A. Though there is nothing unethical about charging for the time you actually spend on a case, the billable hour can strain our attorney-client relationships with every tick of the clock. By breaking our lives into six minute increments, we have created a system that turns inefficiency into profit, and penalizes those who strive to expedite the resolution of cases or do anything to streamline their work. This has led to an erosion of trust in our profession that may tarnish even the most favorable results.

The Rules of Professional Conduct offer little guidance. Other than telling us that an “attorney shall not make an agreement for, charge, or collect an unreasonable fee,” the rules don’t require us to devise fee arrangements that bring the interests of attorney and client into better alignment.

Maybe we should stop the clock and take the time to consider some alternatives to the billable hour.

In the following article, we consider the pros and cons of various billing methods, as well as “alternative billing arrangements.” “AFAs,” as they have come to be known, take a wide variety of shapes and have been increasingly discussed in the insurance industry, where the ability to reduce and to control litigation expense has been a hot button issue for years. Although AFAs now have a familiar acronym, they haven’t been widely adopted in a profession that is slow to change.

Have you experimented with other ways to charge for the services you render to your clients? If so, please share your experience in the comments below so that we may all benefit from practical ideas to improve our billing methods.

A. As attorneys, we are trained to spot the issues in our cases, research the law, and apply the law to facts which may enable us to serve our clients’ best interests. We prefer to focus on what we perceive to be the “merits” of the case and regard our client’s digressions as time-consuming distractions.

But lawyers who limit their focus to narrow legal issues are only focused on one part of the job. We don’t represent “issues.” We represent people — people who bring their own emotions, fears, experiences and perspectives to each case.

A world-class oncologist who treats the tumor but neglects the patient is only doing half the job. The same is true of lawyers, whose bedside manner is often critical to successful outcomes, clear communications, fact-gathering and informed client decisions.

We are not just “attorneys at law,” but “counselors at law” as well. The value we bring to each client lies not only in our legal analysis and advocacy, but in our ability to listen to our clients, help them manage their emotions and get them to focus on the task at hand.

Our first and most important job is to listen. Without knowing the facts of her case, I cannot determine the extent to which her views may be justified. Rather than dismiss her concerns as a “racist rant,” I hope that you have fully investigated the facts and circumstances giving rise to her feelings.

Assuming that you have done so and do not believe that these facts will bolster her defense, there are two steps to getting your client to focus on the issues at hand:

1. Validate – clients confronting the legal system need to know that they are not alone. Even if you do not share her perspective, a little bit of empathy for your client’s anxieties and fears can go a long way to earning trust, reducing tension, and fostering a productive attorney-client relationship. Regardless of the merits of the case, it’s easy to understand a minority client’s fear that systemic racism may hurt her in court. Even though you’ve heard it all before, give your client some space to express her concerns so that she knows at least one person in our legal system who still has her back; and

2. Redirect – as her counsel, explain that you must both deal with life on life’s terms. Without debating her perspectives, you may speak from your own experience about how the legal system will respond to the facts of the case and the evidence the State will present against her. Though your client may have opportunities to reform the system down the road, let her know that, at present, you need her help in constructing an effective defense.

Just as your client must deal with the realities of her case, you must deal with the realities of your client. Attempting to shut her down and stifle these remarks won’t make them go away — it may even give her the feeling, however misguided, that the “white woman” she hired is part of the problem.

A. Like lawyers themselves, our profession places a low priority on wellness and mental health in general.

In a field where the “client comes first,” many of us frown upon the concept of “work-life balance.” Rewarded for the number of hours we spend at the office, attorneys often take professional pride in sacrificing their personal lives to champion the rights of others. Rather than concede “weakness” by asking for help, we project ourselves as pillars of strength, maintaining a professional façade even as life crumbles beneath us.

We may “love the law,” but does the law love us back? Most states budget millions per year to prosecute lawyers, but little, if anything, on alternatives to discipline that may save lawyers in crisis. Rather than look out for one another, we are told to report on each other. While some offenses may require a report to “the appropriate professional authority,” our Rules of Professional Conduct say nothing of our need to refer colleagues for appropriate professional help.

If we really care about our clients, we must take better care of the professionals sworn to serve them. In my own state, where their prosecutor has the sole power to approve ad hoc “diversion agreements,” I have proposed a more structured program composed of:

➤ Remedial Education – practical courses and hands-on instruction covering problems which may prompt discipline, and teaching lessons that reprimands and other sanctions cannot;

➤ Addiction and Crisis Intervention – as part of a comprehensive diversion program, existing Lawyer Assistance Programs can reach more lawyers, save more lives and provide key strategies for coping with the pressures of a stressful occupation;

➤ Mentorship – a volunteer network of attorneys and accountants to mentor and to monitor lawyers on practice management, retainers, billing, trust account management and other practical tasks; and

➤ Community Service – a pro bono component letting lawyers “work off ” potential sanctions and further enhance the public’s access to justice.

As the article below indicates, I believe that a more organized approach to intervention can improve the quality of law practice by improving the quality of life for those who practice law:

A. You can—if you wish to trade one problem for a more significant problem.

There’s no law saying you have to open a trust account if you don’t receive funds that must be deposited into one. If you don’t take retainers, take settlement checks or hold third-party funds, you may not need one at all. You could always bill clients after the work has already been done so that the money can go directly into your operating account without any trust deposits of any kind.

That’s simple enough – as long as your clients actually pay the bill. You may not have the chore of trust account management. But you may have the chore of collecting. You will have clients who get sticker shock once they receive a bill from you and may refuse to pay all or part of it. Maybe they won’t have the funds when the bill comes due.

Retainers keep the attorney-client relationship in alignment, managing client expectations and setting things straight so you and your client can continue to smile as matters progress. Retainers are an excellent way of not only ensuring that you get paid, but it’s also an excellent client management device.

A lot of times a client will say, “it’s the principle of the thing! I want to sue! I need to collect this!” – and they don’t appreciate the true expense of litigation.

Wouldn’t you rather have that dollars-and-cents discussion up front? And why not punctuate it by requesting a retainer sufficient to do the job?

Actions speak louder than words. Rather than postpone a tense discussion over litigation expense, if your fee agreement requires a substantial financial commitment up front, then the client has an understanding that if he or she wants to invest in that litigation, the client’s going to have to invest in that litigation up front.

Why should you take 100% of the risk, and risk never getting paid at all? Requesting retainers – taking those funds into trust – is not just a way of securing your fee. It’s a way of bringing the client to a true dollars-and-cents decision that will impact the course of the case and whether the client truly wants to pursue it.

If the client doesn’t have to pay any money up front, a lot of times a client will say, “sure, go for it” – not really appreciating the financial commitment that will be required. If you require that financial commitment up front, you may find a client who no longer thinks it’s about the “principle of the thing,” but about “principal and interest.”

Retainer’s work. And all you need to do to take them is to manage your trust account properly. Don’t forgo that device simply because you don’t think you’re capable of balancing your trust checkbook.

A. “Fundamental fairness” is a work in progress — progress that may only be achieved through vigilance in asserting the rights of accused lawyers.

In Maryland, Bar Counsel took the position that an October 1, 2021 rule revision divested respondents of any right to propound interrogatories, requests for production of documents, or requests for admission. Despite the accepted practice of such paper discovery in virtually all jurisdictions, this prosecutor reserved these tools for herself alone and refused to answer those propounded by her adversary.

Unfortunately, the language that she drafted for the Court’s approval did precisely that. Unbeknownst to the Court of Appeals and to its Rules Committee, a rule that was supposed to “level the playing field” by expanding defense discovery had the opposite effect.

Since no one expected Maryland’s “top lawyer cop” to take such a draconian position, the Court never spotted what it would later see as an “inequity” in the revised rule.

In all candor, this disturbing language escaped my attention as well. As a member of the Rules Committee, I focused on the fact that Maryland Rule 19-726 would require the prosecutor to produce her investigative file and never imagined that the same provision would replace other forms of paper discovery.

I learned otherwise when Bar Counsel refused to answer my client’s interrogatories, document requests and requests for admission. Following Bar Counsel’s language, the trial court issued an order excusing her from answering the very same type of discovery that she propounded to us. Unwilling to tolerate the inequity created by the rule, I moved to stay the case at hand and asked the Court of Appeals to intervene.

The high court put the brakes on the underlying case, but may have set a state speed record for reversing a provision that it enacted only seven months before. Expediting a process that ordinarily takes months to complete, the Court revised this rule in a matter of weeks — holding two emergency meetings, ordering its Rules Committee to propose new language immediately, shortening a 30-day public comment period to one week, and ordering that the new provision take effect immediately on May 11, 2022. [See Videos and Materials below].

Restoring an accused lawyer’s right to discovery, the Court leveled the playing field to give both sides the right to propound interrogatories, document requests and requests for admissions. The Rule isn’t perfect. But it was reassuring that the Court cared enough about the rights of accused lawyers to take urgent action.

This disturbing episode illustrates the danger of relying upon a single stakeholder. Rather than defer to an official whose interests conflict with those she prosecutes, committees must account for everyone’s interests in an evenhanded manner. To preserve due process in this or in any other system, all interests must be considered and everyone involved must exercise vigilance in the administration of justice.

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A. Yes. And there are lots of excellent programs to choose from.

Just run a search of legal practice management software, and you will find hundreds of reviews online. Some of these programs reside on your office computer system, others in the cloud, and most function on both for speed and security.

The right one for you will depend on the size of your law firm, the nature of your practice, the overall cost of implementing it, and a range of personal preferences – maybe even some of the preferences of your IT consultant who may be assisting you with support and implementation.

There are two basic types of software you’re going to want to look at: (1) billing and accounting software; and (2) case or practice management software.

Some of the more popular programs actually do both. They can help you with billing, bookkeeping, but also in managing cases and your time and your communications and the like.

Accounting Software

These programs help you keep track of your time and expenses, issue bills, manage your trust and operating accounts. Many include components that will process your payroll. There are programs, especially designed for law firms like PCLaw and Timeslips. But many firms have customized QuickBooks to meet their needs.

I use PCLaw. It’s a program I’ve been using for over 20 years. It prints our checks, prints out the bills, keeps track of all financial transactions at our firm, and can generate ledgers and reports on all aspects of our operation. There may be better programs out there now, but of course, I stick with what works for me.

If I were adopting a new system, I would review what’s out there now. There weren’t as many programs on the market when I created my firm back in the 1990s.

Let me also give an honorable mention to a program called Nota. This is a product of M&T Bank to assist law firms who maintain their trust accounts there. I’ve actually seen a demo of the program, and I’m quite impressed with some of the online trust banking features that they provide their depositors. It’s not going to replace the need for your own software. But it is an excellent tool nonetheless, and can really help you in keeping track of your trust account.

Practice Management Programs

This group includes software like Clio, MyCase, Abacus Next, Amicus, Practice Panther. These are programs that can really simplify your life, helping you keep track of your cases, communications, document assembly, and many have components to handle accounting needs as well.

I happen to use Amicus, which is also a program that I started with over 20 years ago. But there’s a lot more on the market today.

You’ll also want to tweak the programs to practice the way you do, perhaps loading your templates so that they can assist with document assembly. No matter what you pick, you need to be prepared to invest time and money into its implementation.

There is a learning curve. But within a very short time, I promise you that this investment is going to save you enormous time, enhance the efficiency of your practice, help prevent things from falling through the cracks that can lead to problems and increase your bottom line.

That’s going to minimize the amount of support staff you need to have or, at least in my case, it’s allowed my support staff to do things that go well beyond some of the rote tasks that are taken care of by the software.

So the investment of time, the investment of money has been well worth it because it’s saved us time. It’s saved us money. It’s increased our profitability. It’s increased the quality of life for everybody that works at our firm.

I can’t speak more highly of the need to invest and get-with-the-program – with the right program to assist in practice management.

A. Perhaps. But Bar Counsel may not share your sense of humor.

That’s what one lawyer learned when he retaliated against fellow prosecutors who egged him on for his strange aversion to hard-boiled eggs. Gagging at the smell of eggs strategically placed within a box of his files, Deputy Attorney General Adam Gelof was greeted with laughter from coworkers who shared a workroom within a Delaware courthouse.

Not to be outdone, this lawyer enlisted the aid of the Court’s chief security officer. Despite his reluctance to do so, the security chief ultimately agreed to help Gelof return the favor. Drawing his gun, Delbert Garrison pointed it at Gelof’s rival prankster, and warned him to “keep the eggs away from the files.”

Gelof’s coworkers found it funny. The Court’s administrative judge did not. Nor did the Delaware Supreme Court. Finding that Gelof acted intentionally, knowingly, and recklessly in goading Garrison to brandish his firearm, the Court believed that a seasoned prosecutor should have placed safety above the frivolity of a dangerous prank. It didn’t help that this particular court experienced a real shooting only months before.

Rule 3.5 of the Rules of Professional Conduct prohibits attorneys from engaging in “conduct intended to disrupt a tribunal.” By misusing the Court’s personnel to stage this prank, this disruption also amounted to “conduct that is prejudicial to the administration of justice” in violation of Rule 8.4(d). Because these violations placed his colleagues and others at risk for injury or even death, the Court suspended this lawyer from the practice of law for 30 days.

The punch line? Practical jokes can have practical consequences.

Citation: In re Gelof (2016).