Back

ABA Journal

Home

Legal Ethics

Work-at-home lawyer suspended partly for lack of a ‘bona fide office’

Dec 18, 2013, 06:45 am CDT

Comments

If you read the opinion, the ethics violations surrounding the trust account get just as much time as the violation for not having an office (possibly more), and the board that made the recommendation to the Court said that his trust account practices were the bigger problem (they say it creates dangers to the public/future clients).  So, realistically, the two year suspension is based in large part on the trust account violations compounded by the failure to maintain an office.  The article posted here by the ABA makes it sound like the failure to maintain an office was the main issue, and the trust account violations were a minor issue.

By RecentGrad on 2013 12 18, 9:27 am CDT

As an attorney that maintains a virtual office, I am saddened by yet another ruling that appears to keep attorneys in the dark ages and dismisses “non-traditional” attempts at having a law firm.  Obviously, the financial issues should be the main concern, but all clients are different and not all of them want to pay for an attorney with an expensive and glorified office space.  I am able to operate efficiently and inexpensively and my clients appreciate that.  I am available via email, phone/text, and in person, so long as the client makes an appointment.  The brick-and-mortar type of requirement also makes it more difficult for new solos to start out.  What’s next?  A lawsuit against the ABA for all of its promotions towards virtual offices, which then entice and encourage attorneys to break ethics rules?

By OKLawyer on 2013 12 18, 11:17 am CDT

Delaware is antiquated in its requirement of an actual physical office.  It harms clients who cannot afford to indirectly pay for brick and mortar locations.  My clients are fortunate in that I practice in states that are in the 21st century.  I have a network of nearly 100 hundreds office locations in several states.  It makes it more convenient and cost effective for clients.  Who needs a permanent office when there are computers, the internet, phones, faxes, and e-mails.  I hope more states don’t make the mistake and go back into the dark ages.  It only hurts the 98% in their attempt to obtain cost efficient good counsel.

By Virtual Lawyer on 2013 12 18, 2:51 pm CDT

Lincoln Lawyer, beware.

By JimB on 2013 12 18, 3:04 pm CDT

Delaware is bad for small business registrations.  I don’t recommend that most clients set up shop there.  Not worth the annual fee and statutory agent fees.  Incorporate in your own state.

By tim17 on 2013 12 18, 3:12 pm CDT

Is the Delaware Bar stuck in the Stone Ages? I wonder if the average age of Delaware ethics committee members pre-dates the invention of computers? Do we also have to sign all our legal documents with a quill? We are living in a completely different time than 10, 15 years ago. The physical “office” requirement is antiquated and especially hurts new solo lawyers trying to get a practice off the ground. LegalZoom and other legal websites offer their services online. How does a new solo lawyer compete if they have to rent an actual office? It’s not 1950 anymore. Even corporations that have been around 100 years have Facebook pages and Twitter accounts. Nobody goes to an “Amazon” store to buy a book, they buy it online. The legal profession too must face reality, embrace change and support innovative lawyers who are pushing the profession forward.

By caliJD on 2013 12 18, 3:40 pm CDT

@2, I agree.  Another concern for this century is that lawyers are often harassed and threatened by opposing parties or their own disgruntled clients.  You only need one deranged person with a gun to ruin your life.  It makes no sense to require lawyers to be sitting ducks if for some reason they wish not to make their movements predictable.  Many lawyers practicing in areas of domestic violence, divorce, child custody or criminal law are in danger of being targeted.  Incidents of lawyers shot or killed are increasing dramatically.  No client or person should have the right to know where you are in advance or to walk in and find you at your office the way these rules require. 

The bar offices in my state have secured facilities because even those lawyers feel threatened by disgruntled complainants.  You have to show ID, have an appointment and be buzzed into a locked wing in the building. 

As lawyers we should ban together and complain that lawyer security (and peace of mind) require the bar recognize our right to not be sitting ducks who must engage any person that walks into our offices to find out why they’re looking for us.

By Santana on 2013 12 18, 3:52 pm CDT

There are numerous firms who rent bricks and mortar facilities by the day or month, and conference rooms by the hour. These firms usually provide amenities and security that a solo can’t afford. The idea that this is insufficient, when an attorney can draft a motion while in transit on a plane, is ridiculous.

By BMF on 2013 12 18, 6:54 pm CDT

In contrast, all that Delaware seems to require to be a corporation there is a literal post office box.

Also, it sounds like Barakat was using “killer” accounting software. I’ve heard that term before, but never involving an actual fatality. I would enjoy seeing the victim’s heirs file a products liability suit, having had some nearly fatal experiences with that sort of software myself.

By William Able on 2013 12 18, 9:57 pm CDT

lawyers should be allowed to practice without an office, but i still think it’s a good idea to have pen and paper.  call me old school.

By defensive lawyer on 2013 12 19, 3:02 pm CDT

The Delaware bar is a small club & they don’t want them Philly boys invading their turf.
@7: Ironically he was the victim of such an event, at his home.

By Tiger_words on 2013 12 20, 5:24 am CDT

It’s called “killer” software because that’s what you want to do to somebody, anybody, when it screws up. Which happens if, but only if, there is a Friday in the week.

By Andrew on 2013 12 20, 6:29 am CDT

@7 even secured office spaces are not always secure look at the killing of McKenna the patent attorney that was killed by the truck driver that forced his way past the security guard.  Even “secure” offices are not always secure.  Read more at http://blawgit.com/2006/12/11/two-patent-attorneys-killed-in-chicago/

By Pacific on 2013 12 20, 7:21 am CDT

I love:  1) lawyers who do not read the facts and 2) illogical attorneys. 

First - this article is misleading and most of the commenters here took the bait.  Yes, Delaware is in the stone ages regarding home offices but this attorney was properly sanctioned regarding his clients’ funds.  The home office issue is jus window dressing.

Second - love those illogical arguments regarding his accounting. Okay, so his computer crashed.  How hard is it to hit “restore” when you pop in your backup?  And his accountant dying six months later has absolutely nothing to do with this issue - with the modern technology he claims to be using, he would have been back up and running in a few days at most, not six months later.  He can’t have that technology argument both ways!  And it’s an insult to accountants - even if he lost all his data, any accountant knows how to do online downloads (most banks now have seven years online) and it doesn’t take six months to do even manual reentries.  And if it did indeed take him that long to recover then the question becomes why wasn’t his client data backed up?  So this attorney could use a top hat and cane to go with his tap dance. 

Thankfully someone saw his lame excuses for what they were.  This lawyer sounds like someone who wasn’t securing his clients data or their funds.  He was property sanctioned.

P.S.  And what modern accounting software causes such issues to begin with?  Most are so easy to use these days a preschooler could have shown him how to enter the data!

By NYS Courts ex-wife on 2013 12 20, 8:01 am CDT

1) Yes—the article is misleading.

2) Yes—incorporate in your own state.

3) Yes—it was about mishandling of funds.

Good point—how many DE corporations and companies do not maintain an office there.

By Misleading Article on 2013 12 20, 8:29 am CDT

This reminds me of the old law school exams on issue spotting—especially when everyone else here figured out the holding relied heavily on the dreaded trust fund issue, rather than rental space. Could it have been done deliberately to make us work-from-home attorneys panic a wee bit, or was it just a way to get more link clicking? I would have hoped the ABA was immune to tabloid-esque tactics.

By Fla-DCLaw on 2013 12 20, 8:50 am CDT

OK, forget the office space. As I read this story, there’s more between the lines.  Maybe severe chronic depression.  Maybe alcoholism or other substance dependence.  I am not slinging dirt at someone who probably is a very good man and probably wanted to be a very good lawyer.  But when a (presumably) very good person lets these big responsibilities slide for many months, in my experience, it often means they may well have even bigger worries, and we as colleagues ought to notice and offer a hand.  Just saying for other, similar situations: “If you see something, do something.”

By MA Lwyr from NY on 2013 12 20, 9:16 am CDT

Potential clients in my geographic area, and in my practice area, seem to expect an office, a conference room, receptionist, etc.  I guess I just don’t have the nerve to go virtual, especially when our office space is only $1.00 per foot for a great location in a suburb of Birmingham.  I like it better than a home office (which has questionable tax advantage) because I can keep my work “at work”, even though clients know how to get in touch with me wherever I am.

I would like to hear how the folks with virtual offices make them work well.  And, yes - I read the Lincoln Lawyer, but even he had an office and receptionist.  He just kept mobile with his client/driver, while the receptionist/secretary coordinated his activities and calendar.

By JimfromBham on 2013 12 20, 9:36 am CDT

As I understand it, Delaware is not opposed to home offices or “virtual offices” operated out of someone’s home or apartment.  You just have to have the home office *in Delaware.*

By John36 on 2013 12 20, 9:41 am CDT

I agree that this had much more to do with other violations than the bona fide office requirement. I also agree that this is a draconian rule that makes no sense. It assumes that a lawyer will show up to some office space even when they can accomplish everything that need to at home in their own space. There are few lawyers I know that would be available on demand and in-person. So long as the lawyer can accommodate a meeting should the client demand, who cares? It is these kind of rulings that really make the legal profession continue to look foolish and not terribly concerned with serving clients a they are with protecting their market areas, which, by the way, are a fiction in an internet age.

By Legal Refugee on 2013 12 20, 9:43 am CDT

I work at home. I practice in 7 counties. I’m not changing my business model.

By Pogo on 2013 12 20, 9:47 am CDT

@18: Like many of those posting here, I too have a home-based virtual office. I have dedicated office space, that locks, a secure file storage area, and my own phone and fax lines. As a solo, it makes little sense for me to spend money on rent, staffing, furniture, etc. that I have at home for free. As for my clients, even here in the Hudson Valley region of New York, many of my clients expect an ‘office’ but are very pleased when I offer to come to them instead, and even if they do visit me, through my separate entrance, they are usually satisfied with the privacy and separation between my home and ‘office’.

More to the point of the story, however, I agree that this DE lawyer’s sanctions were likely more related to his handling of client funds. I wouldn’t expect any state bar disciplinary committee to go after a lawyer ONLY because of the status of his/her office. Virtual offices are becoming increasingly common, and some small firms are actually CLOSING their brick-and-mortar offices for virtual offices. In my 15 years of practice, I’ve only had a small handful of clients actually come to my office, even when I worked at a firm in a nice, downtown office building. I was usually going to visit the clients even then. Sounds like the ABA Journal is making a minor point in the opinion as the main headline…

By JC on 2013 12 20, 10:03 am CDT

“...a federal appeals court upheld the office requirement in 1997, the court said.”

In 1997?  From a technology perspective that might as well be 632 B.C.  In 1997 attorneys had to have hard copy briefs delivered (2-hole punched on top) to the Clerk’s office.  Today we press a button.  From Timbuktu if that’s where we are.

The requirement for a ‘bona fide office,’ replete with faux Federal Period furniture is outdated.  Some practices require those accoutrements of yore; others do well with phone and internet from remote locations.  The market (clients) can decide what they want in their lawyer so long as the representation.is conducted properly.

By NotAShark on 2013 12 20, 10:10 am CDT

@7 has hit the nail on the head.  Delaware Rule 12(c) isn’t about home offices - you can have one of those if you meet the rule by having “the customary facilities for engaging in the practice of law.”  I guess this means a desk, a filing cabinet or two, maybe a computer?  The rule notes “A bona fide office is more than a mail drop, a summer home which is unattended during a substantial portion of the year or an answering, telephone forwarding, secretarial or similar service.”

What this is all about is a Guild Tax.  Sure, there may be a bet-the-company case in front of the Chancery court, argued by the Biggest of Biglaw - but in order to have access to Delaware courts, but under 12(a)(i) there will be a Delaware lawyer billing time in the courtroom at all times:  “Such attorney or the attorney’s partner or an associate of the attorney’s firm must attend all proceedings.”

Nice “work” if you can get it.

By Can't Join the Club on 2013 12 20, 10:41 am CDT

#4: A Lincoln is about as big, ungainly and ugly as a typical office building, so it should qualify.

By R on 2013 12 20, 10:57 am CDT

What I do not understand is the phrase “rarely deposited retainers into his escrow account”.  Since when are retainers to be deposited in an escrow account.  As far as I know, Retainers are fees and are to be deposited in an operating account.  in fact, in the state in which I practice depositing retainers in an escrow account is improper.

By ESFESQ on 2013 12 20, 12:10 pm CDT

Not to worry, the next article’s headline”...law school enrollment down 11%...” and another in this series about top heavy Big Law firms. Could be there is a bit of restraint of trade going on in Delaware that other state bars will be looking to?

By msmumr on 2013 12 20, 12:27 pm CDT

As a solo who was paying a small fortune for a partner sized office sublet from an SF financial district law firm + $350 a month in the garage across the street to park my car, I holed up in my study at home (unlike my office, view of Coit Tower, Bay Bridge, North Beach) for a month to prepare for a 20 court day jury trial.

After the trial - since I had exclusively a trial practice with most of my clients out-of-town who rarely (if ever) visited my office - I started practicing from my Green Street residence, gave up the office, and never looked back.

While I missed the camaraderie, I worked a lot more efficiently without lawyers popping into my office to shoot the breeze every forty minutes. And with a solo Westlaw account package that included Witkin, Miller Star, Civil Procedure Before Trial and a few other titles, I had no need for a physical office.

My clients did not care - and with a doorman building, great art, and views to die for, those few clients who met with me at the “office” were far more impressed than had I stayed in class “A” space in the heart of the Financial District.

On caveat: With the “office” at the end of the hallway you WILL work a lot more hours. But you cannot beat the commute.

By StephenG on 2013 12 20, 1:16 pm CDT

The lawyer should have been more forthcoming, but damn, what a stupid rule.

By kc on 2013 12 20, 1:42 pm CDT

http://myshingle.com/2011/09/articles/ethics-malpractice-issues/a-solo-fought-the-law-and-the-1. solo-won-ny-jud-code-470-found-unconstitutional/

2. http://myshingle.com/2012/04/articles/office-options/solos-at-the-second-circuit-the-battle-over-the-constitutionality-of-ny-jud-code-sec-470-continues/

3. http://myshingle.com/wp-content/uploads/2012/04/Doc.-50-Lawyers-Amicus-Br-4.24.2012.pdf

Non-resident NYS-licensed attys (and others in the national bar, from whom amici briefs have been filed pro appellee) are following the Schoenefeld case (above)  with intense interest (hx: Northern Dist. with very favorable opinion pro out of state practice; NYS appeals to the Cir.). Appellee’s solid constitutional arguments and the inexorable march of communication technologies (ubiquitous, convenient, variegated, reliable) augur advantageous change for practitioners and clients, and this could be a watershed decision.

By maninthehills on 2013 12 20, 1:52 pm CDT

Delaware should suspend all of those corporations it register

By fedupwiththesystem on 2013 12 20, 2:03 pm CDT

OKLawyer et al, don’t be saddened; once again the story does not match the headline and the story, not the headline, is where the truth is. He was not suspended for working at home. Not Not Not.  He was suspended for lying to get around rules and other breaches. Not for working from home.

By Hadley V. Baxendale on 2013 12 20, 2:25 pm CDT

One would think that the Delaware Supreme Court would progress and become modern, but noooo, they prefer to live and die as dinosaurs. According to their Medieval logics, half of the DC Bar members got to be suspended, because that is exactly how many lawyers in DC work - a virtual office, dedicated phone line, and landlord’s staff. Wake up, people, it’s 21 century! And stop sticking your ancient beliefs in the way of progress and commerce.

By Anna Gray on 2013 12 20, 3:25 pm CDT

I pay for my hours in an office timeshare and do most of my work at home.  Sometimes I also meet people at coffee shops etc.  If something urgent comes in the door, the timeshare receptionist calls me on my cell, everything else reaches me by email. 

My last office, the support staff, utilities, cleaning etc. were eating a substantial part of my lunch.

The bar in my state (AZ) is okay with my current setup as long as people can actually reach me.  Looks like I’d be in trouble if I practiced in DE.

By John B. on 2013 12 20, 5:02 pm CDT

I run a practice using a virtual office (meaning I pay a small monthly rent to an office building and get a set number of office hours to use for meeting clients - I am an actual tenant, so I can receive mail there, too). I operate my practice on a sliding scale fee basis, and about 90% of my clients pay somewhere on the lower end of my sliding scale. My clients are mainly lower and middle income people, who would simply be unable to afford an attorney at typical market rates. I have had so many clients gratefully tell me that my firm is a lifesaver to them - they have legal problems they cannot navigate themselves, but would be unable to obtain adequate assistance otherwise.

If I had to pay big bucks every month for a traditional, full time office, my practice as I know it would be impossible. In the modern era, there is no need for that, anyway. But there is a great need for more accessible legal services for the average person (who can’t afford $300 an hour and up, but doesn’t qualify for Legal Aid, either), and I am proud to offer that, as well as feeling fortunate that I can run a practice quite well this way in California.

By Young Solo on 2013 12 20, 5:41 pm CDT

If my recall of ancient history is correct:  Did not the Feds finally get Al Capone for income tax evasion?
Perhaps DE lawyer was only suspendable for the office plus the messy records.

And I once read that Atty Lincoln maintained his office in his hat while on circuit.
But the “bricks and mortar” lawyers have something going for those older than computers.

GSL
@ Seattle

By George Lundin on 2013 12 20, 5:41 pm CDT

@ 30:  The Schoenefeld case is readily distinguishable.  The plaintiff there challenged a NY rule that on its face discriminates against attorneys who live outside NY, i.e., non-resident attorneys are required to maintain an office in NY, while residents of NY must meet no such requirement.  The Delaware rule, by contrast, is identical to the Pennsylvania rule that survived a constitutional challenge in the Tolchin case (111 F.3d 1099 (3d Cir. 1997)).  The rule upheld in Tolchin required *all* lawyers who wished to practice in Pennsylvania to maintain an office in Pennsylvania, regardless of whether they’re state residents.  The NDNY opinion in Schoenefeld points out this very distinction.

By John36 on 2013 12 20, 6:14 pm CDT

@18

I think it all depends on what type of practice you have.  I have a transactional practice: real estate, with some estate administration thrown into the mix.

When I do have a need to meet with clients, I meet with them at whatever location is most convenient for them (and that location has NEVER been my office).  They are always extremely grateful that I will travel to meet them at their convenience.

Among the advantages of working from home: no distractions, no restriction on the hours that I can work (online records are available 24/7, the county real estate offices (and the clerk of court’s office) are typically limited to 8:00 AM through 4:00 PM), flexibility (if I need to leave for a matter involving one of my children, I can - because I can do my work whenever I wish to fit it into my schedule), if I awake in the middle of the night, I can get up and work for a couple of hours until I’m ready to go back to sleep, a tendency to put in more hours than if I were at an office, no traffic or time lost to travel, no driving around looking for parking, no parking fees.

All in all, I am much less stressed (and much more productive) working from home than I would be in a traditional office environment.

By Non-Practicing Attorney on 2013 12 20, 7:35 pm CDT

@35

AMEN!  And BRAVO!!!

By Non-Practicing Attorney on 2013 12 20, 7:40 pm CDT

The bona fide office rule is a silly, outdated, protectionist rule. It will surely be challenged and struck down in the next 10 years.

By JM on 2013 12 21, 5:18 pm CDT

I love the parochialism… I’m a Philly lawyer but I happen to have great relationships with a number of Delaware judges, including Justice Holland who co-wrote this per curiam opinion.  I can assure you that he is anything but old, out of touch or averse to technology/technological developments:

http://law.vanderbilt.edu/bio/randy-holland

Additionally, for those insisting as Recent Grad does @#1, that this was more about fiduciary irregularities, you couldn’t be any more wrong.  This was about TWICE being warned, once formally, for failing to maintain a bonafide office.  Say what you will of the requirement, but Barakat was given ample opportunity to comply.

The comparison to corporate residency requirements is a nonsensical red herring.  Corporations must still have a registered agent withing the state, and justifiably the duties imposed on those agents are less onerous than the duties imposed on lawyers.  After all, customers or those doing business with the foreign corporations generally will stand to lose a great deal less than would a client with a legal matter.

Also silly are comments suggesting that attorneys “incorporate in your own state,”  these are so foolish and uninformed as to defy comprehension.  This isn’t an “incorporation” issue, or an attempt to establish residency/jurisdiction in some forum.  One doesn’t sit for the Delaware bar simply to set up an office in and seek the benefit of Delaware corporate law.  Barakat actively sought to practice in the State of Delaware, swearing to uphold the law of the State, and abide by the Rules of Professional Conduct (or Delaware’s analogue thereto).  Instead he selectively complied with the rules he wanted to, and ignored/played loose with others.  The misrepresentations and fiduciary irregularities only compounded his problems, but make no mistake about it, there were two prior inquiries surrounding the “Bonafide Office” requirement. 

As can be derived from the actual opinion (if some of us would take the time to read it), and as is often the case, it isn’t so much the compliance/ethical violations that the reviewing body found offensive, but rather his conduct in responding to the charges:

In determining the appropriate sanctions for Barakat, the Board identified six
aggravating factors—dishonest or selfish motive, a pattern of misconduct, multiple
offenses, the submission of false and/or misleading statements, an unwillingness to
admit the wrongful nature of his conduct, and substantial experience in the practice

By The Artist Formerly Known As Bakes on 2013 12 24, 1:21 am CDT

@#26. ESFESQ

What I do not understand is the phrase “rarely deposited retainers into his escrow account”.  Since when are retainers to be deposited in an escrow account.  As far as I know, Retainers are fees and are to be deposited in an operating account.  in fact, in the state in which I practice depositing retainers in an escrow account is improper.

Are you serious??  A retainer is no simple fee, but rather “fees” that are paid in advance to cover fees and costs that may arise.  “That may arise” here means future fees/costs, distinguished from earned fees and incurred costs.  Regardless of what your state says, I’m sure most of us would have come across the ABA’s Model Rules at some point, and Rule 1.15(c) clearly states:

“A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.

Of course you are not bound by the Model Rules, but rather by your State Bar’s rules, but you shouldn’t be so confused as to whether retainers should be deposited into an IOLTA versus an operating account.  In fact I would be completely surprised if your state actually permits the latter, as you suggest.

By The Artist Formerly Known As Bakes on 2013 12 24, 1:32 am CDT

@ 26: I have to agree w/ Bakes. In the jurisdiction where I practice, if you collect something you refer to as a retainer, best practice is to deposit it in an IOLTA or similar account, and cut yourself or your operating account checks against it, as they are earned, or costs accrue.

I’m not understanding why this guy didn’t have hard copies of the records. If you have a pooled trust account, you should not only have bank records for deposits and withdrawals from the IOLTA, but you should keep ledgers separately for each client.

By BMF on 2013 12 24, 10:26 am CDT

Good points regarding the bookeeping BMF.  I don’t know Fred Barakat personally, but we share mutual acquaintances.  I’m really surprised by the poor choices he made.

By The Artist Formerly Known As Bakes on 2013 12 25, 2:12 am CDT

Comment removed by moderator.

By Tom Youngjohn on 2013 12 25, 6:34 pm CDT

Comment removed by moderator.

By William Able on 2013 12 25, 8:44 pm CDT

@37

http://www.schoenefeldlaw.com/images/pdf/ny-case-amicus-brief-njsba.pdf

John36, thx for pointing out Tolchin’s significance, but consider current analysis of that case/rule (as dated, per technology changes, etc.) in the above amicus brief from NJBA; e.g.:

‘The Tolchin court, sensing change in the air, presciently noted toward the close of its
opinion the possibility that “some of the recent rapid advances in communication and transportation technology may render the bona fide office requirement’s intended benefit of attorney accessibility less significant in the future.”’ Id. at 1115. (@paginated 7)

By maninthehills on 2013 12 26, 9:57 am CDT

@#45 Tom Youngjohn

It is readily apparent from your rant that you did not read the opinion, or alternatively, that if you did read it, you did not understand the rationale for upholding the violation of the ‘Bonafide Office’ requirement.

First you start by stating that your “COMMERCIAL” office would not be acceptable because your secretary only works there less than six hours per week, while you are there more than 80 hours per week.  You point to nothing (nor can you point to anything) in the opinion that would indicate support for your conclusion.  Your situation is readily distinguishable from Barakat’s.

The Rule requires that the office “be a place where the attorney or a
responsible person acting on the attorney’s behalf can be reached in person or by
telephone,” and have “the customary facilities for engaging in the practice of
law.”

On its face your collective 86 hours of coverage would satisfy the requirement, but more importantly, you indicate that you have a “commercial” lease.  The opinion makes it clear that Barakat’s lease had no provision for “office” space, implying that it was not a commercial lease.  Presumably your lease has such a provision, making entirely moot your ill-formed, ad hominem attack against the Delaware court.

By The Artist Formerly Known As Bakes on 2013 12 26, 11:21 am CDT

I will readily admit that I have not spent the time needed to read the opinion being debated here.

However, as a general point of ethics or jurisprudence, I can see the validity of the “Bonafide Office” rule in earlier times, when technology had not reached the point it has today.  After all, it is very important that an attorney be accessible to his/her clients for a reasonable amount of time, and at reasonable times.

But, with advances in technology, attorneys can be reached 24/7 - even without a bonafide office.  The sad thing about technology, though, is that some clients believe that an attorney should be available 26/8.

By Non-Practicing Attorney on 2013 12 26, 1:33 pm CDT

Uh, you win?

By Tom Youngjohn on 2013 12 26, 9:26 pm CDT

@26, 42, 43 - there is a difference between a “retainer” and an advance deposit of fees yet to be earned. Many lawyers use the word “retainer” loosely to apply to both, but technically a retainer is an up-front fee paid to secure the services of the lawyer or law firm (for example, in a situation where, by representing Party A, the lawyer or firm would be conflicted from representing Party B, and Party A really wants to secure the lawyer’s services before Party B does). Advance payment of fees, is, of course, the client’s money until it is earned by the lawyer’s work and it should be treated as such, but a retainer is the lawyer’s money once the client pays it. That’s why we should be careful not to misuse the word “retainer” in client agreements when we and the client really mean advance payment of fees yet to be earned.

By Jim on 2013 12 27, 11:44 am CDT

For 30 years I’ve pooled trust account with retainers, not drawn against until earned. A sec ondary benefit, I’m not pleased to say, is that stupid or untimely investments have gotten me crossways with the IRS a couple of times in the last 20 years. In such event, if they are inclined to hit my operating account the unearned ad potentially refundable client funds remain safe from such attack in an IOLTA account.

Noiw, VLO. As a 67 year old looking to slow down and join my daughter in a different state, this is an ideal objective. I am a highly specialized solo now with a $15-20K/month overhead exclusive of me. Fortunately Georgia has not gotten the matter on the radar and reacted necessarily or no. I can live in NC, have a receptionist and 16 hours/mo office time at a prime Atlanta with conference availability and business services for abut $400/mo. I can get by without high priced non-atty help to work leisurely to keep life challenging between fly fishing and kayaking.

By lockhorns on 2013 12 28, 7:50 pm CDT

@Jim, #51… check again.

RETAINER

Definition

A fee that the client pays upfront to an attorney before the attorney has begun work for the client.

There are three types of retainers, each with a different purpose:

(1) A general retainer, which is a fee for a specific period of time rather than for a specific project. While no specific representation is contemplated, the client pays for the attorney’s availability during the time specified.

(2) Also termed a retaining fee, a deposit or lump sum fee which the client pays in advance. The attorney must place that up-front fee in a trust account. As the lawyer performs work, he or she withdraws money from that trust account as payment for the work done. Any amount that is left over after legal representation has concluded must be refunded to the client.

(3) A special retainer, which is a flat fee that the client pays for a specific case or project. Many states prohibit this form of retainer because it may prevent the client from discharging the attorney at any time during the representation.

http://www.law.cornell.edu/wex/retainer

By The Artist Formerly Known As Bakes on 2013 12 28, 8:08 pm CDT

Add a Comment

We welcome your comments, but please adhere to our comment policy.

Commenting has expired on this post.