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On Balance by Megan Zavieh
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On Balance

Beyond Solo: Growing Your Practice Ethically in 2019

If expansion's on your mind, remember these critical issues.

By Megan Zavieh

Are you a solo lawyer considering growing your practice in the new year?

Operating as a true solo has real benefits. You likely know all your clients and their files personally, so if something is not written down, chances are you still know the information. Shortcomings in systems can be overcome with institutional memory; even super important details like conflicts checks can be managed to a certain extent with the information inside your head. A certain amount of disorder is more tolerable as a true solo, too.

The limitations of solo practice, though, can be significant. There is only so much work one person can take on. This limits your impact on the community and your revenue. And when you are performing all the administrative functions, too, the time you have to devote to the revenue-generating side of the business is significantly impacted.

If you have made the decision to expand in 2019, particularly if your shift will be from true solo to something larger, there are some critical ethics issues to keep in mind as you make your plans.

What Level of Growth?

A preliminary question in considering growth is exactly what type of growth you mean. If you intend to remain a solo lawyer but add support staff, your issues will be slightly different than if you intend to add lawyers.

Do You Want to Bring on Lawyers?

Adding lawyers means that issues like conflicts checks take on new importance. Each new attorney brings their own potential conflicts with them, and running a conflicts check with another lawyer in the firm means that every possible conflict must be recorded in a database that the other lawyer can search. It is not possible for a second lawyer to search the knowledge in your head.

An additional attorney also brings a certain safeguard in that the lawyer is subject to the same ethics rules as you. Unlike non-attorney staff, the lawyer will have had training in ethics and have their own duties and license to be concerned about and guided by.

If the new lawyer will be brought in as a partner, you will share management duties and ethical responsibilities. If the lawyer is an associate working under your supervision, you will have supervisory duties.

Do You Want to Hire Staff?

If you are bringing only staff on board, you still have supervisory obligations. You can be found culpable of ethical violations for errors made by non-attorney staff if those errors are the result of your failure to supervise. This means you must ensure adequate training and oversight of your team members.

Key Ethical Issues

As you expand, certain issues are going to take on more importance compared with when you are a solo.

Data Security

Security of client data is extremely important even for a true solo. Hackers can so easily steal passwords, and use of public Wi-Fi remains a vulnerability for less tech-savvy lawyers. Once you introduce additional users onto your system, the risks are magnified. Instead of one login, now there are multiple logins that could be compromised. Instead of controlling one person’s use of unsecure networks, you need to worry about everyone. Sharing of data among users from multiple cloud platforms becomes a concern.

If you lack the technical expertise to ensure the security of your client data meets ethics standards, you want to seek outside assistance. Consultants can work with you to establish secure systems and best practices to add users to your firm without compromising security.

Conflicts

As mentioned, the introduction of additional lawyers complicates matters in terms of conflicts checking systems. You need to have both an updated system for running conflicts and a set of processes for handling them when they arise. For a solo, a conflict leads to two possible outcomes: If it is not waivable, the representation is declined. If it is waivable, then the attorney seeks a waiver and either gets it (representation continues) or does not (representation is declined). With multiple lawyers, solutions like ethical screens become possible.

If you’re also growing your practice with non-lawyer staff, that makes it a good time for revamping your conflicts check processes. While ensuring you are not violating conflicts rules is the attorney’s responsibility, portions of running a check are delegable. Make sure your system is tuned up and ready for someone else to work within it.

Unauthorized Practice of Law

UPL can come into play with firm expansion in a couple of ways. With lawyers, if you are adding capacity across state lines, you will need to ensure compliance with all state regulations. Make sure any lawyer you are adding is barred and up to date on all membership requirements in the state in which they are located and practicing. If the expansion means some virtual remote practice, check the admissions requirements in both the state in which the lawyer sits and the state in which they practice.

Non-lawyers or other unlicensed personnel need training on what it means to practice law so that they can ensure they are not doing so. Ultimately the supervisory role falls to the lawyer, so you must ensure that your staff are not crossing lines.

Systems Need Fine-Tuning

Whatever systems a true solo has in place, they are likely to be unwritten. When you are planning to expand, it’s the time to put your systems in writing — and fine-tune them. Adopt a management system for the office and deploy it with your new help.

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Megan Zavieh Megan Zavieh

Megan Zavieh is the creator and author of “The Playbook: The California Bar Discipline System Practice Guide.” At Zavieh Law, she focuses her practice exclusively on attorney ethics, providing representation to attorneys facing disciplinary action and guidance on questions of legal ethics. Megan is admitted to practice in California, Georgia, New York and New Jersey, as well as in multiple federal courts and the U.S. Supreme Court. In On Balance, Megan writes about issues confronting lawyers in the new world of practicing law. She podcasts on Lawyers Gone Ethical, blogs on ethics at California State Bar Defense and tweets @ZaviehLaw.

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