Dave Whitener’s “Palmetto Logs”

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SC palmetto state

Two weeks ago, this blog paid tribute to the late, great Dave Whitener, a giant among real estate legal professionals in South Carolina. As suggested in that blog about Dave’s “Top Ten You Betters”, I also wanted to share with you Dave’s “Palmetto Logs”.

Several years before his death, Dave was asked to address the American Bar Association. The issue was whether a successful defense might be mounted if a federal agency attacked the rights now existing in South Carolina for lawyers, and only lawyers, to close real estate transactions. In that talk, Dave cited ten areas of defense that he called the Palmetto Logs. For non-South Carolinians, the palmetto log has traditionally been a symbol of protection for South Carolinians in time of war. South Carolina is nicknamed “The Palmetto State”.

Here are Dave’s suggested protections against an attack from outside our state for closings performed by licensed South Carolina attorneys:

Caselaw

  1. State v. Buyers Service, 292 S.C. 426, 357 S.E.2d 15 (1987). In this case, the South Carolina Supreme Court defined the practice of law in a residential real estate closing to include: certification of the title; preparation of the deed and loan closing documents, closing the transaction and overseeing recording.
  2. Doe v. Condon, 351 S.C. 158, 568 S.E.2d 356 (2002). In this case, the South Carolina Supreme Court reiterated and confirmed that the four protected areas set out in Buyer’s Service would also apply to residential refinances.
  3. Doe v. McMaster, 355 S.C. 306, 585 S.E.2d 773 (2003). In 2003, the South Carolina Supreme Court again reiterated its holding in Buyer’s Service.

Statutes and South Carolina Constitution

  1. C. Code §40-5-310 makes it a felony for an individual to participate in the unauthorized practice of law.
  2. C. Code §40-5-320 makes it a misdemeanor for a corporation or other entity to participate in the unauthorized practice of law.
  3. C. Code §37-10-102 gives a borrower the absolute right to choose the closing attorney in a residential loan closing. The statute provides for a $7,500 penalty if the disclosure is not given.
  4. South Carolina’s Constitution gives the S.C. Supreme Court the exclusive right to define the practice of law within South Carolina

Practical Considerations

  1. The low cost attributable to attorneys’ fees for residential closings in South Carolina. Dave believed the low cost would present a major difficulty if a federal agency argues that South Carolina’s practice is anti-competitive or increased prices.
  2. Major job losses would possibly result from the outsourcing of jobs to closing centers outside of South Carolina
  3. Major risks would be raised in turning over the duties now performed by experienced lawyers to unregulated and inexperienced lay persons.

I’m not sure whether Dave would say differently if he were here to analyze this topic for us today. I fear that the retirement of Chief Justice Jean Toal may have resulted in the loss of the South Carolina lawyer’s strongest advocate in the South Carolina Supreme Court. So far, the Palmetto Logs are holding strong, but some more recent cases from our Supreme Court give me some concern on this topic.

In any event, I am continually thankful for Dave Whitener and his influence, mentorship and friendship to South Carolina dirt lawyers!

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Forgive me for repeating myself

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But practitioners really need to read The Lean Law Firm

In October, this blog discussed a book I had just read,  the 2018 ABA Law Practice Division book, The Lean Law Firm, How to run your firm like the world’s most efficient and profitable businesses.  Now that I have attended a South Carolina Bar seminar by the authors, I am even more convinced that the methodology this book embraces is exactly what residential real estate practitioners need to adopt to assist them in reducing stress and growing value in their practices.

lean law firm4

One of the authors is Columbia consumer lawyer Dave Maxfield, who happens to be the brother-in-law of my co-worker, Dorothy Boudreaux. The other lawyer, Larry Port, is CEO of Rocket Matter, the cloud based legal practice management software company. The January 31 seminar made an impactful initial point: most law firms are in survival mode. They won’t progress unless the lawyers step back and take a look at the business to gain perspective.

What is a lean law firm?  In the words of Larry Port, being lean is not about cost cutting. “It’s more about creating systems and then finding the constraints and inefficiencies that impede them. Lean lawyers believe in measurement, reducing waste, and producing as much value as they can for their clients. And more than anything else, Lean is about experimentation and continuous improvement.” The processes set out in this book are intended to teach lawyers how to increase their income while they are reducing their stress.

Unfortunately, most lawyers have little or no awareness of the value of creating systems. We are not taught to run businesses in law school. The lawyers I know and love are so busy practicing law that they don’t take the time to modernize, to focus on processes, and to create the systems that will allow them to run their firms like efficient and profitable businesses.

Wouldn’t your closing process be improved if you were able to figure out and reduce or eliminate those matters that cause delay? I was in an office recently and noticed a great deal of foot traffic by staff members. I asked where everyone was heading and was told they were all probably looking for files. Wouldn’t that office’s process be improved by using closing software that makes every file constantly available to every person involved in the closing? I was in another firm with multiple branches and learned one branch had templates for the title work for each subdivision, but the other branches didn’t have access to the templates. Sometimes, just stepping back to take a look will reveal small tweaks that can vastly improve systems.

One of my favorite suggestions from the book is the use of Kanban boards, a project management tool used to visually depict work at various stages. The simplest Kanban boards would have three columns: “to-do”, “doing” and “done”. A Kanban board for a residential closing office might have these columns:  “file opening”, “pre-closing”, “title”, “document preparation”, “closing”, “recording”, “disbursement” and “post-closing”. Each closing would be depicted in the appropriate column. By paying attention to this workflow tool, a closing attorney would learn quickly where work bottlenecks, and improvements could be made efficiently.

I believe the advice I once heard:  every time you touch a closing file after the closing, you lose money. A Kanban board might reveal whether reducing the numbers of post-closing touches in your office would increase the income from each closing.

Does the book sound like dry reading to you? It is not that at all. In fact, it is the first book published by the ABA to employ the graphic novel approach. It is written in the form of a story about Gray Law Firm, a small struggling firm, it’s newly-hired, former big law lawyer, Carson Wright, who wants to help  “fix” the law firm, and Carson’s friend, Guy Chaplin, who runs an extremely successful racing bicycle manufacturing and distribution company.  Guy slowly teaches Carson the business principles that make his company successful. And Guy helps Carson figure out how to apply those principles to his law firm.

I have to warn you that the book contains a lot of math. I am not a math scholar by any stretch of the imagination, and I was able to follow the formulas and to see how they would work well in a law firm that handles real estate, especially residential real estate. In fact, my only complaint about this book is that it is not geared specifically to real estate practitioners.

The book gives very specific advice about the basics of management, standardization, written procedures, checklists, marketing, goal setting and technology. A South Carolina real estate lawyer might find that some of the advice doesn’t apply, but I’m betting that most of it does apply, and I am encouraging everyone to order a copy of this book at www.ShopABA.org and to take its advice to heart.

I am now in the process of twisting Dave’s arm to translate “Lean” to residential real estate. If I am successful, I will certainly share his wisdom with my friends who practice residential real estate in South Carolina who are probably battling survival mode as they read this.

Dirt lawyers: here’s a book you need to read!

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A lot of time has passed since I’ve written book reports, but I felt compelled to write this one after just completing the 2018 ABA Law Practice Division book, The Lean Law Firm, How to run your firm like the world’s most efficient and profitable businesses.

I learned about this book from, of all places, Facebook, when my friend and very techy Columbia lawyer, Jack Pringle, expressed anger that he hadn’t written this book himself. And I was thrilled to learn that one of the authors is also a very techy Columbia lawyer, Dave Maxfield. I don’t know Dave, but I’ve told his sister-in-law, my co-worker Dorothy Boudreaux, to warn Dave that I will be reaching out to him at some point to pick his brain, to ask him to speak at a seminar, and to otherwise figure out how I can relay his very creative and valuable ideas to the dirt lawyers in South Carolina who need the advice this book sets out so well.

lean law firm4

What is a lean law firm?  In the words of Larry Port, the other author, from the book’s foreword, being lean is not about cost cutting. “It’s more about creating systems and then finding the constraints and inefficiencies that impede them. Lean lawyers believe in measurement, reducing waste, and producing as much value as they can for their clients. And more than anything else, Lean is about experimentation and continuous improvement.” Would you like to increase your income and, at the same time, reduce your stress? The processes set out in this book are intended to teach you how to accomplish those goals simultaneously.

Unfortunately, most lawyers have little or no awareness of the value of creating systems. We are not taught to run businesses in law school. The lawyers I know and love are so busy practicing law that they don’t take the time to modernize, to focus on processes, and to create the systems that will allow them to run their firms like efficient and profitable businesses.

This book explains in detail how the science of management can be translated to law firms.

Does this sound like very dry reading to you? It is not that at all. In fact, it is the first book published by the ABA to employ the graphic novel approach. It is written in the form of a story about Gray Law Firm, a small struggling firm, it’s newly-hired, former big law lawyer, Carson Wright, who wants to help  “fix” the law firm, and Carson’s friend, Guy Chaplin, who runs an extremely successful racing bicycle manufacturing and distribution company.  Guy slowly teaches Carson the business principles that make his company successful. And Guy helps Carson figure out how to apply those principles to his law firm.

I have to warn you that the book contains a lot of math. But I am not a math scholar by any stretch of the imagination, and I was able to follow the formulas and to see how they would work well in a law firm that handles real estate, especially residential real estate. In fact, my only complaint about this book is that it is not geared specifically to real estate practitioners. Thus, my need to pick Dave Maxfield’s brain.

The book gives very specific advice about the basics of management, standardization, written procedures, checklists, marketing, goal setting and technology. A South Carolina real estate lawyer might find that some of the advice doesn’t apply, but I’m betting that most of it does apply, and I am encouraging everyone to order a copy of this book at www.ShopABA.org and to take its advice to heart.