There Is No New Normal!

Recognize that change is constant. Sometimes change occurs gradually and at other times, for instance during a global pandemic, it comes at us like a tsunami. Regardless, in order to responsibly adapt to change, it must not only be recognized, the consequences thereof must also be understood. If change is too quickly normalized, the consequences too easily become minimized if not completely ignored.

How to Avoid Third Party Payor Problems

An insured recently called wanting to discuss third party payors because representation of his client had just ended and he didn’t know what to do with the excess funds that remained in trust. In light of that call, I thought it worthwhile to cover the basics. Afterall, when one person is asking, that implies others have questions as well.

Tails and Prior Acts – Covering Future and Past Exposures

I recently took two calls almost back to back, and was surprised by both conversations. One came from an attorney who was retiring in another month or so. He had a few general malpractice insurance questions. The second was from an associate attorney with a small firm that was about to be dissolved. This associate was quite concerned about some decisions the partners were making regarding the firm’s malpractice coverage. What struck me was, other than the associate who called, the attorney decisionmaker’s at both firms didn’t seem to understand what a tail and/or prior acts coverage are. How much do you really know?

Can Embracing Any and All Digital Tech Lead to Trouble?

In a number of jurisdictions, the commentary to Rule of Professional Conduct 1.1 Competency states that lawyers are to keep abreast of the benefits and risks associated with relevant technology. Keeping this language in mind, allow me to ask if you actually take this language to heart? I ask because in my world while I often find that lawyers do a pretty good job of evaluating the benefits of any technology they are considering using in their practices, it’s evaluating the risks that seems to get the short shrift in the decision-making process. Afterall, taking time to investigate any potential downsides to whatever the next must have digital tech tool is can be such a killjoy.

The Importance of Taking Care of Yourself

The best risk management advice I will ever have to offer is simply this. Don’t ever forget to take care of yourself. I know it sounds simple; but for so many, it isn’t easy. I really do believe that taking this advice to heart can not only make a world of difference in every lawyer’s personal and profession life, it can also be an effective risk management tool.

Why the “License Rental” Business Model is Problematic

Solo lawyers continue to occasionally call in wanting to discuss a business opportunity that has come to be known as the “license rental” model. In short, these lawyers are being offered an opportunity to affiliate with an out-of-state firm or occasionally a non-lawyer owed company and it’s often presented as an attractive way to develop a stable flow of recurring business. The out-of-state firm or non-lawyer owned company is wanting to direct cases to the lawyers they are contacting as a way to offer legal services in the jurisdictions in which these lawyers practice. The actual work may occur under an of counsel or contract attorney relationship and participating lawyers will receive some portion of the fee coupled with an understanding that the required amount of work will be minimal. Targeted practice areas include but are not limited to debt settlement, mortgage foreclosures, estate planning, traffic violations, and criminal expungements.

Those who take the time to call me are usually wanting to make sure that, if they sign on to something like this, their malpractice coverage will be in play should a misstep ever occur. Before I answer that question, however, I always start by asking if they have given any thought to whether signing on is ethically permissible because many times the opportunity under consideration often won’t ethically pass muster for a number of reasons. Read on….

When Rationalizations and Creative Lawyering Are Not the Answer

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.

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