Delivering Unbundled Services Safely and Ethically: Guidelines for Retainer Agreements, Limited Appearances, and Being Proactive with Traditional Courts

This is an interview with Thomas King; he’s one of our provider attorneys out of northern New Jersey and New York City. Actually, lately he’s been doing New Jersey because we started sending him leads in New York and he was making a one-hour commute, and that ended up not working out for him. It even tried hiring contract lawyers and tested that out, but he’s someone, as we talk about in the episode, that is not a manager. He doesn’t want to be a manager. He wants to work with clients personally.

We’ve had a lot of attorneys come on the show and talk about how they’re expanding their practice, hiring new associates, hiring new contractors, and some of the upside and the benefits, and how that can really benefit and grow a practice. At the same time, it’s really viable to hear Thomas’ thoughts that you can behold the possibility, but also be aware of some of the challenges that come with growing a practice, scaling up a practice. It’s more people, it’s more management. There are some things that come as cost as well, and so this is a really good episode, too, for attorneys to hear the things they’re gonna want to consider before they start expanding across the entire state or opening up whole new regions or growing tenfold. There are lots of upsides, but there are lots of things to watch out for as well. So Tom and I have a really great discussion on that.

The other thing we cover in a great deal of depth is dealing with courts where you have judges or court systems that have not fully adopted or embraced unbundled services, despite or regardless of the fact that ethics opinions for the Supreme Court and the state bars fully approve of attorneys offering unbundled. On the local scale, there are still judges, there are still courts, there are still scenarios in which they aren’t going to be as easy to adopt, and make it a little bit more challenging. You might get the call from the judge that says “Why are you not representing this client?” How do you handle that call? And how do you draw the line between offering certain options in a court, pushing the boundary and having those conversations, and maybe also making sure you’re protecting yourself in the areas where unbundled services, while fully ethical on the state-wide level, can be challenging to implement on the local court level?

So we have a full discussion on retainer agreements, how to send letters to the courts, how to make sure you’re really clear with the judge and with the court when you file, whether you’re doing a limited appearance. We have a really lengthy discussion on offering limited appearances. And that’s, again, something that varies state to state to state, county by county by county, as far as what you may run into as far as challenges, and what are some of the benefits of offering limited appearances and how to make sure you’re protected in the process. So, there are a lot of really practical and important considerations in this episode that you’re gonna get from this that are part and parcel to offering unbundled services and an emerging industry where certain courts and certain counties are emerging at different paces. So, really valuable episode. Let’s get right into it.

Below is the transcription of this episode from our Unbundled Attorney Mastermind Podcast. You can listen to the entire episode by clicking here.

Dave Aarons: Alright, hey Thomas. Welcome to the show.

Thomas King: Hi there, Dave. Thanks for having me.

Dave Aarons: Yeah, I’m really excited to have this chat. We just figured out we’ve got one solid year under our belt. And it’s been a fun process of explorations into regions and looking at the areas that work well, there are been lots of lessons learned and lots of lessons gained. Looking forward to exploring all of it and I appreciate you taking the time to share the story.

Thomas King: Oh, my pleasure. It’s definitely been a learning experience. As I’ve honed my practice and what unbundled has been able to do for me. It’s really the foundation for my practice. And I’m looking forward to sharing things that’ve worked for me again, and things that haven’t, and maybe help some people along that path.

Dave Aarons: Okay, great. So where I’d usually start with is just to give a little bit of background, how you got your start in the practice of law, but maybe a good place to start would be to share a little bit about some of the global travel we do. I think a lot of our attorneys know that most of the team members we work with at Unbundled Attorney. We’re a distributed team, we’ve worked from many different countries around the world, though nowadays we’re spending a little bit more time in US and Canada, but I understand you were quite the digital nomad as well.

Thomas King: I have been. I tried to stay in school as long as possible. I got my undergraduate degree and then went to Europe and started a PhD in a branch of linguistics called thuology, and I actually studied a little German. The reason that I ended up doing that is there were just great scholarships that the German government offered. I spent four years working on a PhD in Berlin, this was back in the 80s right before the wall fell, and it was a hedonistic time, to say the least.

That’s sort of what led me to the law is I was meeting with one of my advisors as I was working on my thesis, and he said, “Tom, you love language, but you’re not going to fare well in academia because it’s all about who can publish and who can raise the most money for the university. You just love the study of words and how they work and their meaning.”

He recommended, think about the law. So, I put that in my back pocket. I came back to the states after traveling around Asia, North Africa, Europe, and then when I got back I ended up in New York City and ended up going to Fordham Law School. When I graduated, I started the DA’s office, which was a great opportunity. Within six months, had half a dozen trials under my belt, and the only problem is they just didn’t pay anything. I had a baby on the way, a new wife, and that’s when I went to work for the big insurance litigation firm where I was incredibly unhappy. They put me in a cube and I was miserable.

From there, I leveraged a relationship and ended up becoming a general council for a broker dealer in the city and spent about 10 years doing that. Then, as often happens, you know, life takes a change. Got a divorce, I’m a single dad with three kids, and I was traveling into New York City, never seeing my kids. I had come to realize that that model for being a lawyer in corporate America, if you have kids, really relies on being in a partnership with somebody, because they’ll just work you to the bone. You get home and it’s dark and you leave when it’s dark and you end up paying a nanny to raise your kids.

I decided one day that I wasn’t going to do that anymore. I’d always thought about family law as being something that I wanted to do. Part of it was having gone through a bad divorce of my own, part of it was having special needs kids and having dealt with school districts and care providers, so that falls under the umbrella of family law. I tried to downsize as much as I could, sold the house, took a little bit of money out, and hung my shingle up.

It was about a year of absolutely doing nothing except appeal work for law school friends to help keep the lights on. Then Graham called me, and my life really changed because he said, “I’ve got a lead generation service that we want you to try.” At the time, I was really peppering all the bulletin boards: Avvo, Law.com, you know, trying to give advice to people when people were out there saying, “Well, if you want to start your divorce, tell you what. Start your divorce, I’ll look over your papers, and you can submit them on your own.”

Unbeknownst to me, I was trying to offer unbundled services because that’s where I saw an opening. There were a saturated field of family law, too many other people that already had the referral from business associates and within the bar, and so I was really looking for that niche. It really fit well for me when unbundled stepped in my life.

As we discussed earlier, at first, there was an opening for unbundled services in New York. Since I had been a DA there, I had contacts there, yeah, it was an hour commute for me, but that’s what I took. I found that that just didn’t work for me because the travel time was just too much. You get a lead generation that you come in, you sign them up as a client, and a lot of unbundled services within family law, they tend to be post-divorce modifications. Whether it be child support, alimony, visitation, custody, those are the big four that people come in for.

The model of being price competitive for them for those services you can’t spend all day in court for that one client. You need to be able to, either before the appearance or after the appearance, get back to the office and do other work or it just doesn’t make financial sense for you to provide that service for the price point that people need. For that reason, it didn’t work for me to be able to travel that far.

Another aspect that I learned the first few months of working with unbundled was you’re going to get some leads that pan out, and some that don’t. Then you’re also going to get that gold nugget that walks in the door every once in a while, somebody that says, “I’ve got a legal problem and here’s my check book and fix it for me.” If it was just the post-divorce modification leads that came in, it would be really tight. It’s those other cases that people who come in with a divorce where there are a business or investment properties or things where the other side is putting up a fight and it requires motion practice, multiple appearances, that you generate enough revenue in order to maintain a pay for the leads that don’t work out.

Other things that I’ve learned was you have to be really careful with your retainer agreement and set out the boundaries for what you’re representing and to remind clients that that’s beyond the scope if it gets there. If it does and they want to sign you up for a second thing, that’s what you need to do. I have several unbundled clients that came in as leads, and I did part of the work, and when they needed additional work, well, that’s a different retainer. Let’s lay that out.

And we do that so you don’t have to pay me a giant retainer and say, “I’ll be your on-call attorney for the next two years.” Being able to break that down, just being cognizant of when you’re an attorney and you sign that retainer that you signed up for a lot more than maybe you realized, and just being aware of that.

Dave Aarons:  Right. Yeah, there are a few things I want to wind back to that I thought were really important that we want to explore a little further. First of all, you said, what was really interesting, is when you first started hanging your shingle, you were on Avvo, you were on these different sites offering to help people by reviewing documents or helping them handle some parts on their own, and you said you saw an opening there. Can you describe a little more what it was you saw at that time was the opportunity to start offering these types of limited scope types of options for clients.

Thomas King: Yeah. You know, there are a whole generation of people out there, and not only generationally, but the internet’s changed the practice of business. It’s changed the practice of law, because people get starts, and they think that if they can do the research, they can fill out the forms that all the New Jersey courts or New York courts have, that they’ll be able to usher their case through. Some of them can, but many of them can’t because doing it once, it’s almost impossible to dot all the Is and cross all the Ts, and letting people know that.

Often times they’ve gone on these sites to say, “Hey, I’ve started this. What do I need to do to complete it?” And reaching out and offering that service, saying, “Yes.” Because a lot of attorneys will not do an unbundled service. I’d like to for certain reasons. One, I think there is a need for everybody to have representation, just from a broad philosophical ideal. I’ve volunteered to represent indigent clients once a month, every fourth Wednesday of the month. I’m down there helping people.

I apply that to my general practice as well in that you’ve come in, let’s see what we can do to get you through the legal system to the result that is fair and just and in your favour to where possible, and if that means that you represent yourself and I help you, then let’s do that. Being open to that definitely brings in business, and it can sometimes even be an easier return because people pay you for that hour of your time or for that two hours of your time as opposed to, okay, they’ve negotiated down the retainer and we’ve agreed to $100 a month to make up the difference, and three months later they’ve stopped payment because their debit card’s no longer good and you end up making the calls.

The true unbundled service has almost 100% return on time investment. People are willing to pay for it because they feel like they’re getting great bang for their buck, which they are, and you don’t have the problem with collections that you have with a lot of things, and you’re helping people through the system.

I offer unbundled service for preparation of documents for filing of motions, for briefs on the law, and I also offer an appearance, an unbundled appearance. I tell people, “Hey, if the other side has an attorney and you show up in court because there are an oral argument, you’re really going to be at a disadvantage.” Sometimes we need to break it up. Yeah, you’ll file everything, and then bring me in day of. Let me be the hired gun that shows up at the OK corral, because I know the attorney on the other side, and while they’re fair, the judge is going to give them deference. No matter how many times you’ve read the Avvo primer on custody, there are local rules of court and there are local rules by judges as to what’s acceptable in court. Going at that pro se is very difficult, and usually people are open to that.

Dave Aarons: Yeah.

Thomas King: I hope that answered your question.

Dave Aarons: Oh, it does. Absolutely, Tom. And I think this really takes things in a direction that we can really explore further.

You mentioned something a little earlier that I think would be really valuable within this aspect of discussion, which you said you wanted to be careful about the way you structure retainer agreements and also with the way that you set expectations with the client, and also you’re offering limited appearances. I think there are a lot we can unpack there to get to the practicality of how attorneys can offer unbundled services, the ways in which they can structure these types of agreements, with the types of options that you’re offering – you’ve got document preparation, you’ve got filing of motions – how you can make sure that it’s clear between you and the client, specifically what it is you’re doing and also what you’re not doing, and then how to convey that and also put that into the agreement.

Would you be able to share a little bit more about specifically these types of options? I’m not sure if you’re doing flat rates or if you’re doing hour by hour, but we can talk a bit about that and then how to make sure that you have that meeting of the minds, both in communication with the client on expectations, and also in the agreements you create.

Thomas King: Right. I take a generic retainer agreement, and then where there are one part in there in the recital when it talks about the services that you offered. I do a bullet point and I discuss in plain language what I am signed up to give for them. If I’ve come to a flat rate agreement for them, and I say it there, but then I say, “If it goes beyond this, it becomes an hourly rate.” And I set my hourly rate there and I set my paralegal.

Last month I hired a paralegal to come in Mondays, Tuesdays and Wednesdays. Wasn’t quite ready for the finances of hiring somebody full-time, and I recommend this, that it really is very, very helpful. There are a lot of people out there that were paralegals, they had children, and the kids are a little bit older now and they’re ready to get back into the workforce but not necessarily full-time. They have great institutional knowledge that you can use for your small firm that you’re starting at a discounted rate, because you offer them the flexibility of when they can work and they can go run to school if somebody is sick and they’re not there full-time. That’s just a tip that I’ve learned is that you can get partial and part-time help.

Getting back to the retainer agreement, laying it out for them and then saying, “I’ve done this before,” and I’ve seen helping somebody with an application to change visitation morphs into filing an opposition to the cross motion that gets applied from the other side more than filing a cross motion to the other side’s motion to reduce child support based on the proposed change in dates morphs into a plenary hearing on underemployment of the spouse.

Because I can foresee that those are the possible things, I talk to them about that and I say, “If you need me to oppose any cross motions, that will be done on an hourly basis, and here’s the hourly basis.” I find that that makes it a lot easier when you go back to them, because they send me back. Oh, Tom, they filed the cross motion. What do I do with this? And I say, “Well, you know our retainer agreement. If you want me to handle it, we agreed to an hourly basis.”

Should I put the $1,200 retainer towards this, that you gave me your credit card and I told you I would not use it without your permission. That’s the way that I structure that. I found that that helps because so often an unbundled service leads into something else and you have to be judicious about your time to not take on, even responding with a letter to the opposing attorney, or you’re hooked into representation on that issue.

In my letters to court, too. When I file my notice of appearance, I make sure to say that I’m specific and say that I’m appearing for the limited purposes of filing this motion. My appearance at any oral argument or opposition to any response of pleadings would require a separate retainer and a separate notice of appearance from myself. That makes is that much easier when you get the call from court to them say, “Mr. King, your client is here, we’re having an oral argument. Why aren’t you here?”

And I say, “Well judge, actually, I sent you a letter two weeks ago when we were noticed and I attached both my retainer agreement and my notice of appearance where I was very specific that my representation was only for the submission for the pleading and not for any oral argument. If my client would like, I would appreciate if you would make him aware that he could ask for an adjournment and hire me to appear for the oral argument, but I haven’t disregarded the court’s instruction to be there.”

I’ve never run into a court or a judge or a clerk that hasn’t been apologetic for, you know, oh, Mr. King, yes, I do see that that is the case. You don’t need to appear today, your client is appearing pro se. Those are the things I’ve learned.

Dave Aarons: Yeah. And, you know, Tom, I think that we’re getting at something really, really important here, especially in New Jersey and New York. I guess certain states that it’s still difficult like Texas and very, very conservative states, but then other states like California, Washington, Oregon, Massachusetts, where the courts, the judges and most of the entities involved, especially on the state level, are 100% supportive of attorneys being willing to offer unbundled and limited scope services because it’s their view that with so many pro se litigants filing in family court, we’re at 70, 80% in many courts, most courts across the country, that it’s their view that that client would be better off having an attorney helping them with part of the case than none at all.

Thomas King: Yep. Absolutely.

Dave Aarons: Yeah.

Thomas King: In New Jersey, it depends on the county and it depends on the judge and their tradition. We have some of the poorest neighborhoods surrounding some of our counties and some of the wealthiest. There is, unfortunately, a difference in the responsibility of attorneys, at least viewed by the courts, depending on where you’re at. I’m aware of those differences.

Some of the counties, I know it’s not going to be a problem, and others I’m like no, I’m sending them an extra letter, and automate those letters so you’re not re-writing it. Letter to court, limited appearance, and there are an advantage of being able to do unbundled services, but there are a little bit of extra CYA that you need to do as well.

Dave Aarons: Yeah. I think this would be useful as well. Let’s say you have a court that you know that … Well, maybe you could start with how do you identify? Is it kind of you figure out, either because you know the judge or because you start trying offering unbundled services in different courts and see how they respond. How do you identify which courts are going to be more accepting of attorneys? And again, we all know that the ethics opinion is saying you can do this, but again, at the bottom line, is the judge believe that?

Thomas King: Right.

Dave Aarons: Like you said, they have a more traditional approach. The way they’ve been doing things for years and maybe haven’t adapted to what we’ve talked about before, which is the internet changing the way so many people are filing in the courts.

Thomas King: Yeah.

Dave Aarons: Those two things haven’t melded yet, right?

Thomas King: Yeah.

Dave Aarons: So, how do you identify which courts you’re going to have some challenges with and what are some of the things attorneys can do to overcome those challenges in those courts? When is it maybe not worth it, if ever? And maybe you can give some insights on managing this evolving system where some courts are evolving quicker than others when it comes to allowing attorneys and making it easy for attorneys to offer unbundled.

Thomas King: It’s the culture of the county, and a lot of times it’s socioeconomic. It’s whether or not I’m the first trail blazer, the first time that I’ve explained to clerks that no, I represent on an unbundled basis. I’ll refer them to our ethics opinion and our supreme court has issued some wonderful supportive language about the need for unbundled legal services in order to meet the needs of all citizens and yada yada.

But if they haven’t seen it, they’re not used to it. What they’re used to is hey, there are an attorney of record, and you’re not relieved until somebody else steps in your shoes. Being proactive when the case moves beyond your representation to document it with the court.

At least in New Jersey, I can’t buy that letter. Say I no longer represent them. What it is is it’s sort of the other way around where the extent of my representation has now ended on its own, and that’s what I make sure to tell my client because I’ve CC’d them on the letter to court when there is something that has happened, and it’s usually an oral argument that wasn’t a part of our agreement.

Dave Aarons: And on the flip side, have you found a lot of courts and judges that are very, very supportive and make it really easy for you to offer these types of options as well?

Thomas King: Absolutely. But then on the other side of that, there are also courts that I’m representing somebody not on an unbundled basis and the case has been put over a couple of times and then somewhere between there and now they’ve kicked me out as their attorney. So I make sure to keep my receipts for the appearance fee, because they say, “Well Mr. King, we don’t have a record of you representing Mr. Smith.” And I’m like, “Well Mr. Judge, here’s my notice of appearance. I know it’s been eight months, but the matter has just been put over three times and you’re the third judge sitting to hear this case, but we’re finally here and I should have been noticed of the whatever it is that was sent to court and I’m here now.”

Dave Aarons: Okay, awesome.

Thomas King: Some courts are more open to it than others. If you write your letters, you document your retainer well, you put it in to your notice of appearance that you’re representing on a limited basis and state what those limits are, I haven’t had a problem with a judge requiring me to appear beyond that.

Dave Aarons: Yeah, and that’s what we’ve heard from 99% of attorneys across the United States. This is not unusual. In fact, I would probably say in New York, New Jersey it’s probably one of the more challenging areas. And I know they’re revolving because for a long time they didn’t like the whole idea of limited scope, and that’s shifting tremendously from what we’ve heard from other attorneys offering these options throughout New York. This is probably one of the, besides Texas and a couple other southern states, where you would really run into many issues at all.

Thomas King: Yeah.

Dave Aarons: So, it’s really helpful to hear your perspective on how to work with courts that are a little bit slower to adapt to the shifts in the industry.

Thomas King: Right. And it’s the culture for the whole state. It’s reflected in New York and New Jersey’s resistance to change. There are a lot of archaina that goes on in both of these states. It’s an adherence to tradition, it’s part of it is, I believe, a burden of entry for people to learn this strange system with all these handshakes. It definitely hues away from justice, in my opinion, but it’s a system that we have and it’s going to make it less open to some of the changes such as unbundled representation.

Dave Aarons: Okay great. So, maybe we can take a little bit different perspective on how to be effective at offering these options, not from the courts, but also from the clients. You gave a really good illustration visually where you have a retainer agreement that these are the services we’re providing and then you’re just adding bullet points about the specific types of options you’re offering. Maybe you could talk just a bit about how you communicate with the client maybe from the very outset.

Thomas King: Right.

Dave Aarons: You know, you receive the lead, you talk to them about their case. How do you start to ascertain whether you’re going to be taking more of an unbundled approach or for representation? Does it really come down to their financial budget or is there other factors that you consider with working with people initially, unbundled or full rep, and then maybe describe how you explain that to them and break it down.

Thomas King: Right. The way you filter the leads that come in is very important to your success. I get somebody in, and everybody starts at the same level, but I’m going to talk to you about what your needs are. I think they’ve gone and they called and sought out an attorney through unbundled because they’re price conscious, they’re conscious about getting bang for the buck, they would rather have that sort of conversation and be more involved about who’s representing them.

When I call them, I try and call back as soon as I can. I find that if people call you late at night or on the weekends, they absolutely love it if you’ve called them back on a Sunday evening. Those are people that almost always are able to sign up, simply because I’ve shown to them I’m accessible and I care about your legal issue. When I get them I have a ball park …

Dave Aarons: Let me just press pause on that. I don’t want to break your thread, but a lot of attorneys feel like if I call them on Sunday or Saturday and call them right back, then that’s going to set a precedent going forward that they can just call me whenever they want.

Thomas King: Yep, and it does.

Dave Aarons: So, some attorneys do it. Okay, so …

Thomas King: It absolutely does. You let things go to voicemail, and if it becomes a problem, you talk to them and say, “Okay, I hear what you’re saying, but it’s very difficult for me to track this particular issue. It’s much easier for me if you sent it to me in an email.”

And I have that discussion with people when I’m discussing how I need. I give people my cell number, but I tell them, “Use this to say that you’ve arrived in court. Use this if it’s a short thing. Same thing with sending me a text. But if there is something substantive that you need to talk about or whatever, send it to me in an email, because if we’ve had that conversation and you’ve called me, I have to write it down and then I have to save it to my case management software and that’s going to cost you money. So, it’s much more efficient for you, it’s much less expensive for you if you send it to me in an email.”

At one point, you need to start screening your calls. There are people that yeah if you pick up the phone and you talk to them in order to get the sale done, I won’t necessarily always pick up their call. If they call in, it’s like okay, let’s see what they’ve said, because I have to be able to manage my time.

Dave Aarons: Yes.

Thomas King: That’s definitely an issue. Usually, after you have that one conversation that I always want to be available to you, but there is a difference between an emergency and just to complain that he was five minutes late to drop the kids off at the police station, what should I do? Send that he’s five minutes late. Let’s document that, and the best way for us to document that is by email.

You do need to be judicious with your time, but when you’re calling up a new lead, the sooner the better. Even if I can’t call them, I try and send them a text message like, “Got your message. I’m busy this afternoon. Is it good for me to call between five and six tonight?”

I like to do it with a question so that they see it, they get active, they send something back to me.

Getting back to when somebody comes in if I want them as a client, and I’ll usually want them as a client because I believe that they have a need for this system. I don’t necessarily care right or wrong, but usually, it’s a mother, a father who wants to spend more time with their kid or that can’t afford their payment or needs more money to help raise the kids. I want to be able to help them, and I will work with them.

If they can’t afford $2,500 that I would charge for a downward modification of child support, I’ll say, “Let’s do this. I can send you a link to the forms, you can start to fill them out. When you get stuck, we’ll set the meter running and you can pay for me on an hourly basis and I can walk you through this. When we get done and we file this together, I’m really going to try and convince you to pay me for my appearance for the day to go into court, but let’s work out something.”

I have found that people will either take that or they’ll start that and then they’ll say, “Mr. King, here, I just want you to handle it for me.”

Something else that I do is I use LawPay, with their monthly billing option. I think you pay an extra $10 a month to use them, and I have it set up. I have people that are paying me $75 a month, and they’re going to be paying me that for the next three years. It adds up each month when you’ve got five or six clients that are paying you for a small amount.

And I let them know, if there is a month that you can’t make that payment, don’t worry about it. I hit the button, we pause it for one month, and then it kicks back in. That has worked for me to help maximize the leads that I’m giving and feeling like I’m giving good service but also getting paid.

Dave Aarons: Yeah. Okay, so that’s really, really key. Let’s cover that, and I think what you said just a minute earlier, we were just at the Clio Cloud Conference, and one of the things that Clio’s doing really well is they’re tracking, anonymously, data and serving clients, thousands of clients, on what it is they’re looking for in a lawyer. One of the things they asked the clients was what are the number one reasons you hire an attorney?

Lawyers might say, well, they might want to have someone that was magna cum laude, number one in their class. They might make a decision based on their website, and there’ll be all these different things, but as it turns out, the number one reason why clients retain an attorney is that they respond to them right away. That was the number one reason. So, I’m not surprised when you say someone sent me something on a weekend or a late night that they almost always retain because they’re so impressed by the fact that you’re willing to get back to them at times other lawyers weren’t.

Again, like you said, you have to set expectations around that going forward, but I’m not surprised that’s your highest converting lead when that’s the number one reason that clients retain attorneys is because they respond immediately.

The second one was a free consultation, the third one was offers fixed fees unbundled services.

Thomas King: Yeah.

Dave Aarons: The very last one in the entire list, and there was about 10, as they have a great looking website.

Thomas King: Okay.

Dave Aarons: It’s finding that balance, right? Yeah, you want to have boundaries, you may need to screen the call and it could create a few clients that overstep that boundary and you have to address that, but when you really take a step back and look at how many clients was I able to retain that otherwise would have hired someone else because I was willing to respond to them on a Saturday in the afternoon or Sunday. And maybe even it was just a quick call just to say, “Hey, I got it, let’s set up a time.” It may not even have to be an involved call, but when you really look at how many clients that have come on board specifically for that reason, I’m sure it balances out in the end, does it not?

Thomas King: Right, it does. Managing your time, taking time … There are time during the day when hey, I’m going to take three, four, five hours during my day and I turn my phone off because there are some things that just require large blocks of uninterrupted time. There are a lot of freedom with being a solo, but it means you end up doing a little work on the weekends. But then for that, I put my son on the short bus every morning at nine o’clock. There are trade-offs, and there are trade-offs with unbundled with clients that call you that you may not be able to bill because you’ve given them an unbundled service. I’ve calculated that in and I try and be efficient in my responses.

Are there some people that feel like they’ve given you $800, they should be able to call you anytime of the day and be able to get an immediate response? I have talked to people and said, “If you’re not happy with my services, I’m keeping track of my time and I want to run through them with you if you had hired me on a regular retainer basis where we would be at versus what you paid and what you agreed to. If you’re not happy, then I would refund you if the amount of your unbundled service fee.”

Which is never. If we’ve gotten to that point, it’s because they have been calling, they have been demanding, and not every client you are going to make them happy during this process, because they’re under a lot of pressure. They don’t understand the system. When you offer, say, “Listen, if you need to find another attorney who would be better suited to be to your needs, then we can unwind this thing and no hard feelings.”

Dave Aarons: Sure.

Thomas King: That’s a conversation you have to have every once in a while.

Dave Aarons: Yes.

Okay, so there are a couple other things I really want to cover. I feel like we could have this conversation for hours, so I’m going to focus on those things. One of the things you mentioned was LawPay and offering repayment plans. That’s something we could certainly unpack, but that’s been covering in a number of previous episodes, so I’ll just invite listeners to listen to, for example, the episode called Scaling Up Your Practice: From Solo Practitioner to Small Firm in Three Months. We talked to Rhonda and Jayshree Naidu and they gave a lot of statistics on what offering payment plans can do for your practice, how many more clients you can bring on, what are the actual numbers of default and how to use LawPay to do automated billing.

That’s a really valuable aspect of attorney’s offering and being willing to work with people, but I want to encourage listeners that haven’t heard that episode to check that out because you can get a lot of information on payment plans, auto billing and LawPay.

What I’d like to focus on a little bit more here with you, Tom, is a lot of attorneys are doing unbundled services under flat rates. What I’m hearing is that you tend to do unbundled options more of an hour-by-hour and then transition to hourly, and maybe what I’d love for you to talk a bit about is just when you offer one option – maybe you can clarify if you’re doing it hour-by-hour or if you’re starting off with a flat rate – and then when it goes to the next step, how do you transition from if it is a flat rate for an hour-by-hour? Or, is it always hourly? Do you just take a new retainer?

Because, like you said, a lot of these clients will start with unbundled, and we just had Anthony Sanders on the last podcast, the Try It Before You Buy It, and he says he offers an unbundled option and then 90% of the client then retain him for full representation after that. I mean, it’s just like a quick option retainer.

Thomas King: I wouldn’t say that I’m 90%, but definitely a good amount. I talk to people, and if you want a flat rate, I will give you the flat rate for this. After I’ve talked to them about what I’ve got, I can say, “I do these all the time. I know this judge. From what you’ve told me, it’s going to cost this much money. It’s going to cost you $1,750 to make an application for full custody based on your ex not seeing your kids for the last two years. But, if he raises a vigorous defense and brings in a big law firm, I can’t offer a flat rate through disposition on this because we just don’t know what the response is going to be. I can offer you a flat rate to prepare the paperwork and submit the pleadings, and I can offer you a flat rate for my first appearance, but if in the interim we get hit with a cross-motion, if he decides to pick up the phone and make an allegation to child protective services, that is outside of the scope of this. When that happens, we can discuss it, but here’s my retainer, and it’s not a flat fee, although, if you want it to be a flat fee, absolutely we can do that, it’s going to be more narrow in scope.”

Dave Aarons: Do you do that because it makes it a little bit easier for you … And by the way, I think I misspoke a bit. When he said 90%, it wasn’t all for full representation, but they hire for additional services, a lot of it is full representation, because it gives people an opportunity, when you’re offering these more unbundled type of services or doing one piece, to get a feel for what it’s like working with you and to get comfortable working in your practice. What I like about the fact that you’re doing hourly is it seems like it’s really easy for you to offer the next service, the next service, the next service because then they just can replenish or use what hasn’t been billed and so forth, and it makes things really simple.

Thomas King:   what it is. If somebody comes in for a prenup, that’s a flat rate. If somebody comes in for needing to review their adoption paperwork, that’s a flat rate. There are some services that really lend themselves to flat rate, but if in the end you’re looking to get an order that says something, it’s very difficult to give a flat rate because you just don’t know what the opposition is.

So, the best as an attorney can do is say, “I can offer you a rate for this and this, but understand that if the other side files a motion, it has to be hourly because you just don’t know the requirement for your response, and that’s just where we’re at.”

Dave Aarons: Absolutely. Okay, great. I appreciate you sharing that, because there is a lot of attorneys that do flat rate by flat rate, but it seems like if you’re doing each task comes up, then you have to quote a new flat rate. You have to quote a new flat rate for each task, and so at a certain point, you might start with maybe one flat rate you do one thing, but if you’re starting to have the client wanting more services from there, it really seems like it makes sense to start transitioning to an hourly, or even starting there from the beginning like you said.

Thomas King: Right, yep.

Dave Aarons: So what …

Thomas King: And … Go on.

Dave Aarons: No, go ahead. You can add in there and then we’ll cover the last thing we’re going to talk about here.

Thomas King: I’ve lost my train of thought there. So, go on with your question.

Dave Aarons: Okay, cool. Well, what I love to do, also, Tom, is talk just about how you started off with New York and then went back to New Jersey. We’ve had a lot of attorneys come on recently, Alex Keenan out of Albany, New York who has hired contract lawyers and started to expand into other regions by handling all the enrollments himself, and then assigning them to the contract lawyers if they are more local than he is, because his office is way down in Poughkeepsie. He also handles Albany and Saratoga, so a lot of times having those clients work with a contract lawyer could be a better fit, for example.

So, we’ve found some attorneys have some success with that, but at the same time, there are some certain challenges, especially if you’re running a solo firm and you’re trying to do things yourself, there are a lot of challenges to expand into new regions. Initially at least, when we first gave a shot with New York, that didn’t quite work for you. You talked about the commute, and so maybe we can talk just a bit about why maybe opening up a new region that was a little further didn’t work and some of the cautionary things to consider when you’re looking at expanding a new region.

Obviously, we could have maybe looked at a different approach of having a lawyer in New York that’s a contractor, maybe we could have explored that as a more feasible option, but maybe you could just talk about why maybe that didn’t work out for you personally as a solo firm trying to handle something that was a little bit further away.

Thomas King: Yeah, and I did try to work with contractors. I had a couple of people, and it’s just difficult with the personal nature of the family law issues that I was running into. It just became unwieldy and not being profitable enough for me to sustain. [inaudible 00:49:23] I was just in New York, and when I was in New York and New Jersey, and then I called Graham and I said, “I would rather spend the extra time and effort getting the New Jersey clients, let’s lay off of the New York.”

I was spending more time on them than I was on my New Jersey clients for the same fee. If I was perhaps a better manager, if I was perhaps a better organizer and distributor, then that model would work, but for me, I guess all my exes would say I’m a control freak. I like to be in control of my files and my client and that relationship and the legal services that I give to them. I think that they appreciate the sincerity of that one-on-one that brings personal satisfaction to me and the kind of law that I like to offer.

I chose family law because it’s very personal, as opposed to contract law or staying in other areas, and I like the feedback that you get from being able to help somebody. Unbundled certainly gives me leads that enable that, so there are a lot of personal satisfaction that I get from my model that has worked for me.

I remember now what I was going to say as far as my time. If there are anybody that’s out there thinking about doing this change in careers from one area of the law to hanging your own shingle or if you’re starting off later in life and you’ve opened this up and say, “What’s it going to take?” Again, all I did was burn through cash for the first year. Every book and everybody that I talked to say that it’s going to be about two years before I’m meeting my dot.

With Unbundled, it was 16 months. Within four months of us signing up was the first month that I said, “I’ve earned as much as I’ve spent.” Being a single father with three kids and renting office space from a local attorney in town. That was a real blessing when the business option opened up for me.

Dave Aarons: Yeah. Well, that really means a lot to me, to us that we’re able to make the difference for you, Tom. I mean, obviously we couldn’t be happier with the way you’ve been working with the clients and just the feedback we’ve got. It’s been a real pleasure working with you personally. If we had any part to play in helping you be able to sustain this solo practice and serve as many clients as you do now, that feels really great. I’m so happy to hear that.

I want to finish this final piece here and then maybe we can wrap it up. I really appreciate your time today in sharing so openly how you’ve been overcoming and working with these challenges and the benefits of working with clients on an unbundled basis.

You mentioned that you wanted … And by the way, when you said, “Maybe I’m more of a control freak or maybe I’m not much of a manager,” I think that’s common. A lot of people may be really great at practicing law, but being a manager of other people isn’t in the skill set. I think it requires a whole different set of skills, a whole different set of problems and challenges that are not going to be a good fit for some people.

So, that’s why I really appreciate and I wanted to expand on why did this not work for you so attorneys can think about it for themselves and say, “Well, do I want to manage a contract lawyer? Do I want to think about do they have work, do they not? How do I hand it off? Are they doing a good job?” There are a lot of other skills that go in. Obviously, it gives you the capacity to leverage your income because they make a certain hourly rate, you get an hour-by-hour on the work that they’re doing, and so yes, you can create a leveraged income, but it also comes with a cost and it’s really important to weigh out that cost.

I’m wondering if there are anything you recall, specifically about hiring contract lawyers, that didn’t work for you personally, whether it was because you didn’t like the fact that you weren’t working with those clients personally, which is certainly a very good reason to not work with a contract lawyer because you don’t have the ability to know how are they really getting treated. Are they really getting the help that they deserve? Are they really an extension of what I want to see my clients experience?

So, there are that piece, but is there anything else along those lines or anything else that you recall that made it not work for you to have contractors?

Thomas King: Part of it was timing, too. I would have new client, they would have an appearance in Brooklyn on XYZ, I would plan on having one attorney do it and maybe I waited too long, they weren’t able to be there, then I ended up calling around and finding somebody within the last minute. I end up having to go on the case myself anyway.

Maybe if I had taken more time to find the right contractor, but it seemed like it was half of it just throwing my hands up saying, “I guess I’m going to have to go anyway,” and then I would go. Maybe having the right stable of contractors in certain regions that can help you might be key, but again, the model didn’t work for me, and concentrating on the cases that I do get and cultivating those has.

I get a lot of referrals for people that came in through Unbundled, so it’s not only the Unbundled leads, but then what they lead to in and of themselves.

Dave Aarons: Yes. Yeah, absolutely. So, thank you for your perspective on that, Tom. I think that’s really, really helpful because I think there are a great upside to hiring contractors and expanding to different regions and handling more clients, but it also comes with this set of challenges as well and it’s really important to think through those challenges before making the decision to bring additional attorneys on.

There is another episode we did with Dave Gross out of Vancouver, Washington, one of our attorneys there. It’s called Chronicling the Journey from Solo Practice to Small Firm: Limited Appearances Hiring Contract Lawyers and Scaling Up a Practice, and he talks about some mistakes that he made hiring contract lawyers and how much time you really got to put into finding the right contractor to work with because if you don’t, it can really be a poor representation of your firm and also lead to a lot of problems and headache that don’t make it worthwhile in certain scenarios.

Thomas King: Yep. Very real.

Dave Aarons: Yeah. Okay, and then I guess the final thing, just briefly want to touch on because we haven’t talked about it a whole lot on the podcast is just doing limited appearances. You’ve offered that to a lot of your clients. In fact, from what we’ve talked about earlier, it’s something that you really highlight as a benefit and really try to encourage clients to have you come in to make that appearance for them, and especially if they have a lawyer on the other side. Maybe you could just talk just a little bit about how that works with your clients and then making sure that they understand it’s for that one appearance, and then if it gets held over what happens then, and just some of the practical strategies for doing that effectively.

Thomas King: Right.

I make sure that they’re aware in the retainer that this is for one appearance, and it’s for dispositive appearance. It’s happened where we’ve waiting until five o’clock, we’ve been there since nine, and the judge hasn’t been able to see us. This happened on a case in Birmingham county, one of the busier dockets, and the judge had just been inundated with emergency orders and wasn’t able to see us.

Because I knew it was going to be a problem for my client, I explained to the clerk that I’m here on an unbundled basis for my client. They’ve paid for today, and I don’t know if they’re going to be able to pay for this for an appearance. Is there any chance that the court would allow me to appear by teleconference and I’m not going to charge my client for that, but I can’t come down next week and sit here at nine o’clock and maybe not be heard until three o’clock because of the relationship that I have with my client.

She said, “Well, let me speak with the judge,” and the judge agreed, and for the next appearance, the court called me when the case was being heard and I was able to put my arguments and make my appearance and help mitigate the cost exposure for my client.

It is something that you have to be careful of. I’m not above telling clerks, “My client is on a limited budget and if there are a chance that the court’s not going to see us until after lunch, can we adjourn it now and have what we call a ready hold so that we know that we’re going to be on next week at 10 o’clock, because it doesn’t work for my client financially to have us sitting and waiting.”

So, I try and work as much as I can with the court officers to get my client heard first, and if they can’t be, to ask for the courtesy of being told earlier rather than later, then maybe re-adjourning with a ready hold for the next appearance.

Dave Aarons: Okay, great. And that sounds like some of the challenges you run into. On the whole, have you found that it’s been a real benefit to your clients and for your practice also economically to offer limited appearances as an option? Because there are some attorneys that will only do the document preparation and coaching, but don’t do the appearance. There are some states, like you said, that maybe some of the judges have been a little bit slower to adopt or accept or be willing to work with attorneys that are doing just one appearance, so you have to take into consideration your local courts as we discussed. But for you, in the courts that this has worked well, how has this been for you economically and for the clients?

Thomas King: Absolutely. Economically, it’s been good. It’s worked out for me. I enjoy that part of the practice, and two pleadings that are completely equal. If somebody goes in pro se, it’s amazing how judges, just being human, don’t give a pro se applicant the same deference they do if there are an attorney, and especially if there are an attorney on the other side. I try and explain and give a couple of war stories to what happens when you show up without somebody there to represent you.

Your best bang for the buck is to have me appear, so I definitely put a hard sell on that. It’s good for me and it’s good for my clients and it’s good for my business. Definitely, even if it’s just a limited appearance on that one day, if I know it’s going to be that, I’d try and tell the court that in my introduction letter. I’ve been retained in this, yada yada, and as a courtesy, my client is on limited funds, and if there are a chance that we won’t be heard in the morning, if we could schedule this for one or two o’clock.

Sometimes calling the clerk beforehand so you’re not sitting there for two hours. They knew when the cases were going to be heard, but they just line everybody up. If you call and say, “How’s the docket looking?” You know, “Ah, you probably won’t be seen until 11 o’clock.” I’ll say, “Well, okay, let me call our adversary and see if we can be there at 11 as opposed to getting there at eight thirty and waiting until 11.”

Being aware that even though you get the notice for a time, that the call the day before can sometimes free up your time and help you be a better time manager.

Dave Aarons: Yep, exactly.

Okay. That’s some really, really helpful information for limited appearances. I think that is an option that more and more attorneys are starting to offer, and a lot of clients are going to feel a lot more comfortable having an attorney be there in court. The option to be able to do one appearance without necessarily having the client have to commit to more from there and just take it one step at a time not only works for them economically, it works for the firm economically. Something that attorneys that haven’t been offering that yet really may want to consider.

Thomas King: Right. Again, I don’t know who the audience is for this. If it’s people that don’t go to court a lot or if they’re newer to the business, you’ve got a lot of business while you’re in court. Make sure you’ve got your cards, because people will ask for them. If they see you engaged with your client, people will ask and it gets business.

Part of being an attorney is going to court and making that appearance, and it’s part of growing your brand within a community.

Dave Aarons: Absolutely.

Well hey Tom, you know, I really want to thank you for coming on today and I really get the sense that you have been really making an effort to be prepared not only to give a lot of suggestions but also just in the way you’ve been openly sharing about some of the challenges and things you want to look out for. I really like that we’re also setting the contrasts.

There are a lot of ways we can say, “Unbundled’s great and limited appearances are great and contract lawyers,” but also to make sure that behold the possibility, but also be aware of the challenges and how to protect yourself and how to set the right expectations and make sure everyone’s on the same page so that you don’t run into challenges and any problems.

Thomas King: Yeah.

Dave Aarons: It’s been really, really, really viable to hear your perspective on that. I just thank you for coming on to share as you have and I think it’s really going to be helpful for a lot of attorneys to hear.

Thomas King: Oh, my pleasure.

Dave Aarons: So, with that, let’s go ahead and wrap up. For everyone that’s listening to the podcast, we, as always, really appreciate your participation and willingness to continue to learn and grow and improve your practice. As we mentioned, I think in a previous episode, we now have transcriptions of every single podcast on the blog, on unbundledattorney.com/blog, or you can just go to unbundledattorney.com and click on the blog link.

If there are podcast episodes that you maybe haven’t got to yet, obviously there are certain ones you’re definitely going to want to listen to if they really resonate or if there are a topic there you want to cover, but you can also go back and if there are episodes you haven’t heard yet or maybe don’t have time to hear them right now, you can go through and read through those transcriptions and pull out any additional suggestions that you may have not been able to get exposed to. So, that’s all available for you now.

With that, we’ll go ahead and wrap up and we will see you all on the next episode. Thanks so much for your participation.

 

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