client should take up directly with the company. By asking you to bill the company for personal legal services, the client is asking you to participate in a possible fraud on income tax authorities.
The ABA has just published a number of new books that may be of interest: The Legal Career Guide from Law Student to Lawyer by Gary A. Munneke; Keeping Good Lawyers - Best Practices to Create Career Satisfaction by M. Diane Vogt and Lori-Ann Rickard; Winning Alternatives to the Billable Hour by James A. Calloway and Mark A. Robertson, editors; and Flying Solo - A Survival Guide for the Solo Lawyer, 3rd edition, Jeffrey R. Simmons, editor. All four are filled with good tips, advice and commentary. Further details can be found at: www.abanet.org/lpm/catalog/home.html.
LawPro® has also just published a tool to be used by mentors and mentees to make more out of a mentoring relationship. Details can be found at www.lawpro.ca/news/pdf/LawPROmagazine.pdf.