If one were to collect everything I and many others like me have written on risk management for lawyers, I suspect the collection would fill a tome or two; but sometimes less is more. It is with this sentiment in mind that I offer the following short malpractice avoidance checklist that covers the basics.
In my role as a risk manager, I’ve heard all kinds of crazy comments from lawyers over the years. For example, during a CLE event with ethics counsel sitting next to me on a speaker’s panel, two lawyer attendees tried to convince others in attendance that the panel’s position on conflict of interest resolution was clearly wrong. In short, they boldly declared there is no such thing as a nonconsentable conflict. All it takes is some creative lawyering and problem solved. The panel and I were almost speechless. We were looking at each other and asking ourselves how in the world could the same lawyer ever represent adverse parties in a litigated matter, just for starters. My response to the panel was “wow, just wow.” I was also thinking to myself “I sure hope we don’t insure these guys.” Read on.
With the release of Formal Ethics Opinion 482 in September of 2018, the ABA finally made it quite clear. Lawyers do indeed have an ethical duty to develop a disaster recovery plan. Do you have yours?
Unless you’ve been hiding under a rock of late, I suspect you are well aware of the rise of the attorney wellness movement within our profession. Now, don’t get me wrong. I’m not here to challenge the importance and value of all that’s going on. While I will admit I’m having a hard time wrapping my head around this mindfulness thing, and when it comes to yoga, well let’s just say I’m more comfortable in the weight room, I do deeply believe our profession is in a crisis, in part, for want of attorney wellness.
For years so many, myself included, have talked about the importance of trying to find a healthy balance between one’s work life and one’s personal life as part of the answer to this crisis. Those who tried and succeeded did so believing that, once there, all would be good with the world. I’m not buying it anymore, and with this post, I am publicly stating I will never encourage anyone to try to find a healthy work-life balance again!
An attorney never gets an accountability pass just because the representation is framed as a favor. One can’t casually look into a legal matter, pass along a little advice and expect there to be no fallout if something goes wrong later on. An attorney is either in or out. There is no middle ground here.
I recently asked several of our claims attorneys to identify the top habits they felt new lawyers should develop from day one. Most of what they shared was what I anticipated claims attorneys would say; but one item caught my attention, and the more I thought about it, the more I realized how right they were. In short, all lawyers, not just new lawyers, need to know how to write well. Do you?
I could hear it in his voice, the frustration over trying to figure out how to deal with a never-ending flow of email was palpable. Unfortunately, before I could share a few thoughts, the elevator door opened and I had to walk away wishing I could have had a little more time. That’s the real issue, isn’t it? It’s always about time. There never seems to be enough of it. I suspect you can relate because I can’t imagine there are many out there who haven’t felt overwhelmed at some point by a cluttered inbox, a stack of phone messages, sticky notes posted all over the place (you should see my office!), the pile of files on their desk, and/or all the overdue items on their reminder list. So what do you do?
The belief that “The odds of a computer or network breach isn’t an if, it’s only a when” is practically dogma now. Given this reality, every law practice, to include solo attorneys, should have a data security plan in place. Yes, I know the task can seem a bit daunting, particularly if you have no idea where to start; but failing to do this is no longer an acceptable choice. Putting our ethical duties and various state and federal regulations aside, every client expects to have whatever sensitive and personally identifying information they provide to you properly safeguarded. That’s the bottom-line. Here’s a guide put out by the FCC to help you fulfill your ethical duties.
As with any cyber threat, prevention starts with awareness of the risk and, as a road warrior, I see people taking an unnecessary risk far too often. This one involves smart phones.
Here’s the problem. The cable you use to charge your phone is the same one you use to transfer or sync your data. This reality creates an attack vector that someone could take advantage of during the charging process. Read on.
Boundaries are important. In sports, they define the area of play. In real estate, they designate what one owns. And in personal relationships, they mark the emotional and physical limits everyone establishes in order to protect themselves from being manipulated, used, or violated by someone else. In short, personal boundaries mark the place where one individual ends and another begins. Why is this important in the context of practicing law? Because when two people enter an attorney-client relationship……