The Business Side of Practicing Law
Finance, HR, and IT basics for lawyers and law firm managers.
Law Practice Management resources provide lawyers, law firm managers and legal professionals with information on practice management trends, marketing, client development, legal technology and finance. Whether you’re a solo practitioner or a managing partner at a national law firm, you’ll find law practice management and business resources to meet your day-to-day practice needs. Checklists, best practices, publications and continuing legal education programs provide up-to-date information and practical tips to help you better manage your law practice. From retainer agreements, information about bill collection and accounting to document management and file retention, the New York State Bar Association is helping you be a better lawyer and law firm manager.
Best Practices in Legal Management: A Comprehensive Guide (Includes forms on CD or a USB)
Approximately 90 law practice management experts were asked to submit what they considered best practices for managing all "back office" functions of a law firm. The result is a comprehensive text which provides practical tips and best practices as well as useful forms and templates. Best Practices in Legal Management | PN: 4131/ 2010/498 pages/ softbound
NYSBA Members $139 | Non-Members $179
ACCOUNTING, DOCUMENT MANAGEMENT, DAY-TO-DAY OPERATIONS
REtainers, Engagement Letters, Disengagement letters, Statement of Client Rights and Responsibilities
New Client/Matter Intake
Any client who is unhappy with a law firm’s representation is a potential plaintiff in a subsequent legal malpractice action. Be sure to analyze a prospective new client and the potential matter prior to engagement, in an effort to minimize the risk of a future disciplinary action, legal malpractice action or fee dispute. Pursuant to Rule of Professional Conduct 1.1(b): “A lawyer shall not handle a legal matter that the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it.” Be sure the prospective client’s matter will not overburden the firm’s finances, time and staff resources. You may also want to perform a state and federal docket search to determine whether the prospective client has been involved in any legal malpractice actions or fee disputes.
Rule of Professional Conduct 1.7, Rule of Professional Conduct 1.9
Performing a conflict check prior to engagement will help prevent later claims of legal malpractice arising from an alleged conflict of interest. Get as many facts as possible regarding the potential parties to the matter to be sure that you do not have any conflicts of interest with any other parties or potential parties should a litigation matter result in third-party claims, counterclaims or cross-claims. Utilize a conflict checking software program to ensure that engagement is proper.
It is good practice to create and maintain the following file opening procedures:
* Prepare a file-opening form.
* Establish procedures so that a file/billing number cannot be assigned without first performing a conflicts check.
* Update file-opening forms when new parties are added to a matter.
Utilize conflict checking software which searches all active, inactive and closed matters for potential conflicts. Conflict checking software is only as good as the information that is inputted into the system. Be sure that all relevant client information is entered into the system, updated and adequately backed up in the event of system failure.
Engagement Letters/Part 1215 Requirement
Engagement letters confirm the scope of representation and set forth the parties’ responsibilities, billing rates/contingency agreements and expense costs. Engagement letters discuss the scope of the firm’s representation and the limits of it. A simple litigation matter can become quite complicated if a party files for bankruptcy, takes an appeal, enters receivership, becomes subject to a guardianship situation or dies. Make sure that the prospective client understands the exact scope of the firm’s representation. The retainer agreement should memorialize the bounds of the firm’s actual representation. If the law firm has no intention of pursuing appeals on behalf of its client, then it must explicitly state that appeals are not part the firm’s representation, unless a separate retainer is executed.
Title 22 Part 1215 of the Official Compilations of Codes, entitled “Written Letter of Engagement” mandates that attorneys provide their clients with engagement letters. Part 1215.1 states:
a. Effective March 4, 2002, an attorney who undertakes to represent a client and enters into an arrangement for, charges or collects any fee from a client shall provide to the client a written letter of engagement before commencing the representation, or within a reasonable time thereafter (i) if otherwise
impracticable or (ii) if the scope of services to be provided cannot be determined at the time of the commencement of representation. For purposes of this rule, where an entity (such as an insurance carrier) engages an attorney to represent a third party, the term “client” shall mean the entity that engages the attorney. Where there is a significant change in the scope of services or the fee to be charged, an updated letter of engagement shall be provided to the client.
b. The letter of engagement shall address the following matters:
1. Explanation of the scope of the legal services to be provided;
2. Explanation of attorney’s fees to be charged, expenses and billing practices; and, where applicable, shall provide that the client may have a right to arbitrate fee disputes under Part 137 of the Rules of the Chief Administrator.
c. Instead of providing the client with a written letter of engagement, an attorney may comply with the provisions of subdivision (a) by entering into a signed written retainer agreement with the client, before or within a reasonable time after commencing the representation, provided that the agreement addresses the matters set forth in subdivision (b).
The engagement letter must: 1) explain the scope of the legal services to be provided; 2) explain the attorney’s fees to be charged, expenses and billing practices; and 3) where applicable, provide that the client may have a right to arbitrate fee disputes under Part 137 of the Judiciary Rules.
Part 1215 has exceptions. Engagement letters are not required in the following situations: 1) where the fee to be charged is expected to be less than $3,000; 2) where the attorney’s services are of the same general kind as previously rendered to and paid for by the client; 3) when representing a client in a domestic relations matter subject to Part 1400; or 4) where the attorney is admitted to practice in another jurisdiction and maintains no office in the State of New York, or where no material portion of the services are to be rendered in New York.
New Requirement for Retainer Agreements - 2014
All four of the Appellate Divisions recently adopted a new rule governing contingent fees in claims and actions for personal injury and wrongful death. The new rule is mandatory. The rules for the respective Appellate Divisions are: First Judicial Department (22 N.Y.C.R.R. Section 603.7[e]); Second Judicial Department (22 N.Y.C.R.R. Section 691.20[e]); Third Judicial Department (22 N.Y.C.R.R. Section 806.13[c]); and Fourth Judicial Department (22 N.Y.C.R.R. Section 1022.31[c]). Lawyers should be aware that the language varies slightly among the different Judicial Departments. Please note, these changes do NOT apply to medical malpractice cases, which are NOT subject to the new rules and must be handled in accordance with NYS Judiciary Law 474-a.
To minimize risk a firm should send a non-engagement letter when it decides not to accept a client. A non-engagement letter should be direct, concise and in plain English, and it should explicitly inform the prospective client that the law firm will not accept retention. It is highly advisable to send such letters via certified mail, return receipt requested, such that evidence exists in the event a statute of limitations issue later arises.
When a matter or transaction has concluded, send a letter to the client advising that the attorney-client relationship has terminated. Disengagement letters are best delivered via certified mail. Sending a disengagement letter is an effective risk prevention tool, as it provides a concrete date for purposes of statute of limitations defenses in the event of a later legal malpractice claim. Disengagement letters may act to curtail any later tolling arguments of a continuous representation.
Sample Letter of Engagement
Statement of Client Rights and Responsibilities
Purchase Laminated Statement of Clients Rights and Responsibilities
Docket and Calendar Management
Approximately twenty-five percent of legal malpractice claims result from calendaring issues, such as failure to know a deadline, failure to timely file, failure to record in a calendar or failure to respond to a calendar reminder. A law firm should use calendaring for all projects, events and deadlines. To prevent delays and missed deadlines, supervisory attorneys should perform a workload analysis of subordinate attorneys on a frequent basis. The use of a central department to monitor individual supervision will assist in the monitoring of important dates. For more information about the New York State Bar Association's Affinity Partnership with CLIO visit Clio. NYSBA members receive a 10% lifetime discount; newly admitted attorneys receive a one-year FREE period. Click here to learn more.
Billing Systems and Controls
A law firm should send clients bills frequently and in accordance with the terms of engagement letters. Clients are more likely to feel that their matters are being actively managed. Articles of interest on billing are posted below.
Converting Hours Worked into Dollars Received: How to Get the Bills Out and Receivables Collected by Joel A. Rose
Nine Essential Billing and Collection Skills for Lawyers by Joel A. Rose
For CLE programs on Alternative Fee Arrangements and Billing, click here.
Attorney Escrow Accounts - What You Need to Know about IOLA
Attorney Escrow Accounts - Your "must have" book
Attorney Escrow Accounts comprehensively covers the most common situations where attorneys handle client funds and discusses the legal and ethics issues encountered in handling clients’ funds. The Third Edition provides an expanded discussion of related issues and updated case and statutory law, as well as a more comprehensive appendix featuring relevant statutes, rules and ethics opinions.
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Document Management and File Retention
There are tens of thousands of boxes of closed client files
sitting around in warehouses, storage buildings, spare offices and, believe it
or not, probably garages. Some firms
spend thousands of dollars on closed file storage. While
many firms are starting to move towards paperless office environments, many
attorneys are asking about what to do with their banker boxes full of closed
files. “How long do I have to keep my closed files?” is one of the most
frequent questions sent to the “Ask LPM” email box. Rule 1.15(d) of the New York Rules of Professional Conduct outlines bookkeeping requirements.
Rule 1.15(d) of the New York Rules of Professional Conduct:
(d) Required Bookkeeping Records.
(1) A lawyer shall maintain for seven years after
the events that they record:
(i) the records of all deposits in and withdrawals
from the accounts specified in Rule 1.15(b) and of any other bank account that concerns
or affects the lawyer’s practice of law; these records shall specifically
identify the date, source and description of each item deposited, as well as
the date, payee and purpose of each withdrawal or disbursement;
(ii) a record for special accounts, showing the
source of all funds deposited in such accounts, the names of all persons for
whom the funds are or were held, the amount of such funds, the description and
amounts, and the names of all persons to whom such funds were disbursed;
(iii) copies of all retainer and compensation
agreements with clients;
(iv) copies of all statements to clients or other
persons showing the disbursement of funds to them or on their behalf;
(v) copies of all bills rendered to clients;
(vi) copies of all records showing payments to
lawyers, investigators or other persons, not in the lawyer’s regular employ,
for services rendered or performed;
(vii) copies of all retainer and closing statements
filed with the Office of Court Administration; and
(viii) all checkbooks and check stubs, bank
statements, prenumbered canceled checks and duplicate deposit slips.
refer attorneys to consult Ethics Opinion
460 – 2/18/77 (12-77) - Preservation of Closed Files which describes the
circumstances under which lawyers may dispose of closed files. To quote from the opinion “What is required
of lawyers must for the most part be determined in the light of common sense
and certain general principles of considerably broader application.” The final paragraph of the opinion states
“Whenever possible, the client should be consulted concerning the disposition
of his files and encouraged to preserve them on his own. Lawyers are advocates and advisors. They are not warehousemen or perpetual
repositories for the files of their clients.
A good lawyer need not retain his clients by holding on to their files
and a poor one will soon learn that such tactics avail him nothing but
additional expense.” Ethics Opinion 623
should be reviewed when dissolving a law firm and procedures for disposing of
641 - 02/16/1993 (40-92) discusses disposition procedures and compliance
with recycling regulations. In many
communities there are recycling regulations.
“A lawyer who is subject to a recycling law must ensure that compliance
with that law does not entail violation of the lawyer's obligation to maintain
the confidentiality of client information.”
disposing of client files, it is important to remember the need to preserve
client confidences and secrets. If you
use a recycling or shredding company to dispose of paper, take extra care to
ensure that disposed documents are not reviewed by third parties. Similar steps should also be taken when
donating, recycling, or disposing of firm computers. Deleting an electronic file from a hard drive
does not mean that a record is destroyed in the same way that paper can be
destroyed. “Scrubbing” software should
Policies – Your Firm Should Have One
firm should have a file retention policy in place. A file retention policy is provides a
step-by-step outline of the processes and procedures on how firm files should
be closed, retained and destroyed. Links to sample file retention policies and
resources on document management are available at the links below:
ABA Legal Technology Resource Center Records Management/Document Retention Resources
Sample Document Retention policy from Prolegia
Management Resource Center Sample Closed File Check List
Tell Your Clients about Your File Retention Policy – Review Your
You should tell your clients about your file retention and destruction
policy when you are retained. You should
include your policy in your retainer agreement or engagement letter to set
expectations at the outset and clearly indicate that file destruction is
anticipated a certain number of years after the representation. This keeps everyone on the same page as to
what happens with the contents of the file while the matter is pending and
after the file is closed. For example your retainer can include the following
language: “The firm retains closed files for at least seven years after they
You should also include a reminder that copies of
all pleadings, correspondence and other documents will be provided to the
client during representation. The client is free to maintain a copy of the file
and keep it forever. For those firms
striving to go paperless, retainers sometimes note that most original
documents will be scanned and forwarded to clients as they arrive at the
office, and that the firm will keep only an electronic record of that document.
What You Should Keep for More than
always evaluate the statutes of limitation for legal malpractice cases; retain
these files for at least as long as anyone could conceivably make a claim in
connection with your work. Original
wills, client files involving minors or those under a disability, select real
estate files, family law matters for instance those involving matters relating
to future college or school tuition and expenses should be kept for more than 7
years. Disposing of
closed client files requires good judgment and common sense.
Article of Interest | Safe-Guarding Client Information: Basic Data Security Training for Lawyers by John R. McCarron, Jr., Esq.
more information, review the NY Rules of Professional Conduct, Ethics
Opinions 460, 623 and 641.
Ethics Opinions on Document Management, File Retention, Closed Files
New York Rules of Professional Conduct
Opinion 680 –
1/10/96(57-95)Opinion 724 -11/30/99
Digest: Lawyers may retain some records in the form of computer images, but
certain records must be retained in original form
lawyers comply with the mandatory record-retention provisions of the Code by
storing records in the form of computer-generated images or by other electronic
lawyer who drafts a client’s will should agree in advance whether the lawyer
will maintain the original will for safekeeping and, if so, what obligations the
lawyer will thereby assume. At least absent agreement to
the contrary, if the lawyer has maintained the client’s original will, after the
client’s death the lawyer must assure that the executor and/or beneficiaries are
aware of its existence, unless the lawyer knows of a later valid will. Absent
agreement, the lawyer has no obligation to take steps to learn of the client’s
death or to file the original will with an appropriate court. However, the lawyer should clarify in advance whether or not the lawyer
is to undertake these or other additional obligations and must comply with
whatever agreement is made.
Code: DR 2-103
(A), 4-101; EC 2-3, 4-6
Question: If a
lawyer keeps custody of a client’s original will, absent agreement does the
lawyer have an obligation to learn of the client’s death, to file the original
will with an appropriate court?
Digest: Procedures for disposing of closed files; partners’ ethical obligations
are joint and several
Code: DR 1-102
(A)(5), 4-101(B)(1), 4-101(D), 9-102(B), 9-102(D), 9-102(G); E-C 1-5, 4-4, 4-6,
7-1, 7-8, 7-11, 7-12.
procedures should a lawyer undertake when disposing of closed files and to what
extent are those procedures affected by dissolution of the lawyer’s
Opinion 460 – 2/18/77
Digest: Circumstances under which lawyers may
dispose of closed files
Code: EC 1-5, 4-6, 7-1, 7-8, 7-11, 7-12; DR 1-102 (5), 4-101
Question: Under what circumstances may a lawyer
properly dispose of closed files relating to his client?
DISASTER PLANNING AND EMERGENCY PREPAREDNESS
We have all witnessed in graphic detail scores of people and regions around the world devastated by unforeseen and wholly unpredictable events – natural disasters, fires, storms, floods and earthquakes, along with the specter of terror attacks or power outages. Law firm businesses cannot afford to take a “wait and see” attitude in this crucial business reality. In addition to the serious human toll of such events, the business implications are astounding and often crippling – potential loss of income and clients, malpractice liability exposure and worse.
Is your firm prepared?
Most law firms know they need a disaster recovery plan, but don’t have one. Maybe your firm has started its emergency planning procedures, but how can you be certain it is comprehensive or that you are not overlooking important functions, contingencies and considerations? Without an effective and customized plan, your firm is at risk. An action plan and checklist incorporating the best practices in emergency planning and disaster recovery for law firms is key. Click here to start your firm’s planning and to download a sample Disaster Recovery Template created by Barry Jackson, CPA, CLM. You can use this as a loose guide and specifically tailor it for your firm. There are much more sophisticated procedures out in the marketplace. This template is simply designed to start the process. A records disaster recovery program identifies and protects records encompassing vital files, documents (hard copy and electronic) and information necessary for a law firm to maintain business continuity in case of a disaster or emergency. Knowledge of the physical layout of your premises is critical to safe evacuation of personnel, retrieval of important documents and equipment, restoration of services, and planning to repair or rebuild. A detailed floor plan should be part of your disaster plan.
The New York State Bar Association Law Practice Management Department is
providing free access to an informational video on emergency preparedness
strategies for attorneys. Disaster Planning and Emergency Preparedness: Best Practices
for Solos can help you prepare for unforeseen crises that can
jeopardize your practice. Access to this video is available, free of charge. View the
program online at www.nysba.org/DisasterPlanningProgram. For
information about the recent Providing Legal Assistance to Persons Affected by
Superstorm Sandy - Free CLE Webcast visit www.nysba.org/SuperstormSandyCLEProgram.
View a direct link to the program at www.nysba.org/GuestPassSandyCLE.
MCLE Programs on Disaster Planning and Emergency Preparedness
Disaster Planning and Emergency Preparedness - Best Practices for Solo
LPM CLE Webcast/CLE Online, On demand Video
1.5 MCLE Credits | NYSBA Members - $50 | Non-Members -
Featuring Deborah A. Scalise, Esq., Scalise & Hamilton LLP,
An unforeseen crisis can be difficult to manage and
can jeopardize your law practice. Planning ahead is essential to providing
competent representation and preventing disciplinary problems. Most law firms
know they need a disaster recovery plan, but don’t have one. Maybe your firm has
started its emergency planning procedures, but how can you be certain it is
comprehensive or that you are not overlooking important functions, contingencies
and considerations? Without an effective and customized plan, your firm is at
This program covers:
Law Practice Continuity - Learn how to prepare for
retirement, disability or other planned or unplanned interruptions in the
practice of law
Ethical Risks – Don't risk your good standing
status by neglecting to plan ahead
Preparedness Manuals, Action Plans and Checklists - Best
practices in emergency planning and disaster recovery for law firms
Physical Facilities: Knowledge of the physical layout of your
premises is critical to safe evacuation of personnel, retrieval of important
documents and equipment, restoration of services, and planning to repair or
Records Protection, Retention and Storage: A records disaster
recovery program identifies and protects records encompassing vital files,
documents (hard copy and electronic) and information necessary for a law firm to
maintain business continuity in case of a disaster or emergency.
View an outline from the program | Disaster Planning and Emergency Preparedness for Solo and Small
Firm Practitioners by Deborah Scalise, Esq.
NYSBA's Legal Resource Guide features comprehensive information on products, companies and vendors that may be of interest to attorneys in New York.
Enhance the efficiency and lower the cost of your practice with special
discount programs for NYSBA members. From insurance and financial services to
discounted office products, your NYSBA membership gets you dramatic savings on
important services every practice needs. Save time and money with members-only programs like group health
insurance from MVP, financial services from Bank of America, free legal
research, discounts on CLE of more than 30%, practice management software,
hardware and resources, and much more.
HUMAN RESOURCES AND HIRING STAFF
The following programs on human resource compliance and hiring staff provide insights to growing your firm and managing staff.
Hiring and Managing Staff - The Lawyer as an Employer (2014) | 2.0 MCLE Credits | Featuring Nancy B. Schess, Esq.
This program will provide an overview of human resource compliance. Geared toward solo and small firm practitioners, this comprehensive program will address hiring and managing staff.
Basic Human Resources for Solo and Small Firms | 1.5 MCLE Credits | Featuring Nancy B. Schess, Esq.
This program provides an overview of human resource compliance. Geared towards solo and small firm practitioners, this program covers the basics of staffing, hiring and firing.
Growing Your Firm - Partnership Agreements 101 - "Bringing on Lateral Partners | Partnership
Agreements 101" | 1.5 MCLE Credits
This program provides an overview of model law firm
partnership agreements. Panelists will share tips on growing your firm and
bringing on lateral partners.
Growing Your Firm Part Two - “Growing Your Practice or Corporate Legal Department" | 1.5 MCLE Credits
This program provides an overview of "of counsel" arrangements
and recent developments concerning "virtual law firms." Panelists will share
tips on growing your firm. Topics include
How to Increase Profits by
Accepting New Business outside Your Core Expertise
How to Become a Full Service
General Practice Firm without Adding Attorneys
For Small & Midsized
Corporations -- How to Afford Your Own General Counsel or Chief Compliance
Article of Interest | Contract Attorneys: How A Small Firm Can Reap Huge Benefits by Cynthia Feathers and Craig S. Brown