“In-house counsel, they have it so easy”

Almost a year ago, I closed my private practice and accepted a position as in-house counsel. It was an intriguing challenge: I had acted as a kind of "outsourced" in-house counsel to a number of companies, and I now had the opportunity to do that work full time. I was swapping all of my clients for one, and giving up being my own boss in exchange for having one (accompanied by a regular paycheque and a number of extra benefits).

I don’t regret the decision at all. It’s been a fascinating challenge, and I’m relishing all of the new opportunities. Notwithstanding that, there were a number of things to which I needed to get (re-)accustomed. I now had co-workers (I had run my own office – solo – for the past 7 years). There were technology protocols and procedures (I had drafted, implemented and ignored my own for most of the previous decade), and there were meetings. Lots. And lots. Of meetings.

At first, the time spent as in-house counsel (in my case) was on reading and familiarizing myself with a lot of the policies and procedures that had been drafted and implemented here since the company was founded. Like many new, small companies, this one had taken a stab at drafting policies. They then hired a consulting firm to draft a number of them and oversee their implementation. My new role consisted (in part) of revising and updating them.

Suffice to say the word "boilerplate" kept reverberating in my head.

Small companies pride themselves – rightly – on eschewing institutional, nameless/faceless policies in favour of ones that are more flexible, more adaptable, and more personalized. The problem lies in ensuring that those policies (which have been flexed, adapted and personalized, over and over again) are applied in a uniform fashion, and that they comply with existing legislation. Another problem lies in explaining why uniformity and legality are critical benchmarks to people unfamiliar with such lawyer-inspired encumbrances.

Case in point: we rent living quarters for our employees who work on isolated (and not-so-isolated) job sites. For awhile, these arrangements were, to be charitable, "informal". Ensuring that proper leases were in place became a bit of a hobby-horse of mine. Resisting my legalese nonsense became a bit of a hobby-horse of some of our living-quarter-procuring staff. In the end, we agreed on a suitable compromise that saw that my (and the company’s) needs were met and that their jobs were not made more difficult.

The point being: not only are you now the legal adviser (accustomed to providing advice and letting the client decide whether to follow it), you are now the legal adviser who is tasked with providing the advice, ensuring compliance with said advice, and all the while remaining mindful of your place in a much larger team. The team dynamic is not one that is regularly touted at law school (or in solo practice).

The "ensuring compliance" aspect can also prove challenging. As outside counsel, it’s easy to advise in writing, strongly urge compliance, and then let the chips fall where they may. You’re convinced of the soundness of your advice. You’ve provided it in writing, and in a timely manner. You’ve strongly recommended that your client adopt a course of action. You have that warm, secure feeling of your backside being properly covered.

However, now that you’re "part of the team", compliance takes on a much more challenging role. Compliance now becomes subject to budgetary constraints, senior management (and, sometimes, Board of Directors) approval, and implementation protocols. It’s no longer merely an offered opinion; it’s now an "Action Item" (along with a few other, choice, MBA-inspired terms).

As in-house counsel, you gain a better perspective on the frustration of a client who questions the feasibility of a lawyer’s advice. You gain a certain sympathy for the client who resists a legal strategy, thinking it too convoluted, too costly to implement, unrealistic. If only those lawyers spent some time in industry, you begin to think, perhaps they’d appreciate the true difficulty of what it is they’re suggesting.

"Outside counsel", you find yourself musing, "they have it so easy".

New & Improved! For a limited time only!

One issue that comes up when you’re starting (or developing) your own practice is the question of how – or indeed, whether – to advertise. We’ve all seen our American colleagues’ ads on television (and laughed, or groaned, or gasped), and everyone always checks out their own colleagues’ ads in the Yellow Pages every time the new book comes out. But how do you decide what it is that you’re going to do when it comes to letting the public know that you have an office and would be more than happy to have them come and see it?

Our governing bodies have rules and/or guidelines specifying what we can and cannot do when it comes to advertising. Some find these a bit restrictive. Some, myself included, find these to be perfectly appropriate and a welcome guard rail against some of the excesses that we’ve all seen elsewhere (my all-time "favourite" still being Jim "The Hammer" Shapiro from Rochester, NY; if you’ve not yet seen his contribution to the legal services adverting compendium, I highly recommend checking it out).

So what to do? How much to spend? Where to spend it?

There are pros and cons to advertising in your local telephone directory. Everyone should have (at the very least) a basic listing. The cost/benefit analysis to these directories is, however, somewhat mixed. I’ve spoken to a few lawyers who have taken out very large (and hugely expensive) ads in these directories and, for the most part, they say that the ads wind up paying for themselves. Some, however, have offered that the ads do little more than that, in the long run.

Web-based advertising is growing very quickly, and a lot of people are still intimidated by the technological aspect of this. Thankfully, a lot of the newer generation of lawyers are far more comfortable with new technology than some. A website is, now, an almost-indispensable place to start. However, when it comes to building and updating your web presence, that’s still unfamiliar territory to most lawyers. Thankfully, there are a great many professionals out there who can assist with the building and maintaining of a website.

However, a website (which only a few short years ago used to be the sign of a successful, established firm) is now merely a very basic starting point. Do you take advantage of social media? Should you? Do you write and maintain a blog? Should you?

Social media is a lot more than merely tweeting your latest 140-characters-or-less pearls of wisdom, or posting pictures and links on your Facebook page. It is very quickly becoming, like the website, another indispensable tool is getting your "presence" known to the public.

Here’s where it gets more detailed: what on Earth do you talk about?

Those of us who frequent Twitter and Facebook soon realize that the "noise" that’s out there can get quite loud. It would be very easy to get one’s message lost in the electronic din. However, by starting slowly, by maintaining a coherent – and, above all, consistent – message, then your electronic message will begin to be heard. Most importantly, the cost of maintaining a Twitter and Facebook presence is measured in time and effort alone: both services are free to use. There are also several web-based services (called "clients") that allow you to maintain multiple social media accounts simultaneously, and in one spot.

Here’s my own pearl of wisdom (in 140 characters or less): keep your work and personal accounts separate. If you want your office to have a Twitter account, create one for your office. If you’d like to have a Facebook page for your office, create one, but keep it office-specific. I doubt your clients want to see (and I doubt even more that you want your clients to see) your vacation and New Year’s Eve party photos, your sharing of jokes with old friends, and your pleas for assistance in Farmville. There’s "Private You", and there’s "Work You", and (online, at least), never shall the twain meet.

Twitter is a great place to start and maintain a conversation. Post a link to a news article that is related to your area of practice, then ask an open ended question. Discuss the ramifications of a recent court decision or legislative change by asking your "followers" what they think? The conversation can then take on a life of its own, increasing your web presence by increasing the likelihood that more people will follow you.

This is only a starting point. I haven’t even touched on topics like hashtags, retweets, trending topics or privacy issues, but know only that there is a multi-layered, and very inexpensive, way to get your name, your services, and your reputation communicated to the legal services consumer. It’s easy, it’s cost-effective, and it’s growing every day.

2 txt or not 2 txt

About five months ago, I gave up my private practice to accept a position as in-house counsel. It posed an interesting challenge, both logistically and professionally. Logistically in the sense that I now had an office full of furniture, files, equipment and knick-knacks that had to be either dispersed or stored, and professionally in that my new employer's industry (mining services) was almost completely foreign to me.

It turns out that both the logistic and professional challenges are proving a bit easier to manage than I had initially thought (which is certainly a relief). However, some new issues are arising in terms of drafting policies that cover the many legal issues facing a publicly-traded, multi-national corporation. Some of those issues are more banal than others, and it helps to get occasional direction from higher courts as to the direction the law is (or will be) taking.

Our Canadian Courts have their share of cases involving the workplace interfacing of employees and technology. Occasionally, however, our American neighbours take the lead in addressing certain issues.

Case in point: on June 17th, the United States Supreme Court (in the case of City of Ontario v. Quon), the court determined that the city of Ontario, California, did not violate the Fourth Amendment (search and seizure) rights of one of its police officers when it went through the contents of his cell phone's text messages. The Court attempted to limit its ruling because of what it perceived to be the ever-quickening pace of the evolution of technology.

I've read that this is the first time the Supreme Court has addressed a public employee's expectation of privacy in the workplace as it relates to text messaging. The City of Ontario had policies in place dealing with employee communications using city resources (in this case, a two-way alpha-numeric pager). While text messages were not specifically dealt with in the policy, the officers were told verbally that they had no "expectation of privacy" when using city resources, as the "pages" were considered by the City to be the same as e-mails, and therefore they could be the subject of an audit. They were also told that personal messages would be permitted, so long as any cost overruns were covered by the employee.

It turns out that Mr. Quon made an "excessive" number of messages on a number of occasions. The police department decided to conduct an audit of Mr. Quon's messages to determine whether the character limit of the City's subscription plan was insufficient for the City's needs, given the frequent over-limit charges.

When the City conducted its audit, it found that Mr. Quon sent 456 messages during work hours in one month, of which no more than 57 were work related. He also sent 80 messages during one single day at work; and on an average workday, he sent or received 28 messages, of which only 3 were apparently related to police business.

Well, it also turns out that Mr. Quon was having an affair with a co-worker. Mr. Quon was married at the time.

Arriving at the issue at hand, the question the Court had to address was whether the City's (initially innocuous) audit constituted a violation of Mr. Quon's expectation of privacy. The Supreme Court determined that it must proceed with great care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. It reasoned that "[r]apid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper [behaviour]. At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve."

So what should a prudent Canadian employer do?

Section 8 of our Charter of Rights and Freedoms doesn't have the same rigidity as the US Fourth Amendment. In any event, its application is limited to governments, and not private employers. Notwithstanding that (pardon the obscure constitutionally-related pun), employers generally have privacy legislation issues with which they are required to deal.

A prudent employer would have a clear policy on what is - and, more importantly, what is not - permitted while using company resources. Sending work-related text messages and e-mails to co-workers should obviously be acceptable. Setting clear guidelines as to how many "personal" e-mails could be considered acceptable could be a start, but would be a very fine line to have to draw.

A more well-rounded approach might be setting timelines and content rules for what can be sent, browsed or forwarded on company technology resources (i.e., limiting personal e-mails and browsing to lunch hours, and restricting the content to be browsed).

A good, solid warning system should also be spelled out to employees. Verbal warnings, followed by written warnings, followed by dismissals for cause always make for a more solid case to defend when facing a judge who may - or may not - be familiar with all of the new, creative technological means with which one can avoid work.

To Quote The Donald: “You’re Fired”

My experience in private practice – and from my conversations with other sole practitioners in smaller markets, it was a common one – was that it was, at times, a roller-coaster. Billings were often feast or famine. To compensate, lawyers can develop a thick skin when it comes to dealing with difficult clients. Our tolerance level went up just for the sake of regular billings.

Another experience that I occasionally enjoyed – and again, from my conversations with other sole practitioners, it was a not uncommon one – was that it was good to terminate the relationship when the client was more trouble than he or she was (or could ever be) worth.

Understand, this should not at all be related to the potential monetary value of either the client or the client’s file. This should be a purely sanity-driven exercise. Case in point: I had a client who was a successful entrepreneur. A totally self-made individual: driven, accomplished and, often, a complete bully. The client would think nothing of berating anyone who was perceived as having slighted them or impeded their wishes in any way. This had included a number of other lawyers in town, which was why the client eventually wound up knocking on my door.

Now, I’m no psychologist, and many lawyers have no lessons to take on narcissism, but there comes a time when one can only take so much. Having served as the occasional spear in the client’s arsenal, I was familiar with their tactics. Suffice to say that, after a few years, the repeated nature of the client’s demands and overall approach were beginning to grate.

I was faced with a dilemma. The client had a very successful business. I was an indirect beneficiary of this business’ growth, having been involved in many of its transactions and associated work over the previous few years. The client represented an attractive portion of my annual billings. However, contrary to the usual 80/20 rule (where 80% of one’s problems are caused by 20% of one’s clients), this client exceeded the usual expectations and had become more of a 95/5 rule.

In An Essay on Criticism, Alexander Pope wrote that "A little learning is a dangerous thing; drink deep, or taste not the Pierian spring: there shallow draughts intoxicate the brain, and drinking largely sobers us again." This client was the personification of Pope’s comment. As an example: the client thought themself a skilled author of the traditional demand letter. This was, to be charitable, not exactly the reality. In the client's opinion, if they drafted the letter and I "simply put it on my letterhead", then they would "save money".

No amount of explanation as to the nature of professional reputation or legal technicalities could persuade the client that this was an inappropriate way in which to proceed. In the end, I would usually take the gist of the client's suggestions, correct the grammar, structure and spelling, reword it so that it was at least moderately polite, and then issue the letter in question.

This was merely the tip of the proverbial iceberg. It was getting to the point where the client's practices and reputation were beginning to, in my own view anyway, have an effect on my own professional reputation. I was getting more mindful of an adage that a Provincial Court Judge had expressed to my Bar Admission Course in Alberta years ago: "Your reputation is like your virginity. Once it's lost, it's very difficult to get it back."

I had a choice to make. I could either continue to serve as the client's sword and shield (more often the former), or I could swallow the bitter pill of losing the billings and move on. I chose the pill.

The client made a feeble attempt to convince me to continue representing them (borne more, I think, out of a sense of hubris: of having been "fired" and not having done the "firing"), but they moved on to the next lawyer without much delay.

It was liberating. Far from being a case of losing a valuable client, it was an experience akin to taking a spectacularly-deserved vacation and returning more refreshed than ever imaginable. It was refreshing to speak to clients and not have a looming sense of dread. Yes, the phone was unusually quiet for a little while, but not for long. I was enjoying my practice again.

So, the moral of the story? Don’t be afraid to occasionally trim down the client list and cut out the clients that are far more trouble than they will ever be worth. There are a lot of lawyers out there, yes. But there will always be more clients than lawyers.

You can afford to be choosy. More to the point: you can’t afford not to be.

Printer/Scanner/Copier/Privacy Violator?

I was a sole practitioner for the last 7 years. Of the main office supply issues that continually crop up, chief among them are (1) paper, and (2) printer cartridges. Now, I'm fortunate in that I don't practice in an area that has huge demands for document production (I'm thinking primarily of the family law/real estate law domains, whose demands for paper keep the forestry industry alive). Nevertheless, I go through a fair amount of paper and cartridges.

Like most small offices, I engaged in the "ink jet vs. laser" debate a number of years ago and, like most small offices, the laser printer eventually won out. Cartridges were still a big issue, but the frequency with which I bought them seemed to diminish. Two years ago, I broke down and leased a digital photocopier. My practice had reached a point where it just made more economic sense to have something fast and cost-effective for copying, scanning and printing documents. I chose a copier with a built-in hard-drive so I could scan my documents to PDF (an enormous time- and money-saver for a moderate techie like me).

With the arrival of the Personal Information Protection and Electronic Documents Act ("PIPEDA"), lawyers have had to consider - in addition to the actual storing of client records for the requisite length of time - the method in which those documents are stored. Storage of the physical file and documents is a given, but electronic storage is also a good plan: ease of access, the ability to search for and build precedent documents - these all make sense in our current electronic age.

Many lawyers wouldn't think twice about securing their computerized documents. Firewalls, anti-virus software and various forms of data protection are ubiquitous. Sure, now that we've scanned all of those documents to our computers, they're safely inside our electronic fortress, right?

Not so fast. What about the digital photocopier?

Like the one in my office, most new digital photocopiers contain a built-in hard-drive. This drive holds add-ons for the copiers' operating system as well as the software used to convert the copied document to PDF and forward it along the network to either the office server or the lawyer's individual computer. What many lawyers may not realize is that it also keeps a copy of the document image. Forever.

I mentioned PIPEDA for a reason: businesses in Canada now have a requirement for a privacy policy. That policy needs to address how, where and why the business will retain clients' private information. The big question is whether that policy addresses what the business will do with the photocopier hard-drive once the lease is up. It should.

A recent CBS News investigation revealed that many used photocopiers are warehoused, cleaned up, and then resold without any effort on the part of either the previous leaseholder or the leasing company to remove the old images from the hard-drive. This raises a number of issues - specifically for lawyers - on the security of their clients' information.

The CBS News investigation found criminal records, medical records, birth certificates, drivers' licenses and electronic reams of private information. The most disturbing fact is that it didn't take sophisticated, expensive software to remove this information. The investigator working with the journalist obtained these documents with the aid of freeware, downloaded off of the internet.

So what's a poor sole practitioner to do? Firstly, a quick e-mail or letter to your photocopier provider would be a good idea. Ask them whether they have a date-wiping policy for old photocopiers and, if so, what is it and can they assure you that it will be used on your photocopier once the lease is up. Secondly, and probably more conveniently, ask whether they have an encryption program that can be uploaded to your photocopier. Encryption programs are readily available and rather inexpensive for the benefit they provide (usually several hundred dollars, but well worth the investment). These programs will digitally encrypt the images contained on your photocopier's hard-drive, rendering them (almost) impossible to view should the drive ever be accessed by a third party in the future.

We live in an age of electronic convenience: computers and their peripheral components have made our office work incredibly simpler and more efficient. However, with every advance in technology, there are always new questions and concerns to be raised. In the case of digital photocopiers, these new questions can be answered with an old adage: “better safe than sorry”.