A number of years ago, I took a call from a solo attorney who was nearing retirement. The retirement years were to have been his best years yet because his plaintiff practice had been quite successful. He was an esteemed member of the bar and had become something of a pillar in the community. His reputation of helping others and being of service to the community at large was above reproach, that is, until it all went horribly wrong.
Texting is ubiquitous in our culture, which makes it too easy to embrace that reality by texting day and night regardless of the setting just like everyone else does. The question I’d like to ask is this. Is doing so a good thing, particularly for a lawyer? Remember recent rule changes. Comment 8 to ABA Model Rule 1.1 Competency reminds lawyers that they are to “keep abreast of changes in the law and its practice to include the benefits and risks associated with relevant technology.” If you are communicating with clients via text messaging, have you thought about the ramifications of doing so?
No one enjoys hearing feedback about themselves that is critical in nature; but don’t get me wrong. Sometimes we need to hear that we’re not meeting the expectations of others because critical feedback shared respectfully can be a wonderful opportunity for personal and professional growth. That said, when a former client posts a review on something like an attorney rating site that is full of vitriol and outright lies, well that’s something else entirely. Now, the temptation to fight back and defend one’s self from the defamation is in play. The interesting question, however, is can you?
Malpractice claims alleging a conflict of interest have been a serious concern for insurers for years; and as a practicing attorney, you should be concerned as well. These claims can get expensive fast if for no other reason than they almost always boil down to greedy attorney put his or her financial interests above someone else. So not good, particularly if a jury has any say in the matter. So, what next?
Let’s review the basics. ABA Model Rule 1.2 (c) allows a lawyer to limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. In those jurisdictions that have adopted similar language, many have added a requirement that informed consent be confirmed in writing. Now as a risk guy, I like that writing requirement regardless. There are just too many word and word disputes in the world of malpractice and discipline.
Speaking personally, I’m one who believes that the movement toward limited scope representation has been a good thing and long overdue. Speaking professionally, however, I need to share a caution. Find out what that caution is.
Assumptions. We all make them on a daily basis. In fact, as I see it, doing so allows most days to progress with some level of predictability. For example, I often assume all my tech will function problem free, the power will stay on, and that if I need anything from anyone at the office, they’ll be available. There’s nothing wrong with my making such assumptions unless, of course, it turns out one of them is wrong and I’m not prepared to deal with the consequences. Keeping this in mind, let’s now narrow the focus and address some of the ethical missteps that can lead to trouble for the buyer of a law practice when it’s the buyer whose running with assumptions.
A few weeks ago, I had one of those days. You know, a day where things just don’t seem to make much sense. The day started out with a training session on ransomware. Unfortunately, as such programs are apt to do, it made me start to think that selling everything I have, disconnecting from the wired world, and moving to some remote island where I could live out my life selling tapas on the beach might be a really good idea. I suspect more than a few of you might have responded similarly.
Anyway, what got me going was learning about one of the new business models hackers have come up with. In short, after a computer or network is breached and the data encrypted, hackers are starting to offer their victims two choices instead of the normal one, which was to pay the ransom amount in order to obtain the decryption key and get their files back. Now the victim can either pay the ransom or they can help spread the ransomware by sharing a malicious link with two people they know. If those two unsuspecting folks become infected and pay the ransom within seven days, then the initial victim would receive the decryption key and be able to recover their files for free. Now isn’t this a heartwarming development.
If you aren’t already aware, attorneys are increasingly being targeted by scammers hoping to get away with wire fraud. Here’s just one example of how it can play out. Don’t assume because you are a little guy or gal, it can’t happen to you. Not only can it, it’s more likely it will.
Have you ever wondered why trust account problems remain one of the top reasons attorneys are disciplined in the US? Certainly there have been and will continue to be attorneys whose trust accounting activities were so egregious they deserved to be disbarred. Truth be told, however, this doesn’t account for all of the problems. Are you vulnerable?
The days when a lawyer could send an unencrypted email without worry, remain blissfully ignorant about encrypting a laptop, or use the same easily remembered password for all accounts and devices are over. I believe most lawyers know this, at least at a gut level; but far too many still seem to be confused about what steps they should be taking. If you see yourself as a card carrying member of the “what the heck am I supposed to do” group, perhaps I can help.