Role of Trustee

By Damon Duncan

A bankruptcy trustee plays an important role in the success of your bankruptcy.  The trustee’s role is different depending on the type of bankruptcy you plan on filing.  In a Chapter 7 Bankruptcy, which is a discharge of most of your debts, the trustee acts as a representative for all of your creditors.  This mainly becomes an issue when there is non-exempt (or unprotected) property in the bankruptcy estate.  Nonexempt property is any property that you own that has not been protected by state exemptions. If there is excess cash or excess property that has significant equity and can be easily sold, it is the bankruptcy trustee’s job to liquidate the property and disperse the proceeds among your creditors.

            The Chapter 13 trustee, on the other hand plays a role similar to a financial advisor.  The trustee analyzes your proposed Chapter 13 plan, and first determines whether it is feasible, and then if there is anything else that can be tweaked within the plan to make your payments more manageable.  A Chapter 13 Trustee also investigates and determines any creditor objections to any claims that may be included in your bankruptcy.   The Chapter 13 trustee is also the one that pays all of your creditors.  You make a monthly payment to the trustee, who then disperses this amount to all of your creditors.  If the trustee is not paid every month then he/she will no longer pay your creditors and you will be kicked out of the plan.

            In both types of personal bankruptcy a trustee must approve your case before you can complete the bankruptcy.  This is why the trustee plays such an important role in the bankruptcy process.

Beware the “Red Flag” Client!

By Mark Scruggs

One of most frequent comments I hear from an insured who is calling to report a malpractice claim is “I knew this was going to happen!” The unlucky lawyer knew the day he accepted that client that the client was going to be nothing but trouble. The red flags were there, but the lawyer chose to disregard them for the sake of another hopefully income producing case.  Perhaps the lawyer recognized this person really needed help, and the lawyer thought she could effectively manage the difficult client.  Lawyers can reduce the risk of a grievance or a malpractice claim by good client selection. In other words, pay attention to the “red flags.”  So what are some of these “red flags” of good client selection? Here are my top five, confirmed by our insureds from Murphy to Manteo:

1. 1.       The “Last Minute” Client. How many times has a potential client come to your office within days or weeks of a deadline wanting to hire you to fix the mess he has made?  The “last minute” client wants to turn you into the “insurer” of the deal. If in your haste to meet an important deadline because the client has put you in that spot you make a mistake, it will all be your fault.  Do not let the client’s self-made emergency become your next malpractice claim. If you do not have the time to accomplish the task competently, do not take the case.
2. 2.       The “You’re My Last Hope” Client.  How many times have you heard this one? The client comes to your office having been turned down by three other lawyers in town and referred to you. Or, my favorite, the client who has fired a couple of previous lawyers who just weren’t up to snuff.  There may be reason why your colleagues refused the case. Maybe they were paying attention to the “red flags.” Maybe the reason the client has fired two lawyers has more to do with the client than to your colleagues’ competence.  You should think twice about taking on this client.
3. 3.       The “Unrealistic Expectations” Client.  There are some things lawyers can do, and some things lawyers cannot do. In the family law area, you can file pleadings, seek alimony, child support, child custody and equitable distribution. However, you cannot fix the relationship. Neither should you accept a representation when it is clear that the client’s sole objective is to destroy the other side.  Such emotions are entirely understandable, but such goals are, or should be, beyond your role as objective advocate.
4. 4.       The Angry Client. This red flag may not be immediately recognizable as a real problem. After all, clients sometimes have good reason to be emotional or even angry about their legal case. However, uncontrolled anger can be destructive to the client’s case, your reputation and perhaps even the safety of you and your staff.  Angry clients may badmouth you to friends, family and members of the community. To reach a wider audience they may post libelous comments about you on the internet.  If your client’s uncontrolled anger begins to pose a problem for the case or for you professionally or personally, you should consider withdrawing from the case.
5. 5.       The “No Pay” or “Slow Pay” Client.  This is one of the most dangerous “red flags” in my experience.   If you let the client get too far behind in paying your bill, you are going to be reluctant to get out of the case because you know you if you withdraw the client will certainly never pay you what she owes you.  You will feel stuck in a case and a relationship that is no longer a fulfilling one for either party.  Moreover, you may start to ignore the client and the case because you would rather work for clients who are paying your bills. That may lead to a malpractice claim or a grievance.  Finally, if you find yourself having to sue your client to collect a substantial fee, you will almost certainly find yourself having to defend a counterclaim for legal malpractice.

So listen to your gut. Heed the “red flags” of good client selection.  Yes, you may have to turn down a case or two, or withdraw from a few more, but in the end, you will be happier, wealthier and certainly wiser.  

It’s Hard Out There For A Blog Editor – Strategies to Keep Contributors Interested

By Jim Dedman

The enthusiasm of a new law blogger is unparalleled.  When a lawyer decides to blog, he or she has much to say and to offer potential readers.  Often, the new legal blogger already has several – perhaps even half a dozen – potential posts in mind.  In fact, it is that initial multitude of post ideas which prompts the desire to create a blog in the first place.  But, inevitably, as days pass, weeks go by, and weeks become months, the initial joy of blogging – like most other things that once made us happy - becomes a chore.  Sadly, the once promising blog evolves from a labor of love to a non-billable business development task, which typically falls to the bottom of the stack.  After all, non-billable work – particularly tasks which do not involve direct contact with actual or potential clients – must come second, third, or even fourth to other such plans.  This is why so many blogs die early deaths and why the legal blogosphere is full of blog graveyards.

Is there a solution to this problem?  Or are most lawyers merely dilettantes fated to become deadbeat bloggers?  How might lawyers guard against these issues?

There are potential remedies, yes. 

First and foremost, you should ensure that your legal blog maintains a regular posting schedule.  Giving yourself any discretion at all in the frequency of your posting will allow you to delay and procrastinate, and as we all know, delay and procrastination are the best friends of the busy lawyer.  It need not be daily, it need not be weekly, but it must be regularly.  Ideally, the legal blogger would update the blog at least once or twice a week.  However, if that is not possible, one post each week, on the same day of the week, would be acceptable. Such an approach allows readers to know exactly when the site will be updated.  Monthly is probably the worst of the permissible options, and anything less than monthly is really more of a newsletter than a blog anyway.  Whatever the case, a regular posting schedule is a must. Stick to it.

It’s not easy being a solo blogger. Remember, though, that you can enlist friends and colleagues, from your firm, or from other firms, to assist you in this effort.  If it is too much to post more than once a week, but you would like your blog to be updated more regularly, invite some contributors to join you in the enterprise.  There are many group blogs that have operated for years and update frequently with the assistance of multiple authors, including The Volokh Conspiracy, and of course, I must mention my own firm’s blog, Abnormal Use.  Spreading the work around lightens the burden on yourself, but it also ensures that the posts are different enough from each other in tone and style to keep the site interesting enough to its readers.

Ah, but you ask, how can you guarantee that your contributors will, in fact, contribute?  That is the key question.  If your firm has made a commitment to the blog, then participation can be a factor in discretionary compensation at the end of year, including bonuses or other reward plans.  If associates are required – or strongly encouraged – to write articles legal publications, contribution to the firm’s blog can be made an option to meet that requirement.

If you are working with other lawyers at other firms, really, there is an honor system of sorts.  The manager of any group blog composed of writer volunteers faces a tough task in that he or she must constantly follow up with contributors who may be tardy or delinquent in submitting their posts.  One can’t be too forceful, either, because the volunteers are, well, volunteers, and if the task becomes to much of a hassle, they will simply abandon it, leaving the editor manager in a worse spot than before.  But there can be rewards of sort for participation in the enterprise.

Really, though, the best way to motivate one’s blog and writers is to find lawyers who are writers and enthusiasts of writing first and foremost.  They’re out there.  Find the ones who use to write for their college newspaper or who may have once maintained personal blogs.  Locate the people who derive joy from writing and the rest will come easy.  But don’t stop there. Make efforts to promote their submissions, as well.  Simply placing their article on the blog and waiting for readers to  happen upon it is not enough; you must tweet a link to it on Twitter and post the submission on your blog or firm’s Facebook fan page, if any.  Make certain that these writers know that you are doing that so that they can re-tweet or share your original Facebook post on their own Facebook wall or other favorite social networking sites.  Finally, promote their work to other bloggers and websites.  If you think a larger more popular blog may be interested in your writer’s post, forward it along with all deliberate speed.  If you let your writers know that their posts are getting attention – and if you make certain that they get attention because of your efforts – then the enthusiasm that your writers maintain will continue to increase.

And as long as that enthusiasm remains, the blog should be fine.

Those Little Mistakes Do Matter . . .

By Katherine Frye

These past two weeks have been littered with those “little mistakes.” Luckily, it was not our office that made the mistakes, but it reminded me that the little things make a huge difference to your practice especially in the emotional practice of family law.

Auto fill or quick replies to emails can create tremendous problems. Just in the past week, I received not one but two emails from other attorneys that were not meant for me. One was essentially harmless, but one provided me a glimpse on their strategy. Clearly the attorney hit reply when she meant to forward to the associate. It took me a minute of reading it before I realized it was not meant for me. I deleted the email, but I was left with the thought of how this could impact this attorney’s client.

What about those haphazard comments attorneys make out of frustration? Have you made those before?

Recently, I heard an attorney say that “it is just a temporary custody hearing, so don’t stress over it.” Wow. I could tell the attorney was frustrated, but that comment was devastating to the client. These were her children; temporary or not, this hearing was important. Needless to say the hearing did not go well, the client fired the attorney and refused to pay her outstanding fees, and she was also considering the option of reporting the behavior to the bar. The result of his comments were going to be far beyond what he may have thought.

When work overwhelms us, we sometimes try to do too much, too fast, which results in mistakes. I encourage you to take the time to slow down and do things right the first time. Remember, trying to do something quickly can result in little mistakes with unthinkable consequences.

~Katherine Frye is the owner of Frye Law Offices in Raleigh, N.C. She began her own family law practice over ten years ago, and she is a N.C. Family Law Specialist since 2006.

Mediation, Transformation and Resolution

By Christie Foppiano

Since becoming a mediator, I have had more opportunities to meet and talk with other mediators, including many non-lawyer mediators.  I have heard more than one of them discuss the transformative power of mediation.  I must admit, at first, this notion gave me pause.  It is certainly not a topic I hear discussed frequently among lawyer mediators.  When I represented clients in mediation, my goal was far less lofty – to determine if the case could be settled on reasonable terms which my client found acceptable. 

I began to wonder whether resolution requires transformation.  Webster’s defines transformation as “…a change in form, appearance, nature, disposition, condition, character, etc.” and resolution as “a solving, as of a puzzle; the answering, as of a question; solution.”  Thinking back on my own experience as an attorney, I was unable to recall a mediated settlement conference where I felt my client, or any party for that matter, seemed transformed by the experience.  On a good day, we solved the puzzle of their lawsuit. 

Upon further reflection, some (but certainly not all) successful mediations may require transformation to achieve resolution.  In those instances, I believe transformation is gradual, accomplished through a series of small shifts in each side’s perspective.  This change may involve perception of the facts, the other party and/or the respective strengths or weaknesses of the case.  It probably also involves other intangible factors which may not even be conscious considerations.  These gradual shifts in perception, perspective and perhaps attitude may allow both sides to make or accept proposals that they (and perhaps you) would have believed impossible at the beginning of the session. 

This slow shift may not be the transformation I believe many of my non-lawyer colleagues speak of.  It may be unrealistic to expect an emotional breakthrough in most Superior Court mediations.  However, you might just witness a slow and steady metamorphosis that ultimately leads to resolution of the case.  Here is hoping that April showers bring you not only May flowers but a healthy dose of transformation to your next mediated settlement conference.