Lawpro practice-advice-2012-UofT-internationally-trained-lawyers-program


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A presentation for the students in the University of Toronto's Internationally Trained Lawyers Program. The topics covered include information on LAWPRO and the LAWPRO policy; common malpractice claims and how to avoid them; how to make the student-lawyer transition; and how to start and build a thriving law practice

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  • Sometimes our insureds get into trouble b/c they get a little bit over their head
  • Sometimes, despite best intentions, claims sneak up on them
  • Sometimes they run straight into a claim that should have been fairly apparent due to warning signals
  • And to fair, sometimes the real dangers should have been obvious, but is a bit hidden
  • And as you all know, lawyers do make mistakes that lead to claims
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  • Inc’d 1990 by LSUC to provide its mandatory pgm ins’c licensed across Can Originally run largely as a Claim Dept of the LSUC Since ins crisis of early ’90s, has been run independently and distinctly from the LSUC parent Mandatory program insures the approx 22,000 lawyers in private practice in Ontario Also provides Excess (ON) and title insurance (Can)
  • lawyers/clients far more mobile
  • Fail to inform 40 Client consent 38 Poor communication 22 Ascertain deadline 37 fail to calendar 28 fail to react 10 procrastination 25
  • Claims COUNT by area of law and firm size MAIN POINT – area of law work varies a great deal by firms size Area of law reflects what you’d expect given work being done at different firm sizes more real estate at smaller firms, less as firm size increases Less family as firm size increases More litigation at the midsized firms More corporate & tax at large firms Most IP at boutiques and larger firms
  • Claims COUNT by error type (what insurers call description of loss) and firm size MAIN POINT – notwithstanding very different types of work at firms of different sizes (ie previous graphs) – the types of errors are are largely the same, regardless of firm size. People make the same mistakes and systems breakdown in the same ways regardless of firm size 3 rd and 4 th ranking at largest firms makes law errors #3, otherwise law would be 4 th like other firms sizes KEY POINT: Communication & time management account for about 50% of all claims at all firms This is why lawyer/client communication and time management are so important from risk management point of view This is why CLE/CPD that is solely substantive law focused misses the point SEE SLIDES AT END FOR MORE DETAILED DESCRIPTIONS AND EXAMPLES OF THESE TYPES OF ERRORS
  • Are you bogged down with activities rather than achievements? Pursue activities that take you closer to your goals..
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  • Lawpro practice-advice-2012-UofT-internationally-trained-lawyers-program

    1. 1. LAWPRO Information & Practice Advice Dan Pinnington, Director, practicePRO Lawyers’ Professional Indemnity Company Post ITLP Preparation & Advice March 23, 2012
    2. 2. Agenda • LAWPRO information • Student-lawyer transition tips • Practice building tips • Resources • Questions
    3. 3. malpractice claims
    4. 4. 4/5
    5. 5. What is LAWPRO?• Full-fledged licensed insurance company• Independent and distinct from Law Society of Upper Canada• Governed by Ontario Insurance Act, Ontario Corporations Act, and other applicable legislation• Insure 22,800 Ontario practitioners• Excess and title insurance
    6. 6. What is ‘private practice’ and who must have LAWPRO coverage?• Lawyer members of LSUC practising in a firm or as sole practitioner & providing their legal advice & services to clients• Who is exempt? – Articling students (Covered by supervising lawyer) – In-house corporate counsel, lawyers employed in government or education, or lawyers working or volunteering in legal aid clinic etc. (i.e., employer is client) – Lawyers working outside law or retired – Lawyers exercising their mobility rights
    7. 7. Mandatory LAWPRO policy coverage• Liability insurance for claims arising as a result of an error, omission or negligent act in the performance of, or the failure to perform, Professional Services for others• Full policy at
    8. 8. Details on LAWPRO policy coverage• Standard 2012 base premium $3,350 – Usually paid by firm• Individual coverage• Provides for indemnity and defense• $1M per claim; $2M in aggregate• Claims made policy
    9. 9. Other options• New lawyer discount: – 50, 40, 30, 20% over first four years in practice• Discount if exclusively criminal and/or immigration: 50%• Part time option: 50%• Note: Maximum discount is 50%• Choice of deductible – Standard is $5k – Premium adjustment for other deduction options
    10. 10. Exclusions• Claims: – Arising out of lawyer’s dishonest, fraudulent, criminal or malicious acts – By an employer – Arising out of investment advice, unless the advice is the direct consequence of legal services
    11. 11. Exclusions – cont.– Claims arising out of business ventures or investments not directly related to practice of law– Claims by insured, spouse or partner who has a beneficial ownership of a business– Legal fees or accounts– Most fines or penalties– Punitive or aggravated damages
    12. 12. Other insurance protections available• Enhanced coverage for counterfeit certified cheques and bank drafts• Innocent party – Re dishonest acts of lawyers – Required or optional depending on practice• REPCO – Real Estate Practice Coverage Option – Required of all lawyers practising RE law in ON• Excess – Coverage above LSUC mandatory program – Usually on a firm basis only – Available from LAWPRO and others – Consider your exposure and get it if appropriate• See LAWPRO website for more information
    13. 13. Jurisdiction and geography issues to keep in mind• Advice/work regarding US or other foreign law – Not covered by LAWPRO policy – Remember that malpractice coverage is not mandatory in many jurisdictions• Mobility provisions in place – Generally can practice in other Canadian jurisdictions – As practical matter home policy responds – Some limitations: See LSUC website for details• Territorial provisions – Limitations on “Performance of professional services outside Canada”
    14. 14. LAWPRO insurance coverage when you leave private practice• $250k run-off – Automatic and at no cost – Not reinstated (intended for rest of life)• Runoff Buy-up (RBU) – Top-up to $500k or $1MM• Temporary Leave of absence – Up to 2 years (or 5 years family/medical) & not working
    15. 15. Premiums match risk• We operate to be commercially viable• Risk rated program in which the highest risk areas of the bar pay premiums that closely match their claims experience – $50 Civil Litigation and $65 Real Estate transaction levy – Average $20 million in transaction surcharges annually• If we have made indemnity payment a claims surcharge can apply
    16. 16. Insured’s obligations• Promptly report claim or circumstances which might give rise to a claim• Assist and Co-operate – Do not admit liability or settle except at your own cost• How to Report to Claim: – Complete an online notice report – Call the LAWPRO New Claims Coordinator – Notify LAWPRO in writing
    17. 17. LAWPRO’s obligations• LAWPRO has 2 obligations – Duty to defend – Duty to indemnify• What to expect – Prompt, personal contact from a claims examiner – To be defended by experienced knowledgeable counsel – To be involved and consulted• Matters are repaired, settled or vigorously defended
    18. 18. LAWPRO claims by error type (claims by count % for 2000-2010) Other Fraud 6% Conflict 3% 6% Clerical Communication 6% 34%Fail to Know Law 12% Inadequate Time Investigation 17% 16% See LAWPRO Magazine article on biggest claims risks
    19. 19. LAW PRO Claims Count by Area of Law 1997 to 2007 100% 90% 80% 70% Corporate PlaintiffClaim Count (%) 60% Real Estate Defence 50% IP Tax 40% Wills/Estates Labour 30% Family Other 20% PL CO 10% RE DE 0% IN Solo 2 to 5 6 to 10 11 to 25 to 75 Up LA 24 74 FA WI Firm Size TA Other
    20. 20. LAWPRO Claims Count by Error Type 1997 to 2007 100% 90% 80% 70%Claim Count (%) 60% Communication Time & Deadlines 50% Law or Tax Error 40% Investigation/Discovery Clerical & Delegation 30% Conflict of Interest 20% Other C 10% T 0% IDF L CO 10 5 24 + 74 lo 75 D to So to to to 2 O 6 11 25 Firm Size C T IDF
    21. 21. Steps for avoiding a malpractice claim• Formal file opening procedure – Conflicts check, written retainer with clear scope• Conflicts – Follow firm procedures religiously • Systems normally catch them • Ignored because poor judgment/greed – Listen to your instincts - Who is your client? – You cant judge your own conflicts – Take appropriate action when real or potential conflict arises• Manage/control client expectations from the start – Process and procedures – Anticipated timing – Prospects for success/potential outcomes – Anticipated costs/disbursements
    22. 22. Steps for avoiding a malpractice claim (2)• Don’t assume client understands everything• Explain consequences of decisions• Keep client informed• Confirm information, instructions, advice and work done in writing – But not everything• Get signed directions on major decisions• Detailed contemporaneous dockets – Telephone conference with client re instructions not to do bylaw search• Use tickler system for limitation periods/tasks
    23. 23. Steps for avoiding a malpractice claim (3)• Know the facts• Don’t rush or take shortcuts - dig deeper - ask yourself: • What does client really want need? • Read between the lines • Is there anything unusual? • Is there something that doesn’t add up?• Know the law – Watch for tax issues• Use written offers to settle• Put case in properly – Evidence Act notices, expert reports etc.• Send interim and final reporting letters• Dont sue for fees!!• Don’t wait until end to ask how you did – Once a year off the clock chat
    24. 24. Tips for makingthe student tolawyer transition
    25. 25. A quick review of the options
    26. 26. Honestly assess what makes sense for you
    27. 27. What makes you unique?
    28. 28. Get networking
    29. 29. Use interview questions to sell yourself
    30. 30. Are you ready for sole practice?
    31. 31. Be prepared to adapt
    32. 32. Tips tohelp yousucceed in thepractice of law
    33. 33. Start with a budget andbusiness plan
    34. 34. Create a marketingplan and take time to market every day
    35. 35. Pick an area of law you arepassionate about. Specialize.
    36. 36. Dont dabble
    37. 37. Keep clients happy
    38. 38. Types of communications errors• Failure to follow client’s instructions • Work promised, but not done • Often he said, she said…• Failure to obtain consent/inform client • Work done without instructions • Implications of decisions/actions• Poor communication with client • Who looks after what
    39. 39. Learn to listen
    40. 40. Inadequate discovery or investigation of facts• Not digging deep enough• Examples: – No property/pension valuations on matrimonial file – No medical reports on personal injury matter – Not asking about spousal status/assets on will matter – Not doing title search on commercial lease
    41. 41. Beware of difficult clients
    42. 42. Categories of difficult clients*• Angry/hostile• Vengeful/with a mission• Over-Involved/obsessive• Dependant• Secretive/deceitful/dishonest• Depressed• Mentally Ill• The difficult client with the difficult case• Client who is unwilling to accept, follow or believe any of the lawyer’s advice * From paper by Justice Carole Curtis
    43. 43. The 2/3 RuleAll your clients/matters should do at least two of these three things:• Interesting and challenging matters• People you enjoy• Pay you 2/3
    44. 44. Tasks and time management
    45. 45. The different types of tasks Urgent and Important but important not urgent 1 2 3 4 Urgent but Not urgent and not important not importantStephen R. Coveys book, The 7 Habits of Highly Effective People
    46. 46. • Motion today • LAWPRO premium• Court filing due due next month tomorrow • Employee issues• Real estate closing • Collecting ARs • Marketing 1 2• Exercise/time off 3 4• Calls/emails • Trade press• Most interruptions • Television• Other people imposing • Did the Leafs win? on your time • Facebook updates
    47. 47. Get sufficient retainer at startReplenish retainer when it runs out
    48. 48. If clients don’t replenish retainer or pay outstanding accounts…
    49. 49. Bill something every weekBill matters at milestones
    50. 50. Be prepared for unexpected things Prepare a disaster plan
    51. 51. Beware of badcheque fraudand other frauds
    52. 52. How bad cheque frauds work • Contrived legal matter • Basic goal: have you run fraudulent certified cheque through your trust account • You disburse funds on the bad cheque • Fraudster gets real money • You get shortfall
    53. 53. Common types• Bad debt collection• Spousal support collection – “Collaborative law participation agreement”• Business loan• Inventory purchase loan• IP licence agreement payment• Refund of retainer/deposit
    54. 54. More info on fraud prevention• blog• LAWPRO Fraud Fact sheet• Report suspicious matters to• CALL FOR HELP•
    55. 55. Technology is essentialSee top legal technologies paper
    56. 56. Get amentor
    57. 57. Connect with peers by joining OBA or local law association
    58. 58. Family, relatives and community
    59. 59. What goes around comes around: So be nice!
    60. 60. Take care of yourself
    61. 61. Have a lifeoutside law
    62. 62. Create astrategic plan
    63. 63. Places to learn more:
    64. 64.
    65. 65. practicePRO Lending Library
    66. 66. LSUC Resource Centre
    67. 67. LSUC/OBA Solo &Small Firm ConferenceMay 31-June 1, 2012
    68. 68. ABA Law Practice Magazine
    69. 69. 2 final thoughts…
    70. 70. It will be the same. It will be different.
    71. 71. Trust your instincts.
    72. 72. Good luck!
    73. 73. Thanks and questions please!!
    74. 74. Contact InfoDan Pinnington, BSc, LLB/JDDirector, practicePRO, LAWPRO, Toronto, Ontario(416) 598-5863 or and www.lawpro.caFollow LAWPRO and practicePRO on TwitterConnect with me: – Linkedin: Dan Pinnington – Twitter: danpinnington – Facebook: Dan Pinnington – Google+: Dan Pinnington – Legal OnRamp: DanPinnington