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The Art and Science of Setting A Goal

Jason Womack — Wed, 22 May 2013 13:00:00 +0000

Are there more effective ways to think about what you have to do?

Surely, one of the most prominent time wasters is preoccupation and worry about a project or unresolved situation. This is significant because it doesn’t just take time, it saps your energy, it distributes your focus and it takes extra effort to do this negative thinking. Thinking without doing is not very effective.

Does your mind ever think about work that is ambiguous or complex in nature? It will require enhanced and repeated focus over time. It is necessary to engage in effective and efficient ways with that kind of work.

Everyone knows how important goal setting is. Most people will claim that they have set goals, or that they are working toward their goals. But, do they know exactly what that means?

On the other hand, some people actually avoid goal setting. Perhaps a past experience of wanting something and not getting it, or watching someone else go for their dreams and not achieve them clouds their vision, which subtly undermines the positive momentum that could be happening.

An important technique to practice and ultimately refine is the ability to refocus faster. Holding the lens to what is possible is an important quality to model and to lead with. Building consistency using this tool can take time and may require a change in habits.

Begin by identifying one specific area in your life you want to enhance. Choose an event or project at work that has a due date and timeline. Or, pick something you’re working toward in your personal life. The important thing is to choose one thing to practice this goal-setting strategy.

It is possible to overthink, over plan and then underachieve. If you constantly spend precious time, energy, and focus recalibrating, consider editing the subject, outcome and/or timeline of the goal you’re working to achieve.

It’s easy to enthusiastically identify all the things you want to change, do, fix, have, etc. In almost all instances, the first phase of goal setting includes excitement and a feeling of empowerment.

Then, you are offered an opportunity to test your results. Health goals are usually met with an opportunity that is unhealthy, while financial goals face an expense that is out of the ordinary. Relationship goals see a circumstance that could negatively affect one or more of the people involved in the original goal.

So, what do you DO when your goal-setting and goal-achievement begins to roll off course?

One, use your self-talk mechanism to your advantage. By first noticing there is a constant stream of conversation going on upstairs, we can acknowledge what we are saying to ourselves, and redirect our thinking toward the positive. This scientific approach gives you the opportunity to experiment with the effect of directed thinking toward successful outcomes.

Two, think with an orientation toward action. This is the art of goal setting and achievement. One of the most effective tactics I know of is to “pick smaller verbs.” All too often, big goals can cause one to slow down, focus on the big picture and perhaps even procrastinate. By choosing a “small, easier to-do” you can get momentum and move into the project more successfully.

The solution is to build a framework to assimilate all the areas of experience and focus into a manageable and inspirational program. Clearly define what your own success would look like in specific areas of your work (and your life). The most effective way to think about what you have to do is imagine what you’d like to experience, and then take consistent action in that direction.

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Jason Womack invests his time, energy and focus serving as an agent of change. He is an advisor and consultant to companies and governments, the author of blogs, articles and books on productivity, business performance and teams managing through rapid change. Learn more about Jason at www.GetMomentum.com. Follow along at www.Twitter.com/jasonwomack. Read Jason's other posts on ALPS 411 here.

Apple Has a Waiting List for Police Requesting Decryption of iPhones

Guest Blogger — Mon, 20 May 2013 13:00:00 +0000

CNET reported on Friday May 10, 2013 that Apple receives so many police demands to decrypt seized iPhones that it has created a "waiting list" to handle the flood of requests. The length of the waiting list is unknown, but it looks as though it can be up to four months based on anecdotal examples.

Last year, leaked training materials prepared by the Sacramento sheriff's office included a form that would require Apple to "assist law enforcement agents" with "bypassing the cell phone user's passcode so that the agents may search the iPhone." Google takes a more privacy-protective approach: it "resets the password and further provides the reset password to law enforcement," the materials say, which has the side effect of notifying the user that his or her cell phone has been compromised (though in many cases the individual would already know that!).

A Bureau of Alcohol, Tobacco and Firearms (ATF) official said that Apple "has the capabilities to bypass the security software" and "download the contents of the phone to an external memory device." Reportedly, once the Apple analyst bypasses the passcode, the data will be downloaded onto a USB external drive and delivered to the ATF.

It's not clear whether that means Apple has created a backdoor for police - which some have speculated that it has - or whether the company has custom hardware that's faster at decryption, or whether it simply is more skilled at using the same procedures available to the government. Apple declined to discuss its law enforcement policies. No surprise there.

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Thanks to our friend Sharon D. Nelson, Esq. for sharing this May 13, 2013 entry from her Ride The Lightning blog. Sharon is President of Sensei Enterprises, Inc., a computer forensics and legal technology firm headquartered in Fairfax, VA. Read all of Sharon's posts that appear on ALPS 411 here.

Do Our Ethical Rules Even Matter Any More?

Mark Bassingthwaighte — Wed, 15 May 2013 13:00:00 +0000

There are days when I wonder if they do and today is one of those days. I just finished reading a court order where an attorney, who does more than his fair share of bragging by advertising about his aggressive tactics and is one of those attorneys whose weapon of choice is in using his motions practice as an automated document assembly line that just keeps churning garbage out day after day, ran into a little trouble. Well I just had to smile when reading that his client was ordered to pay the other side’s costs and attorney fees to the tune of almost $400,000. Can I have an Amen! But I digress. Let me turn the clock back just a bit and share another story.

I had the privilege to moderate a daylong ethics and professionalism CLE some time ago that was mandatory for all newly admitted bar members in the jurisdiction where this program was being held. Always one to encourage vigorous debate and open discussion, I was both pleased and troubled by what happened that particular day. I do like working with new lawyers because they will often speak their mind and give voice to thoughts that more experienced lawyers might also have but would never dare say openly. So I was pleased in that risks were taken by some who had the courage to share their true feelings, yet troubled by where the discussion was going.

Here is the gist of the position of one attendee. In his mind the Rules of Professional Conduct (Rules) were written to define someone else’s moral high ground in order to enable them to justify going after others who dare to disagree with that moral point of view. The perspective seemed to be that the very existence of the Rules was almost offensive to him and certainly an uncalled for restriction on one’s ability to practice as one sees fit. I do not believe that this individual was saying that anything should go, but he was willing to express a view that, in my experience, a number of other attorneys would agree with. In short, there are those among us who view the Rules as being written by disciplinarians who wish to force their worldview and moral beliefs upon the rest of us. Personally, I respectfully disagree.

As a risk manager, I am in somewhat of a unique position in that I am able to have private discussions with attorneys who are trying to work through ethical dilemmas and I am surprised at times to see how far some of our peers try to go in order to interpret the Rules in a way that will allow them to do whatever it is they are wanting to do. There is a desire to find that one comment or clause that will allow them to proceed which will be followed by real frustration, and at times even anger, if the “permission” they are looking for just isn’t there.

For example, there are going to be times when an attorney finds herself facing a conflict situation that appears to be non-waivable. The Rules simply would not permit the attorney to get involved, or remain involved if representation has already begun, under the circumstances in play. Yet, upset over the lost income opportunity of the potential new matter or fearing that she will be forced to withdraw after having “invested” significant time and money in the matter (all of which will become unrecoverable) results in her taking a position that having to say no or being forced to withdraw is not an option. At this point then, the Rules are liberally interpreted and/or rationalizations come into play as a certain clause or commentary to the Rules is twisted to justify the desired outcome. Others will go so far as to say, “Hey, there is nothing here that specifically says I can’t do this, so I’m going to do it until someone says I can’t.”

To make matters worse, these same folks will turn to the Rules if and when trouble follows and seek to use them to try to justify their decision. They will say that the Rules never directly said that what they did wasn’t permissible or they will present an expansive interpretation of some comment in defense of their decision. Here is my point. You don’t get it both ways. You can’t look to the Rules for justification for any and all actions you might want to take and then turn around and use the Rules as a shield against someone questioning the propriety of any action taken via a disciplinary complaint. Unfortunately, this is exactly what some members of our profession try to do.

In CLE presentations over the years I have had attorneys voice a belief that they view their practice as something they are entitled to have. After all, they paid their money, put in their time, got the degree, passed the bar, and, by God, no one is now going to tell them what they can or can’t do as an attorney. Now, let’s deal with the reality that our profession is under attack and our reputation remains less than stellar and ask “Why is that?” Take a look at the legal news headlines any day of the week. How often do you see “Lawyer Indicted in Ponzi Scheme,” “Lawyer Charged in Mortgage Refinance Scam,” “Lawyer Disbarred for Theft of Client Funds,” “Lawyer Sanctioned for Inappropriate Conduct” or “Lawyer Loses License for Insider Trading.” Something is out of whack here and I am suggesting that part of the problem is the perspective of some who are in our ranks. The opportunity to practice law is not a right and the Rules were not written to be a self-serving tool that any attorney can try to use to justify any particular action taken.

Ultimately, my thinking leads to this: As professionals we have been granted the incredible privilege of self regulation. With that comes responsibility and accountability. What we as professionals do with this privilege will dictate how long we continue to have the opportunity to self regulate and, for me, the Rules are essential. Our rules are not properly viewed as the shield we can use to protect us when trouble arises nor are they there to be twisted to justify any specific action an attorney might wish to take. Like it or not, there are going to be conflicts that are non-waivable. Sometimes the answer is simply no, that’s not allowed. The Rules are not an attempt by a select few to impose their morality on the rest of us. Our rules are our profession’s attempt to establish the guidelines by which we self regulate. Instead of viewing them as a shield or a sword, I suggest that we are better served if we view the Rules as the floor that we stand upon as professionals in order to exemplify what it means to be a true professional. These rules were not written with the intention of restricting an individual’s actions. No. The purpose behind them is to elevate our profession as a whole.

To answer my initial question, I do believe that our rules still matter; but when I read the legal news headlines and continue to come across court orders sanctioning lawyers and their clients for scorched earth tactics and the like, I begin to wonder just how long our privilege of self-regulation will last. As attorneys, all of us have been granted the privilege to practice in this honored profession. If more of us continue to lose sight of this and behave as if it is a right, then the problems of our profession will continue and there may come a time where self-regulation finally does become a relic of history.

With the hopes of preventing that outcome from ever coming to fruition, I encourage you to keep the Rules handy and turn to them for guidance when ethical dilemmas arise. Seek counsel from others when applying the Rules to a complex situation. Take pride in the fact that we have these rules and if you disagree with some aspect of them, participate in our rule making process in order to change them for the better. Finally, review them from time to time while always remembering that these are the rules that define who and what we are as professionals.

A Plan is Nothing. Planning is Everything.

Guest Blogger — Sun, 12 May 2013 14:50:41 +0000

"A Plan is Nothing. Planning is Everything." - Dwight Eisenhower

Recently I did a Lunch’n Learn session for a medical malpractice firm on Long Island. Halfway through my presentation, the issues of putting out fires came up. One of the junior partners complained that if he wasn’t doing legal work, he was putting out fires and that there was no time for any business development. The two senior partners confessed (no surprise here) nothing was in place; however, several discussions had taken place with no decision and no forward movement.

So let me be blunt and bottom-line it for you. Good planning and implementation avoids feast and famine cycles. Strategic planning is as much about planning as it is about implementation. It’s a long-term plan for growth and profitability. However, many professionals don’t invest and take the time to plan, which results in loss of valuable time for all and misuse of limited resources.

Avoid these planning pitfalls right from the start and you’ll have a strategic plan that is a living, breathing document. Or, as I tell my clients all the time, Information + Implementation = Transformation, or in lawyer speak RESULTS. The problems usually occur somewhere in the information and implementation part. The following are some of the planning pitfalls I see all too often:

▪ A Meaningless Plan: The vision, mission and value statements are viewed as just going through the motions and not supported by actions and don’t have buy-in from partners, practice group leaders, and key decision makers. Typically, these are discussed during yearly weekend retreats or when the client pool is drying up.

▪ Lack of Ownership: The most common reason a plan fails is lack of ownership, especially when there is more than one person is involved. If professionals/practice groups don’t have a stake and responsibility in the plan, it will be business as usual for all and nothing will get done. Getting mired in the daily grind, putting out fires etc. For lawyers it’s the billable hour, which leads to losing sight of long-term goals and perpetuates more of what is, and dare I say the irony of it, increasing risk because the business development efforts are not consistent.

▪ No Accountability: Accountability and high visibility are needed to help drive change and put the plan in motion. Otherwise, it is business as usual. This means that each measure, objective, and initiative must have an owner. Progress reports are critical. If there is no method to track progress, how can forward movement be tracked?

▪ Lack of Empowerment: Accountability may provide strong incentives for improving performance. Employees must also have the authority, responsibility, and tools necessary to impact relevant measures. Otherwise, they may resist involvement and ownership.

▪ Lack of Communication: The plan doesn’t get communicated to associates, paralegals etc., and they don’t understand how they can contribute. Bottom-line, when everyone buys into creating new results, the desired results will show up. It doesn’t happen easily but requires dialogue, engagement and leadership.

▪ Execution: Implementation is not discussed in the strategic planning process, thus lacking commitment and alignment. The planning document is seen as an end in itself.

None of this is rocket science, but it involves commitment and follow-through. Time and time again, I see law firms wanting to adopt marketing strategies before they do an overall plan vision for their firms. Big Mistake. Save yourself time money and resources by getting help right at the start.

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Paramjit Mahli is with The Rainmakers Roundtable, a training and consulting firm that helps attorneys and professionals, become profitable by increasing lead generations and conversions to clients.

I Work Like This, Because?

Mark Bassingthwaighte — Wed, 08 May 2013 13:00:00 +0000

While out on a walk, I briefly overheard part of a conversation about weddings. What caught my attention was this comment: “Why do people spend so much time and money on their wedding and so little on their marriage?” That question struck a chord with me. Now I’m not one to say don’t celebrate life’s big events; but if your focus is such that it will only shine on the big events and never on the day-to-day, there’s a problem.

I’m a road warrior and I understand having to miss the band concerts, the cross country races, and the social functions with friends all in the name of earning a living and helping to pay the bills. I’ve also worked with too many solo attorneys who manage to fit in a long weekend every couple of years which they often refer to as “the family vacation.” Couple this with the stereotypical Big Law definition of part-time lawyers as those who work a 40 hour workweek and hopefully you begin to see my point. Kids don’t stay young forever, spouses don’t want to wait until retirement to enjoy a life together, and friends won’t keep asking if the answer is always “I can’t tonight.”

With all this in mind, I would like to share a few thoughts that if put in play might help keep things in balance over the long haul. Let’s remove some of the stress on the work side of the equation and perhaps find a little time to nourish the personal side. Then, take that time and spend it well. Here are a few ideas.

Do all that you can to determine if a client can actually afford your services before agreeing to accept their legal matter. If this is a hard conversation to have, it’s time to learn how. Also, stop acting like a bank. Consider shifting away from having to deal with the collections burden by accepting credit card payments or perhaps taking retainers. Finally, if an account becomes delinquent and there is no reasonable way for the client to eventually make good get out if able, come up with a new discounted payment plan that is going to be realistic for the client, or simply acknowledge that this one is going to be pro bono. Staying in denial wastes too much energy. You might also look for any learning in these situations so that you don’t find yourself handling a similar forced pro bono matter next quarter. For example, think about how you could change your intake procedures in such a way that would help you better identify potential problem payers.

Start every day by doing the one thing that you’ve been putting off. It might be returning a call to an unhappy client, having to pass along bad news, finally starting to write that brief, or making one of those marketing calls so many struggle with. We all tend to put off tasks that we view as distasteful. Stop it. The time that is wasted with procrastination and the toll of carrying the burden hour after hour or day after day isn’t worth it. Whatever it is, get it out of the way first thing and the rest of day will be more productive.

Set boundaries and stick to them. Who says all calls must be returned within two hours or that all email must be replied to immediately. We each work differently. If morning is a productive time for you, make sure to protect and make the best use of that time. Let clients know in advance that you will not take calls, receive walk-ins, or read and respond to email between the hours of 8 and 10 and have staff enforce that policy. Short of an important call from a judge or a true client emergency, this becomes your productive time. Calls can be returned and email responded to after. Interruptions wreak havoc because it takes time to get back into the swing. That’s time wasted and it can quickly add up to serious lost time. Learn to control and manage interruptions by setting boundaries. In this same vein, delegate what can be delegated. For those who struggle with this, trust your judgment in who you hired. It will be ok. If that’s hard, periodically review their work as a way to reassure yourself and then start the process of letting go.

Smart phones and tablets are wonderful tools that enable all kinds of efficiencies. That said, just because it’s possible to take a call while hiking in Yellowstone or respond to email while poolside in Cabo doesn’t mean it’s a good idea. Personal time is just that, personal time. Keep it that way. Our kids knew not to respond to a text while at the dinner table and my wife, rightly so, continues to expect that I will refrain from checking work email whenever we’ve set aside couple time. No Surface Pro, no Droid. This is about learning to prioritize personal time in order to stay sharp. If you never get away, even if it’s just a short walk over the noon hour to get some fresh air, the “always available” lifestyle will catch up with you. Batteries die, engines break down, and hearts stop. I have literally seen guys go down with a heart attack. Trust me, not good. We all need to rest and relax in order to recharge and stay healthy.

Finally, focus on the day-to-day. Even on those occasional 14 hour workdays on the road I still manage to find time to text the kids, call my wife, and when I can, enjoy a glass of red wine with dinner. It forces me to slow down and refocus. When I am home, I leave work at work and get into the kitchen as much as I can. The whole family loves it when I do, but more importantly, that’s my time. Absolutely life’s milestones are worth celebrating; but if you’re missing too much of the day-to-day stuff you may come to find that no one is there to celebrate with you, or worse yet, that you’re the one missing.

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This article was first published on February 5, 2013 on the blog of Solo Practice University. I invite you to take a look at what is another useful resource for information about managing one’s practice.

The Power of Soft Intelligence

Susan Liebel — Mon, 06 May 2013 12:15:00 +0000

I have always maintained that 'There is no competition." And I believe this still today.

However, when it comes to positioning yourself in the legal market you still need to fully understand the competitive environment of the legal profession and figure out the best way to position yourself properly.

What continually interests me these many years is the increasing number of venues available today to solo practitioners to acquire information not only about those deemed competition but also about their potential client. This 'intelligence' 1) didn't really exist before the last few years and 2) still remains a mystery to the most of your colleagues. This is a huge benefit to you.

Social media in all its incarnations (Facebook, Twitter, LinkedIn, review sites such as Yelp, lawyer websites, blogs, podcasts, wikis, listservs, communities, etc.) is a 'soft intelligence' gathering vehicle unparalleled in terms of 'real time' results, accessibility, and low cost.

Why are these particular vehicles more brilliant and decidedly different then most traditional information gathering vehicles? Those who are participating in social media are doing so voluntarily, generally unfiltered, and with great enthusiasm. They are offering their opinions in a decidedly raw, unsanitized way. Let's face it, when we think we are dealing with our peers we are more spontaneous, honest and more revealing then if we were cold-called or surveyed.

For lawyers who understand and appreciate the value of social media, what can you learn in terms of soft competitive intelligence? If you know what you are looking for you will find:

• Attitudes about you, your services, your competitors and the profession

• What they like and don't like about the above

• Specific challenges you will face when trying to attract clients and deliver your services

• Trends in the profession in your practice area and as a whole

• (Most importantly) The unmet needs of your clients, or potential clients and even those who would be ambassadors for your services.

The key, however, is this information is in real time conversation. And interactivity on the web is increasing exponentially. We see this over and over again. Tweets will have hashtags to highlight a particular topic. Facebook interactivity occurs with 'likes' and comments on 'status' updates. If you are tuned-in and engaged you would be wise to join the conversation to learn more about the issue and try to address the issue immediately.

This soft intelligence isn't really about actual facts and figures. It is about attitudes and why your potential clients may act the way they do. Yet, attitude can be just as important, if not more important than, traditional market research.

When you glimpse into the mind of your potential client it can help you understand their underlying assumptions, which not only helps to explain their behavior today but also helps you to see how they are likely to behave in the future (both good and bad). I'm not saying to forgo traditional data research, but for the solo, this low cost analysis of social media in conjunction with the more traditional use of social media can provide the ultimate information you need to shape your marketing plan and tailor your services.

It's a reasonable assumption that most users of social media do so to check out what everyone else is doing. Seldom will they turn the light back upon themselves by spending time analyzing what's right in front of them. When was the last time you really analyzed the comments on your blog and who was doing the commenting? Have we analyzed who is following us on Twitter and why? Same thing when it comes to who is connecting with us on Facebook and LinkedIn.

Paying attention to what is being said about you, whether to your face or behind your back is important. Paying attention to who is intentionally not talking about you at all and why is even more important. I'm not preaching paranoia here. I'm simply stating there is a vast pool of information available to you and you should be seeking it out, receiving it, and working with it correctly in order to improve your practice, the client experience and your competitive edge.

It may seem like another incredibly time-consuming task that will take you away from your work and your clients. But it really isn't all that time-consuming. What is important is understanding why it is necessary to your practice to do so. Try this one very simple step for starters:

Create Google Alerts (or any another service like Mention) for:

Your personal name
Your firm name
Your practice area
Your primary and secondary competitor
Key words in your practice area
Your clients' names, businesses, etc.
Potential clients' names, businesses, etc.

Have these alerts come not more than once a day.

If you are monitoring a particular matter, have alerts on a given topic, name, etc. just for that period of time it interests you.

This is one simple step you can take to monitor conversations in real time.

Many pay large sums of their hard earned dollars to legal marketing firms to learn 'soft intelligence' and these marketing firms are the very ones who are a little too dismissive of social media as a waste of time. Most solos have neither the money nor the inclination to pay marketing firms for information they can gather themselves, especially when they already utilize social media. Understanding the value of this soft intelligence plus utilizing this simple ''no-cost' solution keeps you ahead of the curve with your potential clients and light years ahead of the competition.

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Susan Cartier Liebel is the Founder & CEO of Solo Practice University®, the only educational and professional networking community for lawyers and law students designed for those who want to create and grow their solo or small firm practices.

A coach/consultant for solos and small firms, an attorney who started her own practice right out of law school, an Entrepreneur Advisor for Law Without Walls, an adjunct professor at Quinnipiac University School of Law for eight years teaching law students how to open their own legal practices right out of law school, a columnist for LawyersUSA Weekly, the Connecticut Law Tribune, The Complete Lawyer, and Law.com, she has contributed to numerous online publications such as Forbes.com, legal publications and books on this topic as well as the issues facing women in the workforce. She speaks frequently to law schools and professional organizations around the country on issues facing solos, offering both practical knowledge and inspiration.

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Not If, But When a Cyber Breach Occurs

R. Kiffin Hope — Wed, 01 May 2013 12:58:00 +0000

From the White House to Congress and from Wall Street to the mom and pop storefront on Main Street, the issue of cybersecurity is one that is here and here to stay. Hacking computers is no longer a “cottage industry” or something done by lone disgruntled individuals or teenagers in their parents’ basement. This is now a criminal endeavor that is highly organized and getting more sophisticated each week. As a recent article (Cyber Situations) in the magazine Best’s Review (April 2013) points out, the new breed of cyber criminals does not discriminate between large and small companies. As long as you have personally identifiable information in your database, whether internal server or cloud based, that information is at risk.

Obviously the best defense is a good offense as the saying goes, including ongoing staff training in the ever evolving cyber threats law firms or other businesses face. There is no easy solution, but a diligent IT department and well-informed C-suite and senior and risk management staff can certainly facilitate the research and deployment of prudent firm data security policies and procedures. But what if a breach does occur?

Cyber liability insurance, while relatively new to the law firm market, is emerging as an important component of a firm’s overall liability coverage. Client data, including social security numbers, credit card and other financial accounts, notes from attorney-client conversations, business transactions, etc., is enticing information that can be sold to illegitimate parties looking to make a quick profit or to exploit persons or businesses. Even the process of completing a law firm cyber insurance application can be enlightening, pointing out potential data security holes in a firm’s database, website, or portable devices such as smartphones, notebooks, and laptops used on the road or in the courtroom.

For perspective on the vulnerability of law firm data, the 2011 International Legal Technology Association (ILTA) Survey (pdf) indicated that 87% of law firms do not encrypt laptops; 61% have no intrusion detection tools; 64% have no intrusion protection tools; and for firms that purchase iPhones and Androids for employees, 94% don’t bother to track them. Not good for an industry that harbors highly sensitive information. And in a separate 2011 study (article), at least 80 major US law firms were hacked in that year.

In this age of not if, but when a cyber breach occurs, law firms need to take the issue of cyber security and cyber liability extremely seriously, no matter if you’re a solo in Des Moines or a C-suite partner in Los Angeles.

Please take some time to check out the Cyber Resources page on the ALPS Protection Plus website and contact us with any questions you may have about cyber coverage for your firm.

Take the ALPS 411 Reader Poll

R. Kiffin Hope — Thu, 25 Apr 2013 20:44:00 +0000

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Smartphone Security

Mark Bassingthwaighte — Thu, 25 Apr 2013 13:00:00 +0000

The Pew Research Center reported in 2012 that 85% of American adults own smartphones. Within this group, 80% use their smartphone to send or receive text massages, 56% use their phones to access the Internet, 50% send or receive email, and a full 29% access their bank account information or do online banking. What I found interesting about this study was that it confirmed the continued rapid transition of using smartphones instead of PCs or laptops as an online ramp to the Internet by the general public and this creates a problem that few smartphone owners seem to grasp.

The problem is this. We all view our smartphones as smartphones, when in fact a smartphone is really not a phone at all. I believe we are better served if we view smartphones as handheld computers with cell phone capabilities. Why? It’s because almost all of us use these devices to access the Internet and email. Look at it this way. Every firm that I have visited, which now exceeds 1000, and that has a computer or network that connects to the Internet also has some type of Internet security software running. How many of us rely on similar protection with our handheld iPhones or Android devices? While I don’t have any hard numbers for you, I can share that the number would be far less than 100% of smartphone users simply based upon what I am finding as I visit with lawyers all over the country. Very few have even thought about the issue.

Some will say that by design these devices are far more secure than their more robust computer cousins. Others argue that their simply aren’t any actual smartphone threats in the wild. No threats, no worries. Consider this. Early in 2013 Apple announced that there have been over 40 billion downloads in its App Store, 20 billion occurring in 2012 alone. Google reported that they broke the 25 billion mark in their Google Play store in September of 2012. Wow! Oh, then we have this. A number of major security firms have announced that 2013 will be the year that smartphones will finally emerge as a major target for cybercriminals in part because so many of these phones are being used as mobile wallets. In early 2013 security firm Kaspersky Labs announced that they uncovered new malware that poses as a “cleaner” app that can free up space on Google OS. This malware, called DroidCleaner actually infects both your smartphone and PC in order to spy on you. There are also devices that create what is known as a hot-spot honeypot which in essence attracts devices looking to connect to a Wi-Fi signal. Should your device ever connect to the fake network these kinds of devices create consider yourself hacked. So, perhaps it isn’t a matter of time after all. Perhaps the threats are not only real, but active now. Perhaps we are being foolish by not properly securing our handheld computers we call smartphones.

What’s one to do? Begin by downloading a security app of some sort. These types of programs offer a wide range of protection. Some even include functions such as encryption capabilities and/or the ability to wipe all data from the device after a certain number of failed login attempts or even enable a remote wipe of a lost or stolen device. Regardless, make sure that you include an app that provides protection against malicious attacks to include spyware. For the iPhone world, you might consider apps such as VirusBarrier which is an on-demand file and website scanner; Mobile Active Defense which filters incoming email in an effort to protect you from spam, phishing attacks, and malware; and Find My iPhone which is an iCloud service that allows you to remotely lock and/or wipe the phone if it is ever lost or stolen. In the Android world, you might consider AVG Antivirus Pro which is something of a full service security and theft protection suite; Lookout Mobile Security - think LoJack for the mobile phone; or Norton Mobile Security. There are a number of other worthy options in both worlds and if you are a BlackBerry user, rest assured similar apps are available for you as well.

Going beyond the security app step, also remember to use power on passwords and enable auto-lock features. If able, use a strong password that is a combination of uppercase and lowercase letters, numbers, and symbols, and is a minimum of eight characters long. Avoid open public Wi-Fi networks as much as possible. Always turn off Bluetooth and Wi-Fi when not specifically in use. If you use your smartphone to connect to your firm’s network, only connect to the network through a VPN connection. As with your other computers, backup your data as smartphones do get lost, are stolen, and sometimes get destroyed. Accidents do happen. Never give the device away, recycle it, or just toss it without first wiping the data from the device. Finally, never allow someone to use your device outside of your view. You just never know what they’ll try to do.

Why You Can't Just Say No to Social Media

Mark Bassingthwaighte — Wed, 17 Apr 2013 13:17:00 +0000

Based upon my consulting experiences and CLE presentations in recent years, attorneys are still all over the map when it comes to having an understanding of what social media is all about. There are significant numbers who have embraced social media. These attorneys really do get it and some at a level far more advanced then my own. Others are perhaps best described as having an awareness of social media, tolerate its presence, and try not to be bothered by it. Then there are the select few who want nothing to do with it and it is to this group that I direct this post. For the rest of you, stay with this. This isn’t all about being in denial.

While it’s tempting to focus on topics along the lines of how the failure to use social media as an investigative research tool could lead to a viable malpractice claim, trying to identify the ethical traps and security risks that come with a social media presence, or even discussing the pros and cons of using social media as a marketing tool; I am going to go in a different direction. I simply posit that a decision by an attorney to remain naïve and in the dark about social media can be a serious misstep. An attorney can no longer remain oblivious to its existence, simply choose not to participate, or block all access at the firm in the name of productivity.

Why? Think about it. When the number of people who use Facebook now exceeds one billion it seems rather obvious. Many of your clients are using social media and, as their lawyer, you must have a basic understanding of what social media is all about in order to see that they are properly advised. When it comes to social media, we’re past the point where ignorance is bliss. Ignorance could create a serious problem for both you and your clients and that’s simply not acceptable.

Consider this, do all of your clients understand how the attorney/client privilege is theirs to lose? What would happen if a client posted the text of various email exchanges between you and he on Facebook just to keep friends and family up to speed? (And yes this has happened.) How about a personal injury or work comp client posting photos of a recent trip to Universal Studios on Flickr? Man did she really like those roller coasters! You are the lawyer and as such would be well advised to counsel your clients as to the ramifications of participating in social media during the course of representation. Set the ground rules and educate them as to possible consequences: and no, telling them to just delete everything isn’t an option. Personally I call that spoliation.

For example, I would want to make certain that my litigation clients should assume that anything that gets posted to the web will be viewed by the other side and may even end up on a big screen in the courtroom for everyone to see. This might even include reminding these clients to make certain that other family members are aware of this possibility so that they don’t post photos or updates that could create a problem. After all, the circle of friends that any one of us has means that all sorts of circuitous avenues exist for the unintended consequence of someone else discovering something one never intended to be exposed but somehow it ended up on a social media site. It would also be advisable to instruct your clients to not use someone else’s computer to communicate with you, particularly if they might be tempted to use a work email address and a computer or smart phone owned by their employer.

Understand that communications that occur through social media sites are in essence recorded and preserved and once out there they are practically impossible to ever recall and erase. As lawyers, we don’t like unexpected surprises so why risk it? An attorney is a counselor of the law. Really what I am suggesting here is to have you consider what being an effective counselor at law means in this age of social networking on the Internet. Denial is no longer an option. One simply cannot bury one’s head in the sand and say I want nothing to do with social media. That would be like pretending the United States doesn’t exist. Oh, and by the way, the population of the United States is far less than the number of people on Facebook several times over. Get it? If you’re one who’s late to this game, it’s past time to get up to speed.

Always. Always. Always Pay Your Referral Fees.

Susan Liebel — Mon, 15 Apr 2013 12:15:00 +0000

This subject is rarely discussed because it seems to be common sense and just plain good business. But as my husband is fond of saying, 'common sense is not that common.'

The rules clearly vary from jurisdiction to jurisdiction. It is incumbent upon you to learn what your jurisdiction allows when it comes to paying referral fees to other attorneys. If you are fortunate enough (and I do mean fortunate) to practice in a jurisdiction which allows the payment of referral fees to a colleague for either referring a client or referring and requiring you to participate in the case in order to participate in the fees, you should absolutely be taking full advantage of this benefit.

However, this post falls into the category of 'you've been honored with a referral of a great case in a jurisdiction which allows you to pay the referring attorney a referral fee'.

By way of introduction, when I was practicing full time I was permitted to refer cases and receive a negotiated percentage of the attorney fees if the practice area permitted. Generally, this was a personal injury case. The common practice was a third of a third or a quarter of a quarter, etc. Other practice areas provide for referral fees but may have a different protocol.

One day an amazing whistle-blower case was thrown into our lap. We knew it was beyond our skill set and resources. We had to refer it out. This case was huge and it turned on just one individual. If he proceeded and provided critical documents, I'm conservatively guessing it would have been a multi-million dollar award. I knew a lawyer in California who was a partner with a large reputable firm. They firm only handled class actions. He was very interested in the case but (red flag) refused to put our relationship of referrer/referee in writing. His claim was their firm was so prestigious and so large it wasn't necessary. Really? So, we went local. When we told the local firm what we were told by the 'We're All That and a Ham Sandwich' Law Firm they were appalled saying any reputable firm not only puts it in writing, they are obligated to tell the client. Long story short, the whistle-blower got cold-feet and changed his mind. Yet we learned a valuable lesson.

Any responsible ethical lawyer who accepts a referral will commit their financial obligation to you in writing and disclose to their client.

Subsequently, when I made a referral to a personal injury attorney I knew and trusted, I sat with the clients and the lawyer I was giving the case to (I did this with all referrals). This is what the lawyer said to his new clients before they signed the retainer agreement:

'In our profession I am permitted to thank a colleague financially for referring you to me. I will gladly pay a portion of any statutory fee awarded to her as a professional thank you. Whether it's $1,000, $10,000 or $100,000 I will happily pay it because if she didn't bring you to my attention I would never have met you and had the honor of representing you in this case. It doesn't impact what you are statutorily guaranteed to receive should we prevail. However, I want you to know this understanding will be made part of our agreement when you retain me."

This is the RIGHT way to do it.

When the matter was concluded I immediately received my referral fee as a matter of due course. His attitude was this percentage of the award was never his and he never treated it as such. It was a normal part of the required disbursements upon settlement of the case.

On the flip side, I also had an occasion where after the referral agreement was made and understood by all parties, the lawyer won the case and then said to me, 'you know, the award wasn't really that big and we worked pretty hard on the case. I'm thinking you should pass on your referral fee.' I was too green at the time to challenge him.

All things being equal in the quality and ethics of each attorney when representing their client, can you tell which lawyer I continued to send valued clients to?

You must understand when a lawyer refers a case to you it is a gift you would not have gotten otherwise. When another lawyers refers to you, it is based upon your reputation, your honor, and your integrity in all matters.

Do not inappropriately take ownership of fees which are not yours.

You can get so much work you would never have otherwise from new attorneys who choose not to handle these cases because 1) the attorney can't handle the litigation costs, 2) it's not their practice area, 3) there are conflicts or 4) the attorney simply recognizes they are too inexperienced. Do not take advantage of these lawyers. They may one day be your opposing counsel, too.

If your jurisdiction permits and you are referred a case, even if the new or less experienced attorney says to you 'we don't need to put it in writing' or 'you don't have to pay me just send some business my way in my practice area' it is incumbent upon you to do the right thing. You should put it in writing and show the proper appreciation for the gift you've been given. Train the new attorney on the right way to do things. Train the new attorney to think of you first as not only an excellent lawyer but as someone who values referrals and will compensate accordingly within the bounds of professional ethics.

To not pay referral fees when agreed upon, to not offer to do so if the referring attorney is too naive (or in awe) to ask, is to wrongly take advantage of a colleague and it will ultimately cost you more business and reputation as word spreads not to feed you clients.

Many new lawyers know a lot of people they are not equipped to service. However, they are your colleagues and trusted by their circle. These people with great cases will go to their trusted lawyer friend for the name of a good lawyer. Be that good lawyer to your fellow referring lawyers.

Always. Always. Always pay your referral fees.

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"But I Didn't Think My Client Was Going To Do That!"

Mark Bassingthwaighte — Wed, 10 Apr 2013 13:00:00 +0000

At times it can be tempting to take the easy way out when asked for legal advice and you simply espouse generic or technically correct advice, or just share a little off-the-cuff advice. Why is this? Well, time demands can prevent the necessary research from occurring or perhaps the person asking isn’t an important client. Perhaps you’re overly comfortable with the attorney/client relationship and didn’t realize the significance of the issue. Perhaps you knew that the client really didn’t want to hear what would be the best advice. Perhaps the person asking isn’t even a client. Regardless of the reason, taking the easy way out is never a good idea.

Sometime ago, an attorney received an inquiry from a long-term client. This client owned an airplane that was in the process of being substantially renovated and upgraded. Due to time delays and cost overruns, however, a significant fee dispute was in play. The question raised was could the client remove the property from the premises of the repair facility because the client felt possession would strengthen his position in the fee dispute. Apparently not wanting to take the time to discuss the situation in depth, the attorney simply gave a technically correct answer of “yes, recovery of property that you already own is not illegal. You have a right to its possession.” The client shortly thereafter recovered the property and was subsequently arrested due to the manner in which the property was recovered. Eventually the client incurred a substantial loss as a result of a civil suit brought by the repair facility. Client then sought recovery from the attorney alleging negligent advice. The attorney’s defense was, in essence, “But I didn’t think my client was going to do that!”

In another situation, a lawyer was representing the executor of an estate. The attorney described the situation as one of his having little involvement because the client was really running the show. The client simply needed a little advice and direction from time to time. This client did contact him at one point and she shared that the Commissioner of Accounts had reached a conclusion, regarding the calculation as to how certain funds should be distributed, that the client disagreed with. The lawyer casually shared that he too disagreed with the Commissioner’s conclusion and also let the client know that if an issue were to ever arise he would speak with the Commissioner in order to clear up the confusion. Unfortunately, this client took that response as an implicit ok to go ahead and disperse the funds in accordance with her interpretation of the will. Needless to say, the Commissioner did not approve the accounting and now there’s a problem.

Believing that you don’t have the time or that this isn’t an important person, or just saying what you think the client wants to hear are all rationalizations. When rationalizations are used to justify a decision to take the easy way out, trouble may be just around the corner. Such advice, which really is the equivalent of giving advice in a vacuum, provides a false sense of security. Why? Because you fail to consider how the client might rely or act on the advice.

Giving advice in a vacuum is rarely appropriate, particularly in the absence of adequate and documented disclaimers. Even if technically allowable under some defined set of circumstances, doing so fails to take into account the realities of the attorney/client relationship. Clients do expect their attorney to stand by any and all advice given and the client will consider an attorney’s attempt to claim an intentional limited knowledge of the circumstances as irrelevant. The client will still seek to hold their attorney accountable for any unanticipated fallout that occurs once the client acts on the advice received.

Consider Rule 1.4 of the ABA Model Rules of Professional Conduct entitled Communication, which states in section (b), “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Couple this with the comments of Section [1] under Rule 2.1, Advisor, which state, “A client is entitled to straightforward advice expressing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. … However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.” It is clear that in the above examples the attorneys should have taken the conversations further and at a minimum inquired about their client’s proposed course of action. By giving advice in a vacuum, these attorneys allowed their clients to act without the benefit of legal advice given with full awareness of the entire situation. Had these attorneys known what their clients were thinking, the advice would have been, of necessity, quite different.

In the end a defense of “I didn’t know my client would do that” is no defense at all, even with perceived short unimportant calls where one is tempted to not take the time to ask the right questions. There is no easy way out or middle ground when someone asks for legal advice. There really are just two options. One is to say that you are unable to provide the advice asked for and the other is to take the time to give a competent, thorough, and reasoned response based upon full awareness of the client’s situation. Put yourself in your client’s shoes, would you expect anything less when asking for legal advice? Somehow, I doubt it.

Security Reporter Victim of Phone "Swatting" - SWAT Team Descends on Home

Guest Blogger — Tue, 09 Apr 2013 13:00:00 +0000

Hat tip to Dave Ries. ars technica recently reported on a chilling incident that happened in Northern Virginia.

Brian Krebs is something of a legend among security reporters. His exposés completely closed a California hosting company that was friendly to spammers and child pornographers and severely impacted an organized crime syndicate known as Russian Business Network. He has also followed the money trail to people who sell malware kits, stolen credit reports and denial-of-service attack help in underground forums.

Krebs has long been on the receiving end of DDoS attacks. His site, KrebsonSecurity, is regularly knocked offline by these attacks, likely from those he has investigated.

Earlier this month, he became one of the first journalists to be on the receiving end of a vicious hoax that prompted a raid on his Northern Virginia home by a swarm of heavily armed police officers. The hacking tactic, known as "swatting," involves using computers or special phone equipment to make emergency calls that appear to come from their target's phone number. When a 911 operator answers, they report a life-threatening, sometimes horrific crime in progress. Police, often armed with assault rifles, come to the victim's home, sometimes breaking down doors thinking that lives are at stake because of home invasion robberies or drug addicts murdering people.

Around 5 p.m., Krebs was preparing his home for a small dinner party. While vacuuming his home, his phone rang a few times, but he decided not to answer since he didn't want his party preparations to be delayed. He realized there was still some tape at the entrance of his house where Christmas lights had been and thought he'd remove it before his guests arrived.

As soon as he opened the door, an officer pointed a pistol at him and told him to put his hands up.

In all, there were at least a dozen officers with pistols, shotguns, and assault rifles pointed at him. They had police dogs circling his house and cruisers had sealed off a nearby street. Krebs, who was dressed in just gym shorts and a T-shirt, did as he was told.

An officer of the department told him that police received a 911 call that appeared to come from Krebs' phone. The caller posed as Krebs and said he was hiding in a closet after Russian thieves had broken into his home and shot his wife. They were now stealing jewelry, the caller reported.

After a few minutes in custody, Krebs explained that he was the victim of a crime known as swatting. One of the officers asked if Krebs was the person who had filed a report a few months earlier about threats against him. When Krebs replied yes, the officers did a quick search of his home, saw the dinner party preparations and realized that the call was a hoax. Those calls he received? They were from the police trying to call him.

I'll bet he wished he had answered those calls. Horrifying story.

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Thanks to our friend Sharon D. Nelson, Esq. for sharing this April 3, 2013 entry from her Ride The Lightning blog. Sharon is President of Sensei Enterprises, Inc., a computer forensics and legal technology firm headquartered in Fairfax, VA.

Suing Your Client to Get Paid

Guest Blogger — Mon, 08 Apr 2013 13:16:00 +0000

You can’t sue a current client for fees. This would create a conflict of interest that impedes your ability to preserve the duty of loyalty to your client.

So, before you sue a client to recover earned fees for services rendered, you have to end the attorney-client relationship, either by client consent to withdrawal or by a motion to withdraw. See CCP §284. Note that if it’s a domestic relations matter, you may file a notice of withdrawal of attorney of record after the finalization of the family law judgment without your client’s consent. See CCP §285.1.

Once you’ve terminated the attorney-client relationship, you can sue your former client for breach of your agreement for services. The agreement, which is usually in writing (Bus & P C §§6147-6148), is the underlying contract for your suit: an attorney may sue a client for breach of an express agreement to recover the outstanding balance owed under the terms of the agreement.

Don’t forget that you have to give the client written notice of his or her right to arbitration under Bus & P C §§6200-6206 before or at the time of service of a summons or claim against the client. Bus & P C §6201.

Once you’ve got a judgment in hand, you can seek to enforce it against the client’s nonexempt property, including by asserting a judgment lien. See generally CCP §§680.010-724.260.

Remember that there are risks to taking the extreme measure of suing your former client for fees. In fact, some malpractice insurers discourage doing so because it may raise malpractice claims against you. If you decide to go this route, be sure to carefully consider alternatives first.

For everything you need to know about how to get paid after being stiffed by a client, turn to CEB’s California Client Communications Manual: Sample Letters and Forms, chap 9. Not sure about the impact of the debt collection statutory requirements? Check out CEB’s Debt Collection Practice in California, chap 2. CEB also has a great program on these issues, including the ethical considerations: Collecting Unpaid Attorney’s Fees: Promise and Pitfalls. But before you get into these issues with a client, check out CEB’s program Making Sure You Get Paid: Accounts Receivable Management, available for FREE!

Found this blog post interesting? Check out our related post Liening on Your Client to Get Paid.

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This material is reproduced from Julie Brook’s blog entry, Suing Your Client to Get Paid, on the CEB Blog January 7, 2013. Copyright 2013 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar - California. For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site: CEB.com.

Small or Solo Firm? You Still Need Cyber Liability Coverage.

R. Kiffin Hope — Wed, 03 Apr 2013 13:00:00 +0000

A recent online article by Minda Zetlin on Inc.com (6 Reasons You Should Have Cyber Liability Insurance) brings home the argument that cyber liability insurance just isn’t for big businesses; that it totally makes sense for small business owners to get. If you get hacked, if customer or employee data is compromised, being covered may save your bacon and keep your doors opened for business as your general liability policy probably excludes losses because of the Internet, laptops, and mobile devices.

Zetlin writes:

“Big corporations have entire departments devoted to analyzing the risks the company could face and helping set policies and procedures to protect against them. You don't--but a good insurance carrier can perform a similar function.”

Read the entire post here.

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If your firm does not have cyber coverage, it is available to ALPS malpractice policyholders on an opt-out basis. Learn more about how ALPS Cyber Response coverage can help assist your firm in the event of a data breach. This policy was designed by cyber risk experts and is tailored specifically to attorneys, providing real time solutions if your computer network is compromised. Get covered today!