Newsletters and Articles
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.
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.
Seminar Cyber Memo Health Agencies – May 2017 Seminar – March, 2017
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.
Wills, Trusts and Estates – Professional Liability Fact Sheet – October, 2016
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.
To Err is Human – A Guide on How to Managing Errors – July, 2016
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.”