Missing litigation and other deadlines remains one of the leading causes of claims against law firms.  Such claims become malpractice cases in which often the only disputed issues are causation and the amount of damages, since breach of the standard of care will likely be established per se by missing the deadline.  A strong, effective calendaring system is thus one of the single most essential tools for reducing the risk and expense of claims (and their impact on insurance rates).

An important component of any effective calendar system is using a designated Docketing Clerk to oversee and run this critical component of the firm’s risk management efforts.

The benefits of using a Docketing Clerk are many:

  • It helps centralize the system, providing more consistent, regular, and accurate calendaring, as well as consistency in providing regular ticklers/reminders;
  • It identifies the person responsible for the overall system, including tracking its correct use by everyone at the firm, that all critical calendaring data is being regularly entered and backed up, and that the latest version of the firm’s calendaring software is in use;
  • It provides an in-house expert in calendar issues and calendaring software, someone who gets regular training in the field to keep abreast of litigation and other deadlines, calendaring best practices, and calendaring technology;
  • It provides all attorneys and staff with a go-to person for any calendar-related questions;
  • It frees up time of attorneys and staff that would otherwise be spent in calendaring functions for which the Docketing Clerk is made responsible;
  • It provides the firm with a person to provide regular training to attorneys and staff on calendaring generally, on the firm’s own calendar policies and procedures, and someone who can provide regular recommendations for improving the firm’s system;
  • It is a positive risk management factor to E&O carriers evaluating the firm for malpractice coverage. Since missed deadlines so often lead to claims, carriers generally want to know details of a firm’s calendaring system. Using a Docketing Clerk to oversee and run the system is a positive indicator that the firm is serious about having the most effective system possible to reduce its risk of claims.  Strong risk management policies and procedures reduce the incidence of claims and, thus, have a positive effect on premiums.

A firm’s calendar system is critically important to reducing the risk of claims.  It is an extremely detail-oriented system, involving a large number of matters and every lawyer and many staff members.  Dates and deadlines are constantly changing.  It is inherently susceptible to errors that can morph into potentially serious claims.  Having a designated, trained Docketing Clerk can greatly strengthen the firm’s system by centralizing responsibility and creating an in-house expert and resource, thereby reducing exposure for the firm.

By Daniel W. Hager | Corporate Counsel | Ahern Insurance Brokerage

A recognized expert in lawyers’ malpractice prevention and legal ethics, Daniel has provided consultations and risk management services to law firms for more than 20 years. Before joining AHERN, Dan was a partner at AV-rated Roeca Haas Hager LLP, where he defended lawyers against malpractice and other claims for more than 25 years.

Screening proposed lateral attorneys for conflicts, claims, and other issues is critical for avoiding disqualifying conflicts of interest, potential insurance coverage issues, and for general due diligence in hiring.

The following is a checklist of recommended actions to take, as well as forms that can be used, in that process.

CHECKLIST

  • Have the candidate identify (without disclosing client confidences) all matters in which he/she had substantial involvement or gained confidential information during his or her career, or for at least the past five calendar years, including, the party represented, all affiliated and related parties, all adverse parties, and any other persons interested in the matter.
  • If any actual or potential conflicts of interest are identified, determine what actions are necessary to minimize or resolve such conflicts, including obtaining written waivers from current or past clients of the firm, taking precautions to ethically screen the lateral attorney – the moment employment commences – from any contact with any matters in which a conflict has been identified, or revoking the candidate’s offer of employment if conflicts cannot be resolved.
  • Ask the candidate’s current and previous law firm employers to send letters to their clients for whom the candidate has rendered significant services, and whose former representation by the candidate may create conflicts with the firm’s clients, requesting waivers of any actual or potential conflicts and providing their informed written consent to continuing representation by the firm.
  • Give the candidate a current list of the firm’s clients (excluding any client whose identity itself must remain confidential) to identify any client in which the candidate has an economic or business interest, including any investment or other ownership, possessory, security, or other financial interest.
  • Have the candidate complete a Lateral Attorney Questionnaire (link to download example copy is below), and resolve all issues raised by the questionnaire before the employment commences.
  • Have the candidate provide a list of all errors and omission insurance he/she has been covered by throughout his/her legal career (if more than 10 years, the last 10 years only), including insurer, policy number, policy period, limits, and whether it was a claim made or occurrence policy.
  • Have the candidate provide a list of all claims and occurrences which might reasonably be believed to pose a risk of a claim, including occurrences reported to an insurer in which the attorney has been involved in any way, or for which the attorney may be liable. The status of each such claim or occurrence and the name, address, and telephone number of who to contact to keep informed on the status of the case should also be provided.
  • Before resignation from current firm becomes effective, have the candidate report to his/her prior firm’s insurer all claims he/she knows of and all circumstances which are reasonably believed might give rise to a future claim, and provide a copy of that report to your firm (appropriately redacted to preserve confidences).
  • Request that the candidate purchase “tail coverage” or an extended reporting endorsement and to provide proof to your firm he/she has done so.
  • Inform the candidate in writing that your firm’s malpractice insurance will not provide him/her with any insurance protection, and that your firm will not defend or indemnify for any claim asserted after employment with the firm but arising from acts or omissions before employment commenced.
  • Investigate the candidate’s resume by verifying selected employment positions, bar memberships, and educational degrees.

Click here to download this article including example copies of the Cover Memo, Conflict of Interest Report and Lateral Attorney Questionnaire referenced in the article.

By Daniel W. Hager | Corporate Counsel | Ahern Insurance Brokerage

* No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis.

AHERN Insurance Brokerage is honored to have received the STAG ONE™ Agency designation from our partner carrier, The Hartford.

AHERN’s own Summer Gorsica, AHERN Vice President, was recently selected to throw out the first pitch at a San Diego Padres game! The prestigious honor of throwing out the first pitch was a result of Summer and AHERN being designated as a STAG ONE™ Elite Insurance Agency by The Hartford.

STAG ONE™ is an exclusive Small Commercial Rewards & Recognition program designed by The Hartford to recognize their most highly-partnered Small Commercial agents.  Being designated as a STAG ONE™ agency goes beyond production numbers; it’s about Hartford’s strongest partnerships, trust, and development of long-term mutual beneficial initiatives.

Summer has been pivotal in building the AHERN/Hartford relationship and is a big reason for AHERN earning the prestigious STAG ONE™ designation. Summer represents what STAG ONE™ is about – a strong representative for The Hartford and the local insurance industry, and was therefore nominated and selected to throw out the first pitch at The Hartford’s STAG ONE™ Suite Night event. And…. she threw a perfect pitch!! Congratulations, Summer!

 

Summer Gorsica getting some pre-pitch pointers from the San Diego Padres team.

 


Summer Gorsica warming up her arm as Robert W. Smith, Acrisure Executive Vice President – West Region, looks on.

 

Pictured from Left to Right:
Robert W. Smith, Acrisure Executive Vice President – West Region; Gabriel E. Yu, AHERN Vice President; Summer J. Gorsica, AHERN Vice President; Tamara L. Bartels, AHERN Vice President

Seattle employers with 20 or more employees worldwide are required to provide a pre-tax transportation fringe benefit program, effective January 1, 2020.  To comply with the Ordinance, employers must implement a program that allows employees to set aside money from their paychecks on a pre-tax basis to pay for transit passes or vanpooling expenses (up to the full amount allowed by federal law). Employers can also comply with the Ordinance by fully or partially subsidizing transit passes for their eligible employees, and can administer the pre-tax commuter benefits program themselves or use a third-party administrator to oversee the program for them.

To read this Compliance Bulletin in full, please click here.

FAQs provided by the City of Seattle can be found here.

Should you have any questions, or need assistance establishing a program, please contact our Benefits Team.

Respected security professionals have compared e-mail to postcards written in pencil-they can be viewed or altered by third parties. Unfortunately, hackers are increasingly targeting law firms to mine sensitive client information. Email encryption can be an effective precaution to help prevent data theft. Encryption scrambles information according to a certain pattern, so that only the users who have access to that pattern or “key” can unscramble it and make it readable. Encryption technology is also effective in the event of a physical device theft since the data is unreadable without acquiring the key.

Client email accounts can also be hacked. Hackers can then send instructions from the client to the firm seeking confidential information, ordering disbursement of funds held, or instructing the lawyer to ask a third party to do something that ends up hurting the client. The key to avoiding most of these situations is to verify instructions directly with the client by telephone or one-on-one meetings. Before releasing funds, agreeing to settle, or taking any action adverse to a client based upon email instructions, call the client first.

A security breach can not only diminish the level of trust a client places in a law firm but could also have serious legal and financial ramifications. Using encrypted emails can help safeguard the attorney/ client privilege.

For more information on encryption and other security resources, please click here.

To download a copy of this article, please click here.

Attorney Protective is a MedPro Group/Berkshire Hathaway company that protects the reputations and assets of attorneys across the nation. All insurance products are administered by Attorney Protective and underwritten by National Liability & Fire Insurance Company, AttPro RRG Reciprocal Risk Retention Group or National Fire & Marine Insurance Company – each of which has earned an A++ financial strength rating from A.M. Best. Product availability is based upon business and/or regulatory approval and may differ among companies. Information provided in this article is not intended as legal advice. This publication provides best practices for use in connection with general circumstances, and ordinarily does not address specific situations. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. Though the contents of this article have been carefully researched, Attorney Protective makes no warranty as to its accuracy, applicability or timeliness. Anyone wishing to reproduce any part of the AttPro Ally content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to erin.mccartney@attorneyprotective.com.

Assisting Clients in Connection with the Medical or Recreational Marijuana Industry Continues to Be Risky

The federal prohibition of marijuana under the Controlled Substances Act creates thorny ethical issues for attorneys representing clients in the cannabis industry in the twenty-nine states that have legalized medical marijuana and the eight states that have legalized recreational marijuana.

The Rhode Island Ethics Advisory Panel Op. 2017-01 recently joined other states in concluding that attorneys may ethically advise clients on all matters related to a particular state’s medical marijuana law, as long as attorneys also advise clients regarding the federal law. Although there is a growing consensus among courts and ethics committees that attorneys representing clients in the marijuana industry are not in violation of the applicable state rules of professional conduct, these rules and opinions do not protect lawyers who assist clients in the operation of marijuana-related businesses in ways which might contravene federal laws. Actively assisting clients in the marijuana industry may be illegal under federal law, and therefore has the potential to result in criminal liability for violation of the Controlled Substances Act, aiding and abetting criminal conduct (18 U.S.C. § 2), or money laundering (18 U.S.C. §§ 1956, 1957). While the Cole Memorandum provides some protection against federal prosecution for legal marijuana businesses that adhere to their state’s regulatory framework, it does not provide legal protection for service providers to the industry, including attorneys. Indeed, the Cole Memorandum expressly states that state law does not provide a legal defense to a violation of federal law, including a civil or criminal violation of the Controlled Substances Act.

To download and share a copy of this Tip of the Month, please click here.

AHERN Tip of the Month brought to you by AXA XL and Hinshaw & Culbertson, LLP, leaders in Risk Management.

AXA XL is the #1 global commercial property and casualty insurer with combined GWP of 17.6 billion in 2017. AXA and its principal insurance subsidiaries have the following insurer financial strength ratings as of December 2018: A+ A.M. Best, AA- Standard & Poor’s, AA- Fitch and, A1 Moody’s.

At some point all lawyers ask themselves, “Why did I accept that client in the first place?” Effectively screening prospective clients for red flags is perhaps the single most important tool for avoiding later fee disputes, malpractice claims, and ethics complaints. Making the following considerations part of evaluating new clients and matters will greatly reduce your risk, and lead to a more satisfying, less aggravating practice.

Ethical Evaluation
Consider the following for new matters: Have all appropriate entities/ individuals been checked for conflicts? Did the conflicts report disclose any actual or potential conflicts? Is proposed joint representation possible with informed written consent? Might the representation require taking positions on issues that are contrary to the positions of other clients?

Compatibility With Practice And Resources
Ask yourself: Is this matter within your present areas of expertise? If not, can you educate yourself promptly enough to handle it competently? Will the matter require time or special logistical or technical capabilities you presently lack?

Professional Desirability
Consider whether the following factors are positive, negative, or neutral in deciding whether to accept the prospective client: relationship and experience with prior and current attorneys (changing lawyers on this matter; suits against lawyers; references checked); relationship with other professionals (references checked); personality (motivation for using your services; reasonableness of expectations; degree of patience; insistence on controlling details of the representation); background and behavior (alcohol or drug abuse; excessive gambling; history of personal legal problems); business background (employment history; experience in the business involved or similar businesses); whether there will be any relationship other than that of attorney-client (officer/director/partner in the client’s organization; business transaction with or investing in the client; helping the client find funding sources or third parties to do business with); risk of claims against you by third parties (claimed third party beneficiaries; government entities like the SEC/FDIC; risk of sanctions or malicious prosecution claims); and your gut reaction (comfortable with the prospective client; willingness to follow advice).

Financial Review
Consider: the range of fees and costs you expect the matter to generate; ability to pay those fees and costs; ability to post an adequate retainer/deposit; business reputation and financial status (from credit report, Best’s Reports, Dunn & Bradstreet, Standard & Poor’s); and outstanding judgments or bankruptcies. A simple Google search may provide a wealth of relevant information.

For existing clients, consider whether outstanding bills have been written off and the client’s history of accounts receivable.

Other financial considerations include: the fee arrangement (hourly/rates, contingency, fixed fee); need for retainer/ deposit (amount, one time, replenishing); client’s reaction to proposed payment arrangement; in contingency cases estimate the amount of likely recovery, the time to conclude the matter, and the likelihood of obtaining no monetary recovery); and whether the matter appears to be a one-time representation or may develop into an on-going relationship.

Regularly considering these factors (and requiring other lawyers in your firm to do the same) will reduce the risk of taking on clients who are the most likely to trigger fee disputes, malpractice claims, and ethics complaints. When in doubt, trust your gut reaction; if a prospective client gives you a bad feeling, err on the side caution by tactfully declining the case.

– By Daniel W. Hager, Corporate Counsel, AHERN Insurance Brokerage

To download a copy of this AHERN Update, please click here.

 

The ACA’s individual mandate penalty no longer applies, beginning in 2019.  To download a copy of this ACA Compliance Bulletin, please click here.