Going Solo and Running a Small Estate Planning Practice – Part I

This week’s topic is “Going Solo and Running a Small Estate Planning Practice – Part I”.  These materials are based, in part, on materials I prepared for a 2012 seminar hosted by the Maine State Bar Association entitled “Essentials For Solo and Small Firms Practitioners”.

Before You Go Solo

1. Be Prepared

It took me 10 years after graduating from law school to go solo.  Those 10 years of preparation were worth it.   You have to be able to practice efficiently and with precision at some point in some area to be successful as a solo, even if you hold yourself out as a general practitioner.  Time is money and if you haven’t run your own business you will soon find out that there is never enough of either of them!   If you are planning on going solo, take it slow and be prepared.

2.Practice with Precision

Practicing with precision means: 1) you know what you are doing; 2) you know the area of law involved; 3) you have the necessary resources available if you have questions; 4) you have the skills to implement what you know, even if in theory, safely (for both you and the client); and 5) you have the communication skills to relate what you are doing and why to your client in an effective manner that they can comprehend.

Probably the best way to practice with precision is to limit the scope of your practice and to try to develop an ideal clientele (overtime) within that practice.   Even if you are going to have a general estate planning practice it is important to consider what cases you want and make money on and which cases you should not take because they either represent too much liability or too much time without enough income to compensate you for the time/liability.  Both the large and very small client typically involves some aspect of this risk.  Try to come up with a description of ideal clientele and define the outer boundaries of your serviceable clientele. With each client take on, ask yourself where they “fit” on your client/matter paradigm.  Your clientele is like a garden. Tend to what you want to grow and it will grow.   Your clientele may change over time, due to your increased skill, increases in malpractice coverage or simply due to changes in the law.

3.Practicing Efficiently

Practicing efficiently means with respect to your practice: 1) you can do the required work in a reasonable amount of time; 2) you can be paid a reasonable amount given the nature of the matter under all the facts and circumstances; 3) you have the needed forms, or some means of getting them in a timely and cost-effective manner, which are tailored to your client, and which you understand; and 4) you have a process in place to control and document the client relationship from beginning to end which is consistent with your ethical duties and is cost-effective in terms of time and expense to implement consistently.

Every lawyer or small firm will develop this implementation aspect of their practice differently.  There is no single one or best way to implement an efficient practice and I am always striving for ways to cost effectively, and practically, make my practice run smoother and safer – for both me and the client.  For what it is worth, here is how I currently try to practice “efficiently”:

• Limited Practice Scope:        I avoid cases that involve work I don’t routinely do or that require forms or access to resources I don’t have. This also keeps me safe and well within the bounds of my malpractice policy.
• Scanning and Printing: I scan everything as it comes into my office and mark it as scanned. I save it to the client folder. No – I don’t have a paperless office but nor am I ruled by paper.
•  Dragon Dictation: I use Dragon Dictation as much as possible to decrease the amount of time I spend typing, which reduces exhaustion and strain on my body. I often switch between typing and using Dragon and haven’t committed to using it exclusively – though sometimes I wish I would. I also use it to read documents back to me, such as deed descriptions, to help in proofreading.  Since I don’t have staff, this aspect of Dragon can be very helpful.  Dragon also allows you to save custom commands, including e-mail addresses, passwords, template e-mail responses, etc., you regularly use.  Anything that you find you regularly type could be made into a custom Dragon command.
• PDF to Word Converter: I regularly use a PDF to Word converter (I use OmniPage by Nuance) to convert text from scanned files into Word files I can quickly use or modify. It is a great time saver and helps avoid errors that might otherwise result if the text if typed manually (especially if I was doing the typing!). This is great for deed work, for quickly outlining a client’s former estate plan or capturing template information for future HotDocs coding.
• Calendars: I use my calendar to schedule – just like a meeting – work on particular files and keep my appointments.
• Adobe: I feel I get a lot of bang for my buck by having a full license and not just the free reader.
•  Smartdraw: Though there may be other comparable products out there but this one has been very easy to use and was well worth the investment. How does it help me operate efficiently? Glad you asked!   I use Smartdraw to prepare handouts and visuals for clients that address routine questions and issues. It also helps me quickly build flowcharts or visuals of a client’s estate plan or probate/trust administration which help me quickly get back up to speed if I have not reviewed the file in a while.   In complex estate plans, creating visuals also often helps me identify weak sports in the overall plan structure. Finally, it helps me think through new planning ideas quickly and to record those thoughts visually.
• E-mail: I try (but often fail) to restrict reviewing my e-mail and responding to e-mails to a limited part of the day (usually after lunch). For longer e-mails that don’t involve technical issues I often find making a quick call is far more efficient than trying to respond by e-mail.
• Drafting Software: I use a drafting program, HotDocs, to automate my drafting practice. HotDocs allows me to draft quickly, consistently and to capture and put to use what I learn from day-to-day in my practice on a regular basis.   I don’t think I could practice profitably without it nor would I want to – having practiced both with and without it – as it makes practice so much more enjoyable.  Commercial drafting products (many use HotDocs) abound and there are lots of options, including Interactive Legal, WealthCounsel’s WealthDocs and ElderCounsel’s Elder Docx; Lawgic.  See “The Electronic Practice” by Don H. Kelly, B.Sc and LLB (http://wealthmanagement.com/electronicpractice) for a list and review of commercial drafting software and much more. Cost is a factor in many cases.  Certainly state specific documents are an issue with some programs. Ask around and ask for trial use before you purchase a license. I recently noticed that Casemaker now has a legal forms available for purchase online.  HotDocs recently has released a new service line called HotDocs market (https://www.hotdocsmarket.com/Marketplace) which hosts a limited number of publishers of automated templates.  HotDocs does not yet allow for individual publishers – though I wish they would.

Traditional estate planners may look down upon them but commercial products have their advantages but they also have disadvantages.

Advantages: 1) the forms are reviewed by many people and may help you avoid common drafting errors; 2) the software will likely save you time once you are comfortable with the forms and understand them; 3) they may make use of some of the strategies or techniques that you are not aware of or don’t have developed forms for; 4) the software may provide extensive training materials or help resources; 5) other users of the software will understand your forms and may provide one on one mentoring or advice.

Disadvantages: 1) likely you will not know your documents as well as someone who creates them from whole cloth; 2) they may be relatively limited in scope but it all depends on what you are buying into and, I have to admit, this may be a gross generalization as I have not used all the products out there; 3) they may be expensive from the stand point of a solo attorney or small firm; 4) they may not be state specific depending on where you live or not up to date for your state; 5) you will likely be relying on others to do much of your thinking and that can be extremely dangerous; 6) you likely will not be able to customize the forms and  may continue to be dependent on the service.

Customized automation allows you to automate more of your practice but takes time to develop, knowledge and some skill.   I feel fortunate to have a customized HotDocs practice but have spent years developing it and it still takes a lot of time to keep up to date.  Although the initial cost to get started is likely to be lower than an annual subscription to many commercial products, when you factor in the time required to develop a working library, customized automation may not be realistic for many lawyers. However, for those that want to get started, future posts attempt to give you the basic working knowledge of how to automate your documents using HotDocs.

There will always be changes and updates in the practice tools available.  You don’t have to use them all but you should keep an open mind and strive to integrate change as it comes rather than play catch up.

Next week I  will bring you Part II, in which I will continue with more on the topic of efficiency and case management.