Who says mass media is dying? As newspapers and magazines migrate onto the Web, the reach and brand power of these periodicals is actually going to grow—along with their capacity to promote your practice. With reporters and editors hungrier than ever for low-cost, high-quality copy, there has never been a better time for lawyers to build relationships and leverage their expertise with both mainstream and legal media.

In this course, you’ll learn how to get noticed by, published in, and interviewed by the publications that lawyers—and clients—read:

• initiating contact and building relationships with editors and journalists
• establishing your credentials as the go-to person in your area of practice
• understanding the media perspective: what they need, when they need it
• writing for print versus web publications; writing for lawyer versus client publications
• preparing for an interview: setting the ground rules, preparing for surprises
• turning your media profile into a marketing advantage

Presenter Jordan Furlong is a lawyer, journalist, award-winning legal magazine editor, and award-winning legal blogger. His blog, Law21: Dispatches From a Legal profession on the Brink, tracks the extraordinary changes underway in the legal marketplace. He is the Editor-in-Chief of National, the magazine of the Canadian Bar Association, and chairs the InnovAction Awards at the College of Law Practice Management.

This program will be presented as a “tele-webinar.” In a tele-webinar, you call in to a conference call line to receive the audio portion of the program. If you have access to your computer, you can follow along with a Power Point presentation as well. There is no need to install any software on your computer. If you will be calling in from outside the office, don’t worry: you can view or print the slides before the program, if you wish.

Join us for this tele-webinar on Thursday, July 16 at 3 p.m. Eastern (noon Pacific).

Your registration includes participation in the live teleseminar and a copy of the program recording (mp3). To register, visit our Products page and add a Silver Membership to your cart.

The last two posts here at LRWP have focused on issues that arose in the wake of my participation in a panel discussion on alternative legal careers that was part of Getting Back in the Game: How to Restart Your Career in a Down Economy, a day-long seminar on June 16 sponsored by the New York City Bar and Vault.com. The day after the program, I noted that that the New York Times coverage of the program focused almost exclusively on the day’s first panel, which discussed how to (eventually) break back into a large law firm, and decried the fact that the ABA Journal’s coverage was similarly one-sided.

By contrast, I have been very favorably impressed with blogger David Lat’s balanced coverage of the event. (For those who may be new to the legal blogosphere, Lat is the founding editor of Above the Law, a powerhouse legal blog that receives over 6 million page views a month.) Although ATL is known for reporting primarily on BigLaw news (scandalous and otherwise), Lat devoted a detailed ATL post to each of the day’s four panels (Breaking Back into a Large Law Firm: How to Make Your Way Back into a Top Law Firm; Casting a Wider Net: Small to Mid-Sized Law Firms; Career Alternatives for Attorneys; and Start Up LLP: Creating Your Own Law Firm). In fact, Lat’s post on the Career Alternatives for Attorneys panel provided fodder for my most recent post, in which I respond to ATL commenters who complained about bar ethics opinions that allow outsourcing overseas.

I had the pleasure of speaking with Lat between panels (he spoke on the BigLaw panel, adding some levity to an otherwise fairly grim discussion). When we continued our conversation via e-mail, he shared his views on some issues of particular interest to contract lawyers:

Solomon: I found it very interesting that there was so much interest among audience members in the idea of working as an independent contract lawyer (the first three or four questions for the alternative legal careers panel were about that topic). Do you have any insight as to why the (presumably) BigLaw associates in attendance would be particularly interested in taking that career path?

Lat: As the Biglaw world suffers through the downturn, lawyers from that world are looking for new modes of practice. They tried the safe path of going to a large law firm, only to find out that it wasn’t as safe as expected. In light of all the layoffs from large firms, folks are looking for greater independence—the ability to practice law regardless of what some management committee has to say about it. I think the independent contract lawyer model is appealing for these reasons.

Solomon: What are your thoughts on how the mainstream media covers the current legal job market?

Lat: While all media outlets, from the mainstream ones to the new ones, could always do a better job covering any given topic, I don’t have any huge objections to media coverage of the current legal job market. People are attracted to dramatic stories, and the fall of Biglaw is dramatic. That’s really all there is to it—I wouldn’t chalk it up to any kind of conspiracy.

While I continue to believe that the legal press should be spilling more ink on stories about, and of interest to, small firms and solos, Lat’s point about the drama of BigLaw makes a lot of sense: after all, good news (especially about the small guys) doesn’t sell many papers to the general public.

As I mentioned in my last post, last week I participated on the alternative legal careers panel at Getting Back in the Game: How to Restart Your Career in a Down Economy, a day-long seminar sponsored by the New York City Bar and Vault.com. On Friday, David Lat posted his report on the panel over at Above the Law, as part of ATL’s series on career alternatives for attorneys.

Sprinkled among the snarky, juvenile and despairing comments (which are par for the course, if you’re familiar with ATL) were some comments that attacked bar ethics opinions that approve of outsourcing legal work to foreign countries. For example, commenter 19 asked:

Didn’t the City Bar Association (the same group hosting the ‘alternative pathways’ meeting) issue an Ethics Opinion in August 2006 saying it was OK to outsource legal jobs to other countries’ workers?

Here’s my response:

19 – you’re right: in Formal Opinion 2006-3, the NYC Bar did say that it’s ok to outsource legal work to other countries. Here’s the digest of the opinion (which is available on the NYC Bar website):

A New York lawyer may ethically outsource legal support services overseas to a non-lawyer, if the New York lawyer (a) rigorously supervises the non-lawyer, so as to avoid aiding the non-lawyer in the unauthorized practice of law and to ensure that the non-lawyer’s work contributes to the lawyer’s competent representation of the client; (b) preserves the client’s confidences and secrets when outsourcing; (c) avoids conflicts of interest when outsourcing; (d) bills for outsourcing appropriately; and (e) when necessary, obtains advance client consent to outsourcing.

More recently, in Formal Op. 08-451, the ABA gave its stamp of approval to sending legal work overseas.

What those who complain about these opinions (and other opinions like them) fail to realize is that the same principles that allow firms to send legal work overseas also allow law students – including (gasp!) summer associates at AmLaw 100 firms – and law grads awaiting admission to do actual legal work when they’re working at firms, rather than making copies and getting coffee for the partners. These principles also allow lawyers to work as contract attorneys in jurisdictions in which they are not admitted.

So, actually, these ethics opinions are good news for US lawyers, if you understand all their implications (check out my post on this, entitled “ABA Formal Op. 08-451 Good News for US-based Independent Contract Lawyers and Hiring Attorneys”).

Lest anyone think that I (and others like me) have been able to create successful and fulfilling legal careers outside of BigLaw because we’re not crushed with debt, the only reason my law school debt from NYU wasn’t over $100k when I graduated is because it cost only about $30k a year to attend when I was in school from 90-93. I’m still paying off my loans.

And for those complaining about doing doc review for $35-$40/hr: when I worked for Lexis as a law school trainer, I was making $17/hr, and during school vacations that year I temped as a secretary. I sucked it up and did what I had to do to get by.

One commenter didn’t like that answer:

To 50 (Lisa S.): To the extent you support the recent Ethics Opinions that have authorized the outsourcing of legal work to other countries when such work could be performed here in America by lawyers with families to feed (not law students), you’re a dunce and a traitor to our profession.

My response:

58 – You can’t have it both ways: the same principles that allow outsourcing to foreign countries also allow “outsourcing” within the United States. US contract attorneys have to distinguish themselves on other grounds than cost – just like other successful US companies that have cheaper foreign competition must distinguish themselves in order to survive and profit.

There are plenty of agencies that place contract/temporary lawyers. Some unemployed US lawyers think that kind of work is beneath them.

I encourage any lawyer in the US who wants to start an independent practice as a contract lawyer to do so. In fact, as I say right on my website, I think there is amazing pent-up demand for high-quality outsourced legal research and writing services (and, to add to that, any high-quality outsourced legal services).

I suggest you read my post entitled “What Susskind’s ABA Techshow Keynote Means for Independent US-Based Contract Lawyers.” As I explain in that post, in an April speech at ABA TechShow, Richard Susskind, author of The End of Lawyers?: Rethinking the Nature of Legal Services, discussed his central thesis, which is that, in the next ten years or so, advances in technology will change, in fundamental ways, how legal services are delivered.

First, Susskind explained that the provision of legal services will increasingly be decomposed into component tasks that can be “multi-sourced”: in other words, each component task can be delivered, by different providers, in a manner lying somewhere on the following continuum:

bespoke (customized) > standardized > systematized > packaged > commoditized

A few of the types of multi-sourcing he listed fall squarely within the experience of today’s contract lawyers. Of the twelve types of sourcing models Susskind touched upon, “outsourcing,” is one of the broadest (and is the term that is probably most familiar to contract lawyers). As Wikipedia defines it, “outsourcing” is “subcontracting a process . . . to a third-party company.” In this sense, all work performed by a contract lawyer has been outsourced by the hiring attorney. Susskind also separately mentioned subcontracting as a sourcing model; I would be interested to learn more about the distinction he draws between outsourcing and subcontracting. Most contract lawyers are also a prime example of homeshoring, which, although commonly defined as “the transfer of service industry employment from offices to home-based employees with appropriate telephone and Internet facilities,” can also include the provision of professional services from a worker’s home.

Second, although Susskind predicts that, under pressure from clients who seek lower cost and greater predictability, an increasing percentage of legal work will be provided in a manner that falls farther and farther towards the right side of the continuum illustrated above, Susskind specifically noted in both his speech and his book that litigation practices would be affected the least by technological changes because litigation matters are very fact specific, and because litigators must necessarily appear in court. The fact-specific nature of litigation means that there will always be a demand for contract lawyers who can provide high-quality legal research and writing services. The “face time” required in many litigation matters means that busy solos will continue to seek the assistance of contract lawyers who can handle “outside” work such as depositions and court appearances.

In my view, independent US-based contract lawyers are well-positioned to ride the wave of technological innovation into the legal landscape of the future. Are you ready?
______________

Want to grab a piece of the outsourcing pie? Great: that’s exactly what I teach other lawyers to do. There’s also a book called The Complete Guide to Contract Lawyering, which you can find on Amazon, BN.com, etc. There are also plenty of books that provide guidance about how to start a solo practice, including the excellent Solo By Choice by Carolyn Elefant.

Finally, if I’m such a dunce, why am I in the post, while you’re hiding behind an anonymous comment?

As another commenter noted (quoting Bruce Springsteen’s My Hometown from Born in the USA), “these jobs are going boys/And they ain’t coming back.” Will laid-off and wannabe BigLaw associates keep chasing the past, or will they embrace the future?

Yesterday, I participated on the alternative legal careers panel at Getting Back in the Game: How to Restart Your Career in a Down Economy, a day-long seminar sponsored by the New York City Bar and Vault.com. So I was understandably eager to see how the press covered the event.

The first article I had a chance to read today was a New York Times piece entitled Unemployed and Struggling Lawyers Seek Solace. After reading it, I knew I had to comment, so I posted:

Like commenter #73, I’m disappointed that the Times has chosen to focus almost exclusively on the content of the first of four panels that took place yesterday – the panel entitled Breaking Back Into BIGLAW: How to Make Your Way Back Into a Top Law Firm. Perhaps I shouldn’t be disappointed, as the Times (like the New York Law Journal) often focuses on the world of BigLaw almost to the exclusion of other lawyers in the city—not to mention the state and country: in a 2000 statistical survey, the American Bar Foundation found that 48% of lawyers were solo practitioners and another 15% worked in firms with 2-5 lawyers, while only 18% worked in firms with 51 or more lawyers (http://www.abanet.org/marketresearch/resource.html#Demographics).

In the panel about the rise of solo and mid-sized law firms, Ron Geffner, a partner in Sadis & Goldberg, LLP, explained that his 28-lawyer firm—which is one of the top firms in the country in his practice area—has not laid off anyone, has no debt, and is even expanding.

In the afternoon, the attitudes of the presenters on the panels about alternative legal careers (on which I spoke) and about starting a solo law practice (whose panelists included Carolyn Elefant, author of Solo by Choice: How to be the Lawyer You Always Wanted to Be and publisher of http://MyShingle.com, a long-running blog about solo practice) was much more positive, and the audience response was enthusiastic. But I guess that doesn’t sell newspapers in New York City.

Although my comment should have appeared as #87, it didn’t. I think this is explained by this entry on the Times’ blog comments FAQ page:

What about criticism of The Times?

We welcome strong opinions and criticism of our work, but we don’t want comments to become bogged down with discussions of our policies, and we will moderate accordingly.

Unfortunately, the ABA Journal’s coverage of the program relies exclusively on the Times’ coverage, and is therefore similarly one-sided. (This might be explained by the fact that the ABA Journal’s article was posted at 2 p.m., 15 minutes after the third of the four panels started. The Times article was originally posted around noon; although it was updated just after 5 p.m., the update doesn’t mention the afternoon panels). At least Vault.com’s coverage (here, here and here) is more balanced.

David Lat, of Above the Law, also reported about the program, but acknowledged that his post covered only the first panel (on which he spoke). Although ATL is about as BigLaw-centric as you can get, David stayed for the entire day, and told me that he’ll be posting about the other panels as well. (Stay tuned for more from David later this week.)

Please share your views about how major legal and non-legal publications cover the legal job market in the comments below.

Update: At some point after I published this post and tweeted about it, my comment was apparently green-lighted, and appears here as #88. Although the reporter, Jenny 8. Lee, admitted on Twitter that she didn’t attend the afternoon sessions, that fact is not revealed in her City Room post, which purports to cover the entire event.

Just last week, I wrote about a valuable resource for legal writers, available at no cost from the Social Science Research Network. While SSRN concentrates primarily on serious scholarly works, every once in a while it also publishes a humorous piece of legal writing.

Rhapsody in Blue: An Ode to The Bluebook was first published in The Green Bag, the only law journal that produces its own set of Supreme Court Bobbleheads. Its author is Michael Coenen, a 2009 Yale Law School grad.

Coenen devotes a stanza to each of The Bluebook’s 21 rules, a couplet to each of its 16 tables. Even the introductory Bluepages and the terminal index get their due.

As a former editor of the Yale Journal of Law and Technology and author of a Yale Law Journal comment entitled Original Jurisdiction Deadlocks, Coenen surely had enough exposure to The Bluebook to prompt in him a strong reaction to the tome. While it has many detractors (including all 125 members of a Facebok group called The Bluebook is Evil), The Bluebook rarely inspires the kind of affection—nay, devotion—expressed in Coenen’s poem.

What do you think? Do you adore The Bluebook or despise it? And how about the poem: great literature or groaner?

If you’re like most lawyers, the thought of networking makes your skin crawl. That’s because you haven’t learned how networking really works: it’s nothing more than relationship building.

Join Jennifer Loud Ungar and learn how to build a strong professional network to draw from for career success. In this program, you’ll learn:

• How the web can make you a more effective networker—and when to get out from behind your computer
• How to easily and naturally build substantive relationships at a networking event
• The biggest mistake most lawyers make when following up on a networking contact
• How both introverts and extroverts can effectively build their base of referrals without feeling sales-y
• How to leverage your existing communities, even outside of the law, to help you increase business
• And much more!

Jennifer Loud Ungar, a “Recovering Lawyer” herself, is the founder of Career Moves, a career strategy firm for attorneys. She’s also the creator of “Unlock the Golden Handcuffs,” a proven six-step system to help attorneys find the career of their dreams inside or outside the practice of law. Jennifer’s background as a lawyer, career counselor, co-adjunct professor, headhunter and law school administrator gives her unique insight into all aspects of the career planning and discovery process for lawyers at any stage of their career, from law student to experienced practitioner.

Join us for this teleconference on Thursday, June 18 at 3 p.m. Eastern (noon Pacific).

Your registration includes participation in the live teleseminar and a copy of the program recording (mp3). To register, visit our Products page and add a Silver Membership to your cart.

Although legal writing expert Judge Mark Painter wrote an article entitled Legal Writing 201: 30 Suggestions to Improve Readability or How to Write For Judges, Not Like Judges, there’s one judge whose writing is always a pleasure to read: Hon Gerald Lebovits of the New York County Civil Court, Housing Part.

Judge Lebovits isn’t your run-of-the mill housing court judge: he’s a legal writing expert who’s published over 100 articles on the subject (as well as numerous articles on other topics). He’s also a popular legal writing professor and CLE presenter.

Now you can download his Advanced Judicial Opinion Writing: A Handbook for New York State Trial and Appellate Courts (as well as all of his other articles) from the Social Science Research Network.

The first half (roughly) of the Handbook focuses on judicial opinion writing, while the second half addresses legal writing in general. Nevertheless, I strongly urge you to read the entire manual for two reasons. First, much of the material in the first half is just as applicable to brief writing as to opinion writing (for example, “briefs” could easily be substituted for “judicial opinions” in the section entitled “What Readers of Judicial Opinions Hate: the Top 30 Vices”). Second, understanding how and why judges write opinions, as well as the different types of opinions, will add a whole new level of meaning to the opinions you read.

I’m sharing this information with you for two reasons. First, I’ve long believed that studying judicial writing manuals can make lawyers better writers. Second, I’m honored to call Judge Lebovits a colleague and friend: among other things, we co-authored (along with Alifya Curtin) a law review article entitled Ethical Judicial Opinion Writing, and we’ll be presenting Powerful Writing Techniques to Help You Persuade Judges and Win Clients at the ABA’s National Solo & Small Firm Conference in October.

Finally, I can’t pass up this opportunity to respectfully urge all members of New York’s Appellate Division, Third Department (or at least Justices Yesawich, Mikoll, Crew, Spain and Mugglin) to review the Handbook. I make this suggestion after reading that court’s opinion in Krouner v. Krouner, 267 A.D.2d 575, 699 N.Y.S.2d 220 (3d Dep’t 1999), which, although brief, is rife with errors (noted in red in the following quotation from the opinion):

By this proceeding, petitioner Leonard W. Krouner [footnote omitted] (hereinafter Krouner) seeks, inter alia, to have respondent deposit funds in a segregated account to repay a college student loan obtained by their son Kenneth Krouner (hereinafter Kenneth). Krouner and respondent (hereinafter collectively referred to as the parties) [As if we couldn't have figured that one out ourselves . . . .] were divorced in 1986. A stipulation defining their child support obligations was incorporated but not merged into the divorce decree and, despite modifications since its inception, the stipulation is silent with respect to the parties’ responsibilities to pay for Kenneth’s college education. Petitioners appeal Supreme Court’s dismissal of the petition.

In dismissing the petition, Supreme Court concluded that because Kenneth was over the age of 21 it could not compel respondent to contribute to his college education. Notwithstanding the absence of language in the stipulation as to the parties’ obligation to provide for Kenneth’s college education expenses and the fact that he has attained the age of 21 and payment for such expenses is not required by statute (see, Domestic Relations Law § 240[1-b][b][2] ), such payment may be enjoined if special circumstances exist (see, Domestic Relations Law § 240[1-b][c][7]; see also, Hapeman v. Hapeman, 229 A.D.2d 807, 810, 646 N.Y.S.2d 583; Smith v. Smith, 174 A.D.2d 818, 819, 571 N.Y.S.2d 127; Haimowitz v. Gerber, 153 A.D.2d 879, 880, 545 N.Y.S.2d 599). Inasmuch as each parent has a postgraduate degree and Kenneth has demonstrated academic ability (see, Hutter v. Hutter, 112 A.D.2d 543, 544, 491 N.Y.S.2d 480), whether special circumstances obtain turns on respondent’s ability to provide the necessary funds (see, id., at 544, 491 N.Y.S.2d 480). And, as to that, although petitioner has proffered various documents purportedly indicating that respondent has the wherewithal to help defray Kenneth’s education expenses-a premise vigorously disputed by respondent-[these should be em-dashes, not hyphens] the parties’ submissions on this issue are not sufficiently developed in the record to enable us to pass on this aspect of the petition. Accordingly, a hearing must be held at which testimony and evidence is [subject/verb disagreement] to be produced as to respondent’s financial ability.

(The commas after the introductory signals and id. are not required by the Tanbook, which dictates citation format in New York State Court documents.)

A September 2001 article from Legal Consulting firm Altman Weil, Inc., entitled Fiscal Management of a Law Firm, strongly supports the use of contract lawyers to increase a firm’s profit margin.

The article discusses three key fiscal performance measures for all businesses (including law firms)—cash flow, revenues or collected fee receipts and profit margin—and identifies building in a high fixed cost of operations as a primary obstacle to improving law firm profit margins. Although the article mentions “occupancy,” (i.e., office space), technology and marketing as significant contributors to the fixed cost of operations, it identifies labor costs as the most significant contributor to high fixed operation costs:

Consider labor costs that are predominantly salary and deferred salary (bonuses that are implemented as the 27th paycheck at year end)—with substantial recent upward pressure . . . .

The error is that the variability of expenses is not aligned with the variability of revenues. The single most important cost initiative that law firms can undertake is to increase their flexibility in overhead. The place to start is the direct cost of producing revenues—fee earner compensation. That does not mean pay people less. It does mean to have pay programs that can adjust to the revenues in a way that does require drastic measures.

(Emphasis supplied). By using contract lawyers to work on a project-by-project basis, a firm can align the variability of expenses with the variability of revenues. Since it makes good financial sense to use contract lawyers, it’s no surprise that independent contract lawyers are busier than ever.

On Tuesday, June 16, I’ll be speaking on an alternative legal careers panel as part of Getting Back in the Game: How to Restart Your Career in a Down Economy, a day-long seminar sponsored by the New York City Bar and Vault.com. The panel runs from 1:45-3:00 p.m.

Here’s the full program agenda:

9:45 AM – Welcome by Patricia M. Hynes, President, New York City Bar

10:00 AM – Breaking Back into a Large Law Firm: How to Make Your Way Back into a Top Law Firm (panelists include David Lat, founding editor of Abovethe Law.com, who I can’t wait to meet!)

11:30 AM – Casting a Wider Net: The Rise of the Small to Mid-Sized Law Firm

12:45 PM – 1:45 PM Lunch

1:45 PM — Alternative Legal Careers: Exploring the Range of Options With Your JD

3:15 PM — Start Up LLP: Creating Your Own Law Firm (panelists include my good friend Carolyn Elefant, publisher of MyShingle.com and author of Solo by Choice: How to Be the Lawyer You Always Wanted to Be)

The cost for the program, which will be held at the City Bar’s headquarters on West 44th Street in Manhattan, is $30 for members and $50 for non-members. You can register at the New York City Bar website.

(I understand that there are plans to stream the event live, but I don’t have any details about that at this time. I’ll update this post when I learn more.)

Last week, the National Law Journal reported that a California plaintiff’s lawyer has filed a class action suit against Chadbourne & Parke, alleging that the firm engages in a pattern and practice of billing its clients based on hourly rates charged by online legal research providers, even though the firm actually pays a flat rate for its legal research subscription.

According to the complaint, between October 2004 and May 2005, Chadbourne charge the named plaintiff, Texas businessman J. Virgil Waggoner, approximately $20,000 for legal research fees. Waggoner alleges that the charge should have been closer to $5,000.

The complaint alleges causes of action for violation of Cal. Bus. & Prof. Code §17200 (unfair business practices), unjust enrichment and fraud.

As the article points out (and as my research has confirmed), a firm may recover online legal research costs from its clients, and may even profit by adding a markup to those costs, as long as the client has agreed to such an arrangement. If Waggoner’s factual allegations are true—and, based on Chadbourne’s transparent effort to paint Waggoner as nothing more than a disgruntled former client by pointing out that Waggoner brought the California action only after his New York malpractice suit was dismissed and after the firm sued him for unpaid legal fees, I suspect they are—this suit is a cut and dried case in which a BigLaw firm desperately trying to prop up its PPP will finally get its well-deserved comeuppance.

But, although the article about the Waggoner case prompted me to explore the issue of recovering online legal research costs from clients, that case isn’t what got me all riled up: what’s upset me is what I discovered in the course of my further research.

I knew that the ABA’s GP|Solo Division had addressed the issue of recovering online legal research costs in a recent GP|Solo article as well as in a CLE session at last year’s National Solo & Small Firm Conference. So it was no surprise that my investigation into the issue quickly brought me to a page on the ABA’s website, where the Division has collected a number of resources about recovering the cost of online research. Since West is one of the primary sponsors of the GP|Solo Division, the Division’s interest in this issue is, shall we say, understandable.

Since I didn’t get a chance to attend the cost recovery CLE at the NSSFC last year, I decided to watch the session online. Now, I owe a great debt to the GP|Solo Division (sponsors of the Solosez listserv, which has been critical to the success of my law practice). Many of my closest friends and colleagues are very active in the Division. On a personal level, I like Keith McLennan, who presented the cost recovery session (and, to be honest, I’m not even sure that the contents of the session reflect his personal views—he may have been roped into presenting the session because he is a past chair of the Division). I’m even a big fan of Westlaw (as opposed to Lexis, at least). But I was disgusted with the rationales advanced for recovering from clients a cost that is part of a law firm’s overhead.

McLennan explains that lawyers used to consider the cost of online legal research to be part of overhead. As such, that cost was one factor lawyers took into account when setting their hourly rates. But ever-increasing hourly rates led to pushback from clients, he explained, so some firms have decided to recover the costs as disbursements.

The efficiency rationale also looms large. Under that line of reasoning, clients benefit from the use of online legal research because a research project that might take a lawyer using actual books five hours to complete can be completed in much less time using online legal research.

Then there’s the fairness rationale. Since a lawyer might use online legal research resources more for some clients than for others, says McLennan, it’s not fair for all clients to pay an hourly rate that is inflated by consideration of the cost of the lawyer’s online legal research subscription.

Of course, under this same reasoning, lawyers should be recovering from their clients the proportional cost of any tool that comes with a flat monthly fee. Do you pay a flat rate for long distance calling? By all means, go after your clients for their proportional share of your phone bill. After all, clients benefit when a lawyer can quickly resolve an issue over the phone, instead of writing a letter (which arguably takes more time and comes with its own associated overhead costs). And, since a lawyer talks to some clients more than others, it’s not fair for all clients to pay an hourly rate that is inflated by consideration of the cost of the lawyer’s long distance calling plan.

I’m not suggesting that lawyers should never bill clients for extraordinary expenses incurred when the lawyer must use a resource that is outside the scope of a reasonably broad flat-rate plan: I do it myself. As a legal research and writing services provider who lives in New York and serves clients nationwide, I maintain a Westlaw subscription that gives me access to all federal and state cases, statutes and regulations; law journals; and many New York-specific secondary sources. Through Westlaw’s ResultsPlus add-on, I also have access to an almost unlimited number of secondary sources that are relevant to the issues I’m researching. Nevertheless, on extremely rare occasions, it’s necessary to go outside my subscription plan. Sometimes I eat that cost; other times, I explain to the lawyer I’m working with why it’s necessary to go outside my plan, and obtain prior approval to incur an out-of-plan disbursement, which I then pass on to the lawyer at cost.

Still, cost recovery should be the exception, not the rule. Don’t nickel and dime your clients: when setting your rates—whether you bill by the hour, charge a flat fee, or use any other billing arrangement—take into account all of your overhead—including the cost of your online legal research subscription.