The Practice of Law – An Overview

A. Introduction to Bar Association and Networking

The following points are suggested for a discussion about the organized bar and the advantages of being involved in bar association activities:

  1. Attend any meeting/event of an organized bar association together and introduce the new lawyer to other lawyers in attendance at the event.
  2. Give the new lawyer examples of local, state, specialty, and national bar associations and discuss the differences among them. Examples:
    1. Local: Denver Bar Association, Arapahoe County Bar Association, Mesa County Bar Association, etc.;
    2. State: Colorado Bar Association;
    3. National: American Bar Association;
    4. Specialty: National Organization of Bar Counsel, Federal Bar Association, Colorado Trial Lawyers Association, Colorado Defense Lawyers Association, Association of Corporate Counsel, American Inns of Court, and Colorado Lawyers Association;
    5. Affinity: Hispanic National Bar Association.
  3. Provide to the new lawyer brochures or website links to local, specialty or national associations so that the new lawyer can review information about each in his or her spare time.
  4. Share with the new lawyer the association(s) in which the mentor is a member, the reasons the mentor chose to be involved in the association(s), the activities the mentor is involved in at the association(s), and how involvement in the association(s) has benefited the mentor.
  5. Discuss with the new lawyer what differences exist between Section(s) or Committee(s) of particular associations. Is a particular association more well-regarded in a substantive area over others (i.e., would the local bar association or state bar association be more helpful to further the new lawyer’s particular interests)?
  6. Provide to the new lawyer examples of activities one can become involved in as a member of an association. Discuss specific reasons why one may want to be involved in those activities. Emphasize opportunities presented by New/Young Lawyer Divisions within bar associations, which often offer free membership to new attorneys and provide educational programming, resources and publications, and an entry point for getting involved in bar activities.

The following points are suggested to facilitate a discussion about networking within the legal community and, in particular, to introduce the new lawyer to one or more attorneys with similar interests:

  1. Discuss the new lawyer’s interests, including professional interests. What type of contact(s) would be appropriate and helpful for the new lawyer to have?
  2. Select at least one attorney colleague having interests similar to the new lawyer (preferably outside the firm if the new lawyer also practices in the same firm) and arrange for a coffee or lunch meeting to introduce the new attorney to your colleague/friend. What shared interests do they have? What advice would your colleague have for the new lawyer to open opportunities for the new lawyer in the shared area(s) of interest?
  3. Discuss with the new lawyer your own networking experiences and the ways in which networking has helped you professionally and personally.

B. Introduction to the Courthouse 

The following points are suggested to facilitate a discussion about the local courthouse(s) and court personnel.

  1. Discuss the local court rules or orders and how they impact your conduct. Discuss whether different judges have different views and interpretations of the local rules, and different courtroom practices. To the extent possible, share information in this regard about the preferences of the judges before whom the new lawyer is likely to appear.
  2. Go to the local courthouse(s), particularly those courts where the new lawyer will primarily be appearing, and, to the extent possible, introduce the new lawyer to members of the judiciary, court personnel, and clerks of the court.
  3. Show the new lawyer the location of the clerk’s office, explaining where to file pleadings, obtain certified copies of case documents, get journal entries, or search the docket. If the mentor has errands at court (which are non-privileged), invite the new lawyer to participate in those errands with the mentor. Ask the clerk to provide to the new lawyer his or her perspective on filing protocols such as cover sheets, number of copies, walking copies through to the judge, and the like.
  4. Ask the bailiff and/or court clerk to share with the new lawyer protocols such as whether lawyers are required to check in before a hearing, whether simple or uncontested matters are called ahead of the regular docket, how a lawyer should handle a situation where s/he is covering two cases scheduled at the same time, whether courtesy copies are expected and when, whether draft orders should be proposed with courtesy copies, and how far in advance of an appearance the judges receive the files.
  5. Introduce the new lawyer to the court’s reporters or the manager of the digital recording system and discuss the procedure for obtaining a transcript from them. If there are no reports provided by the court, discuss the necessity and procedure for privately obtaining a reporter.
  6. Ask the judges to whom you introduce the new lawyer to share any pointers they have for handling a case in front of them.
  7. Explain the roles of different court staff, including the clerks, the bailiffs, and the judge’s assistants. Discuss the appropriate demeanor with court personnel.
  8. Explain the protocol for meeting with a judge, such as how to get to a judge’s chambers, or who should be contacted to set up a meeting. Discuss examples of ex parte contact and how to avoid it.
  9. Discuss when it is appropriate to enter a courtroom that is in session.
  10. Discuss how a judge is customarily addressed in court, at formal functions and events, in social settings, or at the grocery store. Does this custom change depending upon how often you appear before the judge or the capacity in which you know the judge? For example, if you are a prosecutor and appear before the same judge/magistrate every day? Or if you don’t appear before the judge in court, but you are on a bar association taskforce with him or her resulting in frequent meetings together?
  11. Discuss the appropriate attire for lawyers in your local court(s). Discuss how you should advise your client to dress. Does your client’s dress depend upon the type of case being litigated? What if your client does not have the proper attire to appear in court?
  12. Discuss the importance of being on time for court and the expectations of individual judges in this regard.
  13. Discuss the appropriate demeanor with opposing counsel. How should you address opposing counsel? What if you know opposing counsel well because you often oppose each other in cases? Because you went to law school together? Because you are good friends? How should you react if opposing counsel has been underhanded or dishonest during your case? What types of recourse are there? Discuss tips that the mentor has for keeping calm during conversations with an opposing counsel who is conducting himself or herself unprofessionally, such as yelling at you, attacking you personally, or threatening you.
  14. Discuss courtroom technology that is available to trial lawyers such as overhead projectors, VCR/DVD players, microphones, computers, or internet. Provide contact information for or introduce the new lawyer to the court personnel who should be contacted when the new lawyer is interested in courtroom technology.
  15. Discuss protocols and advice for e-filing documents with Integrated Colorado Courts E-Filing System (ICCES) for most Colorado state courts and Electronic Case Filing (ECF) for Colorado federal courts.
  16. What is the appropriate demeanor with your clients both in and out of court? Discuss the importance of sensitivity towards your clients.
  17. Discuss the importance of associating with local counsel if you are handling a case outside your community. What are the advantages and disadvantages to doing so? How do you go about finding local counsel in another community with which to associate yourself?
  18. If you are acting as local counsel with an out-of-state/town lawyer, what is your relationship to each other and to the case? What do you do when the other counsel wants to completely control the litigation and your actions? What are the differences between federal and state courts?
  19. Discuss etiquette for speaking on and off the record.

C. Responsibility to Improve the Administration of Justice, Pro Bono Service, Access to Justice, and Civic Involvement 

The following points are suggested to facilitate a discussion about the lawyer’s responsibility to improve the administration of justice, pro bono opportunities, access to justice issues, and civic involvement.

  1. Discuss ABA, Colorado, and local aspirations for levels of pro bono service. Discuss pro bono goal-setting with the new lawyer.
  2. Discuss the broad definition of pro bono and civic involvements in Colorado to provide for participation by government attorneys and transactional attorneys (See Rule 6.1 CRPC).
  3. Discuss pro bono case and legal clinic opportunities in state court and in federal court, including:
    1. The Court Order Establishing Federal Pilot Project creating the civil case panel found at http://tinyurl.com/mmhy9ah.
    2. Metro Volunteer Lawyers found at http://www.metrovolunteerlawyers.org
    3. Civic Involvement Opportunities and Clinics for government attorneys and transactional attorneys at http://www.cobar.org/repository/Pro%20Bono%20Guidebook(2).pdf
  4. Explain that a lawyer’s performance of pro bono services and civic involvement encompasses not only the donation of time, but may also includes contributing financially to organizations delivering services to those of limited means.
  5. Discuss any pro bono cases or civic involvement activities in which you are involved. What led you to become involved in these matters? What have you gained from these experiences?
  6. Discuss the meaning of “access to justice.” What is the role of a lawyer in ensuring access to justice? What happens when litigants attempt to access the justice system without the guidance of an attorney? How do unrepresented pro se parties in the courtroom affect the efficient administration of justice?
  7. If the new lawyer works in the same firm/organization, discuss the firm’s pro bono policy. What hours count toward minimum billable, if applicable? Are there limits to what the firm will “count” toward an attorney’s annual hours? Who is the appropriate contact person to express interest in pro bono matters? See the Colorado Supreme Court Pro Bono Commitment programs at http://www.courts.state.co.us/Courts/Supreme_Court/Pro_Bono.cfm.
  8. Discuss how the new attorney might bring in a new pro bono matter as a new client for his/her organization. How would the attorney ensure a new client and matter were acceptable to the firm? What are the procedures for opening new client matters? What is the conflict procedure to ensure there are no conflicts in representing the new client?
  9. Explain that in state courts, attorneys may take on a case with a limited scope of representation or “unbundling” of legal services (See Rule 1.2(c) CRPC). Direct the lawyer to the ABA clearinghouse on unbundled legal services (http://apps.americanbar.org/legalservices/delivery/delunbund.html) for guidance on how unbundling works. There are additional issues to think about on the Make History site at: http://www.cobar.org/repository/Pro%20Bono%20Guidebook(2).pdf.
  10. If the new lawyer works in a public interest practice, talk about the issue of student loans and what impact repayment of these debts might have on the lawyer’s long-term public interest commitment. Direct the lawyer to loan repayment program resource developed by the ABA at http://tinyurl.com/mtjtuxy.

D. Law Office Management

The following points are intended to facilitate a discussion about the mentor’s law office, how it is managed, and where to locate resources for learning more information about law office management issues. This section is designed to address issues beyond those relevant to either the mentor’s or the new lawyer’s current employment.

  1. Explain how client files in the mentor’s office are managed and discuss the best practices for at least the following related issues:
    1. Time records;
    2. Records of client-related expenses;
    3. Billing system;
    4. Client retainer and/or payment schedules;
    5. Fee agreements, including ethical considerations surrounding agreements; examples of improper provisions in fee agreements; and the importance of using engagement, non-engagement and disengagement letters;
    6. Escrow and trust accounts, including establishing a COLTAF, the how-to of account/auditing, use of interest proceeds, and proper procedures for handling funds and other property belonging to a client. Information on COLTAF accounts can be found at: http://www.coltaf.org/;
    7. Filing and e-filing systems, including procedures for opening and closing files, procedures for conflict checking, creating a checklist for new files, the importance of preparing a case memorandum and case plan, how to document the progress on cases, organizing both the file contents and the office filing system, and file inventory and review procedures;
    8. Document retention plan, e-files, and back-ups;
    9. Calendar and other reminder systems;
    10. Information technology systems, including docketing software; and
    11. Methods of keeping clients informed about the progress of their matters.
  2. Discuss staff, resources, and other administrative issues in the mentor’s office, including the best practices for at least the following matters:
    1. Mail distribution procedures;
    2. Procedures for handling telephone calls, including when they should be returned;
    3. Procedures for handling email communications, including when email should be used or avoided in favor of other methods of contact;
    4. Considerations in purchasing office furniture and where it can be purchased;
    5. Library and research systems;
    6. Considerations in purchasing office equipment and the types which are essential and/or most helpful;
    7. Other resources (publications, seminars, equipment, and the like) that a new lawyer might find particularly helpful in his or her work;
    8. Personnel, including identifying employees who are needed to run the office efficiently and the advantages and disadvantages to hiring different types of employees (i.e., traditional, independent contractor, temporary);
    9. Employee selection, including interviewing techniques, background investigations, extending offers, and maintaining personnel files;
    10. Employment and discrimination laws of which an employer must be aware;
    11. Supervising staff, handling employee discipline and preventing the unauthorized practice of law and the unethical practice by associates; and
    12. Considerations in purchasing liability insurance.
  3. Share with the new lawyer ethical and professional marketing and business development techniques, effective rainmaking tools, and how to create a marketing plan for a firm.
  4. Review and discuss the following articles:
    1. Dan Pinnington & David Bilinsky, Implement Appropriate Internal Controls, Law Practice Today, April 2006, http://apps.americanbar.org/lpm/lpt/articles/fin04061.shtml;
    2. Reid F. Trautz, Practice Management Systems and Procedures: What They Don’t Teach You in Law School; and
    3. Allison C. Shields, How to Take Control of Your Practice by Creating Vision and Mission Statements, GP/Solo Law Trends & News Business Law, Feb. 2006 http://legalease.blogs.com/visionstatementslawtrends0602.pdf.

Resources:

American Bar Association Law Practice Management Section: http://www.americanbar.org/groups/law_practice_management.html.

American Bar Association Young Lawyers Division E-Library: http://www.americanbar.org/groups/young_lawyers/publications.html.

American Bar Association Lawyers’ Professional Liability, State List of Malpractice Insurance Coverage: http://apps.americanbar.org/legalservices/lpl/directory/.

CLE, Colorado, Inc. “Successful Business Planning in Serving Moderate Means Clients” http://cle.cobar.org/Seminars/eventinfo/sessionaltcd/GP111313V.aspx.

CLE Colorado, Inc. “Hanging Your Shingle,” http://cle.cobar.org/Seminars/EventInfo/sessionaltcd/LP081513L.aspx.

Colorado Supreme Court Office of Attorney Regulation Counsel Trust Account School at http://www.coloradosupremecourt.com/pdfs/Regulation/Trust%20Account%20Registration%20Form.pdf.

E. Time Management 

The following points are intended to facilitate a discussion about effective time management skills and techniques.

  1. Discuss ways to handle situations where the new lawyer becomes overloaded with work. If in an in-house relationship, discuss realistic expectations about the workload of new lawyers in your office and ways to cope with those expectations.
  2. Share with the new lawyer techniques you use which have proven successful in the management of your time.
  3. Together, work on a practical plan for managing the new lawyer’s time, including how to prioritize work, ways to refuse work without jeopardizing the new lawyer’s reputation or treatment by others, and ways to stay organized.

Resources:

ABA Young Lawyers Division, http://www.americanbar.org/groups/young_lawyers.html.

F. Client Communication

The following points are intended to facilitate a discussion about the importance of client communication and how to maintain good on-going communication, including the use of retention and fee agreements, keeping clients informed about matters, confirming matters in writing, and being on time.

  1. Share with the new lawyer a personal example of how failing to communicate clearly with a client can cause problems in a relationship. Conversely, share with the new lawyer an example of how communication with a client can prevent or resolve problems that could have ended the attorney-client relationship.
  2. Provide tips to the new lawyer on effective communication. Read and discuss the article: Stewart Levine, Essentials of Effective Communication, Law Practice Today, Feb. 2006, http://apps.americanbar.org/lpm/lpt/articles/mba03071.shtml.
  3. Share best practices for communicating with clients, including practices like the following:
    1. Sending copies of pleadings and correspondence to your clients;
    2. Keeping clients involved in making decisions in their cases;
    3. Returning calls personally and promptly; handling email effectively;
    4. Utilizing staff to provide exceptional customer service;
    5. Confirming instructions and/or advice in writing;
    6. Clarifying reasonable expectations about the representation;
    7. Clarifying your role and scope of the representation from the outset and as it changes;
    8. Explaining clearly the fee arrangement;
    9. Promptly providing detailed billing records to your clients;
    10. Being respectful to your clients in all communications;
    11. Respecting clients’ time; and
    12. Making sure your client understands the steps of the process, including what will happen next and the appropriate way to respond.
  4. Discuss ways that a new lawyer can improve his or her client relations skills.
  5. Discuss professional and ethical ways to thank a client and receive thanks/gifts from a client. Discuss the article: Wendy Werner, How to Thank a Client, Law Practice Today, June 2005, http://apps.americanbar.org/lpm/lpt/articles/mkt06051.html.
  6. Discuss different types of client relationships (e.g., individual clients, government clients, and corporate clients) and provide tips for the best and most professional communication practices with the type of clients that the new lawyer may have.
  7. Discuss how a lawyer clearly defines the scope of representation in a retainer or engagement letter.
  8. Discuss how to talk about fees with a client. Discuss how to set a fee with a client. Share with the new lawyer samples of fee agreements and engagement letters. Or, if mentoring in-house, share with the new lawyer the fee agreements and engagement letters which are used in your firm. Explain to the new lawyer why certain provisions are either included in your fee agreement or excluded from your fee agreement.
  9. Discuss when terminating the lawyer-client relationship is appropriate and suggest the best ways to proceed and document doing so.

Resources:

Managing the Lawyer/Client Relationship, PRACTICEPRO (Provides suggestions and checklists for communicating with your client) http://www.practicepro.ca/practice/pdf/Lawyer_Client.pdf.

Betty Adams, Client Communication and Contact, ABA GPSOLO Magazine,
http://tinyurl.com/l9ydoff.

G. Managing Client Expectations and Legal Counseling

The following points are provided to facilitate a discussion about proper legal counseling techniques and duties and responsibilities of advising clients.

  1. Discuss the different roles a lawyer plays with clients in advising them. Discuss the aspirational goals which encourage sharing with clients non-legal considerations for their informed decision-making. Discuss the importance of not delving into areas which are outside a lawyer’s expertise. Discuss how a lawyer balances these considerations.
  2. Provide examples of the types of decisions in the mentor’s practice in which s/he involves the client. Share tips on counseling the client for each of those decisions.
  3. Discuss the importance of being sensitive to emotional aspects of clients’ cases but not becoming emotionally involved in their matters. Discuss what you should do if you do become emotionally invested in your clients’ cases.
  4. Discuss the obligations a lawyer has in advising his or her clients. What does it mean to make sure clients are informed in their decision-making? What should you do if your client elects a course of action against your advice?
  5. Discuss the basic elements and techniques for counseling a client, including the following:
    1. Talking to the client about time, such as how long the case will take, what could delay it, or what the opposition could do to prolong it;
    2. Considering cost, what types of expenses should be expected, and how much the case could end up costing;
    3. Discussing the upsides and downsides of the case;
    4. Focusing the interview. How to outline what will happen during the meeting with the client and keep on track;
    5. Being a good listener;
    6. Advising fully on all relevant considerations or consequences to a course of action;
    7. Following up; and
    8. Informing the client of privilege issues when the client wants a third party involved during meetings.

H. Alternative Dispute Resolution

The following points are provided to facilitate a discussion about the types of alternative dispute resolution (such as mediation, binding and non-binding arbitration, high-low arbitration, early neutral evaluation, court-annexed arbitration, and summary jury trials) and the benefits and disadvantages of each.

  1. Discuss the aspiration to counsel clients on how to resolve disputes by alternative methods. Should an attorney try to influence his or her clients to pursue a method of alternative dispute resolution? Read and discuss the article: Arnie Herz, Lawyers as Everyday Peacemakers: Reframing the Attorney-Client Relationship for Optimal Conflict Resolution in the 21st Century and Beyond, http://tinyurl.com/kodkgkh.
  2. Describe situations where a client may be better served by avoiding litigation. Discuss the principles in the article: Stewart Levine, Resolutionary View: 10 Principles for Developing the Attitude of Resolution, Law Practice Today, Sept. 2006, http://apps.americanbar.org/lpm/lpt/articles/mba09061.shtml.
  3. Discuss the following types of alternative dispute resolution (among others you may think of), the types of cases for which those forms of ADR are typically used, and the advantages  and disadvantages of each:
    1. Mediation,
    2. Binding and non-binding arbitration,
    3. High-low arbitration,
    4. Early neutral evaluation,
    5. Court-annexed arbitration,
    6. Summary jury trials, and
    7. Private judges.
  4. Share with the new lawyer stories of your successes with ADR.
  5. Discuss when to consider ADR as a possible means for resolving a case (particularly in the new lawyer’s practice area) and how to talk to your client about it.
  6. Identify local resources for attorneys who would like to use ADR for resolving cases, including local ADR programs, court programs, and mediation or arbitration services. Are any of the courts in which the new lawyer practices requiring mediation or arbitration before proceeding to court? Discuss training opportunities and other resources for lawyers who are interested in becoming mediators or arbitrators.
  7. If applicable, discuss court rules regarding mandatory mediation or arbitration.

Resources:

ABA Section of Dispute Resolution, http://www.americanbar.org/groups/dispute_resolution.html.

ABA Section of Litigation Alternative Dispute Resolution Committee, http://apps.americanbar.org/litigation/committees/adr/home.html. 

I. ADR Observation and Discussion

The following points are provided to facilitate a discussion about the process of at least one type of ADR proceeding.

  1. Describe situations where a client may be better served by avoiding litigation, which alternative dispute resolution proceeding may be the preferred option, and why.
  2. Discuss when it may be appropriate to advise a client to include an ADR clause in agreements. Which type of ADR? What are the advantages? Disadvantages? What are considerations in drafting such clauses?
  3. Discuss what different types of ADR you have experienced (such as facilitative, evaluative, or transformative mediation) and the advantages or disadvantages of each.
  4. Invite the new lawyer to observe a mediation or other ADR proceeding.
  5. If you have represented a client in mediation or other ADR, discuss your preparation and strategy with the new lawyer. How do you prepare a client? How do you prepare for a proceeding, and in what ways, if any, did it differ from your preparation strategy for litigation?
  6. Share your reflections on previous ADR experiences with your new lawyer.
  7. Discuss your process for selecting a mediator or arbitrator. What qualities do you and your colleagues look for in determining the best fit? As a reference, it may be helpful to consult the websites of JAMS, JAG, AAA, USAM or others to review mediator biographies with the new lawyer.
  8. If the new lawyer is interested in learning more about the mediation process or becoming trained as a mediator, inquire about upcoming mediation skills trainings or CLE offerings on mediation and related topics. In addition, area law schools and continuing education programs may be good resources for mediation introductory programs and skills training.

Resources:

ABA Section of Dispute Resolution, http://www.americanbar.org/groups/dispute_resolution.html.

ABA Section of Litigation Alternative Dispute Resolution Committee, http://apps.americanbar.org/litigation/committees/adr/home.html.

JAMS, http://www.jamsadr.com/.

Judicial Arbiter Group at http://jaginc.com/.

American Arbitration Association, http://www.adr.org/.

United States Arbitration and Mediation, http://www.usam.com/.

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