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One could say the same about client files and information. When a lawyer has a paper file with the pages neatly clipped in place and she puts that file in alphabetical order in a drawer of a big, sturdy, metal file cabinet, she knows exactly where it is and who has access to it (some lawyers claim to know exactly where their files are amongst multiple vertical stacks of paper in their offices, much as squirrels know where their nuts are buried. But I digress). The paperless lawyer knows their files are . . . where exactly? In a cloud someplace? Would that be a cumulus or a nimbostratus cloud?

None of us should be surprised that when lawyers combine our human tendency to be cautious or fearful of what we do not understand with our sacred obligation to safeguard confidential client information, it produces an abundance of anxiety. This is what most ethics discussions about confidentiality seem to focus on lately. Big fears about hackers, data breaches, HIPAA, e-mail security, metadata, the dark web, temporal anomalies, worm holes! One slip and Mrs. Lipschitz’s confidential divorce settlement will go viral and your law license will be shredded in a very public way.

Not so much. Don’t get me wrong. Lawyers certainly have an obligation to protect their client’s confidential electronic information. There can be big consequences for failing to do so: IT costs to fix breaches, pure embarrassment, hours lost to implementing new protections, worry over distressed clients and the unknown impact of unauthorized disclosures, and time lost to restoring data or recreating files. Breaches can turn your world upside down for days or weeks afterwards.

From an ethics perspective, however, hacks and attacks are not the types of confidentiality failures that typically get lawyers in trouble. Your duty under the Rules of Professional Conduct, as interpreted through ethics opinions in numerous U.S. jurisdictions, is to take reasonable measures to prevent hacks. Perfection is not required. Yes, lawyers should definitely have security systems in place that are reviewed and upgraded when necessary. They should use two-factor authentication to access critical systems, use a VPN if they intend to use wifi outside the office, and educate their employees to recognize and avoid phishing, spear-phishing, whaling, and other maritime-themed social-engineering e-mail scams. You cannot likely make your practice bulletproof from cybercrime but by taking reasonable precautions your law license should not be at risk. In fact, although lawyers are often the targets of hackers, there are very few discipline cases that arise from breaches, outside of “Nigerian Prince” and other certified check scams, which are less about confidentiality than they are about pure con artistry.

Instead, when it comes to confidentiality, it’s the small stuff that leads to discipline. It’s the slip of the tongue, the boastful indiscretion, or confused loyalty that is all about being human but not at all about the hazards of technology. In one case, a lawyer’s client in a personal-injury case backed out of a settlement and then fired the lawyer. The lawyer e-mailed the claims adjuster to convey what had happened. Reading between the lines, one suspects that the lawyer was concerned about what the adjuster would think of the lawyer and whether it might affect the lawyer’s future relationship with that adjuster. Part of the e-mail stated, “I advised [client] that he already accepted [the settlement] and there’s no rescinding his acceptance.”[1] That one sentence, devoid of any earth-shattering revelations, disclosed attorney-client privileged information and violated Rule 1.6, MRPC. The Minnesota Supreme Court affirmed the private admonition that had been issued to the lawyer.

This is typical of the level of violations in other cases. Saying just a little too much to a reporter without the client’s authorization. Responding to a client’s attempt to convince a credit-card processor to reverse a fee payment and offering gratuitous information about the client’s attitude or personal issues (fee disputes with clients are fertile ground for inappropriate disclosures of confidential information). Replying to a client’s one-star online review of your services by “setting the record straight” regarding what happened in the case. Recognizing the need to withdraw because of a conflict but disclosing the name of one client to the other.[2] Sending to the person who referred a client to you a copy of your e-mail defending your position in a fee dispute. Each of these scenarios resulted in a private admonition.

These situations have a common theme: emotion. Anger, resentment, embarrassment, frustration, hubris, and guilt lead lawyers to make mistakes. Perhaps they do bear some relationship to phishing schemes, which take advantage of lawyers being rushed or busy or gullible enough to click a link too quickly. It’s not the hackers who are going to get you; you’re more likely to get yourself. Pay attention to the small stuff to keep yourself out of trouble.

(Originally published in the January 2021 issue of Hennepin Lawyer)

[1] In re Panel File No. 41310, 899 N.W.2d 821, 824 (Minn. 2017).
[2] E. Cleary, “Summary of Admonitions” Bench & Bar of Minnesota (March 2000).

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One of the humbling aspects of being an ethics lawyer is that attorneys share their secrets with me. Some come spilling out over trembling lips. Others must be coaxed, after establishing some trust. I’ve been surprised over the years how many lawyers say to me “Everything I tell you is confidential, right?” Of course it is. I’m your lawyer.

Spoiler alert: there are no spoilers here. I’m not sharing the secrets lawyers share with me. But in representing lawyers over the last dozen years, some common themes have emerged which may help others who tote a heavy bag of secrets around with them.

One is the relief that lawyers experience from merely saying out loud what they have been holding inside. This is true of everything from “simple” errors in handling a client’s case —a missed deadline, a misread statute, a file mislaid for too long — to more serious lapses of judgment. The embarrassment associated with ethical lapses can become it’s own kind of creature. A boggart from the Harry Potter series – the creature that peers into your mind, figures out what you fear most, and then appears as that thing. The incantation a lawyer needs to vanquish it is to describe it to someone else.

Even after the facts are on the table, anxiety runs high amongst my clients. It is somewhat ironic that the lawyers who have committed a minor offense or perhaps are being investigated despite no apparent violation at all display more anxiety than lawyers accused of more serious misconduct. Conscientious lawyers, despite their overall competence and success, may experience acute anxiety from the uncertainty involved in the investigation process, second-guessing their own abilities or practice methods, and questioning why they bother practicing law at all. This anxiety can become, even for otherwise healthy lawyers, debilitating. A healthy person should not hesitate to seek informal or formal assistance when he or she finds that anxiety is regularly distracting them from or interfering with work, family, or other commitments.

Lawyers who choose to share their own history of mental illness or substance abuse, as well as the traumas that underly their disorders, also have a lot in common. There is a standard fear that sharing with one person means the whole world will know, which of course is not the case, especially when sharing with a lawyer. More concerning is the fear that the lawyer will be disciplined more severely for having a disorder, when in fact the opposite is actually true, as long as the lawyer is willing to take steps to understand and seek treatment for their disorder. Closely related to this is a fear that the lawyer will be labelled as someone who is disabled or defective, thus bringing a rapid end to the lawyer’s ability to find clients. One of the great benefits of seeking help through Lawyers Concerned for Lawyers or a 12-Step program is that you meet people just like you who are successfully living with their illness.

Lastly, one of the most remarkable patterns I have noticed in private practice is how understanding and forgiving lawyers’ friends are. I regularly see people, lawyers and non-lawyers alike, who are able to get past the human errors that lawyers commit and stand by them. There are people out there waiting to help you, if you let them in on the secret.

(Originally posted in the September 2019 edition of Hennepin Lawyer)

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Sorry, Mr. Clint. Despite the fact that it is clear that you will get a substantial recovery on your case, your lawyer can not lend you a comparatively small amount to help you avoid eviction. In fact, she could not even give you $50 to fill your gas tank. The Minnesota Rules of Professional Conduct, specifically Rule 1.8(e), say that would be a conflict of interest. Huh?

Rule 1.8(e) prohibits lawyers from providing “financial assistance” to a client in “pending or contemplated litigation” except in three situations. If a client is indigent, the lawyer may pay court costs and expenses on behalf of the client. There is no limit to the amount which can be paid. A lawyer may also advance, on behalf of any client, court costs and expenses, and can opt that repayment of those expenses will be contingent on the outcome. Again, there is no dollar limit in the rule. The lawyer can advance thousands of dollars in expert fees, accident-reconstruction fees, deposition costs, jury consultant fees, etc. The lawyer can require that her attorneys fees and those expenses are paid before the client gets any money out of the case.

The third exception provides that a lawyer may guarantee a loan that is “reasonably needed” to help a client like Clint “withstand delay in litigation” so that the client’s financial situation does not pressure him to settle prematurely. Repayment of the loan cannot be contingent on the outcome of the case. So, the lawyer cannot lend the client money herself but she can sign a guarantee that essentially allocates the same risk to the lawyer as making a loan.

The philosophy behind the restriction on financial assistance is neither immediately obvious nor is it clarified by the comment to Rule 1.8.  Comment 10 states that “Lawyers may not subsidize lawsuits brought on behalf of their clients,” because doing so “would encourage clients to pursue lawsuits that might not otherwise be brought” and because the assistance would give the lawyer “too great a financial stake in the litigation.” Paying or advancing litigation expenses “are virtually indistinguishable from contingent fees” (although the rule does not limit the practice to contingent fees) and “help[s] ensure access to the courts.” So, advancing thousands of dollars in litigation expenses is okay, but $50 for gas or a couple of months of rent is forbidden.

Yeah, it doesn’t make any sense to me either.

Also, if it’s a transactional matter, no worries. A lawyer may lend a client money for any purpose as long as it’s not related to litigation. Rule 1.8(a) governs such transactions, which include that the terms must be fair and reasonable, that the client have the opportunity to consult with independent counsel about the transaction, and that the required disclosures be confirmed in writing.

It is not clear from Rule 1.8(e) or the comment why reasonableness, the opportunity to consult with independent counsel, and written disclosure are sufficient for other loans to clients, even multi-million dollar transactions, but not when litigation is involved. And why would guaranteeing a loan that must be repaid not cause a lawyer to have “too great a financial stake” in the case when the expenses advanced by the lawyer could easily be more substantial than a loan to the client for living expenses?

Where does this leave Mr. Clint? Well, if Avocat has a wealthy friend with a big heart, she can arrange for the friend to make a loan to Mr. Clint and guarantee it. That’s right – the rule doesn’t say the loan has to come from a bank or other financial institution.

If Avocat has no wealthy friends or connections, Mr. Clint can get a loan from a “litigation funding” company. These companies have spread like Creeping Charlie over the past ten years. They offer loans, contingent on the client recovering funds, at interest rates of 20%, 25%, or higher, and a few fees thrown in for good measure. Most lawyers discourage clients from taking these abusive loans but the decision ultimately belongs to the client. Who, as we know, may be facing eviction or other desperate circumstances.

The conflict of interest rules are usually designed to protect clients from overreaching by lawyers. With Rule 1.8(e), the rule may hurt clients more than it helps them.
(Originally published in the Hennepin Lawyer, March 2019)

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I’ve been operating a paperless office for nearly ten years, ever since I realized a couple of months into my solo practice that I did not want to fill my basement or garage with closed client files. My paperless workflow is simple: I scan all paper that comes into the office and keep most of it until I close a file, when all of the paper gets tossed.

But I have struggled to find a good system for managing my handwritten notes of phone calls, meetings, court appearances, etc. As I wrote on Lawyerist several years ago, taking notes is very important for keeping track of what information you have exchanged with clients and other parties, and it is critical for defending ethics and malpractice complaints.

What to Do with Your Notes

Some paperless lawyers may have shifted to taking notes on their computers but I prefer not to use a speaker phone all the time, and a laptop is cumbersome in meetings. Besides, some studies that show that your brain remembers more when you hand-write your notes.

So, what to do with all those pages of notes? Scanning notes after every phone call or meeting is inefficient because you have to name and save each note. I could scan them to the same file or create a notes file for each client but that, too, was tedious. So I would just stick the paper pages in a folder and scan them all at the end of a case before I trashed them. Relatively efficient, and it meant I didn’t have access to my notes when I was out of the office.

I also used the legal pads as a sort of reminder system to keep track of who had not called me back. This meant I would end up with several legal pads on my desk with notes of active matters. It was kind of a mess.

Then last summer I saw Paul Unger of Affinity Consulting use an iPad Pro and Apple Pencil to take notes right on his iPad. A chorus of angels started singing in my head! Scales fell from my eyes! My note-taking woes would be solved!

Using the Apple Pencil to Take Notes

The transition to taking notes on a screen was seamless. As soon as I started using the Pencil, I was hooked and I have literally not written on a legal pad since. The key feature is that when you are using the Pencil, which is powered by a rechargeable battery, the iPad recognizes its tip instead of your hand. This means you can just rest your hand right on the screen while you are writing, just like you would on a piece of paper (particularly useful for us lefties). The tip of the Pencil is pressure-sensitive, so lines vary in thickness as you write. Writing on glass turns out to be not much different than writing on paper.

GoodNotes 4, an inexpensive app, is loaded with features that make electronic note-taking better than the old-fashioned way. If are a sloppy writer like me, the undo button will wipe away a word you’ll never be able to figure out later. The eraser lets you fix things elsewhere on the page. The “shapes” button will help you draw a box with straight lines or an oval. Of course, you can change colors, line thickness, etc. There’s also a tool that allows you to move blocks of handwriting around on the page, which is great for rearranging notes of calls with your non-linear clients. Your doodles will improve measurably and then you can move them out of your notes so your clients will never see them.

If you write neatly enough the app can translate your handwriting into type with a couple of clicks. I find this not as helpful as I might have thought—if my writing is neat enough for the program to read, then I can read it too. But that same functionality allows the app to search for a handwritten word within a particular file. That’s right, all your handwritten notes—stored as PDFs—are permanently word-searchable.

GoodNotes 4 automatically backs up your files as PDFs to Dropbox, Box, Google Drive, and other programs. It will also back up files you haven’t named yet. It can search for file names within the app. You can import a Word document or PDF, take notes on the document, and then save it as a new PDF. Clients can sign their real signatures on your iPad, not just scrawl with their fingers. My only complaints about GoodNotes 4 is that it does not have an option for automatically numbering pages within a file and that the size of the thumbnails of your files cannot be adjusted.

Notability is another popular note-taking app. And Evernote and its alternatives, of course.

Choosing an iPad Pro

There are two sizes of iPad Pro: regular (the size of the original iPad), and full letter-page size (also known as Ginormous). I went with Ginormous. I’m glad I did, because more than 80% of the time I’m using it for taking notes and I like having the same full-size sheet of “paper” to work from that I’ve always been used to. But it’s a lot of screen space, and many apps don’t seem to know what to do with all that extra real estate.

The only downside for the iPad Pro and Apple Pencil is that the Pencil needs to be recharged periodically. You can stick it in the power jack for the iPad, but then you have this Pencil awkwardly sticking out from your iPad. I tend to use the very small, likely-to-get-lost-but-so-far-so-good power cord adapter. The only way to shut “off” the Pencil is to turn off the Bluetooth on the iPad, which I do at the end of the day so the batteries on both don’t run down. Recharging the Pencil is pretty fast and on a very busy note-taking day I might recharge it once in the afternoon.

… or Microsoft Surface?

In deference to Windows users, I need to acknowledge that I recently tried a client’s SurfacePro 4 with its powered stylus. The stylus is not as elegant as Apple’s (the Windows stylus looks and feels like an engineer’s mechanical pencil) but it is clearly more functional. The top of the stylus works as an eraser, it has a “right-click” button on it, and there is an embedded magnet that attaches it to the tablet. The contact with the screen is slightly different than on the iPad but you can achieve the same handwriting dexterity. Personally, the stylus alone would not motivate me to switch but it is a very good option for Windows users.

Conclusion

Despite the fact that the iPad Pro has been out since the spring of 2015, few lawyers seem to be using it. It’s often a conversation piece when I show up to meetings with it. But this is the best piece of technology I’ve bought since I purchased an iPhone. Now I can say my practice is truly paperless.

Going Really Paperless with iPad Pro and Apple Pencil was originally published on Lawyerist.com.

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I met with a lawyer a couple of weeks ago in a small town about two hours outside of the Twin Cities. Our conversation turned to operating a law firm in a small town and the lawyer told me two things I probably knew but did not really appreciate. One was a complaint about how difficult it is to attract new lawyers to join law firms in rural areas. The other was the lawyer’s prediction that in the next ten years, half the lawyers in her quarter of the state were going to retire from the practice of law.

That prediction probably is not unique to Minnesota. New lawyers unable to find a job in a major American city may want to broaden their job searches beyond their local beltways.

There are many benefits to practicing in a smaller community. First off, there is plenty of work to do. All those farms you pass as you drive that two-lane road into the country? That farmland is worth several thousand dollars an acre in many areas. Those farm families need estate plans, contracts, and business advice. There are teachers, small business owners, bankers, and other professionals as well. The folk in small towns sometimes get divorced, commit the occasional DWI, and get in car accidents. They need local lawyers and they do not want to pay for some lawyer from the city to drive out to the rural courthouse to represent them. They need trusted advisors they can form life-long professional relationships with. That could be you.

Not sure what area of practice is best for you? In small towns, many lawyers are generalists. They take a variety of cases and get experience in multiple areas. Eager to get inside a courtroom? You may get more opportunities in a small town than you would as an associate in the big city.

The economics can work as well. The cost of housing may be less than half of what you would find in a major city. Your mortgage could be so small that even with your law school debt you would have less overall debt than you would have living in the city.

I know, you could never give up the city. You would miss the theater, even though you only go once or twice a year. Where would you shop? (Although you do most of your shopping online nowadays.) A small town only has one movie theater! (Of course, you stream most of the movies you see through Netflix.) These fears of cultural isolation may be just that — fears. The lawyer I met with told me that she and her colleagues are simply more intentional about going to the city for entertainment and probably do so more than city-folk. Many people in the city think nothing of traveling three hours each way in the summer to go up to the family cabin; rural residents just do a “reverse commute” to attend sporting events, concerts, and other big city attractions. I have a client who lives 2½ hours from Minneapolis and has seasons tickets to the Minnesota Twins.

Granted, there are some impediments. If you are single, it may be harder to find a mate in a smaller community. Even if you are married, your spouse may not be able to find suitable work in the same area.  But rural lawyers love to tell you how nice it is to raise children in a small town, where they can ride their bikes to every friend’s house and you know the parents of all of their playmates.

Quite frankly, rural lawyers probably do not want you to just show up for two or three years and then pack your bags and go back to the city. But there is always the possibility that once you get out to the country, you might like it and stay. There is risk in any venture, whether it is joining a big firm or starting your own practice. In tough economic times like these, some new lawyers may want to open their minds to a different type of risk and go west — or north, or south, or east — to find a job beyond their urban dreams.

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I met with a lawyer a couple of weeks ago in a small town about two hours outside of the Twin Cities. Our conversation turned to operating a law firm in a small town and the lawyer told me two things I probably knew but did not really appreciate. One was a complaint about how difficult it is to attract new lawyers to join law firms in rural areas. The other was the lawyer’s prediction that in the next ten years, half the lawyers in her quarter of the state were going to retire from the practice of law.

RelatedNew Graduate taking over an existing [rural] law firm

That prediction probably is not unique to Minnesota. New lawyers unable to find a job in a major American city may want to broaden their job searches beyond their local beltways.

There are many benefits to practicing in a smaller community. First off, there is plenty of work to do. All those farms you pass as you drive that two-lane road into the country? That farmland is worth several thousand dollars an acre in many areas. Those farm families need estate plans, contracts, and business advice. There are teachers, small business owners, bankers, and other professionals as well. The folk in small towns sometimes get divorced, commit the occasional DWI, and get in car accidents. They need local lawyers and they do not want to pay for some lawyer from the city to drive out to the rural courthouse to represent them. They need trusted advisors they can form life-long professional relationships with. That could be you.

Not sure what area of practice is best for you? In small towns, many lawyers are generalists. They take a variety of cases and get experience in multiple areas. Eager to get inside a courtroom? You may get more opportunities in a small town than you would as an associate in the big city.

The economics can work as well. The cost of housing may be less than half of what you would find in a major city. Your mortgage could be so small that even with your law school debt you would have less overall debt than you would have living in the city.

I know, you could never give up the city. You would miss the theater, even though you only go once or twice a year. Where would you shop? (Although you do most of your shopping online nowadays.) A small town only has one movie theater! (Of course, you stream most of the movies you see through Netflix.) These fears of cultural isolation may be just that — fears. The lawyer I met with told me that she and her colleagues are simply more intentional about going to the city for entertainment and probably do so more than city-folk. Many people in the city think nothing of traveling three hours each way in the summer to go up to the family cabin; rural residents just do a “reverse commute” to attend sporting events, concerts, and other big city attractions. I have a client who lives 2½ hours from Minneapolis and has seasons tickets to the Minnesota Twins.

Granted, there are some impediments. If you are single, it may be harder to find a mate in a smaller community. Even if you are married, your spouse may not be able to find suitable work in the same area.  But rural lawyers love to tell you how nice it is to raise children in a small town, where they can ride their bikes to every friend’s house and you know the parents of all of their playmates.

Quite frankly, rural lawyers probably do not want you to just show up for two or three years and then pack your bags and go back to the city. But there is always the possibility that once you get out to the country, you might like it and stay. There is risk in any venture, whether it is joining a big firm or starting your own practice. In tough economic times like these, some new lawyers may want to open their minds to a different type of risk and go west — or north, or south, or east — to find a job beyond their urban dreams.

This was originally published on September 7, 2010, but it seems equally relevant in 2014.

Featured image: “Main Street and Old Common Road sign in autumn” from Shutterstock.

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