Newsletters and Articles
You have an attorney position to fill, and have found the perfect candidate with the right credentials, experience, and book of business who clears the initial conflicts checks (review of clients and matters on which the attorney is/was actively working). The attorney, looking for more interesting and meaningful work, better opportunities for advancement, and more money, has accepted your offer and is ready to start work. Your firm knows the value of having screening mechanisms in place, but even with all the “T”s crossed and “I”s dotted, the potential for a conflict of interest may arise. How can your firm implement an effective conflicts of interest screen and have some comfort in its effectiveness if and when the time comes to defend against a disqualification motion? Download this Professional Counsel publication to learn more about conflict screening and the elements of an effective screen.
As we approach a second year of virtual meetings, depositions, court appearances and happy hour networking, this is a good time to pause and reflect on what works and what doesn’t work in a remote law practice. While we are becoming comfortable in this new normal, the circumstances have raised a number of practical and ethical concerns for attorneys. Inadvertent screen shares and hot microphones have offered valuable lessons learned. Continue reading this full publication for ten best practices for mitigating risk during remote appearances.
Lawyers must be adaptable. In standard practice, lawyers will adapt to changing laws, regulations, technology, economies, clients and offices. Few attorneys were prepared to adapt to a pandemic. In today’s legal environment, lawyers have been required to chart a changing course in order to provide competent legal services to their clients. The information provided here is intended to identify some of the potential effects of the pandemic on the legal profession, as well as some strategies to consider in addressing those impacts. Download this publication to see some of the highlighted circumstances created by the public health crisis, as well as some steps that may be pursued to address these circumstances.
Few, if any, readers would contemplate the creation of an attorney-client relationship by reading a publication in print, via email or on a website. Has an attorney-client relationship been formed, however, regarding attorney interactions with prospective clients via law firm websites, email correspondence, social media platforms and texts or telephone calls? When should attorneys take the proactive step of disclaiming the formation of an attorney-client relationship? In this article, we will explore various interactions between attorneys and prospective clients and techniques to explain and disclaim the formation of an attorney-client relationship when necessary.
As a leader in the lawyers professional liability insurance marketplace, we stress the importance of engagement letters in our articles, guides and risk control courses. The benefits of engagement letter usage flow to both the law firm and client. From the client’s perspective, memorializing the terms and conditions of the attorney-client relationship helps establish good communications. It can also serve both as a reference guide and to avoid any misunderstandings between the law firm and client. For lawyers and law firms, documentation of the terms and conditions of the relationship constitutes a critical risk control practice that may help to deter or minimize any claim exposure. Sound law firm risk management practice encompasses consistent usage of well-written robust engagement letters in order to enhance the attorney-client relationship and help to mitigate potential exposure. To learn more, view the full article.
Billing Blues: Best Business Practices for Fee Collection – October 2020
As attorneys, we routinely litigate, arbitrate, and negotiate on behalf of our clients. With regularity, we analyze, synthesize and scrutinize certain facts, precedent and regulations. We often find comfort in a courtroom, boardroom, or conference room. Managing accounts receivable, however, seems to befuddle the best of us. Collection of overdue client invoices is an important law practice management skill, and in order not only to survive but thrive as a solo practice or firm, attorneys should master this talent as well. To learn more, view the full article.
Occasions arise, especially in litigation, where a lawyer for an entity may find it useful to represent an employee or other constituent of the entity for some limited purpose. This dual representation of an entity and its constituent raises a number of practice issues. As demonstrated in the examples within this publication, a careless handling of these issues can result in professional discipline or malpractice liability, or both. Although these examples do not involve disqualification, this result could have ensued, and in the rare case a lawyer may face criminal exposure. Download the full article to learn more.
Client Intake and Proper Client Selection – September 2020
Client intake should never be dismissed as an unimportant, yet necessary, task when taking on a new client. Creating a thorough client intake process is essential in order to establish a strong foundation for an attorney-client relationship – whether the relationship lasts for weeks or years. By investing the necessary time and effort at the outset, attorneys may save time, money, and even help to avoid legal malpractice claims. When used appropriately, the client intake process may reveal a stark reality that a prospective client should not become a current client. View the full article to learn more.
Conflicts of Interest – June 2020
Conflicts of interest have been a leading cause of legal malpractice claims for years. Despite repeated warnings to lawyers and law firms about this risk, many continue to dismiss conflicts of interest when they arise. The consequences for lawyers who betray their duty of loyalty to a client can be severe, including legal malpractice lawsuits, disqualification motions, bar disciplinary complaints, loss of reputation, sanctions, and disgorgement of legal fees. This article will focus on reviewing the most common types of conflicts of interest and the best practices for overcoming biases that lead to flawed conflict analysis.
Co-working spaces, cloud computing and virtual receptionists have allowed some law firms to ditch their offices entirely. Most lawyers, however, seek a middle ground: a practice capable of functioning remotely when convenient or necessary, but still anchored to a physical office. The benefits of facilitating remote work are well worth the investment, enabling a firm to maximize productivity when traveling, attract top-level talent, and maintain functionality during a crisis. Never has the value of a nimble, remote-capable law firm been more apparent than during the COVID-19 pandemic. Whether you have already taken strides toward remote capability or are just now considering your first steps, this article will illuminate the risks and solutions you will encounter along the way.
As a follow-up to CNA’s “Best Practices for Law Firms During a Pandemic”, this article further addresses issues that law firms should consider in order to limit their exposure to professional liability and other claims. View the full article to learn more practical ways your firm can implement key risk control measures during these uncertain and unsettling times.
Best Practices for Law Firms During a Pandemic – April 2020
The COVID-19 pandemic continues to disrupt all aspects of everyday life. As the virus spreads throughout the United States and around the globe, the number of those infected will rise, as will the death rate. Governments have issued quarantines and
shelter-in-place orders in an effort to combat the pandemic, and, as a result, several businesses, including law firms, have closed offices temporarily and instituted work from home measures for lawyers and support staff.
In this challenging environment with circumstances changing on a continuous basis, law firms must remember the fiduciary duties owed to clients and their ethical duties as defined by rules of professional conduct in the relevant jurisdiction. Law firms may
limit their exposure to professional liability and other claims by identifying and responding to key issues that may arise during this crisis.
It is axiomatic that clients do not wish to be ignored. This is as true today as it was 50 years ago. The difference, though, is how clients define being “ignored”. While acceptable response times were once measured in days, modern communication channels have clients counting the hours, or even minutes, since they sent their email or text. File sharing also has accelerated, with clients able to review, revise and approve documents instantly and without touching a physical piece of paper.
This communication revolution has enhanced law firm efficiency and reduced startup and overhead costs. At the same time, however, lawyer-client communications have become vulnerable in entirely new ways. Bar associations have unanimously declared that attorneys have a duty to understand and respond to these new risks, and in 2017, the American Bar Association provided some useful recommendations in its Formal Opinion 477R: Securing Communication of Protected Client Information. Attorneys, however, may still be left wondering exactly how, when, and to what extent they need to protect client communications.
New Considerations for Confidential Settlements – February 2020
Requiring confidentiality is understandable for prized trade secrets – for example, the formula for Coca-Cola is one of a kind. Recently, however, confidentiality agreements in case resolution have transcended beyond the underlying goal of these agreements to an unprecedented level. In some circumstances, rather than serving to protect disclosure of terms of the settlement, i.e., the amount of the monetary award, terms are being mandated that curtail a party’s free speech and frustrate the intended purpose of the settlement.
Blurred Boundaries of Office Sharing – December 2019
The daily practice of law comes with many challenges, not the least of which is the bottom line. Attorneys want to provide their clients with the best possible representation and still be able to pay their own bills. One of the methods to address this juxtaposition is sharing office space. In today’s legal market, attorneys share space with other attorneys, various types of professionals, or anyone able to rent the office next door. There are many benefits for practitioners in sharing office space beyond saving on rent. The shared office environment provides social interaction with other attorneys, cost-saving benefit of sharing office equipment and allowing attorneys to vent about challenges with clients or seek advice on how to deal with a client representation. However, with those benefits may come a heightened risk of legal malpractice claims from clients and from non-clients.
CNA claim frequency in the real estate area of practice has been consistently higher when compared to all other areas of practice in the last decade. In fact, the number of reported claims has decreased since the 2008 economic downturn, yet remains higher in comparison to all other areas of practice combined. As an area of practice, real estate law includes legal activities dealing with all aspects of real property transactions including— but not limited to— real estate conveyance, title searches and property transfers, leases, condominiums and cooperatives, mortgages, condemnation and eminent domain, zoning and land use planning, property taxes, real estate development, and financing. While land use matters are included in this area of practice, it does not include environmental law areas such as air and water pollution.
Finding the Way Forward with a Missing Client – February 2019
Clients expect their attorneys to be available— a law firm that ignores client emails or phone calls will not be a firm for long. Even in an age when most firms measure their response times in minutes, inattentiveness and inadequate communication are among the most common allegations in disciplinary and legal malpractice complaints. But what if the client is failing to communicate adequately, or has disappeared entirely? What if the attorney’s calls have gone unanswered while a statute of limitations approaches, a settlement offer awaits, or client funds sit idly in a trust account? What an attorney may, should, or must do in these situations can be jurisdiction and fact-specific, but taking certain precautions will help prevent “missing client” scenarios or mitigate the professional risks they pose.
“How are you doing?” — a simple question that people ask of one another every day. The American Bar Association (ABA) recommends that lawyers contemplate this question as it relates to both their professional and personal activities. How lawyers conduct themselves in their professional and personal lives is an issue that has led to the creation of the National Task Force on Lawyer Well-Being. This task force represents a call to action to change the profession and improve the lives of lawyers regarding the issues of alcohol, substance use, mental health, and help-seeking behavior.
Risk Control Recap: Top 5 Resources – December 2018
The first step in mitigating the potential for legal malpractice claims is understanding the risk exposures encountered in the daily practice of law. The top five risk control resources for CNA-insured attorneys are provided here for your convenience. These resources address the importance of engagement agreements, responding to cyber breaches, the role of legal support staff in preventing legal malpractice, adapting to clients with diminished capacity, and the expansion of outside counsel guidelines. Please click on the title of each resource to access the complete document.
How to Handle an Ethics Grievance – November 2018
Attorneys who practice long enough may encounter the prospect of receiving a letter containing notice of a complaint from a client or third party from a bar disciplinary office. Similar to legal malpractice claims, the majority of ethics grievances involve alleged misconduct by sole practitioners and lawyers in small law firms. An array of negative emotions, including anger, embarrassment and fear, may afflict the recipient attorney in this situation. Data from state bar disciplinary authorities reveal that, in most instances, attorneys need not panic— more than 90% of such grievance letters result in no disciplinary charges being filed. While that statistic reflects good news for attorneys the vast majority of the time, it does not mean that the substance of the charges or the disciplinary process should be treated in a cavalier manner.
Twenty-two years have passed since California voters passed Proposition 215, permitting the medical use of cannabis in the state. Since then, twenty-nine more states have followed California’s lead, with nine of those states and the District of Columbia also authorizing recreational cannabis use. Legalization at the federal level seems inevitable, but predicting a timeline for meaningful, long-term congressional action has so far been a fool’s errand.
GDPR + US Law Firms = An Important Moment for Introspection – September 2018
On May 25, 2018, the General Data Protection Regulation (GDPR) became effective in all European Union (EU) Member States. The GDPR is the most significant revision to data protection regulations in the EU since the 1998 Data Protection Act. Much has been written about how the GDPR applies to businesses that are either located in the EU, do business with EU residents or those that simply collect and process data of EU residents. This article will focus on how new data protection requirements set forth in the GDPR may affect small and mid-size U.S. law firms that represent clients in the EU.
They hold various titles for their daily roles in the practice of law: paralegal, legal secretary, paraprofessional, law clerk, project assistant, docketing clerk, research assistant— the list is ever-expanding. Regardless of their title, members of law firm support staff serve a critical role in the daily practice of law. Their work, when performed with proper guidance and supervision, not only keeps a legal practice running but also helps to mitigate and avoid legal malpractice claims. Over the entire span of a client representation, law firm support staff is critical to supporting the development and maintenance of professional attorney-client relationships.
As financial pressure from the Great Recession becomes the new normal and even the least tech-savvy Americans tackle most errands from behind a computer screen, consumers have cast a critical eye toward the traditional attorney-client relationship. For many, the cost of a full-service representation creates a barrier to any legal services, resulting in a growing army of pro se litigants who frustrate lawyers, exhaust court personnel, and seldom achieve their goals. Enter the limited scope representation (LSR)— often referred to as “unbundling,” “limited legal assistance,” or “discrete task representation”— where an attorney provides certain services and excludes others for a lower overall fee. This arrangement has long existed in the transactional realm but has become increasingly common in litigation, particularly in family law, landlord-tenant, and small personal injury, and property damage claims.
Sooner or later in a law practice, a problematic client will surface. In some cases, lawyers may take proactive measures— such as increasing communication or reducing legal fees— to mitigate any difficulties and salvage the attorney-client relationship. In other situations, the relationship may continue to deteriorate despite the lawyer’s best efforts to accommodate the client. The lawyer’s natural instinct may be to “fire” a troublesome client and withdraw from the representation. While the desire to flee may be understandable, the lawyer must carefully analyze the relevant case law and rules of professional conduct prior to withdrawal.
Family Law – Professional Liability Fact Sheet – April 2018
CNA claim frequency in family law practice has been consistently higher when compared to all other areas of practice in the last six years. In fact, the most recent data reflects an upward trajectory of family law claims. As attorneys work to assist their clients during one of the most challenging times of their personal lives, it is imperative that they recognize the high exposure to disciplinary complaints and potential legal malpractice claims in this area of practice.
Law Firm Data Breaches – A Legal Snapshot – January 2018
Attorneys recognize that law firm data security has become a top concern for clients, regulatory agencies and state legislatures throughout the country. Countless firms have suffered data breaches, from solos to Big Law, but beyond the initial headlines, early settlements and sealed records have left a paucity of case law governing post-breach liability. As a result, many attorneys are left to wonder about the aftermath of a data breach and their potential exposure in an area of law that is rapidly evolving and far from settled.
Resolving Disputes Regarding the Client File – Revised January 2018
This article addresses who owns the file, use of retaining liens, and who pays for copies, among other things. It also includes an appendix of the law and ethics rules by state relating to those issues. It does vary by state.
This memo is an attempt to address some of the questions that came up about cyber security in the May seminars. If you have additional questions or solutions that have worked for you, we would be very happy to hear from you.
Practicing Law in the Age of Social Media – March 2017
Clearly, the emergence of social media represents the most recent frontier in the ever-changing information age. The influence of social media on legal practice, client relationships, and the boundaries between professional and personal activities must be scrupulously navigated.
Phishing Attacks Use Bar Complaints and HIPAA Audits as Bait – February 2017
By mirroring an email from a state bar, legal organization, disciplinary board or government entity, these scams take a narrower focus than scattershot emails offering a free cruise or a once-in-a-lifetime deal with a Nigerian prince. This article can help let everyone in the firm know what to watch for.
Retiring From Practice – Understanding Your Options – December 2016
An attorney, like anyone else, may look toward retirement with mixed emotions. Retirement means bidding farewell to angry client phone calls and late night brief writing, but it also means stepping away from your life’s work. Although the decision of whether to retire can be a difficult one, the decision of how to retire need not be. This article gives some guidelines for closing or selling your practice.
How Irrevocable Trusts Can Disqualify for Medicaid Benefits – November 2016
Wills, Trusts and Estates practitioners face challenges when a client representation involves the existence of an irrevocable trust which may influence eligibility for Medicaid. The article addresses the history of this issue in Massachusetts courts and provides relevant information for Wills, Trusts and Estates practitioners outside of Massachusetts.
Legal malpractice claims from estate planning representations surged in the wake of the 2008 financial crisis and have continued to hit hard. Attorneys should be mindful of the inherent risks and the high level of expertise required to be effective in the wills, trusts and estates practice area.
An Overlooked Asset in Law Firms – Legal Counsel – September 2016
Like the cobbler’s kids with no shoes, law firms often hesitate to use legal counsel. Law firm counsel provides a valuable resource for the law firm as a business. It also provides a conduit for privileged communications within the firm about potential risks and liabilities facing the firm, even for consultations regarding a current client of the firm. Your CNA policy provides coverage for the cost of outside counsel in the event of a disciplinary complaint or to help you respond to a subpoena for documents or testimony.
Business transactions/commercial law (BT) representations are a staple of practice in all areas of the country, especially in small to midsize firms. In contrast to the popular perception that BT is a “safe” area of practice, in this segment of law firms insured with CNA, BT claims have consistently been among the top loss drivers for many years. If you include business transactions in your practice, this BT Professional Liability Fact Sheet will help you understand your risks.
Across all practice areas, lawyers face rigid deadlines, busy calendars, and an endless stream of client demands. Even the most conscientious, hardworking and diligent attorney may make a mistake of significant consequence at some point in his or her legal career. Make sure everyone in the firm is aware of the importance of dealing with errors and as comfortable as possible with admitting errors.
Planning for retirement is important, but you also need to be prepared for an unexpected departure from practice. What happens if you can’t come in tomorrow?
A little broader than “tips” maybe, but if your office can master these ten areas, you have powerful defenses against ever getting sued over your professional services. This should be required reading for lawyers and staff.
In Washington it is now legal to create an LLLT (Limited License Legal Technician) and practice as a quasi law firm without being a lawyer. The LLLT can advise clients on how to manage family matters, prepare clients to represent themselves in court, research a client’s legal question, and draft legal documents to be filed with the court. New Mexico is one of four states considering similar arrangements.
This is not your typical new client scam. It is based on a sophisticated hack of your email that gives the scammer detailed information about your existing cases before they approach you.
Watch Out for Trust and Estate Risk – January 2016
What has happened to this nice, low risk area of practice that has changed it to the new professional liability nightmare.
Legal Malpractice Defendants Gain New Defenses – October 2015
It’s a Virginia case, but it still may warm the cockles of your heart to see a nearly $6 million verdict against a diligent, competent attorney trying to make the best judgement call for his client reversed. Unfortunately, it also left the client who was wrongfully incarcerated with no recourse.
We ask you to have your file retention and destruction policy in your engagement letter. This article gives you the rest of the story. Certainly you don’t go into this detail in your engagement letter, but you need a consistent process so you never have to say, “I don’t know why I don’t have that file, Your Honor.”