bansc-re-2010-187 td bank n.a. v twila a. wolf case as filed 05 08 2012

8/2/2019 BANSC-RE-2010-187 TD Bank N.A. v Twila A. Wolf Case As Filed 05 08 2012

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STATE OF M AINECIVIL

TD BANKN.A. f/k/a FIRSTMASSACHUSETTSBANKN.A.Plaintiff,

v.

TWIALAA. BUTLER f/k/a WOLFANDCHARLTONA. BUTLER JR. pro seDefendantandDefendant-Intervenor.

C OU NTY O F PEN OB SC OTSUPERIOR D ISTRICT CO UR T

Case No.: BANSC-RE-2010-187

IN JU NC TIV E R EL IE F SO UGHTDEFENDANT'S OBJEC TIO NS TO PLA IN TIFFS

LATE AND UNTIMELY RESPONSE ANDM OTIO NS C ON CE RN IN G D EFEN DA NTS

OBJECTIONS AND RESPONSIVE M OTIONSTO PLAINTIFFS MOTION TO LIFT STAY

AND FINAL SUM MARY JUDGM ENTINCORPORATED MOTION TO STRIKE AND

MEMORANDUM OF LAW .JU RY T RIA L D EM AN DE D

Judge/Magistrate: The Most Honorable JusticeAnderson.Date of Hearing:Time of Hearing: _

DEFENDANT 'S OBJECTIONS TO PLAINTIFFS LATE AND UNTIM ELYRESPONSE AND M OTIONS CONCERNING DEFENDANTS OBJECTIONS ANDRESPONSIVE MOTIONS TO PLA INTIFFS MOTION TO LIFT STAY AND FINAL

SUM MARY JUDGMENT INCORPORATED M OTION TO STRIKE ANDMEMORANDUM OF LAW .

TITLE TO R EA L PR OpER TY IN VO LV ED .INJUNCTIV E R ELIEF SO UG HT

JU RY T RIA L D EMAND ED

Now, come Defendant's, with objection and motion to strike Plaintiffs untimelyresponse, objections and motions regarding Defendants objections and responsivemotions to Plaintiffs Motion for a Lift of Stay and Final Summary Judgment.


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ST AT E O F MAIN ECIVIL COUNTY OF PENOBSCOTSUPER IOR D IS TR ICT COURT

MOT IO N TO SET A SID E D EF AU LT AND /O R D EFAUL T JU DGMENT :DISCUSSION1. This default case, in predominant part, comes before the Court on Plaintiffs motion

to set aside a default judgment per M.R.Civ.P. 55(c).2. A court may set aside a default judgment for "excusable neglect" under federal

standards and the State of Maine's less stringent standard "good cause shown." M.R.Civ.P. 55(c). To establish "good cause," a party must show a good excuse for his or

a her untimeliness and a meritorious defense. Boit v. Brookstone Company, Inc., 641e~ A.2d 864, 865 (Me. 1994). In the review of a trial court's ruling on a motion to set. , .=a aside a default for abuse of discretion the Supreme Judicial Court "will vacate thebIl~ .. @e Q = judgment only; if, the denial works a plain and unmistakable injustice against the. ~ .St c i 5 ~ ~ - defendant." LaFosse v. Champagne, 2000 ME81, ~ 10,750 A.2d 1254, 1256 ..:= = ~ .~ ~ ~ ~ ~ 3. This would further confirm Defendants position in, that, this is predominately a~~~~ Defendants claim and or position and to find the plaintiffs who initiated this action in

~~ bIlN ~~ ~. this sort of situation does not speak well of their handling of this matter for their~ t zc . - clients thus far.ee: 4. In Truman v. Browne OXF-01-124 Browne presented an arguably meritorious~;; defense. She alleged, in her answer, that the statements she published to third

parties are true. Browne had not, however, established that the court exceeded thebounds of its discretion in determining that she had not stated a good excuse for heruntimely answer. Same here for the Plaintiffs. The legal equivalent to "The Dog AteMyHomework" should be insufficient as an excuse.

5. Browne argues that she mistakenly thought that she had twenty days from the denialof her motion to dismiss in which to file her answer.

6. The trial court could have, reasonably just as well, considered Browne's claim in thecontext that she had recently filed a motion to dismiss; that served to delay heranswer, and then had failed to appear at the scheduled hearing on the motion to


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ST AT E O F MAIN ECIVIL COUNTY OF PENOBSCOTSU PERIO R D ISTRIC T COURTdismiss. These actions suggested significant carelessness in her defense of thematter, (emphasis added) which the trial court could view as confirmed by heruntimely answer. AsDefendants pointed out of Plaintiffs case.

7. Yet, this wasn't the case, as the court chose to respond with "although Browne isrepresenting herself, we afford her no bending of the rules or other "specialconsideration." See Dumont v. Fleet Bank of Maine, 2000 ME 197, ~ 13, 760 A.2d1049, 1054. Rule 12(a) of the Maine Rules of Civil Procedure provides that "if thecourt denies the motion [in this case, the motion to dismiss] . . . the responsivepleading shall be served within 10 days after notice of the court's action." M.R.Civ.P.12(a). Browne's misunderstanding of this rule, taken in the context of her prioractions in this case, does not constitute a good excuse for her late answer. The court,therefore, did not exceed the bounds of its discretion by refusing to set aside theentry of default. Because entry of the default was proper, we need not addresswhether the preliminary injunction unduly limited Browne's capacity to developevidence on liability issues. /I

8. Stephanie A. Williams and David B. McConnell, of Perkins Thompson P.A., areprofessionals, attorneys; practicing at law, the ABA stresses and states that thisproblem, missed deadlines, is the number one reason that attorneys face, of the topten reasons, malpractice charges and the easiest to prevent, of those top ten reasons,and lists, in a 2006 ABATech Show brochure, several software programs to set upreminder and tickler systems to avoid this problem as well professionals online andin industry periodicals that give mini courses in time management and projectmanagement. Defendants Exhibit /I A /I /I A -1 /1 .

9. A recent change in Maine rules of civil procedure bears on the subject here beforethe bar today; M.R.Civ.P.6(b)(2); M.R.Civ.P.55 Good Cause or Excusable Neglect toSet Aside Default; Dyer, Goodall and Federle, LLCv. Proctor, 2007 ME 145, 935A.2d 1123.


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ST AT E O F MAIN ECIVIL COUNTY OF PENOBSCOTSUP ER IO R D IS TR IC T COURT10.A law firm sued its client for unpaid fees. The defendant was served while on a

break from his vacation and, although he understood that he had to answer thecomplaint, he did not do so until 54 days after he was served.

11.With his late answer, the client filed a counterclaim alleging malpractice and movedto remove the case to Superior Court. Plaintiff opposed that motion, but the casewas removed. Plaintiff then filed, in the District Court, a motion for default and amotion to dismiss the answer and counterclaim. The motions were forwarded to theSuperior Court.

12. The defendant objected to the motions on the grounds that he had a meritoriousdefense and a valid counterclaim. He filed a motion for enlargement of time to filehis answer and counterclaim.

13.The Superior Court denied the motion for enlargement on the basis that thedefendant had failed to show excusable neglect under M.R.Civ.P. 6(b)(2). TheSuperior Court granted the motion to dismiss the answer and counterclaim andentered a default judgment against defendant. The Superior Court also denieddefendant's motion to extend the time for removal which had been filed by thedefendant.

14. The Law Court affirmed in all respects. It found that the fact that the Superior Courtconsidered the case, even though it had not been properly removed, was not aprocedural irregularity that voided the proceedings, because, the District Court andSuperior Court had concurrent jurisdiction, and the defendant could not complainthat the Superior Court had considered these issues because he had asked for theremoval in the first place.

15. The Law Court also concluded that the Superior Court's finding that thecounterclaim and answer were "a nullity" constituted dismissal as a matter ofprocedure which would have been without prejudice.

16. This left the Superior Court clear to consider the motion for default, and the LawCourt affirmed the entry of default judgment on the ground that defendant haddemonstrated neither


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ST AT E O F MAIN ECIVIL COUNTY OF PENOBSCOTSUPER IOR D IS TR ICT COURTa. excusable neglect (which can be found only when there are extraordinary

circumstances that work an injustice)b. nor even for "good cause" for setting aside the default since the press of other

business was not a sufficient justification for not answering the complaint.17. Finally, the Court noted that, since defendant had failed to establish good cause,

whether he had a meritorious defense was irrelevant. Defendants assert thatPlaintiffs situation is thus and is currently the matter before the bar and seeksimilar adjudication in their favor.

18. Defendants assert res judicata and collateral estoppel predicated on the rule "theraising of standing", is a thresh hold issue, once again first year stuff your honor andDefendants do not presume to tell you anything. Defendants are simply stating theobvious to the Plaintiffs, it therefore, is a motion for Summary Judgment in and of itsself automatically and thus this default was a final judgment as well; Plaintiffsdefault, led to a final judgment thus res judicata and collateral estoppel wouldapply.

19. Defendants have more than shown their case and backed it up with evidence suchas Defendants Exhibits" A-2 " " A-3 " " A-4 " " A-S""A-6 " " A-T' "A-8 II II A-9 II hereinattached and offered to the court are, documents, received from Plaintiffs, inresponse to Defendants "QWR",Qualified Written Request and her statements fromSocial Security Supplemental Insurance and Social Security Administration to whatamount of income she had at the time which she had submitted to the Bank.

20. In which it is obvious the underwriters, (highlighted for ease of review), and/orothers within the Bank altered and played with Defendants figures until they hadthem where Defendant T Butler f/k/a Wolf would qualify for a loan and or loansthey [the Bank TD Bank N.A./ Mortgage Consultant / Loan Officer] obviously andundeniably knew she was not qualified for.

21. Point in fact setting her up to fail from the start. Defendants would argue a fiduciaryduty was created by the very nature of the program that she was talked intoapplying for so as to buy the house.


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ST AT E O F MAIN ECIVIL COUNTY OF PENOBSCOTSUP ER IO R D IS TR IC T COURT22. That a help program by definition imparts an understanding that the promisor has

wisdom, knowledge, skill and ability etc in the field of finance and by theirpromises, concerning their abilities, wisdom and experience; that they, either, didnot do for her or demonstrate for her benefit these skills as promised or aspromised guide her through this loan application and so on and get her the bestdeal possible for a loan (singular) so as to make her a homeowner and to have apart ofthe "American Dream".

23. Thereby, Therein, Therefore, Wherein and Wherefore making it a fact that Plaintiffsdid indeed impart upon themselves jointly and individually a fiduciaryresponsibility to Defendants particularly and specifically Defendant T-Butler.

24. Defendants state that this, set of loans; as attested to in other motions and pleadingsbefore the bar in this matter, is not what was agreed to and that the loan in questionbesides not being a loan Defendant took out, is the only loan that even has a breathof a chance in gaining what Maine State Housing Authority lost by default, by theirchoice of a servicer.

25. This loan being one more loan than Defendants agreed to as noted in writing thatPlaintiffs then cut the bottom off to erase the signature and notation of non-acceptance.

26. Then substituted a forgery of Defendants signature on a separate piece of paper,supposedly, attesting to Defendant T-Butlers acceptance of the two loans.27. Loans amounting to 16 % total interest and 14 % blended. Wow that is some help

program loaning money out at more than retail market price at the time .....just whowere Plaintiffs helping?

28. Point in fact raising her income from 6k to 13k per year as but one example.29. Point in fact, Defendants and particularly Defendant T-Butler, is a hero, for carrying

a fraudulent loan, under the guise of a payment to an escrow account and onepayment as her mortgage payment; the ruse worked, for 10 years, before life'suncertainty and marriage, revealed the fraud; Defendant T Butler, was a victim ofand the criminal nature of the predatory methods these Fraudulent Lenders /Servicers/ Debt Collectors / Whomever these people really are; [a]re, attempting touse in the illegal taking and conveyance of Defendant Homeowners property.


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ST AT E O F MAIN ECIVIL COUNTY OF PENOBSCOTSUPER IOR D IS TR ICT COURT30. A party may seek to set aside a default judgment for jgood cause shown" per M.R.

Civ. P. 55(c). Whether good cause exists depends on a party's demonstration thatthere is '" a reasonable excuse for the default and a meritorious defense to theunderlying action.'" Martello v. Giguere, 667 A.2d 588, 589 (Me. 1995) (quotingTheriault v. Gauthier, 634 A.2d 1255, 1256 (Me. 1993)). The excusable neglectstandard for lifting default judgments under Rule 60(b) is more stringent than thegood cause standard for lifting an entry of default under Rule 55(c). Theriault, 634A.2d at 1256-57.

31. This letter Defendants Exhibit" B " from Perkins Thompson Associate, David BMcConnell indicating that almost 42 days after filing a Motion to Lift Stay and FinalSummary Judgment he thought to check on that Motion to Lift Stay and FinalSummary Judgment. This is just plain old fashioned amusing in the simplistic lie it isas he is making the case for malpractice. All I can ask is what does he think to gainfrom it; besides higher premiums?

G OO D C AU SE:

32.As noted above, to set aside a default, the movant must show good cause for itsuntimely reply or lack of response. The Law Court has upheld default judgments foruntimely responses. See Ireland v. Carpenter, 2005 ME 98, 1, 879 A.2d 35, 36. InIreland, the defendants wrote a letter to the plaintiff after being sued, but did notfile an answer with the court for months following service of the complaint. Id. 3,879 A.2d at 37.

33. After a default was entered, the trial court denied the defendants' motion to set itaside and file a late answer. Id. 4, 879 A.2d at 37. The Law Court affirmed becausethe defendants' "unfamiliarity with the rules of procedure and their failure to readthe summons in its entirety" did not constitute good cause. Id. 15,879 A.2d at 40.34. Similarly, Defendants argue that the default should stand because the Bank wasrequired to respond to Defendants Responsive Motions. M.R.Civ. P. 12(a), whichprovides that replies to pleadings motions and counterclaims served within 20 daysof service of such. The rule also indicates that "if a reply is ordered by the court, [a


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STA TE O F MAIN ECIVIL COUNTY OF PENOBSCOTSUPER IOR D IS TR ICT COURTresponse is due] within 20 days after service of the order, unless the orderotherwise directs." M.R.Civ.P. 12(a) (emphasis added).

35. Defendants note that they have disputed facts alleged by Plaintiffs and attacked thelegal sufficiency of their claims in their responses, all along, as well as whenDefendants opposed Plaintiffs Motion for Lift of Stay and Final Summary Judgmentthat Defendants converted into their Summary Judgment.

36. For this reason, Defendants claim that the Plaintiffs were and have been on notice ofDefendant's arguments, in addition to that required by rule or statute, and wouldnot be prejudiced if this Court were to grant its motion to deny and strike, in theirentirety, Plaintiffs response and motions as untimely.

37. This honorable court could call, in addition to and as well as, for the record of theFederal District Court in this matter in which, while granted, there is a lot of crazyman hands waving in air is present in Defendants pleadings.

38. Defendants state they cannot help it that Plaintiffs fell for the crazy man routine,still the Defendants made all crucial arguments the same as today and increasinglyculminating in and reflecting the knowledge or growth in awareness of exactly whathappened and who was responsible are shown to have deepened and grown overtime as Defendants fleshed out the crime that is this case.

MER ITOR IOUS DEFENSE39.When analyzing whether a meritorious defense exists, the Court assumes that that

party's factual assertions are true: Which these are the factual assertions thePlaintiffs are making and that are truea. Plaintiffs asserted they were not served a copy Defendants Objections and

Responsive Motions to Plaintiffs Motion for a Lift of Stay and Final SummaryJudgment.

b. Then Plaintiffs claimed, when disproven on the matter of receipt, that they hadlost the documents in question interoffice.

c. Plaintiffs are attempting to state for the record that they lost a package that theythen claim there was a document missing from which, its missing status, they


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eo~

ST AT E O F MAIN ECIVIL COUNTY OF PENOBSCOTSUPER IOR D IS TR ICT COURTare attempting to derive their right to respond late from and thus they feelvalidates their right to respond and make motion now. Defendants couldn'tdisagree more.

40. The court would then have to assess "whether the moving party's version of thefacts and circumstances constitutes a defense to the opposing party's cause ofaction." Hart v. Terry L.Hopkins, Inc., 588 A.2d 1187, 1190 (Me. 1991). For example,the Law Court determined that "an arguably meritorious defense" existed when adefendant alleged the truth of statements that formed the basis of a defamationaction against her. Truman v. Browne, 2001 ME 182,


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ST AT E O F MAIN ECIVIL COUNTY OF PENOBSCOTSUPER IOR D IS TR ICT COURT47. Defendants relish a chance to share this message with 12 of their peers.48. Just as much as it would be for the Defendants; if the tables were reversed, "Woulda

Coulda, Shoulda" doesn't prevail here no matter how we, Defendants, or they,Plaintiffs, would like it to.

49. See also, Levine v. Key Bank Nat. Ass'n, 2004 ME131, f 13,861 A.2d 678, 683 (failureof bank to respond to trustee process for three months after service on it becausethe document did not get handled according to its ordinarily "efficient judgmentprocessing system" was not good cause). For the same holding, see R. C.Moore, Inc.v. Les-Care Kitchens, Inc., 2007 ME 138, 1127-29 , 931 A.2d 1081, 1087-7. So even ifnormally they are the epitome of efficient mail redelivery in their office it doesn'tcount as "excusable neglect" or "good cause."

s o . Similarly, in Boit v. Brookstone Co., Inc., 641 A.2d 864,865 (Me. 1994) the SupremeJudicial Court / Law Court upheld a trial court's refusal to vacate a default enteredjust eight days after an answer was due when the defendant's insurer's excuse wasonly that there had been a "delay in the mail room." (emphasis added) See alsoConrad v. Swan, 2008 ME2, 940 A.2d 1070. This case directly on point.

51. Most recently the Supreme Judicial Court / Law Court has upheld the standardrequiring showing of a good excuse for untimeliness in Richter v. Ercolini, 2010 ME38, 15. See also Ezell v. Lawless, 2008 ME 139, 122 (a party seeking relief from adefault judgment must show rIareasonable excuse for her inattention to the courtproceedings').

52. In the Plaintiffs motion filed as the one referenced, they did not offer sufficientexplanation or excuse, "let alone a good excuse or good cause, for failing to act.. .."and/ or to answer the points of Defendants in a timely fashion. Some reasonableexcuse explaining the delay in complying is obviously required so that the court candecide whether it is a "good excuse." The dog ate my homework would not and doesnot comply with the Defendants understanding of the law.

53. Plaintiffs' underlying failure to plead their defense, of Defendants responsivemotions, is in direct contravention of the letter and the spirit of the civil rules whichexplicitly require that "a party shall set forth affirmatively" in a responsivepleading/motion and or objection, certain enumerated defenses, including "statute


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ST AT E O F MA IN ECIVIL COUNTY O F P ENOB SCOTSUP ER IO R D IS TR IC T COURTof limitations" and "any other matter constituting an avoidance or affirmativedefense." To all claims made by either party as Defendants understand this andinterpret it to mean!

54. The concept of "notice pleading" does not excuse the Defendants' of any failure topresent affirmative defenses; it would follow then that Plaintiffs unawareness of theintricacies of law do not excuse them from the fulfillment of said, as well, and moreto the point; because, they are professionals in the craft of law, they, would andshould be held to a closer not laxer application of said rules and law.

55. Because of totally and completely failing to show good cause, their motions shouldnot be granted. As a further consequence, Defendant's motions, having beenconverted automatically to motions for summary judgment, when made,Defendants point out that having raised "STANDING"from the beginning ofPlaintiffs action against them, all of Defendants motions, therefore, have been/areSummary Judgment motions and the rules that apply to such apply to all theirmotions thus far as well the current.

56. The rules applying to Defendants, understanding of the situation, prohibited them,Plaintiffs, from making any Summary Judgment motion that did not includearguments directly in line with Defendants modified Statement of Material Facts ashas been expressed all through the Federal court pleadings, of Defendants, as wellstate proceedings.

57. The motions, of Defendants, should have been granted since no defense had beenpled that falls within the rules. That of course would make the rest of the issues inthis matter moot.

58. As these cases prove, one directly on point, that the excuse of "we lost this in theinteroffice mail system and claim that a document, required to be there, was not init" is not sufficient and fails to fill the bill as required by both rule and statute; lax orstrict interpretation.

1See,M.R.Civ.P.8 (c). See also, Boulet v.Beals, 158 Me.53, 177 A.2d 665 (1962) (libel defendant wasrequired to affirmatively raise "truth" and "privilege").


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ST AT E O F MAIN ECIVIL COUNTY OF PENOBSCOTSUPER IOR D IS TR ICT COURT59. Under the rules, motions for summary judgment are not "pleadings," but rather,

according to M.R. Civ. P. 56 (a) and (b), are motions, as such, every motion ofDefendants has been, simultaneously, a motion for Summary Judgment, asDefendants, have raised the issue of standingpleading/objection/affirmation and or motion made thus far.

60. Since, raising the issue of standing makes all pleadings objections or responsive

in every

motions, by Defendants, automatically a Summary Judgment Motion. Defendantsthink that the court can follow this train of thought and Defendants thereforerefrain from preaching to the choir.

61. Further, under M.R.Civ. P. 56(i)(1), "[m]otions to strike factual assertions, denials,or qualifications contained in any statement of material facts filed pursuant to thisrule are not permitted.?

62. As such, Plaintiffs motions, to strike, ignore or otherwise deny, Defendant'smotions, for injunctive and declaratory relief and sanctions by way of automaticconversion of motion, should be denied as a matter of rule and law. Anything less isprejudicial to Defendants; who did not bring this suit, and would be the only party tohave a legitimate claim to being behind the 8 ball, from the start, anyway. This inaddition to Collateral Estoppel and Res Judicata that apply here.63. Defendants conclude from the preponderance of Maine law, that Defendants haveprecept upon precept, line upon line fallen well within both Maine and Federal Law andrule and seek the same adjudication in Defendants matter before the bar as those manyMaine cases cited herein.

2 This language may be compared to Rule 6(b), which governs motions seeking toenlarge court-ordered time limitations. Rule 6(b) provides that the court may "for causeshown at any time in its discretion ... upon motion made after the expiration of thespecified [time] period permit [an] act to be done where the failure to act was the resultof excusable neglect." Defendants state that Plaintiffs fail to fall within that narrowwindow allowed.


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ST AT E O F MAIN ECIVILCOUNTY OF PENOBSCOTSUPER IOR D IS TR ICT COURT

PRAYERTherefore, with the observance of Defendants claims and evidence in their dispositiveresponsive motions and objections. Defendants, feeling [t]hat they have dispositivelydealt with the Plaintiffs entire case with that knowledge in mind, do ask this honorablecourt to deny and strike, in their entirety, all of Plaintiffs pleadings, objections andmotions as a matter of rule and law. Grant Defendants the making of an order grantingDefendants their requested relief, said relief, made in Defendants objections andresponsive motions, and their request for default judgment in this matter now beforethe bar.

Charlton A.Butler Jr. Defendant-Intervenor Pro se


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STATE OF M AINECIVIL

C OU NTY O F PEN OBSC OTSUPERIOR DISTRICT COURT

CERTIFICATE OF SERV ICE BY MA ILDefendants hereby certify they have this day, or the following as allowed by rule, servedthe foregoing document upon the parties of record in this proceeding set forth below (bydelivering a copy thereof in person) and/or (by mailing a copy thereof, pre-paid andproperly addressed by first class mail).Perkins Thompson Attorneys:Stephanie A.WilliamsDavid B.McConnellOne Canal PlazaP.O.Box426Portland Me. 04112-0426Paul NiklasAssistant CitySolicitorfor the Cityof Bangor Maine.73 Harlow St.Bangor Me. 04401DATEDthis 8th, day of May 2012.


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The Top Ten Causes of Malpractic- and How You Can Avoid ThemPresenters:

Mark C.S. Bassingthwaighte Risk Management Coordinator Attorneys Liability ProtectSociety A Risk Retention Group

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Here is a list of our Top Ten Malpractice Traps for 2006, in no particular order, with advice on how to avoid them.~~r{:'-"'~;"~~>~l ~ "= , "~ ,~'r:r~'ii~~~l.!Jj~'~" 1 k " : ~; . ,. ~ ~ L~"':-~-"~~'....k"~~L\~~


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2) Lack of ProfessionalismDuring my travels over the years, I have had numerous opportunities to watch attorneys and law firm staff interactclients. I am surprised at the number of times that I have observed an unprofessional interaction with a client whereattorney or staff person failed to appreciate the significance of the misstep. Let me provide an example. An attoworks in a small community and is viewed as a community leader. This attorney has had long-lasting attorney/crelationships with a number of individuals in the community. These long-term relationships have allowed the attoto develop a certain camaraderie and casual way of interacting with those clients. Now, imagine that a potentialclient is waiting in the reception area and one of the established clients steps into the reception area unannounced toa brief question. The attorney sees the established client enter. He walks right up to the client and with a warm "Heand a pat on the back, he begins discussing the established client's legal matter right in the middle of the receptionThe attorney does this because he knows the established client is comfortable with a public discussion. Do you seepotential professionalism concerns with the described scenario? I believe there are at least two areas of concCertainly, I am concerned about the potential breach of confidentiality, or at least an extreme casualness with cconfidences. However, I would like to focus on something else.The potential new client worries me. I have watched similar scenarios on several occasions, and every time theclient has a concerned look on his or her face. Why? Everyone believes that attorneys can be relied upon toeverything confidential. It is a pillar of our profession. Yet, the prospective client just watched an attorney acomplete disregard of the established client's confidences. It really does not matter whether the conversationconfidential. The potential new client cannot easily discern what is confidential, and is likely to assume that everytshould be confidential. The result is that you have no idea that your new client may have doubts aboutprofessionalism. The client's concern about your professionalism can become a concern about your competeThese concerns make the client more likely to file a disciplinary complaint or malpractice claim.Email is another place where being casual can be dangerous. At a minimum, you must check your spelling andgrammar, and make certain that your e-mail has a signature block at the end. Why? Again, imagine a client for wyou are acting as divorce counsel. In all likelihood, given the nature of divorce proceedings, this client will reachend of your professional relationship feeling emotionally beaten. Now, also assume that during your representationclient received emails that were poorly written and rather cryptic. This client will tend toward what all clients do wtheir case doesn't end quite as expected. The client simply will try to put everything in perspective. It may be nafor this client to ask himself, "What went wrong?" Unfortunately, the client received your unprofessional emails,now is thinking, "Why didn't I see this before? My own fifth grader can write better than my attorney can. S


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incompetent and my loss is her fault!" Again, unprofessional behavior leads to the client questioning your competenFinally, you should consider the effect created by poor housekeeping. Some of us in the legal profession view a mand cluttered office almost as a badge of honor. These messy attorneys seem to believe that clients view the stackfiles as reflecting positively upon the attorney's workload, implying that the attorney is in demand. The reasoextends to the desired conclusion that the client was lucky to have this particularly busy attorney agree to handleclient's matter. While this mayor may not be true, what is the client's likely response when the matter takeunexpected turn for the worse? The client is likely to conclude that the unexpected turn resulted from the attorneydevoting adequate time to representing the client. The attorney's messy office only serves to confirm the belief.Certainly, it will take extra effort to keep offices clean, to enforce a rule concerning appropriate dress, to contemphasizing the importance of confidentiality, and to insist upon courteous and civil behavior from everyone inoffice at all times. In short, it takes a real effort to emphasize professional behaviors and attitudes on a daily bNevertheless, 1 strongly want to suggest that the effort is worth it. Professionalism really is about making an impstatement about your competence. In short, professionalism reflects competence. The two necessarily go hanhand.3) Stress and Substance AbuseStress can a killer - literally. I hear lawyers often say - "I like what I do, but I never seem to have enough time toall" or "I don't have enough time to spend with my friends and family doing the things that are truly important to mTake a step back and look at what you're doing to manage your time. A great book for this is "Getting Things Dby David Allen. This isn't your run-of-the-mill time management book. It actually helps you to manage the pflow. Keep a running list of everything you have to do. If you use an electronic "To Do" list, it's easy to searchthings, move them around to a different date, categorize them by priority, etc. It's also easy to schedule remindersticklers. You want to strive for a "mind like water." Write everything down that you may want to do - even if it'sin the future and you may never do it. That way, you can relax knowing that you've captured everything there is toIf you think you might want to take a trip to China some day, write it down. You can always assign it a verypriority so it doesn't show up on your "urgent" list when you look through your To Do list. When you write absolueverything down, your mind is clear to concentrate on the task at hand. You can't give your full attention to any tathere's a part of you worrying about what else you should be doing (or what else you've forgotten to do). Incpersonal To Dos in your list as well. If you have your list in electronic format, you can always filter your personal tout if you're at the office at unable to work on them.Sit down and figure out where your time goes. Then decide what you're not getting done and make sure that actgets onto your calendar. Use your calendar program to plan for "Professional Reading" or "Business DevelopmeYou may decide that you'll spend one hour on professional reading every other Thursday. With a calendar progrit's very easy to make one entry, and then create a recurring activity for that entry. You won't ever get toprofessional reading unless it's scheduled on your calendar!Every lawyer I know wishes they had more time to spend with friends and family doing doings they really want to dyou find you never have time for personal pursuits, it could be because they're not on your calendar! Try this - malist of the major categories in your life. It might include things like Work, Family, Health (Exercise), Home (Reetc.), Spirituality, Finance, Education, etc. Next come up with some activities under each category that you wish youtime for. Now take a look at your calendar and slot some time for each category. Now go back and select spethings, by category, that will further your goal. For instance, you may decide that spending more time with famiimportant to you. Schedule one hour each Tuesday for family time. That hour might be spent researching a fa


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vacation, taking your spouse to dinner, spending one-on-one time with your son or daughter, or whatever. If youpersonal To Dos by category (Family), it should only take a few seconds to pick something each week so youMP:Ol The Top Ten Causes of Malpractice - and How You Can Avoid Them are furthering your personal godevoting more time to family. If you find you never have time for something, it could be because it's not oncalendar! As mentioned, this also applies to office tasks, such as professional reading or reorganizing your office.Get and keep good staff. Good staff can make all the difference in your practice by greatly lightening your burdenallowing you to spend time doing things you should be doing. Get your clients to bond with staff. Have your staffnew clients when then come into the office. This helps clients put a name with a face and make them feel mcomfortable. If clients have bonded with staff, they are much more likely to call them for routine things (like copiedocuments). Make sure your staff has the basic equipment they need. It doesn't have to necessarily be "state oart." It should, however, be adequate for their needs. Also get them the training they need. They'll be mproductive, your clients will be better served, and your staff will be more likely to stay around. While yourshouldn't be giving legal advice to your clients, they may be able to provide copies of documents from the file, inclients when documents have been received, etc.Hire outside help when it's appropriate. It is difficult to practice law, run a business, and find time for thingsresearching new case management software or security systems. Hiring a consultant can save you time, as well asyou to make better choices that will benefit you and your clients.Practice the lost art of delegation. Many lawyers are poor delegators, for a variety of reasons. Some don't delebecause they're afraid if they ask someone else to do something, that person will forget to do it. Another reason mathey're afraid that no one else can do it as well as they can. Yet another reason may be that it will take longer to expto someone how to do it than it does to simply do it themselves. Or it may be that the task looks overwhelmingthey're not sure where to start. If it looks overwhelming, break the tasks into specific projects and assign a time lineach sub-project. There is probably some part of the task that can be delegated to someone else, even if it is a phcall asking for the hours of a retail store. If you don't have a staff person to delegate to, consider hiring an outsidehandle the task. For instance, you may want to hire someone to prepare the bills, or assist you in researchingbilling software.If you're afraid that someone else will forget to do a task you've delegated, try using the "to do" or "tasks" functiosoftware programs. These allow you to go into detail about what needs to be done, assign each task a priority, assidue date, and most importantly, assign the task to someone else. The tasks can be placed in categories according toclient name, type of project, or priority. The beauty of this is the task remains on your "to do" list, even though yoassigned it to someone else. You can then keep track of the progress. Even when they complete the task, itremains on your list, but with a line drawn through it, until you remove it.Keep your office systems simple. Find a system you can live with, and then stick to it. Many systems work, buthave to keep up with them! State-of-the-art technology isn't the solution for everything. Know yourself, but be opetechnology solutions. Use what you need, but don't use technology simply for technology's sake.


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Lawyers are at greater risk than other occupations for depression, substance abuse and other ailments. Where can yohelp? Call the bar association in your state or province. May bar associations have groups that work with lawAlso check with the ABA Commission on Lawyer Assistance Programs (CoLAP), which maintains a naticlearinghouse on state and local assistance programs at www.abanet.org/legalservices/colap. Check out LawCare, wyou can download excellent "how-to" materials on stress, depression, substance abuse, bereavement, and helping omanage stress at www.lawcare.org.uklfreedownloads.htm. LawCare is a confidential advisory service to help lawdeal with the health issues and related emotional difficulties resulting from a stressful career as a lawyer.4) Conflicts of InterestConflicts of interest arise in a variety of ways. Every firm must establish stringent procedures for identifyingresolving situations in which unexpected conflicts arise. Here are a few helpful hints. Be wary of representing two parties at once, such as a divorcing couple, an estate and its beneficiaries, or a band seller who "just want you to write the agreement." In an attempt to avoid dual representation problems, sattorneys will agree to represent one of the parties and document that the other has been advised to seek indepencounsel. The non-client elects to proceed without representation. Unfortunately, your conversation withunrepresented party can establish an unintended attorney/client relationship and undo the precautions taken. Exercise caution when considering whether to sue a former client. Do not assume that the passage ofmagically transforms a current client into a past client for conflict purposes. Generally, the rule is "once a client, alwa client," unless you can document otherwise. A letter of closure very effectively documents the termination of cstatus. Avoid joint representation in those potential conflict situations where there is real risk of an actual conRemember Murphy's Law - more often than not, the actual conflict will arise. If the actual conflict is one that cannowaived, then your only option is complete withdrawal from representation of all multiple parties. In other words,potential multiple party representation, if you're conflicted out for one potential client, you're conflicted out for all. If any potential conflict exists, seek permission from each affected client to disclose your representation aneffect on all clients, before accepting representation. Absent each affected client's permission, withdrawal is theoption. If you intend to engage in joint or multiple client representation, fully disclose to each of the multiple clientspotential and reasonably foreseeable conflicts of interest and their ramifications. Discuss how both potential and acconflicts will affect your representation of all clients. Advise the multiple clients that on matters concerning therepresentation, there is no individual client confidentiality among the jointly represented parties. Advise each ofjointly represented clients to seek independent counsel's advice on whether they should agree to joint representatDo not proceed with further representation until each of your multiple clients gives you his/her informed consent to jrepresentation. The client's informed consent must be in writing and needs to set forth the client's understanding oframifications of joint representation. If an actual conflict exists from the outset, strongly consider not proceedingthe joint representation unless you are certain that the multiple clients have received independent counsel regardingprospective joint representation. Avoid becoming a director, officer or shareholder of a corporation while also acting as the corporation's lawDo not accept stock in lieu of a cash fee, and never solicit other investors on behalf of a client's business.


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Conflict checking systems are only as good as the people who use them. Use them rigorously and consistentlythey will be ineffective. Check and update your conflict database every time you consider a new case, no mwhether accepted or declined. Circulate new client/matter memos and return them promptly to the intake attorMake sure the memo affirmatively documents that all attorneys and staff have reviewed the memo for conflicts,have indicated whether a potentially affected party consents to the representation. Finally, don't forget to review potential conflicts that might arise as a result of a merger between two firms orlateral and staff hires. Yes, being rigorous, consistent and thorough with your conflict checking system isconsuming. Is it worth it? Take a moment to consider the jury appeal of attorneys agreeing to jointly represent clwith conflicted interests. Hopefully you see my point.5) Poor Client RelationsLaw is much more than just the business of handling a legal matter for a client - it's a business of relationships. Clwant to hire lawyers who are competent, responsive, treat them with respect, and keep them informed. "My lawwon't return my phone calls" and "I don't know what's going on with my case" are common complaints.Being competent in your practice isn't enough. The care and feeding of clients is also critical to a successful pracKeeping clients satisfied provides a number of benefits:1 - Practicing law will be more enjoyable2 - You'll get more referrals3 - You'll have less stress4 - There will be less likelihood of being sued for malpracticeClients who like their lawyers are much less likely to sue for malpractice. "Friends don't sue friends." If you've bonwith clients, then later make a mistake, clients are much more likely to forgive you. An added benefit - studies proveword-of-mouth is one of the best ways (if not THE best way) to attract new clients.Technology is a double-edged sword. On the one hand, it can help you to keep track of important deadlines, promyou've made, and tasks to be completed. On the other hand, it has created an unrealistic expectation of immediClients send you an e-mail, and then call back in 5 minutes to ask why you haven't responded. Add to this the adchallenge that you can now be reached via fax, e-mail, voice mail, pager, phone, cell phone, and instant message.number one complaint clients have is "my lawyer won't return my phone calls." One of my favorite business cardthe tag phrase on the bottom "I return phone calls." Now there's a lawyer who knows what clients want!


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Be prompt when you meet with clients. No one likes to be kept waiting. It should be no surprise that your clientsto be kept waiting, too. Think back to the last time you visited your doctor's office. Keeping clients waiting shows aof respect for their time, and can lead them to think that you are disorganized. Keep all of your appointments inplace. Ideally, this is an electronic calendar of some sort - and then synch it with your laptop and/or hand-held deIn this way, you're less likely to over schedule your time. Check your calendar last thing before you leave your oat night, and again every morning when you first wake up. That way you're less likely to miss an appointment.Minimize interruptions when you are with clients. Don't take phone calls, read e-mails or do anything else wmeeting with clients, or talking with them on the telephone. Clients are paying for your time, and they deserveundivided attention. Again, make sure you haven't over scheduled yourself. Additionally, put your phone on "dodisturb" and turn off the annoying sounds that accompany new mail or reminders on your computer.Survey your clients to ask how you're doing. We tend to think that "no news is good news." Don't assume that becyou don't hear any negative comments that everything is going well. Sometimes clients won't tell you what they thbut they will gladly tell their neighbors, family, friends and colleagues. Lawyers generally think that their clients hafavorable impression of them. Since so much business is referred via word-of-mouth, wouldn't you love to knowwhat your clients think of you, in time for you to do something about it? You may want to conduct an "exit" interat the close of the case. Questions such as: "Was I accessible?" "Were the fees what you expected?" "Was thehigh, but acceptable?" "Was the cost too high for what you got?" "Did we communicate clearly?" "Did we turnwork product around as quickly as you wanted?" "Were we good listeners?" "Was our staff competent and courteo"Did you feel you had enough input into the strategy of the case (decision making?)" "Did your bills adequately descthe work done and the costs involved?" "Did you understand our fee agreement?" are just a few of questions you cincorporate. Check out www.zoomerang.comtoseehowsurveyscanbeconductedviatheInternet.It.s very simYou draft your survey and put it on Zoomerang's site. Your client then goes to the unique URL and fills out the surYou can include 1) Yes and No questions, 2) Multiple choice questions; and 3) Questions which require a text respoZoomerang will even compile the results for you! It couldn't be easier.Keep your promises. Make a commitment to do something, and then do it! Clients will respect you more if you upromise and over produce. The only way to do that is to keep track of what you've promised you'll do and by wyou've promised you'd do it.As we stressed earlier, learn to use the features of your practice management software - including "tasks" "to do l"reminders", etc. Have one point of entry for everything - ideally practice management software or somethingOutlook. Write everything down when you think of it. Take one night each week to review everything you have t(this was discussed earlier). If you have written everything down, and you review your lists regularly, you'll soonthat you won't have to apologize to clients nearly as often!6) Substantive Legal ErrorsA report entitled "Profile of Legal Malpractice Claims 2000-2003," published in 2005 by the American Bar AssociaStanding Committee on Lawyers' Professional Liability, provides a statistical analysis of claims data collectedvarious lawyer- owned and commercial insurance companies for the period January 1, 2000 through December 31, 2This report is full of data such as the percent of claims by area of law. In this area, personal injury plaintiff attorled the way accounting for 19.96% of the claims. A new group joining PI plaintiff attorneys in the list of toppractice areas of concern was personal injury defense attorneys who accounted for 9.96% ofthe claims. The reportprovides data on claims by type of activity and by number of attorneys in the firm. The most troublesome activitythe preparation, filing and transmittal of documents, which accounted for 23.08% of the claims during this time. F


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of 1 to 5 attorneys were responsible for 65.45% of all claims. Remember, however, that the majority of attorneysin smaller firms, and so this figure does not reliably forecast whether there is more risk associated with smaller firmsHere, I would like to focus on the percentage of substantive claims that arose during the study period. As a risk manI am seriously concerned about the reported outcome and many attorneys respond with surprise upon learningpercentage. The percentage of substantive claims reported during this period was 47.28%! This means that 47.28reported claims were due to failure to know the law, failure to properly apply the law, failure to know or ascertaindeadline, inadequate discovery, a conflict of interest, a planning error, or failure to understand or anticipateconsequences, among others. My concern is over the difficulty risk managers have in addressing this problem thrtraditional risk management techniques. Substantive errors arise out of an attorney's abilities, not out of failed oprocedures. A risk manager can help an attorney develop a more effective calendar system, or tighten updocumentation. However, it is far more difficult to discuss and address what in reality is often simply bad lawyeThat said, here are a few suggestions that, if taken to heart, can help reduce the risk of substantive claims.The first practice tip is one that you probably have heard repeatedly - don't dabble. Truly, there is no such thing"simple will" or "simple contract." What first appears as a simple contract in reality may be a trap for the unwbecause the attorney may not be aware of a unique and not widely know local law that significantly affects the contrterms. Sometimes work appears simple when it is not, simply because the attorney doesn't know what questions toStated another way, always remember that we don't know what we don't know and therein lies the problem. Iwork your client requests is beyond you comfort zone or outside of the areas in which you regularly practice, daccept it. If you feel you must accept it, then be sure to seek guidance from an attorney knowledgeable in the praarea to ensure that you have adequately addressed the client's matter.Prioritize CLE for all members of the firm. Far too often attorneys attend CLE at the last minute, taking whatprogram is available regardless of whether the program applies to the attorney's practice. In addition, it is not uncomto see attorneys doing something other than staying focused on the CLE presentation, or even spending the bulk oevent outside of the meeting room. With alternative formats such as videos, teleconferences and web presentationsattorney is even freer to pay only half-hearted attention to the presentation since it is so easy to work on somethingduring the CLE. The best approach to CLEs is as follows. Take CLE that is appropriate for your practice area.out quality programs and get as much from the experience as possible by listening attentively, asking questionsreading the supplemental materials after the program has ended. Further, don't overlook educational opportunitiesfocus on research or legal writing skills. Implement a peer review program that seeks to randomly select a few filevery attorney at the firm for review at least once a year. This is not meant to be a critical audit or a performevaluation. This is about quality control. The review should focus on the entire course of representation. To "pass"review, the file should document the conflicts check, the accurate entry of critical dates, client decisions, ccommunication and client satisfaction. There should be an engagement letter and a letter of closure. The file shoulreviewed for timeliness of work, work product, billing decisions and procedural choices. The firm should nolooking for mistakes to criticize, but rather seeking to identify ways in which to improve representation or servicorder to provide higher quality representation and service to the next client. A secondary benefit of this process withat the firm may get a "heads up" warning as to a developing impairment with one of the attorneys such as neglectifile due to depression, burnout or a dependency problem.Now for a few one-line tips. Verify the credentials of all new hires. You will share in the responsibility for the consequences ofdecisions.


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Remember that friends and family members do sue so don't agree to do a favor if you are not fully preparfollow up in a timely and responsible fashion. Prioritize personal time, be it with family, friends or in other activities, so that you remain fresh andprofessionally. Listen and seek appropriate help if ever a friend, professional colleague or family member raises concerns ayour possibly being impaired, regardless of whether it's depression, an addiction, or anything else. Maintain appropriate workloads, as a sixty-hour workweek for fifty-two weeks a year will eventually leburnout or worse. Consider the possibility that when you say "no" to certain work this does not necessarily mean that no newever will come through the door. Finally, keep in mind that bad news doesn't get better with time. If a mistakeoccurred, deal with it immediately. Inform your malpractice carrier and let the client know. Sometimes the damcan be mitigated and sometimes the mistake can be corrected, but things only get worse if you miss an opportunityrepair. Most problems do not go away on their own, no matter how much we want them to.7) Ineffective Client Screening"Problem" clients can be a nightmare. We all hate to turn work away, yet sometimes that is exactly what you shdo. Listen to your gut instinct. If you meet with a potential client, and they spend a lot of time discussing their "ca- pay close attention. You may be able to help them to probate a will, avoid jail time, or draft a great contract. Rwill you be able to help them with their "cause."Listen for clients who listen. If they don't listen to you in the beginning, they probably won't listen to in as theprogresses. Clients such as these can develop "selecting hearing." They only hear what they want to hear. Exthat in order for their legal matter to come to a successful conclusion, they need to do their part, too. Clients tenwant to come into the office and drop their problems into your lap to solve. Help them to understand that thispartnership. They may need to help you provide answers to interrogatories, compile receipts for purchases, etc.Avoid clients who are dishonest, or leave out important facts. This only comes back to bite them (and you) in the eBe careful when they have gone through a number of lawyers before they come to you. This can be a definite redBe sure to ask them if they have been represented before, and what happened to cause that relationship to end.Every time you talk with a potential client, whether on the phone or in person, get their name, their address and pnumber, and the general nature of their case. If they won't give you their address, they're probably shopping and aready to hire you anyway. To protect yourself, you must have their name and address so you can follow up wnon-engagement letter if you decide not to accept their case. You never want to put yourself in a situation whereget a phone call from someone claiming they spoke with you about their case "awhile ago" and asking you what yogoing to do now that the statute of limitations is expiring next week. If you have been careful to draft non-engagemletters as you go along, this will go a long way to covering your ass(ets).Set the stage for a good working relationship. Talk about money before it's an issue. Explain your timekeepingbilling procedures. Discuss the client's expectations and yours in the initial client interview. Ask them what resultare looking for and what they realistically expect will happen. In the event they don't get everything they want, askwhat they can live with. They may not volunteer that they think their case is worth a million dollars, when you know


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not worth more than $200,000. Keep a written record of their responses so everyone in your office has access to it.them about potential "skeletons" in their closet. "Even if you think they are untrue, what statements might the oside make that would harm your case?" Keep this in a field in your practice management software so you can referwhen appropriate. Ask them what method of communication they prefer - fax, phone, e-mail, etc. and the easiest wareach them. Make sure clients can pay your bill. Unless you're willing to do what I call "inadvertent pro bono worscreen clients to be sure they can pay. Money is often a source of difficulty. Ask for a retainer up front, and makethey understand that they must keep it replenished.

) A Malpractice Counterclaim in Response to a Suit for FeesFee disputes are at the heart of a significant percentage of all legal malpractice claims. Typically, a delinquedevelops, the attorney sues, and then she is countersued for legal malpractice. Attorneys who have effective billingcollection practices avoid the necessity of considering fee collection suits, and thus have a reduced risk of a malpracclaim. Here are a few tips that can help prevent a delinquency. Don't accept clients who cannot afford your services. This always will be a losing proposition, because the cwill be unable to pay the bill. Determine the client's ability to pay for the services before you take the case. You mhave a thorough discussion about the fee. It's not enough to simply state that your hourly rate is $175, becausefigure is meaningless without an estimate of the number of hours involved. Once you start representing a client,hard to be excused from your duty to represent that client. Far too often, the lack of thorough client communicationfees and estimates causes the lawyer to become tom between working the required number of hours and minimicosts. Learn to identify and say no to prospective clients who do not have the ability to pay. Have a written fee agreement for all new clients and all new matters. The fee agreement need not alwaysthree-page contract. For repeat work, a simple "thanks for stopping by" letter may sufficiently establish that your cunderstands the fee agreement. Your fee agreement should clarify the scope of representation and your fee strucScope restrictions should be detailed particularly in situations where you are unbundling your services. Wappropriate, be specific regarding the types of out-of-pocket expenses for which the client will be responsible - sucfiling fees, court costs, expert witness fees, photocopy charges, computer research, long distance calls, etc. If possestimate what those expenses might be. Clients often are astonished by the amount of out-of-pocket expenses incuon their behalf. Never let anyone record a time entry or expense for any person or entity before accepting that person as a cland accepting that person's issues or needs as a new matter. This step helps prevent unintentional creation of attorney/client relationships and the inadvertent creation of conflicts. Always bill monthly unless the client has specified otherwise. Avoid billing the client at the project's compleunless the total cost of the representation has been agreed in advance. The key to billing is to send bills and collecton a regular basis in order to avoid large, unexpected bills. It is never a good idea to make your firm's new fee structure apply to an existing matter that was opened undprior fee structure. If you undervalue your work, that is your responsibility. We often find that fee disputes foshortly behind the conclusion of a matter in which a firm tries to make its fee increases retroactive to existing omatters. Such fee disputes are not a guaranteed win for the attorney. Provide detail in your billing statements. The billing statements should describe the work performed on a dbasis, who performed it and how long it took. An entry such as 20 hours for "research" is unacceptable. Rather,entry should read something like, "research state case law on piercing the corporate veil." The attorney responsible for the case or matter should review each bill for errors before mailing that bill toclient.


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Copy the client on all correspondence and other materials relating to the client's matter. These blind copiesonly show your client that you want to keep him informed, they also serve indirectly as informal status reports.yourself which client is more likely to pay the monthly bill: the client who hasn't received a single sheet of paperthe attorney in three months, or the one who regularly receives informational copies from his attorney? If you typically have difficulty collecting fees, try collecting a retainer at the start of a new matter. If the retcauses the prospective client to takes his business elsewhere, he probably is not a client worth having. Remember tretainer is usually considered an advance payment, and thus is fully refundable (minus what may have been earnedwork started or costs advanced) if the client decides to take his business elsewhere. Non-refundable retainers usuonly work if the retainer's purpose truly is to have you available "on call" for legal services. Take prompt action on accounts in arrears. This is the single biggest mistake that attorneys make with respefee disputes. Often the client who can't pay your fee today isn't likely to pay it tomorrow, and the bill doesn'tsmaller or easier to collect over time. In addition, many attorneys are surprised to learn that there are resources that discuss ways for a client to reducecost of legal services. One of the advised cost saving techniques tells individuals to delay paying their legal bills flong as possible, because it's almost standard practice for an attorney to discount delinquent bills and that advice usuis accurate! So, you should be aware that some clients intentionally withhold payment in order to force a fee discoRequire timely bill payment, and withdraw if necessary. You deserve to be paid for your services if a delinquencbrewing, the attorney must act by speaking personally to the client within the first ninety days. You will have far msuccess with personal phone calls asking for payment than you will with letters from the accounting department, orcollection calls made by members of your staff. At the very least, you will have made a good faith effort to collecfee, and you might even learn about the client's dissatisfaction (if any) with your work. Sometimes, regardless of effective collection practices, a significant delinquency develops and the possibilitsuing to recover the fee is considered. While malpractice insurance carriers and risk managers will always adviseto never sue for a fee, some firms will still make to decision to proceed. In the interest of reducing the likelihoodmalpractice counterclaim, here are a few tips to keep in mind when considering this option. Have someone other than the attorney responsible for the file make the final decision as to whether to sue beconce a client is in your pocket for a significant sum, it is nearly impossible to be objective about the decision.independent attorney - either one in the office who has had no relationship with the file or a member of the bar whocollections work - should review the case to assure that there are no facets of the work that could be questioned andthe client's matter was handled with the utmost diligence. Don't make a decision to sue for fees based upon the following rationalization: "I did good work, I got a good rand I deserve to be paid." Instead, make a determination as to the client's ability to pay and if the client does notthe financial wherewithal to do so, walk away. Don't handle the fee suit yourself. Avail yourself of the objectivity of an experienced attorney whose goalprotect your interests and remain objective throughout. This depersonalizes the matter for both sides and will redthe likelihood of a counterclaim.These suggestions are not meant to be the final word on effective collection practices. Following them will alsoguarantee that you never will have a fee dispute. However, if you simply ignore these rules, you may very well gidisgruntled or unscrupulous client the opportunity to take a shot at your malpractice insurance coverage (via counteronce you have filed a fee collection suit. Play it safe - don't give them that opportunity.


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9) Inadequate Documentation of WorkDocument everything you do. Send a letter or make a note every time you ask for something. That way, therpaper trail and you can cover yourself. It eliminates misunderstandings and it covers you in case there is a prolater. It may seem like an inconvenience, but you'll be glad in the long run. Something as simple as "Thisconfirms that ...""Paper" your clients. Generally, send a copy of everything to the client. That way they know you're working for tIt will help to eliminate calls from clients who are simply checking on the status of their case. As mentioned eaclients want to be kept informed. Don't wait for them to call and ask how things are progressing. Regularlycopies of relevant documents to your client. Respond to e-mails with an "I'll check on this tomorrow" - or "I'm wato hear back from John Smith." You may not have the answer yet, but the client knows you're on top of it, and yomaking progress.Create a simple "plain vanilla" transmittal letter that can be generated automatically. By using document assemprograms, or practice management software, you can easily and quickly draft a letter (or e-mail) that you can utransmit copies of documents, pleadings, etc. The client will be much happier to pay the bill if they know you'veworking hard for them.Confirm advice in writing. Whenever you give your clients advice they choose not to follow, get it in writingprotect yourself, you may even want them to sign a copy of the letter outlining the situation and keep it in thevirtually forever. True story - a judge in Colorado Springs had a criminal defense practice before he sat on the beHe represented a bad guy in a criminal matter. Later, he contacted his client and explained that he could haveconviction expunged. The client declined (maybe to save money and time). Later, Colorado institutes the "TStrikes and You're Out Rule." Now, of course, the former client wishes he had taken his lawyer's advice and clearedfirst offense from his record. The former client went after his lawyer (who was now the sitting judge). Fortunatelyjudge had kept an original, signed copy of a letter to the client along the lines of "I advised you that I could do the wnecessary to remove this offense from your record. You declined." - It was signed, and dated, and undoubtedly sthe judge a lot of time and worry.Make sure your bills properly reflect the work you've done, and the time you've spent. Some states (Colorado isdo not allow for "nonrefundable retainers." The client has a right to fire you, and if their matter is still in progress,may have to prove what you've done and how much time you've spent in order to get paid. Even if you do contingefee work, it's still a good idea to keep track of your time.Develop and implement a file retention program. Make sure the client knows what happens to their file at the end orepresentation. Be consistent between clients and files. You don't want to have to answer why the Smith file (which there was a problem) has been completely destroyed, but the Jones file (same time frame and type of case) isintact. Inevitably, there will be a problem surface with the Smith file and it will look like you deliberately shredevidence of a problem.The bottom line is, good practice management practices will help you get more clients, have more fun practicingmake more money, spend more time on important pursuits, and help you sleep better at night!!10) Coming Technology TrapsComputers are wonderful tools. Their use allows law firms to be far more efficient than they would be withouttools. That said, computers, or more properly, how computers are used can create exposure for a law firm.following are two technology traps to be aware of and information on how to avoid them.


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MetadataMetadata in and of itself is not generally a problem as long as electronic documents stay within a law firm. Inmetadata can be quite useful to individuals who are collaborating on a document. Problems can arise, however,electronic documents are sent outside a firm.In case you are unfamiliar with the term metadata, it is extraneous information about an electronic documentremains attached to the document. Unfortunately, metadata is not always visible, and thus it is easy to overlook. Aexample, metadata tracked with a document created in Microsoft Office (note: metadata is not unique to Microproducts) includes your name and initials and the names of your company or organization, your computer, andnetwork server or hard disk on which you saved the document. In addition to this tracking information, metadataincludes other file properties and summary information, non visible portions of Object Linking and Embedding (Oobjects, the names of previous document authors, document revisions, document versions, template information, hitext, comments, macros, hyperlinks and routing information. This kind of information, once outside of a lawcould be problematic. You might be unintentionally sharing confidential information. Perhaps your true bottom lia settlement is discovered from a document edit history that has been restored after sharing a document with oppocounsel.There are products available that will assist in the removal of metadata from documents prior to sending. Understhowever, that a perfect or total solution to the metadata problem does not exist. Metadata is useful and often necesinternally. A solution that completely removes metadata will significantly reduce productivity. The benefit of umetadata removal programs is that they allow you to create a "clean" version of a document that is separate fromoriginal. Caution is in order; however, you must remember to pay attention when selecting which electronic file toout.Finally, for those of you using Microsoft Office 2 0 0 3 / X P , an add-in is available that will enable you to rempermanently hidden and collaboration data, such as change tracking and comments, from Microsoft Word, MicroExcel, and Microsoft PowerPoint files. More information is available at:

Listed below are several companies and their metadata removal product name. This list is intended not to serve aendorsement of any product. It is simply a starting place in researching metadata removal solutions to meet the needyour law firm. If you are not already addressing the issue of metadata removal, now is the time to begin.

Esquire Innovations: iScrub Kraft Kennedy & Lesser: ezClean Payne Consulting Group: Metadata Assistant SoftWOut-of-Sight

Delete is not DeleteDeleted files don't go anywhere once deleted. Unless deleted files are appropriately overwritten, they remain availfor possible discovery. This could be disastrous for a law firm.At the end of the day all network users must abide by a simple rule while on the firm's network or using any compthat might touch the firm's network such as a Blackberry, PDA, laptop, or home computer that is used for businesson a limited basis. Again, the information on any of this hardware is potentially discoverable in a malpractice clThe rule is this. If you are not comfortable having a personal or work related email read by a jury, an electronic noa file read by the client, or your personal browsing history known publicly don't write the email or note and don't


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the Internet site. Clients have obtained copies of email that should not have been written, juries have been presewith incriminating email, and careers have been ruined once personal Internet browsing habits became known publicFor all practical purposes, users are recording everything that they do on a computer and erasing the record once crecan be extremely difficult. Worse yet, electronic erases leave their own record of events. Responsible use of technois the safe play.Portable Storage DevicesPortable storage devices are here to stay; however, there is a downside to their use. Given the ever-increaproliferation of these products, their rapidly growing storage capabilities coupled with their ever-shrinking size, thehas come to address the security concerns these devices create. Do not take this concern lightly. Portable stodevices can be a real threat and this isn't just about losing one that had confidential client information on it.A greater concern is over the ability these devices give someone to covertly introduce programs and/or files to,remove them from, the network. Now, I'll admit that the covert introduction of programs to the network is nserious a concern if the computer network is appropriately secured. While a program could be introduced behindfirewall, the security programs running on the network will in most instances catch the intentional or unintentiinstallation of a virus or other malware. The real concern for is the unauthorized and covert removal of files. Thinkeasy it would be for a disgruntled employee to download files to an iPod Nano and slip it into a pocket and walk oudoor. What if someone offered to pay an employee for copies of electronic files? How would you ever know thehad been stolen? When you consider that the new iPod, just as one example, has a 60-gigabyte drive, the amount ofthat could be copied and taken is quite large.One approach of addressing the concern would be to consider banning or restricting the use of portable storage devthrough a written policy. Established guidelines enable you to defme what is appropriate and not appropriate in termwhat types of devices are acceptable and when or how they may be used. This would also allow you to establisecurity policy that might mandate using only devices that are password protected and/or encrypted, require thatdevices provided by the firm may be used in the office and that the devices must be signed in and out.While it is possible to disable USB ports on some or all PCs within a firm or to restrict the use of portable stodevices to a read-only format, such steps are in most instances possible only through the use of third-party softwFortunately, the number of products coming to market are increasing and getting better in terms of optionscapabilities. My best advice, if you wish to go beyond just establishing a policy, is that you discuss the issues withIT consultant and learn what your options are.Stolen LaptopsWhat information would be compromised if your laptop were stolen? Would client confidences such as a penmerger, social security numbers or financial information be revealed? What about your own office passwords, dinumbers, or network IP addressing schemes? If that's not enough, what about all your personal information sucpasswords, user names, personal files, credit card numbers and who knows what. The list could go on and on. A lostolen laptop could be disastrous, particularly if sensitive files were not encrypted which is so often the case.There is still one line of defense that could be deployed to try to mitigate the damage after the laptop is gone. Stsoftware programs are available that enable a tracking center to locate your laptop (once reported as missing) whenthe missing laptop is connected to the Internet. In short, these companies work with the authorities and Internet seproviders to track and recover your laptop. A few programs also allow you to retake control of your data even though


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laptop is no longer in your possession. You are thus able to remotely recover, delete or encrypt sensitive files wrendering the missing computer useless by locking the keyboard and mouse. If a lost laptop would be a nightmareyou, consider using this line of defense. The costs are reasonable. Several companies worth considering are lbelow: zTrace Technologies at www.ztrace.com Absolute Software at www.absolute.com Stealth Signawww.stealthsignal.com Given the number oflaptops reported stolen each year, I would consider this money well sif your laptop contains any sensitive information at all. A call to inform your client that your laptop was stolen anclient files were not encrypted is a call I would not want to make. This approach might make that call a little eshould the worst happen.

TECHSHO\Nq?;200 6


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Life Is Complex and UncertainBy Otto Sorts I Mar.07.12 I A Curmudgeon's Perspective, Daily Dispatch, Management, SkillsEverybody's talking about project management for lawyers these days. And I think it's about damn time! Earlyin my law career, I had a conversation with a client that convinced me of its merits. He was quite a bit olderthan me, and had originally trained as an engineer. After we discussed his complaint and shifted to focus on thearrangements, he asked for a schedule. I began my usual uncomfortable explanation about the vagaries of theprocess and the complex nature of litigation, how it depended on the judge, opposing counsel and otheruncertainties in the case. After a long silence, he shook his head, looked me in the eye and said, "Son, that's justplain bullshit. Life itself is complex and uncertain, but we live it every day, anyway."Then he took me to school on how to think about the work to create a rough schedule-and manage the damnproject."It's CalledProject Management!"There was nothing surprising about his approach. But with the benefit of his engineering brain, he was able toexplain it with a clarity that's stayed with me ever since. It's a simple logic flow that characterizes the variablesand unknowns in a way that makes them manageable. Here are the steps he laid out for me.

1. Define the project. What exactly is the problem and what are the possible end points? This is whereyou can be upfront with your client about the merits of the case, the attractiveness of settlement andpotential unintended consequences.2. Identify steps. What do you have to do to go from the beginning to the end point. If there are severallikely paths, define the steps for each. I learned that most of the steps for each option are similar if notidentical. Knowing this makes the entire project less overwhelming and complex, and allows you tofocus on a clear set of tasks.3. Find the connections. How do the tasks interconnect? Must some be completed before others start, orcan some tasks be performed simultaneously? How many have a hard deadline that must be met?4. What do you need to know? Identify the information you need to complete each task. How are yougoing to get that information and what resources will be required? Are there optional ways to get it thatshould be considered? This information can be sketchy at the beginning, but having more detail willbecome critical as the matter progresses.5. Eyeball it. Now, look at each task and eyeball what level of effort it represents, who needs to do it andhow long it will take. Rely on your experience, or ask others, to estimate the time and effort. Keeping aneye on any hard dates, lay this out and overlay onto a calendar. This can show you where you need morepeople to work on a given task. It can also show you where the schedule is clearly impossible-and inthis case, yes, it's back to the drawing board.6. Repeat periodically. As the case progresses, update your schedule or level of effort for tasks based onnew information, resolution of uncertainties and the current status of the various tasks. This may help toavoid crises, or at least let you plan ahead for vacation time.


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So, now you have a rough schedule that includes an approximation of level of effort, which is handy to estimatecost and what staff or outside services you may require. This is the baseline against which you can assess auncertainties and measure progress as the matter moves along.And, when it blows up, as it inevitably will, you can mark up this plan and try again. You did it in pencil, right?Otto Strange has been reading law since before Martindale met Hubbell. Of Counsel at a large corporate firmthat prefers to remain anonymous, Otto is a respected attorney and champion of the grand tradition of the law.He is, however, suspicious of "new-fangled" management ideas and anyone who calls the profession the legal"industry. " When he gets really cranky about something he blogs at Attorney at Work.


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NEW NEIGHBORS PROGRAMAFFORDABILITY ANALYSISWORKSHEETDate: /~/7Ifl ~

Borrower Name:

~J/. ~~k ~c9/Number of Units: c2 .. Gross Rents: /l C J (excluding owner's unit)

(/) Gross annual income ofApplicant(s): $ 7 : 7.5 '? .fI tJ Percentage of Median Income: ~ %PropertyAddress:

Project Breakdown:A. Purchase PriceB. Estimated RehabC. Total Project Cost (A+ B)D. MSHA's Loan (up to 60% of Total Project Cost) ~ "'~ 3/,.?e?I V 7.s:/37

Portion of MSHA's loan which is rehab, (PPI max. $15,OOO)ia 'V . $~ ..~~~:=~~Ij j';

E. Lender's Loan (up to 40% of Total Project Cost) ~ '. $ ' . li~] p.rs:/3~Portion of Lender's loan which is rehabilitation _ ~F . City's Loan rG ~ / C J . t7 (J (/ eft/: yr-d-~~_" 'r:t5tJ7/ X;:.0 -: ciN/$14G. Closing Costs ~~ $~. 7~~II.dr ~ c f I ! : i p1j 6H. Less Borrower ContributionJDownpayments ~ C5' $ " > Z r .. e . e-v ~ M- 7/'(7I. Less 2%MSHA's Closing Cost Assistance ( if applicable) $ I t .q& . ~~ ..J. Amount remaining G minus H; I. $ X


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MAINE STATE H OU SIN G A UTH OR ITY ",.N EW N EIG HBORS' PROGRAMFUN DS RESERV ATION FO RM. . .'; .

- . : '. : ~ .. ., ..~~..,~5l~:Homeownership Division ..F~'N~ber.J~ ~~~.\'~, )\~ r.~ :

I. RESERVATION (fax to MSHA)...Name of Lender: Family Bank (d/b/a Peoples Heritage Mortgage) Phone # :, _

Lender Contact: r . .wilq ~/ Fax#: _55#:'>1:5'- O~-3SIt55#:, _

Borrower's Name:Co-Borrower's Name:

Total Persons In .Household:Date of Application:

Property Type:

/ Gross Annual Household Income: $ /1? C707/2-./ Lot> - . . . . . -IiH1Jnit Cl3 Unit 04 Unit1Unit

Property Address: Acquisition Cost s$"'1 .;0-0 r ? s - l(including rehab.) ..MSH4LoanAmount $ &Yc:t7County of:

' / 3 ; ,""09 , i ? k . . . ) aYVOj~ , A . c t . . . . .C O i :: : : : ; . I ' I ~ I J . u . .: : : .. . Ic " . Io o o :: : .. J :O ~ Z , - - _ _ , Maine

Date: 7/2/,/00Title: P1(}Y"'TQg., " 2 - eo",.rvl/q?1f/II. CONFIRMAnON

LENDER d.. /? -Name: Urc,/.?.5"df)./

FUNDS RESERVAnON NUMBER(provided byMSHA):, '-- __FUNDS RESERVAnON REJECTEDBYMSHA:

a Incomplete Q Over Income Limita Program Funds ExhaustedQOilier:; , _Q Over Purchase Price

III. WITHDRAWAL (fax to MSHA)The above Funds Reservation is withdrawn because: _

LENDERDate: Nam~ _Title:1:\USERS\COMMON\FQRMS\MSHANNFR.DOC

HMI'31A..Q90198


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NEW NEIGHBORS PROGRAMAFFORDABILITY ANALYSIS BorrowwName: /w/ /q Wo/WORKSHEETDate: _PropertyAddress: YA7 n s -i: ;(Jq ny OYJ @ec /P/YtJ/Number of units:?- Gross Rents: '/tJ (excluding owner's unit)Gross annual income ofApprlCant(s):$ /:, 7'0-0 Percentage of Median Income: - 6J%Project Breakdown:A. Purchase PriceB. Estimated RehabC. Total Project Cost (A + B)D. MSHA's Loan (up to 60% of Total Project Cost)Portion of MSHA's loan ~hich is rehab. (PPI max. $15,000)E. Lender's Loan (up to 40%of Total Project Cost)Portion of Lender's loan which is rehabilitation

$;-~~~!2$'~~iI!!!$~~~$ ._ .:: : . ; J . . 6 : : : ! O ! " . . , . ~ l . . : : :g - ~ ; l ... ~ .! :: O = = --$--------$$._------$!....-..J.;;:::..::::::::.-~~~$ ~ ~ - - ~ ~:_--:=;;:O-~~_: t= J~ ~ ~F. City's LoanG.Closing CostsH. Less Borrower ContributionIDownpaymen1sI. Less 2%MSHA's Closing Cost Assistance ( " I f applicable)J. Amount remaining G minus H, I.

(To prevent cash back to the borrower at closing - If oJ' is a negative amount, this amount must beapplied to the principal; If positive, this amount must be paid by the borrower.)Monthly Payments:

MSHA. LenderCityTaxesInsurance .Less75% of gross rents (if applicable)TotalPayment

Income to DebtRatios: Income to P1TI---!==_% and Income to Total Debt:_~:!::=L=~

HMP-31-090198


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MERRILL MERCHANTS BANKMORTGAGE PRE-QUALIFICATION AND ANALYSISThis is not an oJJlcialmortgage disclosure. It is meant to provide anan estimate of mortgage amounts, payments, fees & charges as aprequallflcat'on tool only.

NAMEADDRESSPHONE

1WIl.AWOLF

BANK CONTACT PERSONPHONE KATHY M. CROSSMAN,AVP20.7(990.)4013CURRENT EMPLOYMENT & INCOME

A P P L I C A N TNONE/SSI & SSDMPLOYERNAMEADDRESS#OFYEARSEMPL.INCOME (GROSS !MONTH)ANNUAL INCOMEMAXIMUM DEBT/lNCOME RATIOS:HOUSINGRATIO .28% OF TOTAL INCOME $181.0.5TOTAL DEBT RATIO .36%OFTOTALINCOME~/ ~

$530..0.0. $646.60.$7,759.20.

CURRENT PAYMENTS:ACCOUNT NAMEJ BALANCE~~~,",LOAN $4,885.0.0.SPIEGAL . $0..0.0.-~ .....~

\ T TAL DEBT PAYMENT:

PAYMENT~10'~ii:'~. I\}~f) ,;::... $65.10.36%RATIOALLOWANCE uss lDEBTPAYMENT ABOVE: rFUNDSFORMORTGAGE PAYMENTLESSTAXESLESSINSURANCELESSPRIVATEMTG INSFUNDSFORMORTGAGE PAYMENT

$167.68$167.68$134.00$35.00$0.0.0($1.32)

7.0.500.% 8.5000%360 MONTHS 360 MONTHS$51,70.0.00$31,0.20..00$20.7.42

RATETERMESTIMATEDPURCHASEPRICEESTIMATEDMORTGAGE AMOUNT:ESTIMATEDPRINCIPAL & INTERES

bansc-re-2010-187 td bank n.a. v twila a. wolf case as filed 05 08 2012

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