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Practice News

J. Timothy Eaton, partner at Taft Stettinius & Hollister LLP, discusses when and whether you should appeal.


Twenty years ago, law firm document management revolved around meticulously organized manila files, metal drawers, and bankers boxes, with instructions not to fold, spindle, or mutilate them as they were being physically transported to another attorney or a courtroom.

While those physical manifestations still remain to varying degrees in law offices, document management today is more likely to focus on electronic files that need to be created and managed on a server or in the cloud, with instructions to ensure they're adequately encrypted before being electronically transported to one of the aforementioned destinations.

Paul Unger, a partner with Affinity Consulting Group who works with attorneys and law firms, recommends that legal offices use a top-shelf, sophisticated electronic document management system to handle the creation and storage of most types of documents.

"If we're talking about transactional attorneys - or even if it's litigation, but it's your own work product, your own correspondence and responses - anything we would draft ourselves, pleadings, motions, I would recommend in today's age that a firm have a document management system," he says. Unger recommends four primary choices: Worldox, NetDocuments, iManage (formerly Interwoven Worksite), and Open Text (formerly Hummingbird). Find out more in the May IBJ.


Asked and Answered

By John W. Olmstead, MBA, Ph.D, CMC

Q.  I am a partner in a 14-attorney business litigation law firm in New Orleans. There are five partners in the firm. We are a first-generation firm and all five partners are the original founders. Each partner has equal ownership interests and is compensated based upon ownership points. While this approach to compensation worked for many years, this system is no longer working for us. Performance used to be pretty close but this is no longer the case. Your suggestions are welcomed.

A. This is a common problem that new law firms eventually face. Here are a few thoughts:

A leading appellate attorney reviews the Illinois Supreme Court opinion handed down Thursday, April 20. The case is People v. Way. 

People v. Way

By Kerry J. Bryson, Office of the State Appellate Defender

Ida Way was driving a vehicle when she crossed into oncoming traffic and struck another vehicle head-on, causing injuries to the driver of that vehicle as well as a passenger in her own car. Subsequent forensic testing revealed the presence of cannabis metabolite in Way's urine. She was charged with aggravated DUI based upon her having "any amount" of a drug, substance, or compound in her urine.

Way sought to defend against the charge by introducing evidence that a sudden, unforeseeable medical condition that caused her to lose consciousness was the proximate cause of the accident. She offered that her passenger would testify that she lost consciousness, three eyewitnesses would testify that they saw her shortly before the accident and she did not appear impaired, and her doctor would testify that it was possible that her loss of consciousness was due to her low blood pressure. The trial court rejected her request, concluding that the statute was one of strict liability "as to the accident." The appellate court looked to the law of proximate cause in civil cases and held that Way should have been permitted to present medical evidence.


Asked and Answered 

By John W. Olmstead, MBA, Ph.D, CMC

Q. I am the owner of a small estate planning firm in Worcester, Massachusetts. I have three associates and three staff members. I am 55 and want to begin putting in place my succession/exit plan. I would like to retire and exit the practice in 10 years. Would I be better off selling to another firm or attorney, merging the practice, bringing in laterals, or selling to one or both of my associates? I am interested in your thoughts.

A. The biggest challenge for many firms, is finding the right who.

The who dictates the what — the actual succession/transition/exit strategy. In other words, many law firms find that they start down one path and end up on another. Not all non-equity partners and associates want to own a law firm. Not all lateral and merger candidates will be a good fit for your firm and culture. The key is the right relationship and sometimes that takes the form of making someone at the firm a partner, bringing in a seasoned lateral, merging with another firm, or selling the practice. Therefore, succession/transition plans have to be flexible and often the key is not getting stuck in creating complex succession plans at the onset. Establish timelines, outline a general course of action, generate some momentum and see where that takes you. Then build the plan when you can see where the firm is headed.

Susan Dawson-Tibbits of Johnson, Bunce & Noble, P.C. discusses what you should know about the ABLE Act.


"If you think that most malpractice claims come from administrative errors like the failure to file documents, think again," writes Karen Erger in the April Illinois Bar Journal.

"[Consistently, the ABA's quadrennial study of malpractice claims has] found that substantive errors are the largest category of errors alleged in legal malpractice claims, Erger writes in her IBJ Loss Prevention column, sponsored by the ISBA Mutual Insurance Company. "In the 2016 study, for the first time since the 1999 study, substantive errors account for more than half of alleged errors. And the single most common error is a substantive error, namely 'Failure to Know/Properly Apply the Law,' which accounts for 15.38 percent of claims in the 2016 study. This validates the risk management maxim that dabbling in unfamiliar areas of practice is risky business, and underscores the importance of concentrating your practice on a few areas of law so that you can stay competent and capable in those areas," she writes.

In fact, administrative errors have fallen "from 30.13 percent of claims in the 2011 study to 23.15 percent in the 2016 study," Erger writes. "The study's authors suggest that '[b]etter computer calendaring systems, e-filing, electronic record keeping, and multiple modes of communication with clients appear to have assisted attorneys in managing their law practice.'"

A recent change to the rule governing how lawyers deal with unidentified funds in their pooled client trust accounts has generated over $1,000,000 for legal aid in Illinois.

In March 2015, the Supreme Court of Illinois amended Rule 1.15 of the Illinois Rules of Professional Conduct to require Illinois lawyers to remit unidentified funds in these client trust accounts to the Lawyers Trust Fund of Illinois after a 12-month due diligence process to determine who owns the funds. Since the new rule went into effect on July 1, 2015, the Lawyers Trust Fund (LTF) has received $1,007,829.21.

“For the 1.8 million Illinoisans living in poverty, legal aid is the only realistic option when confronted with a serious legal problem,” said LTF executive director Mark Marquardt. “Unfortunately, legal aid groups are facing serious financial headwinds in terms of both state and federal funding, which make this new source of revenue even more critical.”

Latasha Barnes of Land of Lincoln Legal Assistance Foundation, Inc. provides an overview of student discipline reform under Senate Bill 100.

To learn more about SB 100 and student discipline, A Changing Landscape: Student Discipline 2016 is available online.


Asked and Answered 

By John W. Olmstead, MBA, Ph.D, CMC

Q. I am a member of the executive committee of a 75-attorney firm in Houston, Texas. We are a first-generation firm. Several of our founders are in their 60s and we have recently begun discussing succession planning and how clients and management duties will be transitioned. We would appreciate your thoughts in these areas.

A. In larger firms, clients are more likely to be large, sophisticated clients, possibly Fortune 500 companies, which refer many matters to the firm during the course of a year. Often such clients may be both a blessing and a curse for the firm. A blessing in that their business provides the firm with huge legal fees during the course of a year. A curse in that their business represents a large percent of the firm’s annual fee collections and a significant business risk if the firm were to lose the client. An effective client transition is critical, takes time, and must be well planned.

Successful client transition – moving clients from one generation to the next – is a major challenge for larger firms. Shifting clients is not an individual responsibility but a firm responsibility. To effectively transition clients, the individual lawyer, with clients, must work together with the firm to insure the clients receive quality legal services throughout the transition process. Both the individual lawyer and the firm must be committed to keeping clients in the firm when the senior attorneys retire. Potential obstacles include: