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The Law Office of Matthew Hickey
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- Law Practice | San Francisco Bay Area, US
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- May 16, 13
Many lawyers define themselves as being involved in either litigation or transactional law. In fact, I do this myself. And for many, the distinction may be somewhat warranted. But if you’re a solo practitioner or small-firm attorney, there’s a good chance that your work involves at a little of both. Even if your practice focuses primarily on litigation, there’s no reason you shouldn’t be able to competently draft a straightforward contract for a client. It’s a skill that every lawyer should possess.
Here are a ten simple tips for getting started on your next contract.
1. Have Your Client Prepare the Outline
Before you begin drafting the contract, ask your client to prepare an outline of the agreement as they understand it. They can write it out or talk it out with you. You probably won’t build the contract directly from their outline, but it will create a blueprint of the points that are important to them. Your client’s outline also serves as a good starting point for discussing other critical issues that that they might not have thought of and should be addressed, such as what should happen if one party breaches the contract or if circumstances change in any way.
2. Be Clear
Ambiguity has been the cause of death for many contracts throughout history. To avoid that fate, it’s incredibly important that the language you use in your contract is—above all else—clear. Avoid ambiguous terms and flowery language. Many experienced transactional attorneys I’ve spoken with recommend that your contract be clear enough that a layperson will understand the terms of the deal. In this case, it’s good to think like an attorney but not sound like one.
Similarly, you should be clear in your use and placement of conjunctions (i.e. “and,” “or,” and “but”) and modifiers (i.e. “actively,” “knowingly,” and so forth). For example, if a contract states that a party is required to “actively market and sell” a product, it’s not entirely clear whether the party must be actively selling the product throughout the term of the contract, or if a plan to sell in the future would be acceptable so long as the party was actively marketing the product from the start. If both were required, the contract should state that the party is required to “actively promote and actively sell” the product. Conversely, if only active marketing—and not active selling—is required, the contract would be better written in reverse (i.e. “sell and actively market”) so that it’s clear that the modifier only applies to the final term.
3. Be Concise
Cut unnecessary words or phrases. This helps ensure not only that the contract is straight-forward, but also that the contract isn’t creating any inadvertent obligations, conditions, distinctions, and so forth.
4. Be Consistent
Once you’ve defined a party or term, be consistent in your use of it. For example, if you define one party as “Buyer” early in the contract, don’t refer to them by other names later in the contract. Instead, continue to refer to that individual as “Buyer” throughout. After all, your goal when drafting a contract isn’t to make it interesting. Unlike in creative writing, repetition in contracts is not a sin, it’s a virtue.
5. Include Recitals
Recitals typically appear at the beginning of a contract, and provide context for the agreement. They often begin with the word “whereas” (i.e. Whereas, Buyer seeks to purchase real property from Seller…”). Although the recitals aren’t required, they provide enough background that an outside party (such as a judge or jury) can quickly understand the parties’ intent.
6. Define Important Terms and Parties
It’s a good idea to define all important terms as you use them. For example, if your contract specifies that “profits” are to be split between the parties, then it’s also a good idea to specify whether you are referring to gross profits or net profits. Similarly, the contract should clearly specify what sales or proceeds will be deemed “profits” in the first place. Likewise, if your contract involves the buying and selling of property, define the property clearly enough that it could be identified by a third party otherwise unfamiliar with the deal. The same is true when identifying the parties to the contract.
7. Avoid Inadvertently Using Words With Legal Significance
Some words have greater significance to a lawyer than they might to a layperson. While this may be obvious, it’s an essential point to remember when drafting a contract. After all, the difference in legal meaning and standard usage of a word can lead to confusion in a contract. For example, labeling an individual as an “agent” can carry specific legal significance in terms of the individual’s legal authority to act on a party’s behalf. For this reason, you should be very careful any time you use a word that you recognize as possessing a specific legal meaning. If you don’t intend to apply that specific legal meaning, choose another word.
8. Write Numbers in Both Words and Numerals
When you’re reviewing your contract, it’s incredibly easy to make small errors like misplacing a comma, dropping a zero, or omitting a decimal point. But when those decimal points, zeroes, or commas are important aspects of the contract (such as when they define the amounts of cash or stock exchanged), it’s important to avoid mistakes. By providing numbers as both numerals and words, such as writing “one thousand (1,000)” in this format, you decrease both the risk of making a costly error.
9. Plan for Litigation
The goal of drafting a good contract is to avoid ending up in court. Nonetheless, you should draft a contract as if you are expecting every term in it to be fully litigated. If a term is important to your client, make sure there is no ambiguity as to what is required, when it is required, who it is required of, and so forth.
Moreover, consider issues such as where you’d like the contract to be litigated (i.e. which venue would be the best choice for your client?); which law will govern the contract; and whether your client prefers mandatory arbitration or mediation. Include provisions that address each of these issues.
Are you a transactional attorney with experience drafting, negotiating, or litigating contracts? Share your tips in our comments section.
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- May 13, 13
April Ellis is a medical social worker turned urban cowgirl. Like other California entrepreneurs, she started out puttering in her garage, inventing a motorized pony to enter into a neighborhood event. Her zero-emission mount—built on an electric wheelchair base—attracted so much attention that she decided to build a herd to rent out for street tours. Mission Pony was born.
We’ve been following April and her stable of seven hobby horses as she navigates the legal challenges that come with building a small business. Last month, April told us about the trouble she was having finding liability insurance. When we checked back this week for the 3rd part of our series, April told us about her clever solution.
Our goal at Rocket Lawyer is to provide entrepreneurs like April with simple and affordable legal guidance, so they can follow their dreams. April, and thousands of others like her, show us how it’s done.
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Laura: How’re things going since we last checked in with Mission Pony?
April: April was a really busy month! We had quite a few events, and we’re in the process of changing our business plan. We’ll probably need help from Rocket Lawyer again.
Laura: What’s your new plan?
April: We started with a model of entertainment rentals, but we haven’t been able to find general liability insurance. The insurers lumped us under the category of amusement rides, like roller coasters. We had two agents who shopped us around with no luck. Then we tried going through an arts consortium, but we just got turned down again.
Now, we’re changing our model from entertainment to advertising and promotions. We’ll have a Rocket Lawyer attorney help us with the business plan. The last one we used (for a liability/photo release) was excellent, so we’d be open to using him again or another attorney.
Laura: How did you come up with that angle?
April: Everywhere we go, people want to take pictures of the horses. People are really attracted to them—when they see them, they want to know what is going on. You have a captive audience for your business. Put your logo on the horse and it goes viral!
We’ve been doing promotions at all our events. At Sunday Streets (a San Francisco event when streets are closed to cars), we promoted Mutiny Radio, and online independent radio station. At the Cherry Blossom Festival in Japantown, we advertised the premier of the film Infinity & Chashu Ramen, filmed in San Francisco. One of the cast members dressed up as a panda. We put a panda on a unicorn, and wow! People went crazy. The film got a lot of attention, and more people went and bought tickets. At the Petaluma Butter & Egg Festival, it was the Petaluma Pie Company. We had cute girls in Petaluma pie shirts, and the logo on the horses. They handed out coupons and they ran out.
So, we were testing the the model, and it seems to work quite well. Now we’re changing our website and tweaking the business plan.
Laura: Will you also be able to pursue pony tours?
April: We can still do what we did at the Exploratorium event, which was giving pony rides under the insurance umbrella of another organization. It’s sad that we have to put that off, but until we can find (an insurer) who sees it in a different light, we’ll go with our new plan.
Laura: What’s the next show for the ponies?
April: We might be at Carnival in (San Francisco’s Mission District). It’ll be wild. We have to figure out who were are going to promote there.
We’d also really like to have the unicorns in the San Francisco Pride Parade at the end of June. I’d love to have one of the grand marshals on a unicorn! So we’ll be working on that.
I’d also love to build a giraffe. It would have a long neck so you could see it in a crowd, and it’s head could move up and down so that you could drop things into the crowd. But first, we want to make sure our business plan is solid, and we have our general liability insurance in place.
Laura: Good luck with the new plan! We’ll check back in down the road.
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If you’re an entrepreneur just getting started or expanding, check out Rocket Lawyer’s resources for small businesses—everything from contracts to incorporation to tips and advice. Read our 7 Ways to Bulletproof Your Business to make sure you’ve taken care of all the essentials.
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Run Your Small Business Right (rocketlawyer.com)
- May 08, 13
Up-and-coming entrepreneurs from nine countries and three continents visited Rocket Lawyer’s San Francisco headquarters this week as part of their tour of the Bay Area’s lively start-up scene.
The eclectic group included lawyers, a physicist and even a musician, hailing from Colombia, Saudi Arabia, Spain, Thailand, Brazil, India, the United Kingdom, Venezuela and China. All were graduates of Instituto Empresa of Madrid, which trains business leaders based on the core values of global focus, entrepreneurial spirit and a humanistic approach.
Organized by the Office of San Francisco City Attorney Dennis J Herrera to give the international students a chance to meet people working at the intersection of law and business, the tour also included visits to Facebook headquarters and Stanford University.
Charley Moore, Rocket Lawyer’s Founder and Executive Chairman, gave the group a personal tour of the San Francisco office, explaining the disparate functions but unified efforts of the engineering, sales and marketing departments to make the company tick.
After they gathered in the company’s colorful conference room, Charley told them how Rocket Lawyer developed from a mission to make the law more accessible into a concrete, fast-growing business. Although there are about 1 million lawyers in the United States—roughly one for every 300 people–there is a major issue of supply and demand, Charley argued. The supply of lawyers and demand for legal services are both high, but artificially inflated prices means legal help is out of reach for many people.
“Charley’s presentation was excellent, and everyone appreciated seeing his passion for the company and his team,” said Andrea Longaretti, Program Manager of Legal Bridge to Silicon Valley. “The graduates were particularly interested in the message about ‘valuing’ legal services. Many are anxiously awaiting the arrival of Rocket Lawyer in their home countries!”
Following Charley’s presentation, several Rocket Lawyer Executives, including President & CEO Dan Nye, CFO Paul Hollerbach, VP of Technology An Tran, VP of Customer Satisfaction John Whelan and VP of User Experience Courtney O’Connell, among others, answered the visitors’ questions, which ran the gamut from how Rocket Lawyer operates with disparate legal codes across different regions to whether the company has plans to offer its services in different languages.
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- May 08, 13
Before starting my own practice and settling into entertainment law, I worked as a corporate defense litigator at an international law firm. As most litigators know, representing your client occasionally means arguing in favor of positions that you know aren’t “winners.” Or—even worse—arguing positions that you know will be met with outright hostility from the judge.
After all, just like the rest of us, judges are human and therefore vulnerable to idiosyncrasies, prejudices, and mistakes. On one unpleasantly memorable occasion, the judge I was arguing before looked almost ready to jump over the bench so he could hit me over the head with his gavel. Without a doubt, he appeared to be personally offended by my client’s position. Nonetheless, I had strict marching orders which did not allow me to accept the compromise he was proposing.
We’d already suspected that he would not accept our position in the case, but it was important to us that we preserve our ability to appeal his ruling. I walked away with what amounted to a “dressing-down” in a packed courtroom and with no small amount of venom directed at me personally. Nonetheless, I felt like I was able to walk away with my head held high. I’d not let myself be bullied. My client way happy, and, much to my surprise, I even later received an apology from the judge.
When you’re required to take an unpopular position at a hearing or trial, or you have to deal with a difficult judge, it’s important that you keep your cool. After all, if you’re arguing before a jury, you don’t want the judge’s hostility towards your position to sway the jury’s opinion of you and/or your client. Even if you aren’t in front of a jury, you’re better off not burning bridges with any members of the judiciary.
Here are a few tips to help you get out of the courtroom with your nerves and reputation intact.
Always Stay Professional, Courteous, And Deferential
Staying professional, courteous, and deferential allows you to maintain the high ground. And, if there is a jury involved, you don’t want a backlash against you and your client. Most jurors tend to hold the judge in high regard and will often side with the judge. Not only that, regardless of whether you’re arguing before a jury, you’ll gain nothing for your client by dirtying the waters with the judge. At the end of the day the judge is authorized to rule on your case and enter judgments. Even after you’ve concluded a matter, you never know when you or your client could appear in the same courtroom again. And, in my experience, by remaining calm under fire you may even win the respect of a difficult judge.
Hold Your Ground
It’s true that by their very nature most successful litigators are pretty tough. Nonetheless, I’ve seen judges pressure attorneys into accepting compromises that aren’t the best options for their client. No matter what else happens, remember that your role is to advocate for what’s best for your client – no matter how difficult it is for you personally. If you know that your position is the right approach for your client and their case, then stand firm. Similarly, if the judge delivers a ruling that isn’t supported by the circumstances or relevant law then make an objection and state your position clearly for the record. At the very least, you can work to maintain a good record for a potential appeal.
Know When To Let It Go
Although it’s important to hold your ground in some occasions, it’s also important to know when to make a strategic concession. After all, it may actually be in your client’s best interest to accept a loss on minor issues in order to maintain the judge or jury’s goodwill for more important matters. By remaining calm and collected you’ll be better able to analyze whether a given issue is worth the fight.
Stay Calm
Most people operate at their best when they remain calm, cool and collected. For that reason, it’s important not to overreact or lose your cool. Getting angry typically won’t solve anything. Exaggerating will only help you lose your credibility. And by remaining calm you’ll come across as more sympathetic and sincere on the record (in the event you have to seek an appeal).
In my experience, one truth about litigation is that occasionally you’ll lose cases you should have won (even though you did everything right), and you’ll win cases you should have lost (even though the other side did everything right). Although it’s natural to get worked up over an unfair outcome, I suggest you treat these outcomes like water off a duck’s back. As a result, you’ll be less stressed and a more effective representative for your client.
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- May 06, 13
If you’re among the 35 million American households who rent, here’s some good news: the red-hot rental market of the past couple of years—fueled by home foreclosures, the uncertain housing market, and low vacancy rates—appears to tapering off.
Even so, apartment rents are still creeping up—2.4% in March, according to real estate monitoring firm Trulia. Vacancy rates are below 5% nationally, the lowest in a decade. Competition for rentals in cities like San Francisco and New York City remains fierce.
In a competitive market, you might feel like you need to sign over your worldly possessions to score a sweet apartment. Did you notice mold creeping down the bathroom walls? The heater doesn’t seem to be kicking out much warm air? When other tenants are lining up with checks in hand, you may feel pressure to turn a blind eye and take the unit as is.
In fact, a Rocket Lawyer survey found that many tenants may be too slow to document problems, too quick to sign their lease.
Almost two-thirds of renters did not know that written records are the key to protecting themselves, and resolving landlord-tenant disputes. More than a quarter of renters said they did not read through their lease, or did not understand it, before signing. And 11% of tenants did not even have a signed lease agreement.
Needless to say, this can cause problems down the road. Your rent is likely to eat up a huge chunk of your income; add to that the hefty security deposit and last-months rent that you usually have to plunk down before you get the keys, and it’s a big financial commitment. And you could face penalties for defaulting. It pays to know what you’re getting into.
San Francisco landlord-tenant attorney Michael Bracamontes has three key pieces of advice for tenants to follow, no matter what kind of market you’re renting in:
If there’s one thing a renter should do, it is properly documenting the condition of the unit during the pre-move-in inspection. Tenants may be quick to check all the boxes saying everything is fine, and landlords will use that against a tenant later or when a request for repair is made.
Renters need to keep in mind that they have basic rights to have their unit maintained in good condition. A landlord can’t force you to “give up having a working heater” or take the unit “as-is” when there are known problems. Tenants can demand repairs even if they signed provisions to that effect.
Tenants often worry about rocking the boat and getting asked to leave if they complain. It is illegal for a landlord to retaliate against a tenant simply because a tenant is requesting repairs.
You can find more information on how to protect yourself as a renter in Rocket Lawyer’s renter center.
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- May 02, 13
Juggling a newborn baby and a solo practice isn’t easy. I discovered this firsthand after welcoming my daughter into the world this past January.
It was especially difficult for me because I work from home, and I’m what my wife refers to as a “hands on” type of father. In fact, from the first day of her life I was involved in my daughter’s feedings, changing her diapers, putting her to sleep, and going to every one of the numerous appointments we scheduled. Nonetheless, as challenging as it may be, I also discovered that with a little planning it’s possible to make it a little less difficult on you and your practice.
1. Schedule Your Own Maternity/Paternity Leave
There is no such thing as maternity or paternity leave for a solo practitioner. At least not officially. In fact, when it’s your own business it can be incredibly difficult to walk away from everything. Nonetheless, you need to do your best to set up your schedule so that you are able to take some time off immediately following the birth of your new baby. And that’s true regardless of whether you are the mother-to-be or father-to-be. In my experience, even if your partner is planning on taking leave from their place of work, there’s a good chance they’ll need your help too. The first weeks with your newborn may prove to be difficult and trying for both parents. You and your partner will need all of the help you can get—especially from one another.
Start by planning ahead as much as possible. Get ahead on your work to the extent that you are able to. Make the most of the time you have before your little one arrives and tackle projects as early as possible. Meanwhile, be extra judicious about the cases and projects you commit yourself to in the time leading up to the baby’s due date. Now isn’t the time to take on non-essential projects.
Next, don’t hesitate to let your clients, opposing counsel, and judges/mediators/arbitrators/etc know approximately when you’re expecting your new baby. Request that hearings, trials, discovery, and other case events be planned with that in mind. By and large, you’ll find that most of them (yes, even opposing counsel) are decent people and will understand and respect that.
2. Ask For Help When You Need It
It’s almost cliche to say it, but a newborn really is a lot of work. Even if you have a partner who is able to be home full time, you might find that you’re occasionally overwhelmed and overworked. Don’t be afraid to ask for help from your colleagues, friends, and family. Ideally, you should identify who you’ll turn to even before the baby arrives. Speak with a colleague who can cover for you in an emergency. Ask a friend or family member if they’d be available to babysit for a short time if necessary. Identifying your options in advance will save you from a lot of unnecessary stress once the baby arrives.
3. Work Whenever You Can—Day Or Night
The first few weeks after your baby is born can be stressful for many new families. Most newborns aren’t adjusted to anything even remotely resembling a normal sleep routine. In fact, they’re often wide awake in the middle of the night, and then nap during the day. To stay sane and avoid sleep deprivation, you’ll probably want to sleep when they sleep and work on those essential projects that you can’t avoid while they’re awake. In fact, for me, it was occasionally most convenient to work during the middle of the night. One night I was up working on my computer at 3:00 a.m. while my newborn slept in my lap. The bottom line is that if you have to work in those first few weeks, you’ll have to fit in that work whenever you can, between caring for your newborn and finding time to take care of your own needs. It won’t be easy, but thankfully it does get easier.
4. Get Out Of The House
Many solo attorneys work at least partially from home. This may be from necessity or peference. Either way, even if your partner is also at home during work hours (or maybe especially if your partner is also home during work hours), you’ll find that you need to get out of the house from time to time to have any chance of accomplishing productive work. Whenever it’s necessary and practical to do so, get out of the house with a laptop and work from a cafe or shared work space—even if it’s only for an hour at a time. Take turns with your partner and/or ask a friend or family member to babysit for an hour or two if possible.
At the risk of repeating myself, I’ll say it again: balancing your solo practice with your newborn isn’t easy. Thankfully, that newborn period is surprisingly short. With a little foresight and planning, you can make things a little easier for your practice and your family.
Parents, share your tips in the comment section.
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- Apr 30, 13
Rocket Lawyer Senior Designer Kevin Keiper stopped by Everyday Law to talk about the April meetup he organized for designers on the cutting edge.
More than 250 designers, developers, product managers, engineers and other fun-loving nerds showed up at our offices April 25 to eat, drink, schmooze, and hear about the latest in responsive design from Twitter Bootstrap creator Mark Otto.
We invited them to Rocket Lawyer’s headquarters as part of my Responsive Web Design-San Francisco meetup group, a forum for techie types interested in the next frontier in web development: content that scales seamlessly from desktop to mobile devices.
Mark, a designer at San Francisco’s Github, created Bootstrap at Twitter with Jacob Thornton as a way to bring some consistency to web development. It’s free and open source.
Bootstrap—as it’s now called—was a breakthrough solution to a problem common to many startups. Designing and coding a site from the ground up is messy, and it often requires recurring elements and best practices. Collecting these common styles and code patterns into a tidy and downloadable toolbox of files can help get a site up and running quickly.
Mark held the crowd’s attention for more than an hour as he talked about the history of Bootstrap and reviewed many features of Bootstrap 3. A key part of the Bootstrap project is being able to configure this toolbox to work on mobile devices—a critical issue for any company with an online presence. Mark talked in detail about how he learned to design for mobile devices first, and then add incremental functionality in order to scale up to desktop experiences.
I started the Responsive Web Design-San Francisco meetup about a year ago out of my interest in responsive design—a relatively new design and development method that incorporates CSS, HTML, and some javascript to create easy navigation across a wide range of devices, from smartphones to tablets to desktops.
As Rocket Lawyer works to fulfill its mission of providing more people access to the law, it’s easy to see why using a solution like Bootstrap is a good strategy. It’s widely supported in the local development community, and it enables rapid prototyping and deployment of web applications for mobile and desktop experiences.
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- Apr 29, 13
Don’t leave your family sleuthing after your digital trail. Make a digital asset trust, and keep an updated list of passwords.
Increasingly, many of our important personal and business assets are digital and stored online, including our music, photographs, email, and business identities.
But what happens to your digital property when you die? For example, who owns your digital photos, your character in an online video game, or your MP3 collection? What happens to your Facebook page when you’re gone? Because of the value of these assets, these are important questions that must be considered when you tackle modern estate planning.
This is especially true because digital and online property transfers are less straight-forward than physical property gifts. Because of their very nature, digital assets present unique issues specifically because they aren’t easily accessible or easily identifiable.
1. Determine what can be transferred
Ownership of digital property can be less cut-and-dry than ownership of physical property. For example, sometimes when you “purchase” digital property, you’re really purchasing a license to use that product or service. That may be true of the digital media you purchase, the email and social media accounts you use, the software on your computer, and other online accounts, products, and services. Some accounts and media cannot be transferred, while others belong to you outright and may be transferred. So how do you know? You’ll need to evaluate the terms of service for each service you use.
2. Create a road map of your digital assets
Typically, it’s easy to identify the physical items that are part of your estate. Your heirs will be able to easily locate your car, your home, and much of your physical property. Many of your possessions will be clearly identified in your will, and many others are kept in your home. Digital assets aren’t always as easy to locate and many people fail to specifically identify them in their will.
For this reason it’s important to create a “digital asset trust” document detailing each of your digital assets such as your social media accounts, digital media such as music and movies, and any other assets which you may want to pass on. Although you can include this information in your will, it’s likely that you may need to update this information regularly as you acquire new accounts and assets. That’s where a digital asset trust comes in handy.
3. Choose a digital executor
One of the most important decisions you’ll make when creating a will is who to select as your executor. You may choose to appoint the same executor for your physical and digital property. However, there may be reasons to select a different person to act as your digital executor. For example, if the person acting as the executor for your estate is computer illiterate, you may prefer to select someone who is tech savvy to act as your digital executor. In this case, you should specifically identify who will act as your digital executor in your digital asset trust document.
4. Keep an ongoing list of your passwords for your accounts
It’s not enough to simply identify your digital assets and your digital executor. The person you select will need to know how to access those accounts and assets. This means you need to create an up-to-date list of passwords and access codes for all of your social media accounts. Because this list is likely to change regularly, you’ll need to be able to easily access this list in order update it when you change passwords or create new accounts. Because of the sensitive nature of your passwords, you’ll want to keep that list secure. Nonetheless, you’ll also want to make sure your digital executor knows how to locate that list when the time comes.
5. Decide what you want done with various accounts/assets
The goal of creating your digital asset trust is to specify what you want done with your accounts and who you want to give specific digital assets to. For example, do you want your Facebook page to remain public after your death or would you like it to be shut down? Would you like your family to have access to your email account or would you like your email to remain private? A digital asset trust can specify who has access to which accounts and what you’d like to be done with specific assets.
Existing estate planning laws aren’t always well suited to handle digital assets. Federal and state laws regarding the transfer of digital assets are still in their infancy. As a result, it’s especially important that you take the time to create a thoughtful digital estate plan to specify how you’d like your digital assets to be handled upon your death.
You can find out more about estate planning here.
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- Apr 25, 13
Attorneys are increasingly discovering the power of social media. It provides unparalleled opportunities for networking and reputation building. You can meet clients, network with colleagues, and obtain valuable information using tools like LinkedIn, Facebook, and Twitter. Nonetheless, social media does present potential pitfalls for the unwary attorney. Attorneys can, and have, inadvertently run afoul of state ethical rules and obligations. Not only that, it’s easy to embarrass yourself if you’re not cautious about what you share online.
The following four tips can help prevent embarrassment—and worse—when you’re online.
1. Don’t Accidentally Reveal Confidential Info
This should be a no brainer, but it’s important to remember that your activities on social media sites are not private and confidential. As a result, you have to be extra careful that your interactions with clients, the information you post on websites or Twitter, and your other online activities don’t unintentionally waive attorney-client confidentiality. This may seem straightforward when it comes to the information you share outright in your posts and tweets, but in some circumstances, it’s possible to unintentionally share more information that you intend to. For example, pictures and posts on social media sites are geotagged with your location and time. As a result, it’s important you don’t inadvertently disclose your location and the time of a meeting if you’d like that information to remain a secret.
Similarly, if you interact with clients online, it’s probably best to remind them to be careful when sharing information with you so that they don’t inadvertently disclose confidential information. After all, generally speaking, once you’ve disclosed confidential information, it’s no longer protected by the attorney-client privilege.
2. Don’t Unintentionally Create an Attorney-Client Relationship
A number of sites allow attorneys to provide general legal advice online to individuals. These services can offer attorneys an opportunity to develop their reputation and connect with potential clients. Nonetheless, there is a risk.
Any time you provide legal education to anyone you want to be careful to not unintentionally cross the line between providing general legal education, and creating a new attorney-client relationship. If you are providing general legal information via social media, be careful not to provide specific advice, solicit confidential information, or recommend a specific course of action. To be extra careful, include disclaimers to make it clear that you are not the individual’s attorney, and that you are not providing specific legal advice.
3. Don’t Violate Ethical Rules of Conduct
In part, Model Rule of Professional Conduct 4.1 prohibits attorneys from making a false statement of a material fact or law in the course of representing a client. Similarly, Model Rule 7.1 prohibits attorneys from making false statements or providing false information concerning the lawyer’s services. Attorneys need to be especially careful not to violate these two ethical rules when using social media.
This clearly means that you need to be careful not to make any misstatements or exaggerations about your legal services when using services like Twitter, Facebook, or LinkedIn. For example, don’t claim to represent clients you don’t represent, don’t exaggerate your experience, and don’t exaggerate your results. Making those types of mistakes could lead to violating your state’s ethical rules.
It may seem obvious that making false statements about your experience and background could land you in hot water. But what about recommendations others leave on your profile? While that issue is unsettled, some jurisdictions have ruled that attorneys are responsible for the comments left on their profile. In other words, if a colleague or former client makes false statements or exaggerations about your services on your LinkedIn profile, you may be held responsible for those comments. To avoid the potential for trouble, it’s probably wise to remove these sorts of comments from your profile.
4. Don’t Insult Your Client, the Judge, or Your Colleagues
It may seem like common sense, but be careful about what you post on the Internet. Although you may not think anyone reads your Facebook page or personal Twitter feed, but you never know where they’ll be shared. I’ve seen attorneys go on tirades on Twitter because they disagreed with a judge’s ruling and I’ve seen attorneys disparage their clients in blog posts, referring to them as “unsophisticated” or “difficult.” And although it might feel good to get it all out at the time you write it, you never know when the person you’re talking about will discover your site or have your post or tweet forwarded to them. For this reason, it’s a good policy to never make comments online about a person that you wouldn’t be comfortable saying to them in person.
Do you have other tips to help attorneys avoid embarrassment and ethical violations online? We’d love to hear your suggestions in our comments section.
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- Apr 22, 13
Yee ha! Mission Pony wowed riders at the Exploratorium On the Move event. Here’s an update on the business and how an attorney helped the big day come off without a hitch.
Last month, I had the pleasure of talking to April Ellis from Mission Pony, and sharing her small business story as she set off on a journey to bring motorized ponies to the streets of San Francisco.
At Rocket Lawyer, entrepreneurs like April inspire us to provide simple and affordable legal guidance, so they can build the businesses of their dreams. In this series, we’re following April’s story and helping her get the legal support she needs along the way.
Most recently, April’s pony rides lassoed a crowd on San Francisco’s Embarcadero. The ponies got rave reviews.
“It was a real delight to see children riding these charming machines. There was a long line, and the kids were really excited,” said Karen Yu, who tried out a pony at the event. “I don’t think I’ve ever done anything like that before! It was a new experience.”
I stopped by the Mission Pony corral to hear how her business is growing, what it’s like to work with an attorney using Rocket Lawyer On Call®, and what she’s focusing on next.
Jenny: How’s the business coming along?
April: This year has been really good to us. We were invited by the Exploratorium (a hands-on museum in San Francisco) to participate in their “On the Move” event. We brought out our horses for kids to ride, and we had a corral set up for adults on the Embarcadero. It went really well. We served over 300 riders and received positive reviews all around!
Jenny: Have you worked with a lawyer? How did it help your business?
April: We talked to a lawyer through Rocket Lawyer On Call(R) last year. We went over the basics of the business and got general advice, which was fantastic. One of the things that he recommended was having riders sign a Liability Waiver, so we wouldn’t be liable in the off-chance that someone were to get injured on one of our ponies.
So before the Exploratorium event, we set out to get our Liability Waiver done. We started with an Activity Release of Liability document from Rocket Lawyer. We fleshed it out on our own first, and then used Rocket Lawyer to get in touch with an attorney to help us customize it more. We wanted our riders to sign one document that would cover the liability waiver for the activity, as well as a release of information so we could have permission to use any photos from the event on our website and in our promotional materials.
The lawyer who helped us was extraordinarily easy to work with, responded to me quickly, and understood what I needed. I had a document the very next morning! We did it entirely over the phone and email so it was really convenient.
Thanks to Rocket Lawyer, we were ready for the event. The only downside was that we only made 200 copies of the Release Agreement. So during the middle of the event we had to go and make more!
Jenny: How does Rocket Lawyer On Call(R) compare to finding a lawyer yourself?
April: I wouldn’t know where to start to find a good lawyer! I am really grateful to have had a template to start with and to be put in touch with a lawyer who knew exactly what I was looking for.
We also found the price very reasonable, especially for the value. We spent twenty minutes over the phone discussing it, and then he spent only 30 minutes creating it. It was very affordable, especially with our Rocket Lawyer On Call discounted rate.
Jenny: What’s coming up that you’re excited about?
April: Our next big push is to do promotions for companies and individuals at events like fairs and parades. We’re going to be promoting a film that’s premiering at the Cherry Blossom Festival on April 20th. We also just added a new pony to the stable that we’re calling the Pinot Pony. It’s for wine tasting! It’s purple and it’s vinyl, so it’s a little more waterproof. It has a cup holder built into the neck. We’re hoping to do rentals for wine-tasting events up in Healdsburg where wine tasting is big.
Jenny: Have you run into any business challenges?
April: The next big hurdle is that we’re looking for general liability insurance. We’re not comfortable doing those small rental events for the general public without it. We’ve found that the insurance companies don’t understand what we do, so we were declined by several companies. We have more of a track record now, though. With several events under our belt, we’ve shown that the ponies are safe, and we’re hopeful we can get insurance now.
Please stay tuned for the next installment in April’s story—from her newest ponies to her insurance challenges as a small business owner.
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