Tag Archive | "law office management"

Tips on Representing Attorneys In Fact

An increased reliance upon Durable Power of Attorney appointments as analternative to a guardianship has placed more people in a position to assist others as attorneys-in-fact. Such relationships can be of tremendous benefit to the principal, can help to maintain the principal’s independence, and can help and ease the transitional changes in an elderly person’s lifestyle.

Our Law Tips faculty participant, Nathan S. J. Williams, Shambaugh, Kast, Beck & Williams, LLP, Fort Wayne, provides CLE training on Representing Attorneys-In-Fact during the popular 120 Hot Tips in Probate, Guardianships,Trusts and Tax seminar. I am appreciative that Nathan is passing along to our readers some of his timely guidance:

1. Pay Attention to Ethical Issues.

Specifically, identify who your client is. This is a fundamental issue, and the lines can become blurry in certain circumstances. For instance, assume that you represented a client with respect to his or her estate planning, and have prepared a Durable Power of Attorney for him or her. If the agent appointed in that document comes to you for counsel, are they your client or is the principal?  It is not necessarily and not likely a conflict of interest to represent both the principal and agent. However, there are situations in which the issue may become relevant:

A. Attorney-client privilege. If a dispute develops between the agent and the principal- or, more likely, between the agent and the principal’s children or heirs – then it will be of benefit to the agent to be able to clearly identify that the attorney represents him or her.

B. Claim for the expense of defense. If an accounting is demanded of an attorney-in-fact, he or she has a claim under Indiana Code §30-5-6-4.5 to recover the cost of his or her legal counsel in defending the accounting. That claim is much easier to assert and process if the agent can clearly identify his or her attorney.

2. Document Everything

Record-keeping is one thing, and is addressed separately, below. This has more to do with documenting instructions and conversations than it does with documenting transactions.  One of the primary duties of an attorney-in-fact is to carry out the wishes and instructions of the principal. Those instructions are often informal and verbal, rather than in writing. Proof of those instructions in the event of a later demanded accounting or an action seeking to hold the attorney-in-fact liable for breaches of fiduciary duty may be difficult if not impossible (by operation, among other things, of the dead-man’s statute).

As such, it can be imperative for an attorney-in-fact to verify instructions by having them reduced to writing by the principal or by having an independent witness to the instructions. Such actions may seem awkward, but may be lifesavers later on.

One element of documentation that is an absolute must: any arrangements between the principal and agent that allow/direct the agent to be compensated for his or her actions as attorney-in-fact. Undocumented statements that “Mom wanted me to be paid for the work which I did” are not worth the paper they are not written on.

3. Avoid Commingling

This is a practical recommendation, but any transaction done on behalf of the principal should be conducted as a separate transaction. If the agent wants to buy the principal some groceries or a dinner, that’s fine. If the agent wants to be reimbursed by the principal for anything purchased for him or her, then the agent should have a separate transaction, with a separate, dated receipt that shows what was purchased for the principal.

4. Keep Good Records

Some people are compulsive record keepers. Others are not. For the client who is a bit more relaxed on record-keeping, strong recommendation should be made to work hard at maintaining clear and accurate records.  And organized records are much better than the proverbial shoe box (while the shoe box is better than nothing at all).

Some practical suggestions:

A. Conduct transactions on behalf of the principal by check. Cash transactions are too difficult to tie back together. Debit cards are also, and can provide too great a temptation.

B. Keep copies of bank statements. And the best bank statements are those which provide copies of the checks with them. If that is an additional charge for the account, it is likely well worth it.

5. Be an Open Book

Indiana Code §30-5-6-4 specifies who can request an accounting by the attorney-in-fact.  An argument can be made that the only people who can request an accounting from the attorney-in-fact during the principal’s lifetime are the principal and a guardian appointed for the principal.

A recommendation: don’t make that argument. If a child of the principal, or some legitimately interested party makes a request for information about transactions done on behalf of the principal, there is not much to be gained by the attorney-in-fact to decline to provide that information. Accountability is a hallmark of fiduciary relationships. Reluctance or refusal to account only engenders distrust and fosters disputes.

A well-drafted Durable Power of Attorney document can and should include specifics on the duty of an attorney-in-fact to account, and the means by which the agent can satisfy that duty. In the absence of such specifics, and particularly in situations which seem to be ripe for dispute, an attorney should counsel an attorney-in-fact client to be affirmative and proactive in rendering regular, complete and accurate information on the administration of matters for the principal.

In summary, Nathan Williams offers this counsel:  The attorney-in-fact acts as a fiduciary. As such, while the role is one that allows for the agent to provide great benefit to the principal, it is also fraught with liability.  Good counsel, at the outset, throughout, and at the conclusion of the attorney-in-fact’s role can be critical to optimizing the relationship and providing the greatest good for the greatest number.

The opportunity to attend the 120 Hot Tips in Probate, Guardianships, Trusts and Tax is coming up in the next few months in several locations around Indiana.  Click Here for more info.

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About our Law Tips faculty participant:
Nathan S.J. Williams practices law in Fort Wayne, Indiana, at Shambaugh, Kast, Beck & Williams, LLP. His areas of practice include estate and personal planning, estate and trust administration, guardianships, probate litigation, charities, business organizations, general litigation, and taxation.  He explains: “I came to work in these particular areas because I truly enjoy the role of attorney as a counselor, helping clients meet their goals and personal objectives. I often work with individuals or families where there is a special need or disability, putting to use my education and expenence.”

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Making the Case for Social Media

By Cynthia Sharp, The Sharper Lawyer

By now, most attorneys have developed at least passing familiarity with social media applications – even if they haven’t jumped on the bandwagon. Attorney websites are relatively commonplace by now and a significant number of lawyers maintain blogs.

Over the past decade, we have witnessed the warp speed evolution of social networking sites such as facebook, linked in, twitter, pinterest, youtube and the newest kid on the block – vine (owned by twitter) allowing users to post six second video clips. The potential implications for the modern practitioner and ultimately the client are unlimited. Yet, many remain reluctant to create an online presence and/or participate in the rapidly expanding social media conversation.

Many lawyers hold back believing the social media world to be irrelevant (and thus a waste of time) in large part due to the perception of useless chatter, neglecting to realize that we all filter out useless information thrown our way every single day. Developing a “cyber filter” is relatively easy – once you discover who offers information valuable to you. Simply filter out data and noise not pertinent to you – and develop a strategy for “cyber socialization” so that time is in fact not wasted. By the way, the amount of time to commit on a daily or weekly basis is an individual choice. The most important point is to use the time in an efficient manner.

Some feel overwhelmed by the whole concept and don’t know where to begin. This is particularly true with the “digital immigrant” which includes me and others born before the onset of digital technology. Like all new material, there is definitely a learning curve. But, with consistency and persistence, any lawyer can become reasonably proficient in using the tools for the benefit of their practice. After all, you made it through law school and passed the bar. Start by taking advantage of one of the many FREE webinars offered online or better yet, attend CLE presentations offered at ABA Conferences. The topic is covered in detail in several excellent books published by the ABA and GP Solo as well as other publications routinely featuring up to date articles and columns.

Despite the voice of the naysayers, the number of attorneys embracing social media continues to escalate.  For example, according to The 2013 Legal Technology Survey Report (as reported in the June 2013 issue of the ABA JOURNAL), 55.8% of surveyed lawyers use LinkedIn compared with 36.4% in 2011. Legal topic blogs drove business to 38.1% of those surveyed.*  It’s time to join the club!  Social media is not only a powerful marketing and networking tool but has gained widespread use for case investigation for lawyers who wish to leave no stone unturned. It is also a valuable research tool. It has even earned its place in the courtroom. Future columns will be devoted to discussion of the myriad of ways that lawyers can benefit from a social media presence and exploration of the accompanying ethical issues.

The most compelling reason cited by many lawyers for shying away from the social media revolution is a concern about ethical implications. Indeed, the door has been opened to new, unexplored and perhaps unexpected issues. After all, ANY online post that an attorney makes may be a form of communication and/or advertising governed by the ethics rules in most jurisdictions. However, becoming conversant with the rules and using common sense should help obviate that concern.

Amendments to the Model Rules of Professional Conduct adopted by the ABA House of Delegates in August of 2012 address issues relating to Technology and Client Development and Confidentiality. A close reading of the new rules (including the comments) will shed insight onto proper behavior. While not directly applicable to a practitioner until adopted in the state of licensure, they are relevant in that they provide significant guidance and insight into new frontiers.

Notably, Comment 6 to Model Rule 1.1 (competence) which previously stated that “…a lawyer should keep abreast of changes in the law and its practice and skill” has been amended to specifically include knowledge of “the benefits and risks associated with technology” within this obligation. It therefore appears that an attorney choosing to stay behind the times may risk ethical exposure. According to a survey completed by the American Academy of Matrimonial Attorneys in 2010, 81% of the organization’s members have seen an increase in the use of social media in the fact finding and discovery process. (I suspect that the number will be higher when the survey is conducted again.) If your firm fails to take advantage of social media tools – available to all – are you in fact living up to your ethical obligations?

In the next column, we will explore marketing and ethics in the social media arena.

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Cynthia Sharp (cindy@thesharperlawyer.com) is Director of Attorney Development at The Sharper Lawyer located in Philadelphia, Pennsylvania.  As a professional CLE instructor and attorney business coach, Cindy has established a national presence as an author and speaker on topics of ethics in the context of practice management, social media and technology – lecturing extensively to law firms, bar associations and other legal organizations.

Ms. Sharp’s Indianapolis and Merrillville seminar, Strategies for Taking Charge of Your Law Practice, has been completed however, you can still view the Video Replay or the Online/On Demand Seminar by Clicking Here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Are Your Clients Satisfied with Your Legal Services? Are You Sure?

By Cynthia Sharp, The Sharper Lawyer

When is the last time you asked a client if he or she was happy with your relationship? Hopefully, you have kept your finger on that pulse throughout the course of representation. Upon completion of a legal matter, you have a chance to gather information through use of a survey. Your firm’s file closing process should include sending a survey to each client. There are a number of online survey tools that can be used; however, any practitioner can begin surveying clients today by using the  template provided below.

While implementing the process takes a little extra work and you may even want to remain in blissful ignorance, your firm (and ultimately clients) stand to benefit because you have the opportunity to:

  • Improve Service - Soliciting client feedback keeps you apprised of issues that can be addressed by you to improve the client’s experience.
  • Address Concern or Complaint – The adage “If you like our service – tell others and if you don’t like it – tell us” applies particularly to law firms.  If a client indicates dissatisfaction, pick up the phone IMMEDIATELY and address the problem.
  • Compliment Staff Members - When a client praises one of your staff, pass on the compliment – publicly.
  • Remind Clients Why They Like You - As the client answers the questions, they will (hopefully) convey positive feelings – which will be reinforced during the process.
  • Ask for Referrals - Clients who like you are thrilled to pass your name onto their friends, colleagues and family members.  At the very least, the client may provide additional names for your database list.

Feel free to use the following template for your client satisfaction survey:

CLIENT SATISFACTION SURVEY

Establishing and maintaining strong relationships with our clients is one of our paramount concerns. We rely on feedback from our clients to identify where we are strong and where we need improvement.  We would appreciate it if you would take a few minutes to answer these few questions.

  • What was your first impression of the firm? Did you find the reception area and office atmosphere pleasant?
  • Were you greeted warmly by the receptionist whenever you called or visited the firm?
  • Was the attorney or staff member on time for your appointments?
  • Did you feel comfortable during your first in-person meeting?
  • Were you kept up to date on the status of your case?
  • Did your attorney answer your questions to your satisfaction?
  • Were your telephone calls returned promptly?
  • What do you believe is our firm’s biggest strength?
  • What do you believe is the area we need the most improvement on?
  • Were you ever surprised by the amount of an invoice received from our firm?
  • What are the 2 ways we could better serve you?
  • Would you recommend your friends, relatives or colleagues to hire us?
  • Are they any other comments, suggestions, complaints, or concerns you would like to voice?
  • Would you like to discuss any further issues with your attorney?  Were there unanswered questions or aspects of the matter that you don’t understand?

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Cynthia Sharp (cindy@thesharperlawyer.com) is Director of Attorney Development at The Sharper Lawyer located in Philadelphia, Pennsylvania.  As a professional CLE instructor and attorney business coach, Cindy has established a national presence as an author and speaker on topics of ethics in the context of practice management, social media and technology – lecturing extensively to law firms, bar associations and other legal organizations.

Ms. Sharp’s Indianapolis and Merrillville seminar, Strategies for Taking Charge of Your Law Practice, has been completed however, you can still view the Video Replay or the Online/On Demand Seminar by Clicking Here.

 

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

 

 

 

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TGI Monday: How to Double your Work Productivity and Satisfaction!

What would it take for you to look forward to going to work every day? What is it that you do to get in the way of that happening? What is in your control and what isn’t? How do we begin to change our firm/organizational culture?

Join veteran ICLEF Presenter and nationally recognized speaker Frank Sanitate as he leads you through a discussion designed to enable you to be clearer about what is and isn’t in your ability to control; Take steps to get greater control of your productivity, your time and your enjoyment; Get peer feedback on how to address issues you face and create an organization where everyone looks forward to coming to work every day.

A great seminar to consider for enhancing your practice whether you are in a large firm or a solo practitioner.

TGI Monday: How to Double your Work Productivity and Satisfaction!
6 NLS – This program is no longer available. Please join us next time.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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