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.
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?
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 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.
Lawyers occasionally reach out to me wanting clarification on what needs to be covered in a letter notifying active clients, whose matters the lawyer will be unable to complete in time, that their lawyer is closing his or her practice. Find out what you need to do.
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.