New e-mail, advertising rule changes require attention from solos
The new year brings significant changes to Illinois court rules and professional conduct requirements. Here are some key changes that may affect your solo practice.
Mandatory acceptance of e-mail service in the trial and appellate courts
Sole practitioners can save time and resources in 2016 as the state’s progression to mandatory e-mail service takes another step forward. Although electronic service is not yet the exclusive method of delivery, attorneys must now accept service by e-mail, at the serving attorney’s election.
Specifically, under Supreme Court Rules 11(d) and 131(d), all attorneys must designate at least one primary e-mail address, and no more than two secondary addresses, on all papers filed or served on other parties.
Effective e-mail service under Rule 11(b)(6) requires transmission to “all primary and secondary e-mail addresses of record,” so make sure to include each e-mail address when transmitting and preparing your certificate of service.
Unrepresented parties can still require paper service, but may consent to electronic delivery under Rule 131(d) by designating an e-mail address of record.
The new e-mail service rules also apply to appellate court filings. Rules 341(e) and 367(d) clarify that only one copy of each appellate brief need be served electronically, instead of the three-copy requirement for paper service.
Finally, the committee comments to Rule 11 make clear that no specific document format is required for e-mail service, but “good faith cooperation by practitioners” is expected, and alternative formats should be tried when electronic documents cannot be opened by the recipient.
Notify sender of inadvertent ESI, including metadata
Sole practitioners should be aware that Rule 4.4 of the Rules of Professional Conduct (Respect for Rights of Third Persons), which requires counsel to promptly notify the sender of documents that are “inadvertently sent,” now extends to electronically stored information. The erroneous transmission could take the form of a misaddressed e-mail intended for another recipient, or a properly addressed e-mail that contains a mistaken attachment.
Moreover, Comment 2 to Rule 4.4 extends the definition of “electronically stored information” to encompass “metadata” — defined as “embedded data” in an electronic document — that the receiving attorney knows was sent in error.
So, the next time you receive that stray e-mail or an attachment from opposing counsel, don’t just save or delete — make the required notifications.
Internet-based advertising, client leads
For self-employed attorneys planning to ramp up their business-generating activities in 2016, the Rules of Professional Conduct now address Internet advertising.
In particular, Comment 5 to Rule 7.2 (Advertising) now allows attorneys to retain providers that supply “Internet-based advertisements” and “Internet-based client leads.”
The comment cautions that ethical constraints still apply, including the prohibition against false or misleading communications regarding the lawyer’s services or falsely implying that the referral is based on analysis of the prospective client’s “legal problems.”
Further, Comment 1 to Rule 7.3 (newly captioned Solicitation of Clients) spells out that lawyers may advertise services to the general public, without making a prohibited “solicitation,” if the communication “is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial or if it is in response to a request for information or is automatically generated in response to Internet searches.”
Thus, while marketing efforts can boost your bottom line, make sure to comply with applicable disclosure and content requirements.
Reduced practice time for bar admission
For out-of-state solos wanting to join the Illinois ranks without taking the bar examination, the length-of-practice requirement for all attorneys has been reduced. Under Supreme Court Rule 705, the minimum length of practice in other jurisdictions has been shortened from five years to three years. Other requirements still apply.
Safe harbor for IOLTA funds
Lastly, no sole practitioner wants to discover unattributed Interest on Lawyers Trust Accounts (IOLTA) funds in his or her account, but a recent amendment to the Rules of Professional Conduct — already in effect, since last July — offers a mandatory and sanction-free solution for that contingency.
Under Paragraph (i) of Rule 1.15 (Safekeeping Property), a lawyer who discovers “unidentified” IOLTA funds must attempt to “identify and return the funds to the rightful owner.” However, if that effort is unsuccessful after 12 months, the attorney must “remit the funds to the Lawyers Trust Fund of Illinois” and “[n]o charge of ethical impropriety or other breach of professional conduct shall attend to a lawyer’s exercise of reasonable judgment under this [provision].”
What happens if you later identify the proper recipient, or determine the funds have been earned by your firm? Rule 1.15(i) allows for reimbursement: “A lawyer who either remits funds in error or later ascertains the ownership of remitted funds may make a claim to the Lawyers Trust Fund, which after verification of the claim will return the funds to the lawyer.”
Check out all of the new rule changes at illinoiscourts.gov/supremecourt/rules/amend/2015 and have a prosperous, rule-compliant 2016.
© 2016 Law Bulletin Publishing Company. All rights reserved.
Thursday, January 7, 2016 • Volume 162, No. 4
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
Before you fire off a stinging e-mail, consider what happens next
Electronic communications have been a boon for sole practitioners, offering new freedoms and efficiencies in the legal marketplace.
Yet unlike formal paper correspondence, conversing in real time with mouse clicks and send buttons can lead to spontaneous, ill-advised exchanges that are not well-planned. With many solos using a single e-mail address for all purposes, moreover, the line between professional and personal contacts can blur.
In the following discipline cases, attorney e-mails were held to violate applicable ethical standards. While the e-mail content in question is clearly out of bounds in most instances, some of the scenarios are closer calls on the spectrum of free expression.
The takeaway from these decisions is that the online world never forgets, and no e-mail is ever off the record. So before you click, take a moment to reflect, consult with colleagues and when in doubt, discard, don’t send.
Free advice to acquaintance
In Attorney Grievance Commission v. Elmendorf, 946 A.2d 542 (Md. 2008), an attorney
received an e-mail inquiry from a social acquaintance, asking whether a one-year separation was required for a no-fault divorce in the state. In a “brief, off-the-cuff response,” the attorney e-mailed back that the court would not “question” compliance with the one-year separation requirement “so long as the parties say that it has been a year.”
Although the court concluded the brief exchange did not give rise to an attorney-client relationship, the lawyer nonetheless received a public reprimand. The e-mail was deemed “prejudicial to the administration of justice” because it “could have given … the impression that intentionally misrepresenting information to the court is acceptable so long as all parties involved set forth the same information.”
Threatening coach over child’s demotion
In Office of Disciplinary Counsel v. Baumgartner, 796 N.E.2d 495 (Ohio 2003), an attorney became angry when her daughter was demoted for a high school track meet. The attorney “sent menacing e-mails to the superintendent and a high school track coach in an attempt to have her daughter put back in the track relay event.” The e-mails “threatened criminal prosecutions and civil lawsuits, none with any apparent basis, if these school officials did not accede to her demand.”
The court ruled the e-mails involved “dishonesty, fraud, deceit or misrepresentation,” were “prejudicial to the administration of justice” and “adversely reflect[ed] on the attorney’s fitness to practice law.” Because the attorney had engaged in other serious transgressions as well, disbarment was ordered.
Publicizing judge’s compliment
In In re Reines, 771 F.3d 1326 (Fed. Cir. 2014), an experienced practitioner in the U.S. Circuit Court of Appeals for the Federal Circuit received an e-mail from the circuit’s chief judge, relaying complimentary remarks by fellow judges regarding the attorney’s advocacy skills.
After adding his own endorsement of the attorney’s prowess and expressing gratitude for their friendship, the chief judge encouraged the attorney to “let others see this message.” Counsel took the chief judge’s advice and circulated the e-mail to colleagues, existing clients and prospective clients.
The en banc appeals court then issued a public reprimand. After brushing aside the attorney’s First Amendment defense, the court ruled it was “professional misconduct” to “state or imply an ability to influence improperly a government agency or official to achieve results by means that violate the Rules of Professional Conduct or other law.”
Although disseminating compliments from a judge is not a per se violation, the court reasoned, “It would blink reality not to view respondent’s action as suggesting his retention because his special relationship would help to secure a favorable outcome at the Federal Circuit.”
Blaming judge for financial woes
In Hancock v. Board of Professional Responsibility, 447 S.W.3d 844 (Tenn. 2014), a longtime bankruptcy attorney lost a substantial fee petition application. Months later, the attorney, struggling financially, sent the judge a “see-what-you-did-to-me” e-mail that blamed the bankruptcy court for his misfortune.
The state court issued a 30-day suspension for an improper ex parte communication. The e-mail’s “threatening tone” constituted “abusive [and] obstreperous conduct” that interfered with the court’s “ability to conduct its affairs.”
“Good Luck in Hell”
In the following cases, attorney-to-attorney e-mails were held to violate professional ethics standards.
In In re Panetta, 3 N.Y.S.3d 420 (N.Y. App. Div. 2015), a personal injury lawyer lost at trial and harbored a long-term grudge against the jury foreperson, then a first-year attorney. Four years later, the still-disgruntled plaintiff’s counsel sent an abrasive e-mail to the former foreperson, questioning her integrity and sarcastically wishing her “Good Luck in Hell.” The state disciplinary agency issued a public censure, for “conduct that adversely reflects on the lawyer’s fitness as a lawyer.”
In In re Anonymous Member of South Carolina Bar, 709 S.E.2d 633 (S.C. 2011), e-mail exchanges between divorce counsels became increasingly hostile. The father’s attorney suggested his opponent could not properly represent the mother because the mother’s attorney had no children. The mother’s attorney retorted that the daughter of the father’s attorney was a known drug user, which was “ironic” and “far worse than the
allegations your client is making.”
The court issued a letter of caution with a finding of minor misconduct to the mother’s attorney. “An e-mail such as the one sent …” the court explained, “can only inflame the passions of everyone involved, make litigation more intense, and undermine a
lawyer’s ability to objectively represent his or her client.”
In In re Rudolph, 774 N.W.2d 466 (Wis. 2009), an attorney settled a malpractice claim, then used an email address with an assumed name to threaten the malpractice attorneys who sued him. The attorney was suspended for 30 days.
Romance rejected
Lastly, in In re Usher, 987 N.E.2d 1080 (Ind. 2013), a male lawyer who was a disappointed suitor decided to “humiliate” the object of his affections, a female attorney, by interfering with her employment prospects. The jilted barrister disseminated a compromising video of the woman, along with a fabricated e-mail chain of negative comments, to the woman’s law firm and others. The state Supreme Court suspended the attorney for at least three years, rejecting his First Amendment and “not-done-in-a-professional-capacity” defenses and finding his conduct involved “dishonesty, fraud, deceit or misrepresentation.”
Final note: Think first
Before you start down that dangerous road of contentious electronic discourse, think of these cases, put down your keyboard and remember that the Internet is watching.
© 2015 Law Bulletin Publishing Company. All rights reserved.
Wednesday, December 9, 2015 • Volume 161, No. 240
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
The Anticybersquatting Consumer Protection Act and your Web identity
After betting on yourself and opening a solo firm, things are finally humming along. Your carefully selected practice areas are in demand, and with wise marketing efforts on the Web, referrals are pouring in. All arrows are pointing up.
Pause to consider that online success carries risk. Take the practice known as reputational cybersquatting. Sole practitioners should prepare to meet this emerging threat.
Highjacking a lawyer’s Web presence
In its commercial form, cybersquatting occurs when a party leverages another’s trademark and goodwill by using a misleadingly similar domain name. Thus, Citigroup recently sued certain “anonymous foreign registrants” who acquired a number of “Citi” domain names and redirected visitors from Citigroup’s legitimate sites to competing products and services. Citigroup Inc. v. Citibank-thankyourewards.com, No. 1:14-CV-0855, 2015 WL 222161 (E.D. Va., Jan, 13, 2015).
Reputational cybersquatting takes a more personal and malevolent turn.
Just ask Jeffrey Wilens, a sole practitioner in California who operates a successful plaintiff class-action practice known as the Lakeshore Law Center.
Wilens does not expect to be adored by the defendants he sues, but never believed his firm’s reputation would be jeopardized by a defendant-turned- cybersquatter. He learned something was wrong when a caller mentioned, “You sure made some enemies … there is a website saying bad things about you.”
After a quick Google search, Wilens was alarmed to find a substantial number of illicit, defamatory websites using variations of his personal and trade names — such as “lakeshorelawcenter,” “attorneyjeffreywilens ” and even a “jeffrey_wilens ” Twitter account.
Those rogue sites targeted Wilens’ practice and his standing in the legal community by misdirecting actual and potential clients to online locations making bizarre assertions of disbarment, incarceration and the like.
Fighting back with the Anticybersquatting Consumer Protection Act
Wilens was not versed in intellectual property law but driven by self-preservation — “You either fight back or find another occupation” — he went to work.
Because Wilens’ stalker used untraceable foreign IP addresses that made direct interdiction virtually impossible, Wilens decided to go after the offending domains by pursuing the online service
providers.
He filed a federal case under the Anticybersquatting Consumer Protection Act, naming his unknown attacker as a Doe defendant and including as parties the various domestic entities that sold, hosted and promoted the offending domains.
The ACPA protects both registered and common-law trademarks — including personal names in appropriate cases — from online exploiters who use domains that mirror the protected mark or are confusingly similar. The statute authorizes damages and injunctive relief.
Wilens used subpoenas and other discovery from the domain providers to identify all of the clandestine domains. Ultimately he obtained a court order that not only awarded damages against the Doe defendant and enjoined further cybersquatting, but further directed the domain providers to either cancel the offending domains or transfer ownership to Wilens.
Although Wilens’ efforts to protect his online identity continue — his now-identified attacker continues its smear campaign through various Internet-based complaint centers —Wilens is grateful he was able to shut down the fraudulent domains and protect his professional identity —his most valuable asset —using the ACPA.
For more information, see Wilens v. Doe Defendant No. 1, No. 3:14-CV-02419, 2015 WL 4606238 (N.D. Calif., July 31, 2015).
Be vigilant in protecting your Web identity
With a caution that First Amendment and attorney ethical considerations apply — legitimate public discourse includes criticism, and attorney communications are regulated —sole practitioners
can minimize exposure to cybervillain attacks.
1. Trademark your firm name. Maximize your protection by trademarking your firm name. Because common personal names can be difficult to protect, this may be a good time to consider using a trade name, which may have other benefits. If a trade name is used, make sure to comply with Rules 7.1 and 7.5 of the Illinois Rules of Professional Conduct.
2. Monitor your reputation on the Web with Google Alerts. Your free Google account provides yet another valuable resource. Google’s Alerts function offers customizable, automatic Google searches for your chosen content on a daily or weekly basis. When Google records a hit on your automated search, you receive an e-mail with a link to the designated subject matter. By setting up a daily search for content involving your firm name, you will be informed of developments, positive or negative, nearly in real time.
3. Consider an online reputation management service. If you are not inclined to self-monitor, check out this option. Some firms combine online review management, marketing visibility and social media promotion to boot. This approach can both protect and market your firm name, but tread carefully — make sure to use a trusted provider who complies with all ethical requirements and understand what you are purchasing.
4. If you are under attack, go to court. Although pursuing an anonymous cyberstalker in court can tax a sole practitioner’s resources, there may be no other option. Wilens quickly learned that Internet regulation at times “is like the Wild West,” and “you have to fight fire with fire.” The ACPA provides a powerful weapon against domain misdirection, even if the offender cannot be found. As Wilens will tell you, “Getting your name back is well worth the effort.”
© 2015 Law Bulletin Publishing Company. All rights reserved.
Thursday, November 5, 2015 • Volume 161, No. 217
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
Keeping a solo Rose fresh for 35 years
Ask any lawyer how to measure success and expect an assortment of answers. Winning the big case. Financial security. Respect from peers. Honors and awards.
Sole practitioners can add a less sublime goal to the list — longevity. Competing effectively in the legal marketplace, with finite resources and long hours, can take its toll. As the years mount, some opt for other law firms, in-house positions or government work.
Not so with Mark J. Rose, a dyed-in-the-wool sole practitioner and litigator for 35 years.
Rose, a fixture in the legal community, presents a study in contrasts. He conjures up formal legal tradition with his monogrammed shirts and impeccable pinstripe suits, while using the latest tech to send e-mail by phone and draft motions with voice recognition software.
How does a solo thrive for more than three decades? Rose shared some time-tested tips for maintaining a successful practice over the long term.
Become an effective legal writer
In today’s communication-by-keyboard world, effective writing is the lawyer’s stock in trade. Learning to write persuasively is a must.
For litigators like Rose, written submissions must be compelling and concise. Motion calls are getting longer, and judges have limited resources for each case. Support your contentions with precise rationales, in logical sequence and leave no room to speculate on the conclusion. There are no shortcuts, Rose cautions. You have to “draft, redraft and redraft again.”
Your hard work will be rewarded.
Because few graduate from law school as natural wordsmiths, Rose says new lawyers should find real world experience before hanging their own shingles. Take a job in private practice, seek a clerkship or choose the public sector.
If you decide to forgo a legal apprenticeship, Rose recommends finding a mentor who can review your work. Many experienced counsels are glad to help sharpen your drafting skills. All you have to do is ask.
Be thorough in discovery
Litigation is a quest for facts. Young practitioners should learn to be resolute in crafting discovery. Too many attorneys miss crucial information by using boilerplate discovery requests or skipping steps.
For Rose, cases can be won with penetrating interrogatories and document requests. He recommends drafting the requests, letting them sit for a few days, then coming back to look for missing areas. Meticulous discovery promotes favorable results, period.
And when taking depositions, do not assume anything. Rose recalls an examination where he asked a party to confirm his signature on interrogatory answers and expected the usual affirmation. Instead, the signature had been forged; new interrogatory answers were given; and the case took a favorable turn for Rose’s client.
Rose also suggests sole practitioners limit their practice to one or two areas of expertise. Among other advantages, working in familiar areas will make you a better investigator at the discovery stage.
A good assistant is pure gold
A full-time assistant is a considerable drain on the sole practitioner’s budget, and many solos go without, but Rose insists that having a capable assistant is worth the investment.
The key is to find someone who is compatible and learns the proper skills, then keep the person around.
Rose has worked with his paralegal, Anne Short, for 13 years. “She is my right hand,” he declares, and handles just about everything, from court filings to assisting with discovery, deposition prep and billing.
Several years ago Rose learned to appreciate Short’s value when she left his employ, and he tried to replace her. After a few weeks, both realized they worked best together, rejoined forces and never looked back.
Rose concludes that working with his assistant all these years has been a no-brainer. “She makes me a better lawyer, and that is the bottom line.”
Keep your clients informed
It is no secret that clients are the foundation of your practice. Rule 1.4 of the Rules of Professional Conduct governs client communications, and Rose takes the direction to heart. Don’t put off your client callbacks, even after a long day.
Easier said than done for solos, whose availability can be stretched thin by trials and other time-consuming tasks.
Rose is proactive when he expects to be tied up in court for extended periods. He informs each client of his coming schedule, and that his availability will be limited. Rose explains he is devoting full time and effort to the proceeding at hand, and that “when your case goes to trial, you will receive my full attention as well.” Clients appreciate this heads-up approach, which fosters strong relationships going forward.
Enjoy your work but keep a balance
It is no secret that clients are the foundation of your practice. Rule 1.4 of the Rules of Professional Conduct governs client communications, and Rose takes the direction to heart. Don’t put off your client callbacks, even after a long day.
Rose emphasizes that, when all is said and done, he relishes being his own boss. Although he could have been successful at a large firm, Rose values the flexibility of self-employment. With satisfaction Rose recounts a life spent with his wife and kids, attending every track meet and school recital. Sole practice has its perks.
And the tradition continues, as Rose discloses with delight that his son is pursuing a law degree. Rose got a kick when his son’s professor recognized Rose’s name from an evocative appellate decision. A perfect blend of work and family.
Don’t ask Rose if he plans to retire. When I inquired, Rose’s eyes flared and he snapped: “My clients will tell me when to retire.” That is a good measure of success, by any yardstick.
© 2015 Law Bulletin Publishing Company. All rights reserved.
Tuesday, October 6, 2015 • Volume 161, No. 195
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
Convert your old smartphone into an office webcam for free
If you are self-employed and could use an extra pair of eyes at the office, consider making your own free security camera. All you need is an old smartphone with a camera, a Wi-Fi connection and a modest investment of time.Although this do-it-yourself project does not supplant a full-fledged security system, there are plenty of uses for a basic webcam. You may be in court or at a deposition, but need to confirm an important delivery back at the office. In a shared-space arrangement, you can remain at your desk and monitor the lobby for the arrival of clients or business associates. Perhaps you want some extra security by keeping tabs on the firm from home. The list goes on.Here is a summary of steps I followed to convert an old Android smartphone to a handy office cam. Retired iPhones can be used as well with different software. For further reference, links to more detailed tutorials are included below.
Install app, position phone
Make sure your old Android device has a camera, is Wi-Fi enabled and is logged in to your firm’s wireless network. No phone or data subscription is needed.Using your device, navigate to the Google Play app store. Search for the IP Webcam app, developed by Pavel Khlebovich and install the free version.Open the IP Webcam program you just downloaded. Leave all the configuration options in place for now — later you can set a password, adjust the power management, resolution, orientation, etc. — and click the “start server” option at the bottom of the menu.If the program is working, the bottom of your phone screen will display an IP address and port — something like 192.168.1.___:8080. Write down the complete address.
Position the phone’s camera for your desired viewing area by placing the device upright on a stand or leaning it against another object. Inexpensive stands can be purchased, but there are plenty of free solutions on the Internet. Choose a location with a nearby power outlet to keep the phone charged.
View video from your desk
You are ready to access the camera from your desk. Open a Web browser on your computer — make sure you are on the same network as the phone’s Wi-Fi — and enter the IP address you recorded in the browser’s Web address field.
The IP Webcam control page will open. Choose your video and audio options — I used “browser” for video and “flash” for audio — and your office cam should be up and running. The control page contains many adjustment options, including zoom, stream quality and night vision. Select the “overlay” button to include a date and time stamp on the video.
Improved recording with VLC Media Player
Video can be recorded through the IP Webcam interface, but the length is limited to a one-hour loop and the video file is saved on the phone’s memory card, which can be limited and difficult to access. Plus, the recorded video contains an annoying advertisement to purchase the program’s “pro version.”
So, instead of using IP Webcam’s native interface, I used VLC Media Player, which allowed for unlimited recording to my computer. And no advertisements.
VLC is a free media player that can be downloaded at videolan.org. Install VLC on your computer, open the program and on the upper menu select “media” and then choose “open network stream.”
When you select “open network stream,” VLC’s “network URL” box will open. Enter your phone’s IP address with “/video” on the end, as follows: http://192.168.1.___:8080/video. After making sure the IP Webcam program is still running on your phone, click “play” at the bottom of the VLC network URL box. You can now monitor the phone’s video feed from your office computer through VLC’s viewer.
To record the video to your computer using VLC, click “view” on the top menu and select “advanced tools.” This exposes the red “record” button at the bottom-left corner of the viewer. Click the “record” button to begin recording the video and click again to stop.
By default, VLC’s recorded videos are downloaded to your PC’s “Videos” folder. The location can be changed in VLC by selecting Tools-Preferences-Input/Codecs on the top menu and changing the “record directory” to your desired folder.
Remote access
Now that you can view and record video in the office, the final task is to allow for remote viewing through the Internet.
Remote access generally is accomplished through port forwarding, a process that opens a port or channel in your office network to the outside world. Because the process is a bit complicated and involves potential security concerns, I decided to use Google’s free Chrome Remote Desktop service as an alternative. For those interested in port forwarding, a tutorial link is below.
Using Chrome Remote Desktop, you can safely access and operate your office computer through the Internet from anywhere, even from another smartphone. Obtain a free Google account, install the Chrome Web browser on your office computer, enter “Chrome Remote Desktop” in the search bar and install the program.
Set up the program by giving yourself password access to your office computer from your other designated devices — laptop, home computer, smartphone, etc. Once the Chrome Remote Desktop program is installed, you can access your firm’s desktop and operate the office cam from any location.
I enjoyed repurposing my old phone from a useless paperweight to a free and productive security device. Hopefully, you will too.
More online
See the following tutorials for more detailed instructions:
- Installing IP Webcam on your Android phone: techrepublic.com.
- Motion detection recording with free iSpy program: youtube.com.
- VLC Media Player network stream settings: grok.lsu.edu.
- Port forwarding with IP Webcam: youtube.com.
- IPhone office cam: manything.com (“manything” program is free for one camera with limited recording time).
© 2015 Law Bulletin Publishing Company. All rights reserved.
Thursday, September 10, 2015 • Volume 161, No. 177
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
Cost and time savings with e-mail service in state courts
The cost of mailing court papers is by no means the greatest drain on the sole practitioner’s bottom line, but few would deny that service obligations can be bothersome and expensive.
Cases with large service lists or frequent filings can devour stationery, postage and labor, while materials received from other parties must be manually scanned for later use.
Worse yet, mailed items can arrive late —or sometimes not at all. Thanks to the foresight of our state’s rule makers, solos can trade their paper cuts for mouse clicks. As Illinois moves closer to the federal model for global electronic filing, consensual service by e-mail now is permitted by state rules.
The requirements for e-mail service are not complex, but must properly be followed for effective service.
Constructive consent
Supreme Court Rule 11(b)(6) permits e-mail service of all court filings besides “process and complaints,” where the attorney or party has “consented to e-mail service” and provides a “designated e-mail address of record.”
Consent to e-mail service may be actual or constructive under the rules.
Actual consent arises under Supreme Court Rule 131(d), where court filers may recite, in “documents filed in any cause or served upon the opposite party,” that “service via e-mail will be accepted at [e-mail address].”
Constructive consent occurs under Supreme Court Rule 11(b)(6), when an attorney or party lists “a designated e-mail address on documents” or otherwise engages in the “use of e-mail service” in the case.
The term “designated e-mail address of record” is not specifically defined in the rules and presumably includes any e-mail address specified under Rules 131(d) or 11(b)(6).
Lastly, Rule 11(b)(6) allows for withdrawal of consent by written notice, but the rescinding party loses the right to serve others by e-mail going forward.
Certificate of service
Under Supreme Court Rule 12(b)(6), the attorney serving by email must file a certificate stating “the time and place of transmission to a designated e-mail address of record.” Non-attorney filers must include the same information in affidavit form. Proofs of service should include all required recitations under Rule 12(b)(6).
E-mail service is complete the first court day following transmission, pursuant to Rule 12(f).
Appellate cases
Supreme Court Rule 11 extends to service in the reviewing courts, and therefore, e-mail service rules apply. But make sure to follow all appellate service requirements.
For example, if three copies of an appellate brief must be served on opposing counsel per Supreme Court Rule 341, make sure to serve three separate PDF copies by e-mail and draft your certificate of service accordingly, to comply with the letter of the appellate rule.
Delivery receipts
If you have a case where some or all participants have not already consented to e-mail service, or you are unsure, consider preparing and filing your own custom agreement. Make sure each party expressly consents and include his or her designated e-mail address of record. For added protection, have participants acknowledge they will respond to delivery-receipt requests, to ensure all e-mailed documents are received.
In Cook County
Cook County is one of a growing number of circuit courts that accepts electronic filings and has promoted e-mail service through that program. At initial registration, participants have the option to give blanket consent for e-mail service in all cases where documents are filed electronically.
Consenting attorneys and parties receive e-filed documents automatically in any case where they have appeared, and the clerk’s office furnishes the filer with a certificate reflecting that e-mail service was accomplished.
Cook County additionally promotes e-mail service for non-participant counsel and parties, by including the Rule 131(d) consent language on appearance forms and civil cover sheets. Any person may add his or her e-mail address to the form, thus consenting to e-mail service in the given case.
According to Elena Shea Demos, general counsel for the Cook County Circuit Court clerk’s office, Clerk Dorothy A. Brown is committed to promoting e-mail service by filers. The clerk’s efforts “have been well-received,” Demos said.
Mandatory e-mail service
Supreme Court Rule 11(d) makes e-mail service compulsory in any circuit that adopts mandatory e-filing procedures. No circuit has yet implemented mandatory e-filing, but the writing is on the wall.
So, on your next case, consider arranging for e-mail service with your opposing counsel. Not only will electronic service make your practice more efficient in the present, but you also will be ready for future compulsory requirements of the digital age.
© 2015 Law Bulletin Publishing Company. All rights reserved.
Wednesday, August 12, 2015 • Volume 161, No. 157
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
The fantastic journey of the state’s first female attorney
History remembers a good many lawyers who enriched our profession, but few can match the iconic achievements of a scrappy teenage prodigy who burst on the legal scene more than 140 years ago.
Her name was Alta Hulett. She was the first woman in Illinois to obtain a law license. Her story is remarkable.
Hulett was born on a Rockford-area farm in 1854. She left school at age 10 to help support her family, somehow securing an appointment to operate a telegraph. Hulett eventually returned to her studies and finished high school in 1870, at age 16. For graduation, she read a poem about finding strength and helping others.
Litigation is a man’s game
Although Hulett was enthralled by the law, the Illinois bar in 1870 was a confirmed boys’ club. Two years earlier, the state Supreme Court turned away a highly qualified female applicant, Myra Bradwell, because married women by common law could not enter into express or implied contracts, and thus were not competent to maintain attorney-client relationships.
While the justices expressed “profound sympathy” for Bradwell and blamed their decision on established precedent, the opinion also questioned whether women were gritty enough to litigate against men.
“There are some departments of the legal profession in which [Bradwell] can appropriately labor,” the court conceded, but whether “to engage in the hot strifes of the bar, in the presence of the public, and with momentous verdicts the prizes of the struggle, would not tend to destroy the deference and delicacy with which it is the pride of our ruder sex to treat her, is a matter certainly worthy of her consideration.”
Hulett, undeterred, set about to obtain her law license. She began an apprenticeship with a prominent Rockford attorney, where she studied court proceedings, and her presence at the bar caused a stir among the lawyers.
According to the Chicago Legal News, even though her “bright and prepossessing … appearance” turned many heads, Hulett watched “the progress of a case with as much interest as any of the legal gentlemen present,” and showed she was “earnest in her purpose to acquire a profession.”
By 1871, Hulett completed her legal training and sat for the bar examination, where, one of the examiners told the Chicago Legal News, she “answered questions much more readily than the four gentlemen who were examined with her.” Having met all requirements, Hulett, then 17, confidently requested admission from the Illinois Supreme Court.
Even though Hulett was not married, distinguishing her case from Bradwell’s, the court’s view of women at the bar had not changed. Hulett’s application for admission did not even receive a response.
Oration leads to legislation
Hulett was “grievously disappointed, but not disheartened,” as Phebe A. Hanaford noted in her book “Women of the Century.” Instead of calling it a day and donning an apron, she wrote a lecture titled “Justice versus the Supreme Court,” and argued eloquently for gender equality to audiences across northern Illinois.
The young trailblazer’s speeches ignited a passion in her listeners. For example, the Beloit College Monthly extolled the lecture and lamented the “row of inhuman wretches [who] occupied the Illinois Bench.”
Having garnered popular support, Hulett next took on the lawmakers. In consultation with Bradwell and several legislators, she wrote a bill that precluded employment discrimination based on gender and lobbied hard for its passage.
In March 1872 the Illinois legislature assented, proclaiming that “no person shall be precluded or debarred from any occupation, profession or employment (except military) on account of sex.”
Hulett said she would “never again know a moment of such supreme happiness,” as reflected in “Women of the Century.” She sat for another bar examination, again finishing at the head of her class, and was admitted in 1873.
Old biases die hard, though. One of the examining justices reportedly grumbled that if Hulett were his daughter, she would be disinherited.
Hulett did not care a whit. She had her license. The new lawyer was barely 19.
Successful solo practice
Hulett set up an office in downtown Chicago and went to work. Before long, reported Victoria Magazine, she “had attained an enviable reputation, and a practice amounting to three thousand dollars a year.” Her new lawsuits were printed on the first page of the Chicago Daily Law Bulletin, just like her male colleagues.
The Chicago Legal News glowed that “Miss Hulett tries these cases with an ability which would have been creditable to a man much her senior. In her argument, she comprehended the facts and applied the law to them with a readiness which seemed to astonish the court and members of the bar present.”
Among her matters, Hulett scored a significant victory for married women in federal court, protecting a wife’s assets and earnings from the husband’s creditors. In another decision, the Illinois Supreme Court affirmed Hulett’s judgment against a defendant who failed to timely obtain a bankruptcy stay.
“To say that Chicago is proud of its first lady lawyer,” Hanaford exclaimed in “Women of the Century,” “is only a mild form of stating the case.”
The profession mourns
Hulett’s career tragically was cut short after only a few years, when she was stricken by tuberculosis in November 1876. She sought a healthier climate in California, but succumbed the next spring. Hulett was just 22. The Chicago Bar Association passed a resolution honoring her memory.
Hulett’s intrepid spirit comes to life in a photograph taken the year of her admission, in 1873. A copy is on display at encyclopedia.chicagohistory.org/pages/11197.html.
The camera takes in Hulett’s intense gaze, right hand resting on a book, left hand at her side with forefinger extended, as if poised to make an emphatic legal point. Lacking a man’s vest for her pocket watch and fob — the 19th-century version of a smartphone — Hulett gamely drapes the fob around her neck and tucks the watch in a waist pocket of her dress.
The image says it all. This tenacious lady litigator is truly one of the boys.
As you prepare for your next professional challenge, take a moment to reflect on Hulett’s accomplishments. As she would tell you, anything is possible.
© 2015 Law Bulletin Publishing Company. All rights reserved.
Thursday, July 9, 2015 • Volume 161, No. 133
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
Review your letterhead to stay out of trouble
Whether you have an established solo practice or are about to start one, take a moment to check your letterhead, business cards and even your e-mail signature. Choosing the content may sound straightforward for a one-person enterprise, but there are several pitfalls to avoid.
Letterhead content is broadly governed by Rule 7.1 of the Illinois Rules of Professional Conduct, which is titled “Communications Concerning a Lawyer’s Services,” and prohibits “false or misleading communication about the lawyer or the lawyer’s services.”
Rule 7.5, in turn, prohibits firm names and letterheads that are false or misleading within the meaning of Rule 7.1, and further imposes four restrictions to prevent confusion:
•Trade names are permitted, but practitioners must avoid names that “imply a connection with a government agency or with a public or charitable legal services organization.” Rule 7.5(a).
•Firms may use “the same name or other professional designation” in multiple jurisdictions, but if a lawyer is not licensed in any state with an office specified on the letterhead, his or her “jurisdictional limitations” must be identified. Rule 7.5(b).
•Any lawyer “holding public office” must be excluded when he or she “is not actively and regularly practicing with the firm.” Rule 7.5(c).
•Letterhead must not state or imply a false connection between an attorney and a “partnership or other organization.” Rule 7.5(d)
Sole practitioners have run afoul of Rule 7.5 on occasion and sometimes in unexpected ways.
For example, a longtime New York sole practitioner used the name “Cardenas & Associates” on his letterhead and business cards. Last year, a state appeals court affirmed the disciplinary panel’s conclusion that the letterhead and cards violated New York’s version of Rule 7.5. According to the court, the language “& Associates” was misleading because the attorney “did not employ any associates.” In re Cardenas, 997 N.Y.S.2d 422, 423-24 (N.Y. App. Div. 2014).
South Carolina has joined New York in cautioning sole practitioners to accurately convey their single-member status on their letterhead. See In re Defillo, 762 S.E.2d 552, 553 (S.C. 2014) (Attorney’s letterhead violated Rule 7.5 in part because it “contained the phrase ‘Attorneys and Counselors at Law’ when, in fact, respondent had no partners or associates at the times the letters were written.”).
Another warning extends to sole practitioners who maintain multiple offices, particularly those who practice in state border areas. Avoid using nonlicensed-state addresses on your letterhead without proper disclosure.
As a case in point, a Washington, D.C., solo received an informal admonition for including a Maryland office address on her letterhead without disclosing she was not licensed in Maryland. Because the attorney also was licensed in Illinois, the Illinois Supreme Court issued a reciprocal reprimand. In re Winstead, 69 A.3d 390, 398 (D.C. 2013); see also In re Winstead, No. M.R.27011 (Ill. Sup. Ct. Jan. 16, 2015).
Even using a post office box on your letterhead for a nonlicensed jurisdiction — without disclosure — has been ruled a violation of Rule 7.5. Attorney Grievance Commission v. Stinson, 50 A.3d 1222, 1237-38 (Md. 2012) (“Respondent’s use of law office letterhead … showing only a Washington, D.C., post office box address, without indicating thereon that she was only licensed to practice law in Maryland and not in the District of Columbia, violated Rule 7.5(b).”).
Moreover, although sole practitioners may use appropriate trade names under Rule 7.5(a), make sure the name is not misleading. A solo’s letterhead was deemed improper, even though the firm’s name consisted of the attorney’s last name followed by “& Company,” because the letterhead misrepresented “his position as a senior member of Leigh & Company when, in fact, he was a sole legal practitioner.” State v. Leigh, 914 P.2d 661, 666 (Okla. 1996).
Also be aware that e-mail and faxes are subject to the same Rule 7.1 standards as letterhead. See In re Winstead, 69 A.3d at 398 (misleading communications included e-mail and faxes).
Keep in mind that letterhead transgressions can lead to troubles beyond state-imposed discipline. According to a federal judge in Massachusetts, several sole practitioners who used a single letterhead had “an affirmative duty” under Rule 7.5(d) to “disclaim any partnership if they are not, in fact, partners.” Andrews v. Elwell, 367 F.Supp. 2d 35, 39-41 (D. Mass. 2005).
The court went on to decide that the group letterhead was “indicative” that a partnership-in-fact may exist, and consequently denied the sole practitioners’ motion for summary judgment in a malpractice action, even though the movant-attorneys were not involved in the underlying case.
With those principles in mind, make a quick review of your stationery, cards and e-mail signature. It will be time well spent.
© 2015 Law Bulletin Publishing Company. All rights reserved.
Thursday, June 11, 2015 • Volume 161, No. 114
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, "Sole Speak" Column
glenn@heilizer.com
Going solo and building a practice in the Big Apple
Attorneys follow varying paths to solo practice. Some work on their own after law school, while others leave firms, and still others depart from public- or private-sector employment. But few have followed the course taken by attorney David E. Miller, a newly minted solo whose prior legal career has reached across the world and back.
I met Miller several years ago, when he worked for a multi-national financial institution. Recently, Miller decided to forgo the corporate lifestyle and hang out his own shingle. I asked him to discuss the hows and whys of starting a solo practice on the East Coast.
The upper echelons of international law and corporate practice
Partly due to an upbringing in a university town by his professor-father, Miller developed far-flung interests in history, language and travel at an early age. He spent time after high school at a kibbutz in Israel, and already fluent in French, he went on to major in Russian studies, then obtained his master’s degree in Russian history.
Recognizing there were few opportunities in academia, Miller landed a paralegal job at an immigration law firm, where he decided to pursue the law. As a law student, Miller spent a summer working on minority property rights in the Deep South. He subsequently accepted a dream job as a first-year associate with the Moscow office of the prestigious global law firm of Hogan & Hartson.
Miller worked overseas on weighty litigation matters across Europe and even represented a Hollywood studio filming a major motion picture in Russia.
On his return to the States, Miller continued his international law practice, then worked in-house at a major financial institution, where he managed as many as 300 litigated matters at a time.
The big-firm-corporate lifestyle took its toll. With routine and endless 12-hour workdays, Miller found less and less time for his wife and two young children. Something needed to change.
Building a solo firm on a budget
Miller left his in-house position and returned to private practice at a boutique litigation firm but quickly turned to the idea of working for himself. With no clients of his own, a highly competitive legal marketplace and a family to support, Miller was concerned about taking the plunge. Parting with a steady paycheck was not an easy decision.
In the end, his entrepreneurial spirit carried the day.
I asked Miller how one goes about building a solo practice in the New York area, and his answer was simple — “carefully.”
To conserve resources, Miller set up his office at his home, about 20 miles from the city. He emphasizes in-person client contact and frequently travels to meet his clients at their places of business. Miller sees little advantage in expending resources on a fancy office when he can meet clients and take depositions at arranged locations.
The biggest surprise for Miller has been the amount of down time spent on administrative functions. Transitioning to a one-man shop from a corporate environment where secretaries and paralegals allowed Miller to focus on his legal work and billable hours has taken some adjustment.
Miller recounts multiple trips to his local bank just to open his law firm accounts and says the nearest office supply store is his “home away from home.” He did not expect so many “behind the scenes” tasks.
Ultimately, Miller concludes, firm administration is a necessary investment, but you have to work as efficiently as possible to maximize your client time. Upgrade facilities as permitted by your budget. Realistic growth is the key.
Getting and keeping core clients
Another significant challenge for Miller has been building his client base from scratch. Although he represented a steady stream of Fortune 500 companies in his former world, working on his own now requires that he find — and keep — his own clients. Easier said than done, particularly in the hypercompetitive New York City market.
Building a client portfolio has been slow but steady, he says. There are no shortcuts, and the only way to succeed is to keep at it.
Miller uses modern marketing tools such a LinkedIn, but his best ally so far has been the telephone. Miller has marketed his firm by reaching out to former colleagues and business associates and letting them know what he brings to the table. The results have been tangible.
Miller’s favorite new client story is based on a wrong number. One of his former employers intended to call a different David Miller but reached him by mistake. One thing led to another, a referral was made, and now Miller receives recurring litigation work from the new client.
Millers concedes his book of business is not where it needs to be but remains undeterred and takes comfort in the steady progress made over just a few months in solo practice. Although he takes on a variety of matters, Miller places a premium on including clients with repeat business. Continuity is paramount.
Rewards over risks
Though his solo practice has hit bumps in the road, Miller has no regrets and looks forward to building his practice. He loves the independence and flexibility afforded by self-employment and the time he now spends with family is priceless.
And Miller confesses he likes the idea of living or dying by his own sword.
I had more questions, but Miller had to cut the interview short. He was off to buy some legal pads. Such is life at the Law Office of David E. Miller LLC.
© 2015 Law Bulletin Publishing Company. All rights reserved.
Wednesday, May 13, 2015 • Volume 161, No. 94
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com
For sole practitioners, a new method of support
Recent statistics suggest roughly half of all Illinois attorneys are self-employed. Although national, state and local bar groups maintain sections that support sole practitioners, there is no bar association devoted exclusively to promoting the interests of this ever-increasing segment.
That is based in part on our tendency toward self-reliance. We already manage all aspects of our practices, from top to bottom. We can do it all.
So why collaborate with others, beyond the necessary? And even if we wanted to be more collegial, we don’t have much time. Our work keeps us busy.
The fact is, practicing law is more challenging now than ever. Technology can be the solo’s friend —electronic filing and online research, for instance —but the changes keep coming, faster
and faster. Blink too long, and you miss a new development.
There has been little chance for sole practitioners across the state to come together as a group, compare notes, keep current and generally kick around ideas and solutions to common problems.
Until now.
The Sole Practitioners Bar Association of Illinois was formed to support solos who want to collaborate with colleagues while retaining their independence.
Thanks to the digital age, the association uses an efficient, online-based platform to promote the free flow of information among members. Membership is free and available to all Illinois-licensed
attorneys. The website is located at ilsolobar.org.
Through the association’s website, members can read up on starting a small firm, get marketing advice or monitor trending legal issues. We further anticipate addressing more day-to-day matters, such as discussions on minimizing overhead, hosting a marketplace for sharing office space, assistance with calendar conflicts and the like.
And, of course, the ever-present succession planning is a topic of conversation.
Going forward, the success of this upstart group depends on you. This is a work in progress. We need participants to be actively involved. Members can post their own articles, comment on existing content and interact with other solos. So if you join, bring your keyboard.
Down the road, we hope to attract enough members to speak with a unified voice on regulatory and rule-making issues affecting solos in Illinois. Legal licensing and court requirements are fluid. We should participate in the process, consistent with our mission, like other bar associations. Being small should not equate with being left out.
In researching sole practice issues for this column, I have crossed paths with judges, regulators, support groups and representatives from public-interest organizations. More than anything else, I am told we “need to get the word out” to solos on various important topics.
The Sole Practitioners Bar Association, which I founded, was formed for this reason. Please join, check it out and help get the word out. Let’s see if there really is strength in numbers.
© 2015 Law Bulletin Publishing Company. All rights reserved.
Thursday, March 26, 2015 • Volume 161, No. 59
Reprinted with permission from Law Bulletin Publishing Company
Glenn E. Heilizer, “Sole Speak” Column
glenn@heilizer.com