Wisconsin Lawyer: Managing Risk: 10 Steps to a Better Practice: Take the Law Firm Self-Assessment:

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Format: MM/DD/YYYY
    March
    09
    2020

    Managing Risk: 10 Steps to a Better Practice: Take the Law Firm Self-Assessment

    A new free self-assessment tool gives Wisconsin lawyers, especially those practicing in smaller firms, a new and meaningful way to improve their operations, manage risk, and increase client satisfaction.

    Timothy J. Pierce, Keith Lynn Sellen & Christopher Cody Shattuck

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    How are you doing in your practice? Are you meeting or exceeding the standards you owe to your clients? How do you know? We’ve developed a law firm self-assessment tool to help you answer those questions.

    In a nutshell, the tool helps lawyers and law firms mitigate risk, elevate competence, and enhance the quality of legal services they provide. It’s an aid to help you understand and comply with the existing rules and standards. Your confidential responses to a series of questions will let you see – in one place – what works and what you can improve.

    Ready for Use in Wisconsin

    The Office of Lawyer Regulation and the State Bar of Wisconsin worked together to adapt the Colorado Consolidated Lawyer Self-Assessment1 for use in Wisconsin. The self-assessment identifies common ethical questions and practice management resources to help firms navigate corresponding implications. Firms have the option of downloading and completing the form manually or using the online form assessment. It gives Wisconsin law firms, especially solo and small firms, a new and meaningful way to improve their operations, manage risk, and increase client satisfaction.

    Learning from the Australian Experience

    The idea for a law firm assessment originated in New South Wales, Australia, as a means to regulate incorporated legal entities.2 That idea resulted in valuable preventive measures, which was a significant change from their traditional method of professional regulation.3

    Timothy J. Pierceorg tpierce wisbar Timothy J. Pierce, U.W. 1992, is ethics counsel with the State Bar of Wisconsin. Reach him through the Ethics Hotline at (608) 229-2017 or (800) 254-9154.

    Keith L. Sellengov keith.sellen wicourts Keith L. Sellen, U.W. 1984, is the director of the Office of Lawyer Regulation. Reach the OLR at (608) 267-7274.

    Christopher C. Shattuckorg cshattuck wisbar Christopher C. Shattuck, Univ. of La Verne College of Law 2009, M.B.A. U.W.-Oshkosh 2015, is manager of Practice411, the State Bar’s law practice assistance program. If you have questions about the business aspects of your practice, call (800) 957-4670 or visit org practicehelp wisbar wisbar practicehelp org.

    New South Wales developed the assessment in collaboration with government officials, regulators, the law society, professional liability insurers, and lawyers.4 Working together, they developed objectives and criteria to enable law firms to evaluate their management systems and demonstrate compliance with regulatory objectives.5 The objectives and criteria were comprehensive, addressing 10 important aspects of law firm management.6

    As this idea has been adopted in Australia, Europe, and Canada, the objectives and criteria have varied in ways designed to address the legal culture and requirements of the particular jurisdictions. In every case, though, the objectives and criteria reflect the collaborative insights and experiences of practitioners, ethics experts, and regulators.

    Several years after New South Wales implemented the assessment, Prof. Christine Parker studied the results of the assessment process.7 She found “a dramatic reduction in client complaints.”8 Firms experienced a two-thirds reduction in complaints after completing the assessment and making improvements.9

    In all probability, these dramatic differences occurred because of the improvements firms made after completing the assessment. Firms reviewed and revised policies and procedures or adopted new policies and procedures. They strengthened management, devoted more attention to the rules of professional conduct, improved staff training, and sought outside assistance.10

    How to Achieve Meaningful Results

    There are several good reasons for law firms to regularly take the time to assess their performance and make improvements. Although the dramatic results experienced in New South Wales might not be matched, meaningful results are reasonably achievable. Time invested in assessing and improving law firm management pays dividends by reducing grievances and malpractice claims and by increasing client satisfaction. Lawyers have a professional responsibility to establish policies and procedures, and to train and supervise the firm’s lawyers and staff, to give reasonable assurance that the firm is complying with the Wisconsin Rules of Professional Conduct.11

    All these are for reasons for a law firm assessment process. Every law firm would be well served by regularly working through the assessment process. First, the firm leaders should read through the Rules of Professional Conduct for Attorneys,12 with a view to identifying how the rules relate to the firm’s practice, processes, and personnel; and considering instances involving client complaints, actual and potential malpractice claims, and unrecognized risks. Next, they should work through the assessment tool and identify needed improvements in policies, procedures, training, and management.

    Then, using those results, leaders should develop an improvement plan that includes the specific improvements to be made, assistance to be sought, the persons responsible to act, and timelines for completion. The State Bar of Wisconsin’s Practice411, Ethics Hotline, and Wisconsin Lawyers Assistance Program13 can provide confidential assistance. Finally, firm leaders should implement improvements and assess their effect.

    Using [self-assessment] results, leaders should develop an improvement plan that includes the specific improvements to be made, assistance to be sought, the persons responsible to act, and timelines for completion.

    10 Modules: One Purpose

    The Wisconsin assessment draws on the experiences in several jurisdictions and relies most notably on the study and collaboration done in Colorado.

    The self-assessment includes the following 10 modules:

    1. Developing Competent Practices
    2. Communicating in an Effective, Timely, Professional Manner
    3. Ensuring that Confidentiality Requirements are Met
    4. Avoiding Conflicts of Interest
    5. File Management, Security, and Retention
    6. Managing the Law Firm/Legal Entity and Staff Appropriately
    7. Charging Appropriate Fees and Making Appropriate Disbursements
    8. Ensuring Reliable Trust Account Practices are Used
    9. Access to Justice and Client Development
    10. Wellness and Inclusivity

    As an example, a question for module one inquires “whether an attorney has the legal knowledge and education to handle client matters.” The corresponding ethical implications summarize disciplinary proceedings initiated against lawyers for lacking knowledge of substantive laws and procedures. Lawyers who are not in compliance with existing standards can use the tools and procedures provided in referenced resources and Supreme Court Rules. Referenced materials are hyperlinked for ease of use and access.

    Take Your Assessment to the Next Level: Seminar on May 8

    assessment gauge

    You’ve taken the time to complete the self-assessment; now take the time to learn how to interpret the results and put them to use.

    If you have not recently reviewed your firm for compliance with existing ethical rules or want to learn more about the rules’ everyday effect on your firm, consider attending a State Bar of Wisconsin PINNACLE seminar devoted to the topics in the assessment. No matter your experience level, you’ll walk away with a better understanding of the ethics rules relating to confidentiality; conflicts of interest; file management, security, and retention; fees; and ensuring that reliable trust account practices are in use.

    The seminar is May 8, 2020, 8:30 a.m. – 12:05 p.m., at the State Bar of Wisconsin and will be available for online live viewing. Attendees can have their questions answered by the State Bar of Wisconsin’s ethics counsel Tim Pierce and Law Practice411 manager Christopher Shattuck and the Office of Lawyer Regulation’s director, Keith Sellen. The member cost to attend is $199 live; $229 for the webcast (nonmember cost to attend is $297 live; $309 webcast). Sign up at wisbar.org/CA3006.

    How to Access the Assessment

    Lawyers can download and complete either a paper or an online version of the assessment (which are identical to each other). Additional information, tutorials, and the assessment are available at wisbar.org/lawaudit.. Regardless of the version being completed, lawyers can pause and resume modules at their own pace.

    Both versions of the assessment are free to use and confidential; no personally identifiable information is required to complete either version. Information completed in the paper version is only accessible by the lawyer who completes the assessment or the person to whom the lawyer grants access to the results (for example, other members of the firm). The online assessment results also are anonymous, in that lawyers are not required to log in or enter information that identifies their law practices.14

    Conclusion

    Do not keep living in the dark. The entire purpose of tailoring the law firm self-assessment for use in Wisconsin is to provide law firms with the ability to complete a self-audit of firm operations. Ethical rules and resources provide a roadmap for compliance or indicators of existing compliance. If you need additional resources, confidential helplines at the State Bar of Wisconsin are available to respond to questions concerning ethics, practice management, and assistance with physical, mental, and emotional health concerns.

    Both [the print and online] versions of the assessment are free to use, and no personally identifiable information is required to complete either version.

    Endnotes

    1 Available at https://coloradosupremecourt.com/AboutUs/LawyerSelfAssessmentProgram.asp. We thank the Colorado Supreme Court Office of Attorney Regulation Counsel for allowing us to use and revise their assessment tool for State Bar of Wisconsin members.

    2 For the history of the development of the assessment, see Susan Fortney & Tahlia Gordon, Adopting Law Firm Management Systems to Survive and Thrive: A Study of the Australian Approach to Management-Based Regulation, 10 U. St. Thomas L.J. 152, 156-65 (2012).

    3 Laurel Terry, When it Comes to Lawyers … Is an Ounce of Prevention Worth a Pound of Cure?, JOTWELL (July 13, 2016) (reviewing Susan Saab Fortney, Promoting Public Protection Through an “Attorney Integrity” System: Lessons from the Australian Experience with Proactive Regulation System, 23 Prof. Law. 16 (2016)).

    4 Susan Saab Fortney, Promoting Public Protection Through an “Attorney Integrity” System: Lessons from the Australian Experience with Proactive Regulation of Lawyers, 23 Prof. Law. 1 (2015).

    5 Id.

    6 Id. n.13. (The 10 aspects of management relate to negligence; communication; delay; liens and file transfer; cost disclosure, billing practices, and termination; conflicts of interest; records management; undertakings; supervision of practice and staff; and trust account regulations.)

    7 Terry, supra note 3.

    8 Id.

    9 Id.

    10 Fortney, supra note 4. (Table 1 shows the steps firms took after assessment and percentage of firms taking each step.)

    11 SCR 20:5.1, 20:5.3.

    12 SCR ch. 20.

    13 Practice411, (800) 957-4670; Ethics Hotline, (800) 254-9154; Wisconsin Lawyers Assistance Program, (800) 543-2625.

    14 For additional information review the video tutorials available at wisbar.org/lawaudit.




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