Sometimes a call comes in that I feel compelled to write about and this is one of those times. The question seemed simple enough. Basically, the callers wanted to know if the fact that a solo attorney was going to be added to their firm website as Of Counsel solely for marketing purposes would have any impact on their malpractice insurance premium. Well, as a risk guy, I couldn’t help it. I needed to know more. In response to a few follow-up questions of my own, I learned the following.
Over the years I have visited more solo firms that I can remember, but no visit stands out more than the one that made me feel as if I had walked on to the set of Close Encounters of the Third Kind. Read more….
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?