YLD News
April 2002 Vol. 46, No. 3
CALENDAR
April 12--"E-commerce Banking & Bankruptcy Law Update 2002"- Bloomington
April 19--"Back to Basics- Federal Practice"- Collinsville
April 20--"Traffic Law Update"- Springfield
May 10--"Insurance Coverage 101: Understanding the Basics"- Chicago
Registration for these events is available by fax, phone, or on the web at:
Fax: 217-525-0420
Phone: 800-252-8908
Online: www.isba.org
So, You Want to Open Your Own Firm? One Attorney's
Tale From the Front
By: Christopher T. Hurley
Looking back, the only regret I have is not taking the leap sooner. It's hard not to think of how much further I would be today if I'd been able to muster up the courage to open my own firm when I first thought about it in my late twenties.
For me, the rewards have well outweighed the risks. The casework has been exciting and new business has been plentiful. What I've learned along the way is that the practice of law is first and foremost a business, and that you have to be prepared to manage that business effectively to be successful.
In my view, starting my own firm was my best professional opportunity. When I began nearly a decade ago, I was in my early thirties and had spent years as a trial lawyer at a larger firm. It became apparent to me that I could have a brighter future if I abandoned the partnership track.
Going solo
Deciding when to strike out on your own is the part that stumbles most attorneys. For me, it came down to opportunity and professional happiness. But for my wife, it came down to stability. Did we have the financial wherewithal to stomach a year of less than stellar income while the business got up and running? With some seed capital raised from family and friends, I made the jump. What I've found through my own experience is that if you are a self-starter who has always had a flare for entrepreneurial ventures, building a strong client list is going to be the least of your worries. Starting your own firm allows you to act upon these ambitions, and also stay within the legal system.
Starting my own practice has allowed me to seek work on behalf of clients that I'm compassionate about. I can now take on clients that may have fallen under the billing minimums of my previous firm, but offer interesting and challenging cases in which I can focus my attention. One lesson I've learned is that building solid client relations can become the main focus of your practice, and the freedom to handle the cases I'm interested in keeps my professional life exciting and satisfying.
Client acquisition
In the beginning, the majority of my cases came from referrals. I networked with fellow lawyers to gain new clients. By talking to friends, I was able to expand upon my client list. I also approached lawyer contacts with complementary specialties. That way, my referral sources were not competing for the same clients and I was able to return the favor with referrals of my own.
Former client referrals are another great way to generate leads because there are no referral fees attached to their suggested prospects. For this reason, I have learned to never burn bridges with former clients. Currently, 85 percent of my business either comes from lawyer referrals or past clients.
Another way I was able to generate new leads and cut some corners on expenses was to set up office within shared space with a suite of lawyers. You can find out about open space through your local law publications and professional associations. By joining a suite of lawyers with different expertise than my own, I was able to benefit from internal forwarding of clients that others did not have the time to take on or were out of their realm of expertise. Also, if a lawyer in the office is really busy with a case, you can offer to assist them for an hourly fee. For example, as the lone trial lawyer in my suite, I was able to help fellow attorneys write depositions and assist with court appearances.
I also benefited from joining as many local and national associations as possible. They are tried-and-true networking forums and can be even better referral sources if you are asked to speak at scheduled conferences. But with all the efforts I've placed on the client acquisition side of my business, I've never lost sight of our number one priority: delivering solid results for our clients. A large part of our success has been in the hiring of expert associates who round out the day-to-day quality of our work.
Getting help
Over the years, I've come to understand that your firm's ultimate success is in the hands of your attorneys and staff. Their skill and attention to client needs is what many remember when a case is through. And a happy client is a leading referral source for future work.
In order to ensure that you hire well-qualified individuals, ask fellow lawyers or consult your local law association for recommendations. I find out if any law clerks are looking for positions and hire them. Remember not to rush hiring decisions. Once you decide to bring on a new attorney or support member, it is really important in a small firm to commit to their professional growth and training. At my firm, we have a formal program for training new hires and I meet with each person annually to understand their own professional goals, so that we can help them meet new challenges.
Every lawyer needs access to research, but this does not mean you need to spend a lot of money in the process. You definitely need a computer network and access to e-mail. As for law journals, you should also invest in an online library such as Lexis-Nexis. For all other needs, I've found that they can be quickly served by using the public library or a nearby law library. Most of their books and periodicals are now stored online and they are updated regularly. It sure beats the time and money associated with maintaining a vast internal library.
Although Web sites are nice, they can be costly. Instead of immediately investing in a Web page for your firm, you may consider putting your money towards building a marketing program.
Trial and Error
I have made some mistakes along the way, but it has helped me to grow in the process. One of the lessons I have learned is to always put your client contacts and legal matters above all other activities. Return client calls quickly. I make time in my schedule to meet with clients face-to-face. This is a client-oriented business and even though you may have several cases going at one time, clients like to are paying special attention to their personal needs. As a result, I produce frequent feel as if you status letters even if nothing is new in a case. They keep the client informed of my activities and let them know that they are still a priority.
Also, I was surprised by the response I received after sending a formal announcement to former clients and colleagues telling them I was opening my own firm. My advice is to take the time to send a professional announcement as one of the first steps you take on the business end. You'll be pleasantly surprised by the impact it may have on your immediate caseload.
One thing I've learned is to never take on cases that cover new legal territory for your firm. I have seen several lawyers accept difficult cases in which they didn't have expertise because they wanted and needed the work. The end result is often the same: both the firm and client end up disappointed, which can be a step backwards in building a strong referral network and professional reputation. Stick to what you know. You'll be surprised how busy your firm can be pursuing cases that fit into your are of experience.
All in all, opening my own firm has been one of the best decisions of my life. I first opened it to serve and protect my clients and to gain professional independence. But as I continue my career, I am motivated more by the camaraderie found within our firm and the joy of team accomplishments that have come with our courtroom successes.
Whatever your motivation, striking out on your own can be a positive way to build your career and achieve personal and professional success.
TO FIND OUT MORE: Check out related books and information on running a small firm or private practice, including ABCs of Marketing for Small Firm and Solo Practitioners by Nancy Roberts Linder, available for purchase on the ISBA's website.
Women Everywhere: Partners in Service Project May 17, 2002
By: Kimberly J. Anderson
Plant flowers, paint a fence, or show women how to navigate the court system to obtain an order of protection. These are some of the many opportunities that volunteers for the Women Everywhere project can take advantage of.
On May 17, 2002, women all over the Chicago-land area will be turning in their briefcases and volunteering at local shelters and agencies which provide services to women. Some 400 women and men volunteered last year to help various agencies such as Sarah's Inn, A Sporting Chance Foundation, Apna Ghar, and Deborah's Place, to name a few. Women Everywhere volunteers worked for nearly twenty different agencies.Women Everywhere: The Partners in Service Project was initiated by women attorneys to demonstrate the positive impact women have on society. Last year, attorneys conducted mock trials for teenagers with various judges in domestic, juvenile and adoption court allowing one on one mentoring in their courtrooms. Other attorneys wanted more physical activities and helped agencies plant gardens, paint classrooms, or organize supplies.
The reward was two-fold. Local agencies received the aid of much needed supplies and labor, and the women attorneys received a benefit as well. Women were able to volunteer and to see first hand the impact they made, and they were able to show the public a different side of being an attorney. This project exposed attorneys in general as a kinder and compassionate group. Instead of working with attorneys only when individuals are in trouble, this project allowed the public to see us in our everyday roles doing everyday things. In my opinion, this is the greatest achievement of the project.
We, as a group of attorneys, are often seen negatively. The Women Everywhere Project allows men and women alike to join forces and show the community a different side of our profession. Make a difference today by signing up for this great event. Your firm can join as a group and make a day or afternoon of it, or you can come alone and meet new attorneys. Save the date on your calendar, May 17, 2002.
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Kimberly J. Anderson owns the law firm of Kimberly J. Anderson in Chicago.
TO FIND OUT MORE: Visit the Women Everywhere Project's website at www.women-everywhere.org. From there, you can download a registration form to volunteer for the Women Everywhere Project. Completed forms should be faxed to Ilene Bloom at Winston & Strawn at 312-558-5700.
Lincoln Award: History Repeats Itself in 2002
Congratulations to Celia Gamrath for winning second place in the 2002 Lincoln Award Legal Writing Contest. History has indeed repeated itself -- this is Gamrath's fourth Lincoln Award. She received awards in 1996, 1998 and 2000. Gamrath's article: "New Legislation Allows Courts to Allocate Stock Options Upon Divorce" also earned her $1,000, and is scheduled for publication in the March issue of the Illinois Bar Journal.
Celia Gamrath is a partner at Schiller, DuCanto and Fleck in Chicago, where she represents clients in high-stakes divorce cases. She is an ISBA Assembly member, Secretary of the ISBA Committee on Women and the Law, and serves on the ISBA UPL Task Force, Bench and Bar Section Council, and Young Lawyers Division Council. Gamrath is also a past co-chair of the Chicago Bar Association Alliance for Women, a member of the Chicago Bar Foundation Young Professionals Board, and a former director of the Appellate Lawyers Association.
Gamrath is a 1994 cum laude graduate of The John Marshall Law School and vice president of the Alumni Association. Prior to joining Schiller, DuCanto and Fleck, she served as a law clerk to Justice Thomas R. Rakowski of the Illinois Appellate Court.
Congratulations again to Celia Gamrath for her outstanding achievement.
The Lincoln Award Legal Writing Contest is sponsored by and for members of the ISBA Young Lawyers Division in conjunction with the Illinois Bar Journal. Look for details soon about the upcoming 44th Annual Lincoln Award Legal Writing Contest for your opportunity to compete for a share of $3,500 in Lincoln Award prize money and a handsome plaque for your office.
Filing a Proof Claim in a Bankruptcy Case*
By: Sumner A. Bourne
With the recent slowing of the economy, more and more clients are receiving notices of bankruptcy with an attached proof claim form. As their counselor on business, collections or other matters, these clients will often call your office for assistance in checking the right boxes and with questions as to their chances of recovery of funds. This short article is meant as an introduction to the non-bankruptcy practitioner or young lawyer to the meaning of the various boxes found on a bankruptcy claim form and the ways that you can assist a client in such a situation.
Some preliminary caveats are necessary. Bankruptcy law, which has its own court and own set of codified rules especially relating to large scale Chapter 11 reorganizations, can be a very complex and specialized area of law. If you feel that you are over your head at any stage either because of the amount of money involved or confusion over a reading of the law, the best action that you can take for your client is to refer them to a bankruptcy specialist. Second, many corporate reorganizations are filed and administered in states outside of Illinois, especially Delaware. In a perfect world clients would be able to consult lawyers as to their rights in the foreign jurisdiction at a reasonable cost, but the reality is that practitioners in the high volume bankruptcy courts are often more expensive than the client can afford in relation to the amount of money that they are likely to get back in the bankruptcy. If you choose to assist the client in filing a claim in a jurisdiction in which you are not admitted to practice law, you should act cautiously in advising clients regarding their rights for obvious unauthorized practice of law reasons. Bankruptcy is primarily based on federal law that is uniform nationwide, but there are differences both in local rules and local court interpretation. Your client should be made aware, in writing, that you are providing only general advice and that you are not admitted to practice in the foreign jurisdiction. You should also offer a referral to an attorney in that jurisdiction if the client wishes.
Obtaining bankruptcy information
The notice of bankruptcy and the blank proof claim form that your client receives will often not contain all of the information that you need. Fortunately, complete information on any bankruptcy case is now available electronically through the internet at each court's website. Some courts like the Northern District of Illinois and the Delaware bankruptcy court have document imaging capabilities that allow you to view any page in the court file. Other courts presently only provide access to the case docket and claims register through the P.A.C.E.R. system. For either system you will likely need to sign up for a P.A.C.E.R. password and billing account which is relatively quick and easy. The P.A.C.E.R. password works nationwide and so the registration is a one time process.
Where and when to file a proof claim
In general there are four types of bankruptcy proceedings that are identified by their "chapter" under the Bankruptcy Code. The type of case that your client has encountered should be identified on the bankruptcy notice. Often the bankruptcy notice will contain the deadline to file a proof claim. The time deadlines for filing bankruptcy proof claim forms are generally very rigidly enforced, and most courts do not allow even excusable neglect as a basis for extension of time.
First is Chapter 7, which is a liquidation proceeding and is the most common type of bankruptcy. In most Chapter 7 proceedings the court will instruct you not to file a claim until the case trustee reports that there are assets available for creditors. Only about 10% of non-business Chapter 7 cases ever have assets available for creditors, and so filing a proof claim in such cases before being notified of assets is often a waste of your time. If the trustee does discover assets the court will set a claims deadline and generally mail blank proof claim forms to the listed creditors.
Second is Chapter 13, which involves a reorganization plan of an individual or non-corporate business. As Chapter 13 proceedings always involve distributions to creditors a claim date will always be set shortly after the filing, and the deadline is generally ninety days after the first scheduled meeting of creditors. Usually the plan will identify and classify your client's status as a non-priority or priority creditor more on that later and whether your client is secured or unsecured. As to the unsecured claims, the plan will generally provide an estimate of the percentage of the allowed claim that will be paid. Always file a claim in a Chapter 13 proceeding, even if the estimated percentage on your client's claim is low. This percentage can, and often does, change as not all creditors file claims and the debtor may have the payments modified after the plan is confirmed due to a windfall or unanticipated increase in income. Chapter 12 is the Chapter 13 equivalent for family farmers and the claims process should in most cases be treated the same.
Finally there is Chapter 11, which involves a reorganization plan of a corporation or a high debt individual. Under the Bankruptcy Code, if your client is listed by the debtor in the bankruptcy schedules as a non-disputed, non-contingent, liquidated claim holder your client automatically holds an allowed claim for the amount listed in the schedules even without filing a claim. That having been said, your client should always file its own claim in a Chapter 11 proceeding. There may be a disagreement as to the amount of your client's claim and the debtor will likely have chosen the lower amount to list in the schedules. Also, the bankruptcy notice will not notify your client if the claim has been listed as a "disputed" debt, which would make filing a proof claim mandatory. In Chapter 11 proceedings, the court will generally notify the claim holders of the deadline to file a proof claim, with different deadlines often being set for the different classes of claim holders.
The proof claim should be sent to the Clerk of the Bankruptcy Court unless the court's notice informs you otherwise. Most large Chapter 11 cases use a private claims agent, so do not always assume that the clerk's office is the proper place for filing. Both the clerk or the claims agent will provide you with a time or file-stamped copy if you include a self-addressed stamped envelope and extra copies.
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Sumner A. Bourne is a partner of Rafool & Bourne, P.C. of Peoria.
*This article is the first part of a two-part publication providing essential information about bankruptcy proof claims. Look for the second part of this publication in the next ISBA Young Lawyers Division Newsletter.
Governmental Regulations of Real Property--Can a Regulation Go Too Far?
By: Robert L. Gamrath III
Real estate owners and developers are subjected to a multitude of real property regulations at the local, state, and federal levels of government, which require developers to comply with zoning codes, subdivision codes, building codes, wetland regulations, floodway and flood plain regulations, tree preservation ordinances, protected species regulations, impact fee ordinances, and the like. Although some real property regulation may be necessary, the regulation can go too far. A property owner subjected to an overly burdensome real property regulation may be able to assert a regulatory takings claim. This article provides a primer on regulatory takings.
The area of regulatory takings is an evolving area of law and of great interest to the United States Supreme Court. In fact, the Supreme Court has taken a regulatory takings case on each of its last several calendars.
Regulatory takings and the U.S. Constitution
A regulatory takings claim is based on the Fifth Amendment of the United States Constitution (and its counterparts in state constitutions), which provides "nor shall private property be taken for public purpose without just compensation." A taking of private property for a public purpose is not by itself unconstitutional. Only when the government fails to pay just compensation does a taking become unconstitutional. For example, when a need arises for road widening and expansion, the particular governmental authority (e.g., the Illinois Department of Transportation, or IDOT) identifies the private property it needs to take in order to expand the particular road under its jurisdiction. IDOT then either negotiates a consensual transfer of property from the private property owner or files an action for eminent domain to condemn the property. The just compensation to be paid to the property owner is determined in the eminent domain proceeding in accordance with the Fifth Amendment.