Category Archives: Practice

New name, new location; same game, same motivation!

The Law Office of Matthew M. Shafae will be changing its name and location as of August 1, 2011.  I am proud to announce that the practice is growing and the legal advice is flowing.  Please update your contact information to reflect the following:
ShafaeLaw (formerly Law Office of Matthew M. Shafae)

1156 El Camino Real

San Carlos, CA 94070

T: 650-539-4044

F: 650- 521-5823

http://www.shafaelaw.com

I look forward to providing the same great legal services at our new location.  Feel free to stop by and say hi!

-Matthew Shafae


Recent Half-thoughts

I have been particularly lazy about updating this here blog.  For some reason I keep treating it like a NASA shuttle lunch instead of what it is–a medium to express thoughts and opinions.  Without further ado, here are a few thoughts that have been brewing for the past couple of weeks.

Profession versus business. I went on a long motorcycle ride a few weeks ago with some friends.  Three of the four of us are attorneys and the topic of the legal profession came up.  My friend, Jim, quipped that the legal profession has become just another service business as opposed to what it really should be–a profession.  After paying more attention to what he said, and becoming more aware of how my colleagues and peers practice law, I think he’s right.  Instead of adhering to our profession’s ethical code and serving our clients by navigating them through the legal waters, lawyers, for the most part, have become a rather large population of peddlers.  It is quite common to see needless litigation all around us.

Courts. I’ve posted about this before, but this topic bugs me on a daily basis.  We should have more contact and communication with court personnel.  Court personnel affect court cases probably more than the parties and their attorneys.  I’m talking from a purely procedural perspective.  It’s 2010.  We should have systems put in place so that continuing a hearing, or finding out the status of a submitted judgment should be as easy as pulling up the image on a website.  We should also be able to file digitally.  Why is it that I can deposit a check using my iPhone camera but I still have to physically file a court document?

Civics. Today I attended a meeting at the Belmont City Hall about the proposed High Speed Rail project in California.  There is a lot of conflict between local peninsula cities and the state Rail Authority.  Most of the conflict surrounds where to put the high speed rail and how it will impact the local communities.  I must confess that I have never been to a local governmental meeting.  Just from a purely observational standpoint, I was the only person below the age of 45, and most people were over 55.  The attendees were highly cynical and full of complaints and entitlements.  Most people complained about how much construction is always going on, how high the costs are, how long these projects take, etc.  I am not questioning the validity of the participants’ complaints, but rather the approach.  How helpful is aimless whining and complaining?  How about being a little constructive here?  What if a bunch of people scrutinized that complainer’s daily work?  He/she would probably sing a different tune.  Nobody owes us anything.  So let’s push aside the crap, cut to the meat of the issues, and put our heads together to come up with a solution, if we have one.  Also, it’s funny how many people complain about things but do very little about it (like attending a meeting or writing to our representatives).  Believe me, I’m guilty of the same.


Sowing the Seeds of Law

Preface: Probate attorneys fees are set by statute.  A lawyer’s fees in probate are not necessarily increased or decreased by more involvement with the realtor selection process.

Under ethical rules promulgated by California, lawyers must refrain from making contact with a person represented by a lawyer.  The lawyer may only communicate with that person’s legal representative.  This is to ensure that one lawyer does not undermine the relationship between attorney and client and to also keep the dialogue between lawyers, as opposed to splintered discussions between lawyers, parties, and lawyers with the parties themselves.  However, this ethical rule is, as far as I know, unique to the legal profession.  Accountants may speak to anyone else, even if that person has an accountant.  Doctors may speak to any else, even if that person is the patient of another doctor.

It may seem ridiculous to limit accountant or doctor communications, but there are a few circumstances where I think people would benefit from limited communication from certain professionals.  One of those circumstances is within the probate realm.  As an estate goes through probate, the assets are inventoried and oftentimes sold so that the assets can become liquid to distribute to beneficiaries (e.g., a house is sold so that it can be “split” between multiple beneficiaries who do not want to live in and maintain the house).  In this situation where the estate’s real property is sold, a realtor is often used to market and sell the property.  The broker is hired by the estate’s personal representative (the executor or administrator).

While the personal representative of the estate is often represented by an attorney, there are no limits as to whom a realtor may contact like there are for lawyers.  Therefore, a realtor can keep an eye out for the public notices denoting recent probate filings (all public records) and then cold-call each and every representative of each new probate filing.  It’s something akin to ambulance chasing, except it’s more like hearse chasing!  As you can imagine, the realtor has a financial interest in getting the listing–the commission.  The realtor will also try to steer the client toward early marketing and to forgo any court confirmation of the sale in order to get his commission quicker and easier.  Sometimes this meddling by the realtor undermines the attorney’s representation of the personal representative.  Once that probate is filed and the notice is posted, the personal representative of the estate is literally bombarded by realtor phone calls, flyers, mailers, personal visits, etc.  It gets overwhelming.  The personal representative often feels pressure to sign the listing before he/she has authority to act on behalf of the estate.  It’s ugly.

If there is a place other than the legal industry where there should be limited communication with represented individuals, this is surely one of them.  With the stress of going through the funeral process, sifting through a dead person’s records and property, and answering to heirs who want their distribution of the estate, the representative must also deal with greedy realtors looking to score a listing.  When trying to counsel the client to be very careful in choosing the realtor, the realtor oftentimes convinces the personal representative that the lawyer is merely dragging his/her feet.  It can be an ugly push-pull.  If realtors were required to communicate with the estate representative through his/her attorney, then this predatory behavior would at least be hindered.  In this case, more lawyer involvement is beneficial.


Let’s Get Back To Work

“To alcohol! The cause of… and solution to… all of life’s problems.” — Homer J. Simpson

The above quote is taken from an episode of Season 8 of the Simpsons where Homer bootlegs alcohol and secretly supplies it to Moe’s Tavern during Springfield’s version of the Prohibition.  It’s relevant because you could substitute the word “technology” for “alcohol” and it would be a rather accurate assessment of our current relationship with technology.  Technology is a blessing and a curse.  It is convenient and, yet, we are building a growing dependence on it.  The number of people that can survive longer than a few hours without their cell phone is growing fewer and fewer.

That being said, e-mail is awesome.  It combines the immediacy of a telephone call with a written record.  I am handling a probate case in a county that is new to me, and the county is rather distant from my office.  Thus, I am learning their local practices without being able to regularly visit the court in person.  That means I either need to spend an inordinate amount of time in an automated phone tree or communicate via postal service–a method that could significantly slow down this probate.  Much to my surprise, I received an e-mail from the Probate Examiner (the person who handles all the probate filings at the court) explaining to me that he hadn’t received a necessary document.  We corresponded a few times until he was able to locate the document.  Problem solved, probate continued.  A few weeks later, I had an issue and sent an e-mail to the Probate Examiner.  Again, problem solved, probate continued.  A third time, a mutual error occurred.  Yet again, we corresponded by e-mail.  Problem solved; however, this time with a caveat.  A probate clerk (the person who physically accepts the documents to be filed and then sends them along to the Examiner) informed the Probate Examiner and me that court personnel e-mail addresses are not public and that if I had any further questions I should address them by phone or mail.  In simple terms, she told the Examiner and me to cease communicating by e-mail.

“Wait… you’re telling me to STOP using a form of communication that is working beautifully and to instead revert to when I couldn’t reach a responsive human being?”

This makes no sense.  We all know how difficult it is to get a human being on the phone, especially at a government office.  We also know how these same offices never happen to receive mail sent to them.  Now that I have found a mutually effective way to communicate with the court I have to refrain from using that method of communication?

This isn’t the fault of the employees.  They are presumably just following the rules.  However, there is simply no incentive for government employees to go the extra mile.  They get paid the same amount of money whether they work really hard or drag their feet.  There is also the same risk of losing their job if they don’t go the extra mile: zero.  As long as government employees arrive to work on time, and do not sexually harass anyone, their job is relatively safe. Those in private sector jobs, however, need to be productive or risk losing their jobs.

You see, like technology, capitalism is a two-edged sword.  Capitalism rewards people who produce capital.  It’s good, some might argue, because it creates an incentive to be productive and weeds out those who are not.  It’s a meritocracy.  It’s bad, some may argue, because it puts profits (capital) before people.  Capitalism has no moral compass.

It’s not necessarily that cut and dry, though.  For example, small children make for cheap labor.  Ask sweat shop owners in southeast Asia.  However, we value the health of children over their productivity and have passed child labor laws in this country.  So, we do not necessarily practice unbridled capitalism.  There are some limits.

In such a capitalistic country, why then is the government so unaccountable and… bureaucratic? Why do our government employees not face the same accountability measures that employees at for-profit institutions face?

Let’s get back to work.  Let’s give a crap.  I know not all jobs are “dream jobs.”  Even if you love your job, we all have bad days where we question our chosen career paths.  But that’s why we all get paid to work.  It’s a trade.  However, by striving to be the best [insert job title here] in your office, we make other people’s days better.  We will all be happier.  On the flip side, those who are just kicking back and collecting a pay check are no good for any of us.  It’s in our best interest to hold each other accountable, not to assist in being unproductive.

This post isn’t directed at the probate clerk personally.  This is directed at how we want our government to work.  I understand that answering non-stop e-mails can be tiresome and frustrating.  But isn’t that better than getting telephone calls and/or letters and/or visits from several frustrated people who could not get a human being on the phone?  And, if it is truly an unbearable job, perhaps it’s not for you.  Maybe there is someone out there better suited to do that, or doesn’t mind to do that job.  We are not entitled to a pay check, but rather earn it through our work.

Technology or alcohol or capitalism, or whatever else, isn’t evil in and of itself.  They are beneficial or detrimental based on how we use them.  We should have e-mail access to our court employees.  It’s quick, clear, and effective.  We should also expect a timely, informative response.  Any other company would expect that of its employees, and as “employers” of government agencies, we should expect it, too.


Partly Cloudy With a Chance of Security Breach

I’ve looked at clouds from both sides now
From up and down, and still somehow
It’s cloud illusions I recall
I really don’t know clouds at all

– “Both Sides Now” by Joni Mitchell

Technology is fast becoming (if it hasn’t already) a relevant topic in any and every aspect of life.  Even though law, in general, tends to incorporate technological advances much slower than other professions, the legal world cannot deny technology’s impact and influence on the practice of law.  For example, social networking and digital communication has already made for interesting revelations and discussions within the legal world.  Judges have declared mistrials because of one juror’s use of Twitter. (Source).  In another case, the prosecutor posted on Facebook a parody of the “Gilligan Island” theme song as it relates to the trial he was currently prosecuting. (Source).  Most recently, the United States Supreme Court was revealed to be rather naive about text messaging. (Source).  The list goes on.  It’s clear that as legal practitioners, legal academics, judicial officers, etc., we will be dealing with technology for the foreseeable future in order to define acceptable (both socially and legally) practices for using technology in and out of the court room.  But what about updating the practice of law?

More specifically: What about cloud computing as a law practice management tool?

I have been reading several blog posts about law offices transitioning from local file storage to cloud computing.  (In a nutshell, cloud computing is the practice of keeping your digital files stored on the internet, in redundant, remote servers so that the files may be accessed from anywhere with an internet connection as opposed to being stored on your local hard drive).  Most, if not all, of the posts warn the reader of potential security breaches by switching to a cloud model.  Inherent to the cloud computing model is the necessity to keep sensitive, private, and possibly confidential/privileged data outside of the office.   Oftentimes, the data is stored on computers in foreign countries, and accordingly subject to foreign privacy laws and possibly out of the reach of United States privacy laws.  Thus, a practitioner is receiving convenience–the ability to access files from any internet-accessible location–in exchange for exposure to possible malpractice–the dissemination of client data to unauthorized third parties.  The risk is surely significant.  However, as demonstrated here and here, why are we so apprehensive about cloud computing yet so confident sending e-mails containing oftentimes the same sensitive data we refuse to place in the cloud?  Most e-mails are as secure as sending a postcard.

I definitely do not stand for the proposition that sending non-encrypted e-mails should lead to storing client data on servers in foreign countries.  However, I do believe that if someone really wanted to obtain your data, it’s easier than we all think.  Additionally, a hard copy of anything can be scanned digitally and then reproduced ad infinitum and instantly sent to every corner of the world.  So, not using cloud computing does not ipso facto make your data safe from interception.  Now, I am not Chicken Little with my wings flailing here.  It’s not the end of secure data, but merely the painful beginning of security technology as it relates to cloud computing.   I remember 12 or so years ago when the first iMac was released by Apple.  It didn’t have a floppy drive.  You’re probably laughing at that last statement, but back in 1998 many critics were up in arms about how a desktop computer would be able to function without an external storage.   We now carry our “floppies” on our key chains in the form of multi-gigabyte flash drives.  The cloud is definitely where we will end up.  We’re just waiting for the coast to be clear enough for clouds.


Ensure Insurance

Not many people are aware (including practitioners) that California attorneys are not required to have malpractice insurance in order to practice law in this state. However, last week, the California Supreme Court adopted a new rule (Rule 3-410) requiring lawyers that do not have malpractice insurance to disclose that fact in writing to their clients. (source) Discussions for such a rule have been brewing since 2007.

It’s tough to say what this will mean for practitioners. It comes down to how clients react when they receive a disclosure in writing that his/her lawyer is not insured for malpractice. I have certainly hired professionals in the past without verifying that they are insured. However, had I received a written disclosure that he/she is not insured I may have felt alarmed enough to question the disclosure in the first place. Indirectly, this disclosure rule will likely lead to many uninsured lawyers purchasing the minimum policy available in order to comply with the disclosure rule. Buying a policy for a couple hundred dollars a year is far cheaper than risking the loss of one client.


Keep up with the Jones’, please

A significant part of practicing law in state court in California is keeping track of all the rules, where they intersect, where they refer to each other, and where they apply, if at all. Everything from federal law to state law to California Rules of Court to local ordinances apply. One tiny set of rules, though, plays a particularly integral part: local rules. Different counties prefer slightly different procedures from each other. Some have local forms they want parties to use and some require certain information before accepting a filing. It really helps when counties have a clear set of local rules, properly indexed, and available online. Most counties do.

Today I went down to Alameda County Superior Court in Oakland to file a request for default, an accompanying declaration, and a default judgment in an unlawful detainer case. I don’t practice too often in Alameda County, so I wanted to be sure I was complying with local rules when requesting a default judgment. I couldn’t find anything in the online version of their local rules that would indicate any variance from typical procedure. I called the clerk’s office to make sure I was reading the rules right. The clerk on the phone seemed like she was taking cues from me rather than the other way around. In the end, I was taking a shot in the dark much like before I checked the rules and called the clerk’s office.

Note to Alameda County: please revise your local rules to be clear, concise, and informative. Most other counties have solid local rules. We can only expect as much from you, AC.


Best of Craigslist… summons!

This morning I had the summons in a divorce case published in a newspaper in order to “serve” the respondent by publication.  Pursuant to CCP 415.50, upon proving to the court that a party you are trying to serve is very difficult, or unable, to be found, the court may order the summons to be published in a newspaper.  But who reads the newspaper anymore… and even then, who reads the classifieds??  There have been several articles, blog posts, even TV show story lines (see: The Wire) where people contemplate the end of newspapers.  Let’s face it, with so much other media competing for our attention, the newspaper is losing the battle.

So, for purposes of service of summons, shouldn’t we start changing with the times as well?  Craigslist has pretty much become synonymous with “classifieds.”  I know many who read various Craigslist sections for fun.  I’m sure if there was a “summons” section, more people would read that for fun than people read the “public notices” section of a given newspaper.


Rise of the Big-Box Legal Retailer

For the past couple decades, big law firms have been the “norm” as far as how to practice law and the preferred way to go for both budding lawyers and for clients.  The last few years, with the economic downturn forcing every industry to cut costs, there has been a sea change as far as how people–both practitioners and their clients, corporate or otherwise–have been approaching the practice of law.  Clients were demanding lower costs and more personalized service.  Attorneys were seeking a better work-life balance and wanted to be able to implement their vision of how law should be practiced.  Up came the niche boutique firms, the virtual firms, and of course solo practitioners (both forced entrepreneurs and voluntary solos).  It seemed like the legal world was one big oyster with many pearls, not just one pearl and a bunch of sand.

However, after reading this blog post it dawned on me that the Big Box Retailer of law, the big firm, is fighting back to get the market share they have practically been giving away the last few years.  With their vast resources, they can out spend all the little guys to win over the clients that had been avoiding the big firms.  They have basically adopted the supermarket method of creating a “loss leader” in hopes of getting the “little” clients that have strayed to the small firms.  Once they grab their market share back, the small guys can no longer compete.  It’s much like mom & pop hardware stores competing with The Home Depot.  At first the small guys could offer products that Home Depot couldn’t or wouldn’t carry.  Once Home Depot became the hardware store, it made no sense to go anywhere else because there was nothing different with little hardware stores besides price.  The same can be said about Wal-Mart, IKEA, Best Buy, and so on.

Is this the Rise of the Big-Box Legal Retailer?  Are big firms trying to take back what’s theirs?  I think in the short term it will look like the big firms will appear to squeeze out the little guys with their endless resource pool.  However, in the end a reasonably-priced, good-quality product always prevails.

People know that free isn’t always better, but at the same time, people will not pay more for equal products.  Solo and small firms are more flexible and adaptable than big firms.  Big Firm lawyers are not encouraged to think outside the box.  It’s a machine.  Although it may be at times difficult to match big firms with their ability to give away more freebies in order to attract business, solo and small firms have the ability to be more creative so they don’t have to.  Netflix did not invent video rental.  They just thought of a better way of doing it.  Good ideas, with a little marketing, always win.


How to be a Great Client

While there are likely thousands of pages written about good (but mostly) bad lawyers–and even more including lawyer jokes–I’d like to take a minute to give my two cents about what would make a great client.  This is not meant to be a laundry list of things that annoy a lawyer, and surely not a come-back for all the low-blow jokes lawyers take all the time.   What it is meant to be is one lawyer’s opinion on what a client can do that would enable the lawyer to provide more effective service.

1. Put everything in writing. This may sound cliche, but many people handle a lot of their business over the phone or during verbal conversations.  What is essential, but rarely happens, is for one or both (or more) of the parties to take a minute and to memorialize the conversation in some sort of writing or e-mail to confirm that both (or more) parties were talking about the same thing and reached the same conclusion, if any.  People have poor memories and they get worst as time passes.  With a written chronicle a lawyer can more effectively get to the core issues.  Related to this…

2. Keep good records. Although you may have a good case or you might be absolutely sure you are right in a dispute, it’s hard to convince someone that wasn’t there (like your attorney) if you do not have a record of it.  This is why it is important to keep dated records of financial transactions, or as stated above, of verbal transaction.  Always think that you must prove every transaction to somebody who was not there.  Would he or she believe you?  Why?

3. Establish clear deadlines with your attorney. Nobody likes to be hassled by endless phone calls, just ask your local telemarketer.  Likewise, you do not want to be on your lawyer’s bad side for calling twice a day.  After all, a lawyer has more than one client.  Instead, it’s easier on all parties to ask your lawyer when you should contact your attorney for a status update and the best way to contact each other.  Alternatively, you can ask your attorney to send you an e-mail every Friday with an update, for example.  Similarly, when your attorney asks from you to produce a specific document or other information that you have in your possession, be clear on when and how you are going to be delivering that information.

4. Adjust your expectations according to your situation. Your attorney is not a miracle worker, and similarly cannot predict everything about your case.  However, it is important at the outset of the lawyer’s representation to adjust his/her client’s expectations to fit the client’s specific legal matter.  If your attorney has not gauged and guided your expectations, then you should specifically ask the likelihood of your success, and more importantly, how much the lawyer expects it to cost the client, both in terms of time and money.

5. “A lawyer’s time and advice are his stock in trade.” –Abraham Lincoln. Although something may seem like a “quick question,” it’s helpful to remember that the practice of law is a service.  Lawyers neither sell tangible products like a retailer, nor does their service result in a consumable item such as it does in the food industry.  Lawyers serve their clients using analytical reasoning and advocacy skills in order to champion his or her client’s best interest.  Therefore, instead of asking your lawyer questions as they come up, it’s more effective to sit and think (as objectively as possible) about what your goals are, what you are willing to settle for at the minimum, and what you need to know in order to understand what your legal matter entails.  These are very important “big picture” issues to consider even before seeking the advice of a lawyer.  What do you want and what are you willing to do to get it?  In other words, being impulsive about learning about your case is less effective than truly pondering what you want and how far you are willing to go and then discussing your case with your attorney.  In the end it will be less time consuming for everyone involved.  That being said…

6. There are no winners in litigation. Litigation is time consuming, stressful, and downright expensive.  Nobody really wins in the end.  Clients should truly try to distance their emotions from the legal issues as much as possible.  Just because you didn’t “stick it to” him or her doesn’t mean you did not “win.”  If you are able to settle without litigation then everyone has done his or her job.  The best legal advice I can offer to anyone is to avoid litigation.  Then again, those that do not take this last piece of advice are the ones that keep people like me in business.


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