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The Source: A [re]source about legal writing and [out]sourcing for solo and small firm lawyers
 Lisa Solomon, Esq. Legal Research & Writing Newsletter Issue 11
  In This Issue
  • Feature Article: Ethics 20/20 Commision's Draft Proposal Supports Outsourcing, Clarifies Hiring Attorneys' Obligations
  • Pixel Persuasion: Legal Writing for the 21st Century Premieres at NYCLA in June
  • Outsourcing Opportunity: Client Letters
  • Lisa's Mycology Update: "Mushrooms" on the Move

 
Feature Article: Ethics 20/20 Commision's Draft Proposal Supports Outsourcing, Clarifies Hiring Attorneys' Obligations
Yesterday, the ABA's Ethics 20/20 Commission released its initial proposal concerning changes to the Model Rules of Professional Conduct (or, more accurately, the comments to the Model Rules) as they relate to domestic and international outsourcing. The "initial draft proposal" shouldn't be confused with the "discussion draft" of proposed changes, which was released last November. The language if the initial draft is substantially identical to the language of the discussion draft. In turn, the discussion draft didn't introduce anything new or surprising; rather, it merely elevated many of the points made in ABA Formal Op. 08-451 to the level of Model Rule comments. I've highlighted below the handful of significant differences between the discussion draft and the initial draft.

The revised comment to Model Rule 1.1 stresses the importance of obtaining the client's informed consent to outsourcing

Model Rule 1.1 states that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The initial draft contains a presumption, in Comment 7, that the hiring attorney is required to obtain the client's informed consent to outsourcing; by contrast, the discussion draft (in Comment 6) said only that informed consent may be required. Additionally, the issue of informed consent has been moved from the end of the comment to the beginning, better reflecting the requirement's significance. Finally, in the initial draft, informed consent is couched as a fundamental requirement (in most circumstances), whereas the discussion draft treated the possibility that informed consent might be required as a byproduct of the sharing of confidential information.

The revised comments to Model Rule 5.3 make explicit the rule's applicability to freelance (contract) lawyers and place more responsibility on the hiring attorney to provide non-lawyers with adequate guidance

Model Rule 5.3 governs a lawyer's responsibilities regarding non-lawyer assistants. The discussion draft didn't suggest any changes to the already-existing Comments [1] and [2]. The initial draft revises Comment [2] (and renumbers it as comment [1]) to explicitly expand the rule's coverage to nonlawyers outside a firm (in addition to nonlawyers employed by a firm).

Additionally, the discussion draft included an entirely new comment [3] to Rule 5.3. The hiring attorney's obligations under this rule are further refined in the initial draft. In the discussion draft, Comment [3] vaguely directed the hiring attorney to "make reasonable efforts" to ensure that nonlawyers act in a manner compatible with the hiring attorney's professional obligations. The initial draft clarifies that those "reasonable efforts" include the communication of appropriate directions to the nonlawyer, thus arguably requiring the hiring attorney to take a more active role in assuring an acceptable level of performance by an outside-the-firm nonlawyer.

The Commission's report continues to support outsourcing while disclaiming an intent to do so

In the introduction to its November 2010 draft report, the Commission disclaimed any intent to either endorse or reject the practice of outsourcing, but, like Op. 08-451, it discussed the benefits of outsourcing. The report accompanying the initial draft proposal adds even more laudatory language, noting that "[b]y reducing the cost of legal services, outsourcing can improve access to justice by making legal services more affordable. Additionally, the report (like the draft report) recognizes that the ability of solo practitioners and small- and mid-sized firms to retain outside high-quality outside providers, who can complete work at greater speed and lower cost than firm employees allows those firms to better compete for large matters without fear that they will lack adequate resources to perform the legal work involved.

(You can find an expanded version of this article, with redlined versions of the comments discussed above, at my Legal Research & Writing Pro blog.)


 
Pixel Persuasion: Legal Writing for the 21st Century Premieres at NYCLA in June
On Monday, June 6, 6:00-8:00 p.m., Christine Falcicchio of Trialgraphix and I will premiere our new CLE program, Pixel Persuasion: Legal Writing for the 21st Century at the New York County Lawyers Association in downtown Manhattan.

More and more judges are reading briefs on computer screens, rather than on paper. While many of the basic principles of effective brief writing apply regardless of the manner in which the court consumes your brief, the electronic medium presents new opportunities to leverage both technology and principles of document design and web usability to give your brief even more persuasive power.

The first part of the program will focus on how to more persuasively present information intended to be read on a screen in pdf format. We'll discuss:
  • the important differences between screen-reading and paper-reading
  • the F-pattern
  • tips for writing for the 21st-Century legal reader
In the second part of the program, you'll learn how interactive hyperlinked briefs can streamline the presentation of information and maximize the persuasive power of your arguments. Studies show that people retain information better when it is presented in multiple formats (including audio and video), rather than in just a single format (such as text). Topics covered in this section of the program include:
  • what a hyperlinked brief is, and why you use one even if your case record doesn't include rich media such as audio or video
  • what courts really think about hyperlinked briefs
  • when you should use a hyperlinked brief, and when you shouldn't
This program will carry 2 New York CLE credits and 3 New Jersey CLE credits. To register, click here.

  Outsourcing Opportunity: Client Letters
Although clients sometimes expect lawyers to know, off the top of their heads, how general legal principles apply to their specific cases, we know that, in order to properly counsel clients, it's often necessary to research a legal issue in depth. Legal research can inform case strategy and even suggest additional possible courses of action. As of counsel to an insurance coverage firm for many years, I engaged in the thorough research and in-depth analysis necessary to advise insurers concerning coverage issues and the merits of the underlying cases, in connection with hundreds of policies covering insureds around the country.

Once the legal research and analysis is completed, the next step is to clearly communicate your analysis and recommendations to your client, without getting bogged down in the legalese that can be offputting (and rightly so) to non-lawyers. I have experience writing for all kinds of audiences, from appellate judges, to sophisticated businesspeople, to litigants who have never before been involved in a legal proceeding.

Call me at 914-595-6575 or e-mail me at Lisa@QuestionOflaw.net to discuss how I can help you develop recommendations for case strategy and communicate those recommendations to your clients.

  Lisa's Mycology Update: "Mushrooms" on the Move
Slime molds are fascinating organisms. They can move and ingest food, but they're not animals. They're found in many different types of habitats, from tropical rainforests to your own backyard. And they inspired the 1950s horror movie, The Blob.

Slime molds are actually misnamed. Although they were formerly classified as molds (a kind of fungi)—which explains why I'm writing about them here—they're now classified as belonging to the kingdom protista (protoctista). We see slime molds in just part of their life cycle, as a plasmodium, which essentially is one giant cell with millions of nucleii. A plasmodium is formed when two spores come together and begin dividing into a large creeping blob of protoplasm surrounded by a single membrane. The plasmodium moves by slowly flowing or streaming, gradually engulfing and consuming fungi and bacteria that are present on decaying plant matter. Scientists have identified thousands of different kinds of slime molds.

pretzel slimeOne common question in the world of mycology is "is it edible?" Raspberry slime and pretzel slime (pictured) sound (relatively) appetizing, but aren't eaten; dog-vomit slime which sounds thoroughly unappetizingis eaten in Mexico (it's prepared like scrambled eggs). And wolf's milk slime isn't eaten, though sounds like it would be appetizing to wolf pups. 

Want to see slime molds in motion? Check out the videos here and here (until 0:30).
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Recent Issues


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What the ABA Ethics 20/20 Commission's Discussion Draft on Outsourcing Means for Solos and Small Firms

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About Lisa



Lisa Solomon, Esq.

Lisa Solomon is a freelance attorney who assists solos and small firms with all their legal research and writing needs. Lisa is also a nationally-known author and speaker about persuasive legal writing and contract (a/k/a freelance) lawyering. Her innovative law practice has been featured in such periodicals as the National Law Journal and the ABA Journal, and in a number of books about legal careers.

In her spare time, Lisa
is an avid amateur mushroom hunter.

Visit Lisa on the web at www.QuestionOfLaw.net
 
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Lisa Solomon, Esq, Legal Research & Writing
67 Beacon Hill Rd.
Ardsley, New York 10502

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