I have had the pleasure of knowing Karin Ciano for about five years and the privilege of hiring her for help as I prepared for trial last year. Karin was a pleasure to work with and her work-product was outstanding. Whether you are in a pinch or whether, before you are in a pinch, you have the forethought to add fire-power to your client’s litigation team, call Karin. Why Karin? Read this:
MN Litigator: Karin, let’s start with you telling Minnesota Litigator readers what you do now.
Karin Ciano: Readers, I do two things. I have a sole practice doing plaintiff side’s civil rights and employment law. I am also a freelance attorney which means I work for other lawyers. I have worked for a variety of lawyers in federal court and state court and recently have become more involved in state court doing probate litigation.
MN Litigator: When you say you’re in state court doing probate litigation, is that as a freelancer or that’s your own work?
Karin Ciano: That’s a longer-term project I started this fall for the firm of Rodney J. Mason Ltd. in St. Paul. I’m actually a part-time associate with the firm.
MN Litigator: How do you balance freelance work with your own work?
Karin Ciano: I try to be very careful about scheduling and am constantly minding my calendar. When there’s a deadline coming up where I need to be available, I block those out so that I don’t take projects that will overlap. Basically I try, like every lawyer does, to be mindful of my schedule, to estimate how much time things will take, and try to make sure to get things done.
MN Litigator: Do you take less work on of your own to allow for capacity for freelance work for other lawyers?
Karin Ciano: Yes.
MN Litigator: What is a high point of your litigation experience?
Karin Ciano: A high point of my litigation experience probably happened some years ago when I was a lawyer in New York. I took a pro bono case through the office of the Appellate Defender and was able to demonstrate on the trial record that my client, the defendant, had received ineffective assistance of counsel. I’m proud of that because he did, number one, and the conviction was reversed. Number two, it’s really hard to demonstrate ineffective assistance on the trial record. I think that was the only reversal on ineffective assistance in the appellate defender’s office that year. Of course, whenever you’re on the criminal defense side and you get a win, you jump up and down for that, because it’s a rare thing. Yes, that’s my favorite so far.
MN Litigator: How about your lowest point?
Karin Ciano: Oh goodness. It was while I was clerking, summer 2007, a few weeks after the Supreme Court decided Bell Atlantic v. Twombly. Twombly had not yet blossomed into the wonderful phenomenon that it is today and Ashcroft v. Iqbal was not even a glimmer in the eye. After reading the case I concluded that the Conley v. Gibson motion to dismiss standard still survived to some extent. I didn’t expect that it was going to completely wash away the motion to dismiss standard as we know it. I completely missed the boat.
By the way, I was a college radio DJ back when Nirvana’s album “Nevermind” came out, and I would never have picked “Smells Like Teen Spirit” to be the hit. I mean, I just… there’s certain things where you don’t want to go with my predictions.
So I have a history with Twombly, now Twiqbal, which leads me to be very cautious and put in as many facts as I can when I plead out a complaint. Which led to another low point – a judge once struck one of my complaints because it was too long and in his view contained too many irrelevant facts.
MN Litigator: You mentioned that you clerked and I know that you clerked for U.S. District Court Judge James M. Rosenbaum at the District of Minnesota for several years and I’m assuming that the clerkship you’re referring to.
Karin Ciano: Yes, that particular one.
MN Litigator: Did you clerk anywhere else at anytime?
Karin Ciano: I did. After Judge Rosenbaum retired, I helped him with his transition to JAMS where he’s now an arbitrator and mediator and then came back to the court for a few months to clerk for Judge Ann D. Montgomery (D. Minn.) and also for just a few weeks for U.S. Magistrate Judge Arthur J. Boylan (D. Minn.). I was actually simultaneously clerking for two judges at the same time. Don’t try that at home. It was tremendous fun for me but I was experienced enough by that time that I was able to keep everything straight. I had a wonderful time with the federal family.
MN Litigator: Was there any substantial difference in clerking for Judge Montgomery versus Judge Rosenbaum?
Karin Ciano: Probably the biggest difference was that Judge Rosenbaum had his clerks involved in criminal cases extensively. Judge Montgomery, at least at that time, did not have her clerks as involved in criminal cases. I didn’t have the opportunity to put to use all the wonderful sentencing guidelines knowledge that I had picked up.
MN Litigator: Being on the clerking side of the bench if you will, what insights do you think you have from being on that side that other civil litigators would not have or would not appreciate?
Karin Ciano: I was a civil litigator at a big law firm before I clerked. I felt like I was entering the black box because decisions get made and you don’t really have a good sense of how it happens or why it happens. I would say the insight that I have is now … it’s a process. I recognize that there are human beings who are trying to choose between alternatives. What I’ve come to believe is that lawyers have more influence than they think in terms of framing things clearly and explaining their implications clearly. That’s where you have the biggest impact. Ask for what you want, ask for it clearly, explain why you get it and you’ll tee it up for a decision maker.
At the same time, lawyers have a lot less influence than they think because the facts are what they are and the law is what it is. If you’re in a situation where you’re clearly going to lose on the facts and law, most of the time you’re clearly going to lose. It’s given me confidence when I do motion practice or when I’m in front of the court because I think about what the court’s burden is and can try to tailor my arguments to address it.
MN Litigator: “MFAN” stands for Minnesota Freelance Attorney Network?
Karin Ciano: Correct.
MN Litigator: You are a founding member of it?
Karin Ciano: One of several.
MN Litigator: How many people are in the MFAN?
Karin Ciano: It is an informal group so we don’t actually keep stats on members. I would guess our email list is probably somewhere around 50 . We are always bringing in people who are interested and sometimes people will transition out because they find full time jobs or move out of the state or whatever. It’s a very fluid group. We aim to be support for lawyers who are interested in becoming independent freelancers and, in the process, to develop some best practices so the lawyers who want to hire us know what to expect. Generally, we raise the profile of people who are doing this kind of work because I think there are great many more lawyers doing it now than were doing it five years ago.
MN Litigator: Do you have to apply to be in MFAN?
Karin Ciano: You have to make a cash donation of $10,000. Just kidding. No, actually all you have to do to express an interest is email Lynn Walters, email@example.com, to get on our list, or come to one of our meetings. We meet typically every month in person or by phone. We’re about to launch a newsletter in early 2016, and will be looking for folks who are interested in writing articles about freelancing for the newsletter.
MN Litigator: You don’t turn anyone away?
Karin Ciano: I don’t think we’ve ever needed to. It’s kind of a self-selecting group.
MN Litigator: Is it like a support group of freelance lawyers or is it a resource where someone goes almost like temp agencies where buyers could come seek a lawyer with experience in, say, municipal law litigation and MFAN would match them?
Karin Ciano: We don’t try to match freelancers with gigs, but we do try to be a place where freelancers can be visible to hiring attorneys who might be looking. We have profiles of our attorney-bloggers on the MFAN website, www.freelance-attorneys.com. Many of us also have our own websites or LinkedIn profiles. If someone were to come to me and say, “Hey, I need some help doing X,” typically they ask, “Are you available?” I might not be. In some ways, MFAN began as a list of people to whom Lynn and I could refer projects. I think that a lot of us treat it the same way, kind of informally, “This is someone that I would recommend to call if you need this kind of work.” Because we all run into availability crunches and you want to have someone who you know can take care of hiring attorneys’ needs.
MN Litigator:When you get work as a freelancer, do you have a backup freelancer in case you’re crunched? Is that what you’re saying?
Karin Ciano: I have a bunch of backup freelancers. I also have access to administrative staff through my virtual space over at MoreLaw. They have a service called Astute Legal Concierge. For things that aren’t really efficiently done by a lawyer, copying, delivering stuff, whatever it might be, I rely on having extra pairs of hands. Yes, I’ve been kind of on both sides of the freelancer equation. I do it for others and I have hired others to do it for me.
MN Litigator: Have you hired other freelancers to freelance for your own clients?
Karin Ciano: I have subcontracted a couple of times. Again, it kind of depends on the project and whether the client is willing. There are times when someone else can get something started for me, do preliminary research for example. It uses less of my time and as long as the project costs less and comes in early, I think clients are generally very satisfied with that.
MN Litigator: You have a typical contract you use when you function as a freelance lawyer, correct?
Karin Ciano: Yes, I do. I understand it will be up on the MSBA’s practicelaw.org site shortly. [Editor: Here is a sneak peek.]
MN Litigator: Is that something that you’ve ever had folks want to negotiate aspects of or is it sort of here’s what it is and take it or leave it?
Karin Ciano: I would say my contract is an evolving document. At this point, it addresses most of the concerns that I know have come up. I would say the big difference is most of my clients are solos and small firms who may not ever have hired somebody in this capacity before. My contract tries to explain to them the nature of this relationship. It could be shorter and simpler if I were working for a bigger firm that routinely hires people as contract lawyers. It wouldn’t need to go through as much explanation.
But in terms of negotiation, I would say that I’m somebody who routinely negotiates what I’m going to be paid. I have an hourly rate but I’m always happy to consider alternative fee arrangements and work something out based on what they need. Freelancers are pretty good at diagnosing how we can help. I think the diagnosis is something people hesitate to do. They may think they need Cadillac to move something from point A to point B and we might be able to say, “Actually, what you need is a couple of bikes and a trailer.”
MN Litigator: Have you ever had a freelance relationship that did not work out where you had to withdraw?
Karin Ciano: Not yet, touch wood. I have declined cases before a relationship was established. The one thing I would say there is I’m someone who doesn’t feel comfortable ghost-writing for pro se parties [editor’s note: non-lawyers in litigation without a lawyer]. Pro se parties have approached me to write pleadings for them. I have declined to do that not because it’s against the rules— it isn’t — but because I am very mindful that the courts, particularly the federal courts, don’t care for it. I don’t want to cause any trouble there.
MN Litigator: Why do judges dislike “shadow counsel” or behind the scenes lawyers helping pro se parties?
Karin Ciano: I suppose it’s because they like to know who they’re dealing with. The federal courts take Rule 11 very seriously. I guess I don’t think I’m doing the pro se party or the court or myself much of a service by writing pleadings that the pro se party may or may not understand. But that happens to be my personal opinion, where I draw a line. I don’t think there’s anything wrong with it ethically and I think some courts, maybe more in the state courts, are grateful to get well written pleadings regardless. They’re much more hospitable to limited scope representation than the federal courts are.
MN Litigator: Have you ever been let go as a freelancer, from the hiring lawyer saying, “This is not working for me,” for whatever reason?
Karin Ciano Again, not yet. I’ve had many projects not materialize. I have had many projects not go all the way to completion because the parties decide they’re going to settle or do something differently. But no one yet has let me go, as far as I know. Statistically I’m sure it will happen eventually, but I sincerely hope I can prevent it from happening by doing quality work. I would also make every effort to make things right with the lawyer. I do this because I like working with other lawyers. I want it to be a positive experience for everybody.
MN Litigator: Have you ever been in any kind of ethical binds as a freelancer?
Karin Ciano: Conflict checking is always challenging, because I am mindful that I don’t want to create the appearance of impropriety, both with the opposing party and also the opposing party’s law firm. I’m constantly checking for conflicts or unusual situations that may not be a conflict under the rules but could cause problems. I want to be mindful that hiring lawyers don’t have concerns about my access to information. I have the Lawyers Board advisory opinion phone number saved in my phone and use it often.
MN Litigator: Do you require personal contact between you and the underlying clients when you’re acting as a freelance for hiring lawyers?
Karin Ciano:No, I don’t.
MN Litigator: Do you ever have concern that that could put you in an ethical tight spot in terms of advocating for someone and not knowing whether the underlying client wants it to be so?
Karin Ciano: Because the hiring lawyer is the supervising lawyer, and I am more like an associate, I have to trust that the people I work with communicate to their clients. I mean, I assume that they are making appropriate disclosures and appropriate communications. I assume they are telling me the truth about what their clients want and that if they had made the judgment that this particular work they’re asking me to do will serve the client’s interest. I try to make it as explicit as I can in the agreement and in answering questions about the agreement, that it is never my intent to represent their client as counsel of record. I won’t take a client away from an attorney who is hiring me. I want to be very clear that my role is to stay in the background. I don’t sign pleadings. I don’t want to have any more client contact than that attorney wants me to have. Usually, the only person I’m dealing with directly will be the attorney.
MN Litigator: What advice do you give lawyers who would be considering freelancing?
Karin Ciano: I would offer a couple pieces of advice. First, it’s a lot like starting a solo practice. Think about it in that way. The work you may be doing resembles the work that an employee of a firm would do, but the business of getting and organizing that work really requires an entrepreneurial outlook and an ability to go out and ask for business that you might be interested in. I would encourage people considering freelance attorney work to think about niches that they want to serve just as sole practitioners think about niches. Is there an area of law that they like, a geographical area, a particular type of lawyer, a particular situation? We can slice it as fine as regular practitioners do. That’s one way we add value.
There are a lot of people out there who say, “I do research and writing.” That’s always good but if you can say something sexier like, “I do research and writing in patent cases,” or “I like to work on particular types of petitions in family court,” I mean, that suddenly lets you know who you should be talking to. You should ask for the work that you like and can do best.
The other thing I would say to folks who are interested in freelancing is there’s a lot more support for it now than there used to be. MFAN is one example. There’s a wonderful book out there called the Freelancer’s Bible which is not specific to law but is written by Sara Horowitz of the Freelancers Union. It provides a nice overview of how to make freelancing sustainable. I found it very helpful in thinking about the mix of hiring attorneys and projects to look for, and things like that. It might be a helpful read.
MN Litigator: When you said, “Go out and ask for business,” how does one do that?
Karin Ciano: I put myself out there. I listed freelance work on my LinkedIn profile. I had the Federal Sherpa ad in Bench & Bar. Most of my firm website was dedicated to other lawyers who were looking for freelance help because, at the time, not many people were doing that. At this point, people have seen me, have heard of me, and so often times I’ll get a call asking, “Are you still doing that freelancing stuff?” I’m like, “Yeah, I still am. Please feel free to tell me what you’ve got.”
It doesn’t have to be a hard sell. You just have to let people know that you do it.
MN Litigator: What advice do you have for lawyers or law firms for hiring freelancers?
Karin Ciano: Recognize that there’s a wide variety of people who can help with your work. There are large agencies that can bring in tons of people. There are also small independents who are working for themselves. Depending on the situation, one or the other might be a good fit. For the small independent types, you won’t necessarily find us working through agencies, although some of us do sometimes. A lot of us are out in the community.
MN Litigator: This is your soap box. You can talk to the Minnesota legal community, Minnesota lawyers or Minnesota litigators. Do you have anything to say?
Karin Ciano: I wish you’d told me you were going to ask that question two weeks ago, I would have been planning on it. Yes, I will get on the soap box and say one thing. This is a fantastic community in which to practice law. I hoped it would be when we moved out here from New York, and it has far exceeded my expectations. This is a generous, smart, collegial bar. My only concern is that we have a systemic problem about finding places for law school graduates in the bar.
Clients don’t want to pay for training lawyers in their first three years, firms don’t want to hire lawyers in their first three years. We’re talking about making law school shorter, not longer. Yet there is a massive unmet need for legal services as you can see if you spend time in any courthouse. So new grads must teach themselves how to practice and learn to serve the clients who are not being served.
I believe that empowering more law graduates to start their own sole practices could do a whole lot to close the justice gap and could also elevate everybody’s game. Law schools are not able to do all of that. It will fall to the private bar to provide the mentoring, the supervision and the means of practice to support recent law school grads who want to start their own practice. I would like to see more efforts in that direction.
We are seeing more efforts in that direction now, especially through the Collaborative Community Law Initiative, but this is an area where everyone could be taking a moment to look at the recent law grads they know and think about how they can provide support and mentorship in the first years of practice.
[Previous Minnesota Litigator Profiles: Liz Kramer, Arbitration Maven/Author of Arbitration Nation, Bob Lear, Residential Real Estate Appraiser/Expert Witness, Tim Nolan, Lawyer/poet, Laurie Vasicheck, 25 year veteran of the Minneapolis office of the EEOC, Jake Holdreith, an IP litigator for “drug dealers” (better known as pharmaceutical companies), Pam VanderWiel, lawyer for Minnesota municipalities, Bill Dossett, Executive Director of Minnesota’s Nice Ride bike-sharing program, Christina Snow, lender/servicer real estate and foreclosure lawyer, Clayton Halunen, plaintiffs’ employment lawyer, consumer rights lawyer, Stephen L. Smith, straddling a civil and a criminal litigation practice, Kevin Dunlevy, Minnesota real property authority, Vildan Teske, consumer rights class action litigation and service members class actions, Jim Behrenbrinker, civil rights/excessive force cases, Eric Cooperstein, “ethics maven“, Mike Flom, Gray Plant’s General Counsel, Phil Gainsley, veteran solo civil litigator, John Halpern, collections, Elliot Olsen, foodborne illness litigation, Dave Potter, railroad industry litigator, Katherine Mackinnon, ERISA plaintiff’s lawyer, Kristine Boylan, international IP/Complex Litigation lawyer.]