Program for BAMSL risk management program on June 14, 2017

1. 12 Tips to Protect Your Practice
Michael Downey
Downey Law Group LLC
June 2017
13

2. 1. Obtain Adequate Insurance

3. LPL Policies are "Claims Made" Policies
• "Occurrence" – must have insurance at the
time of the occurrence
• "Claims made" – must have coverage at the
time when the claim is made

4. "Claims"-Made Policies
Work
Done
Policy A Policy B Policy C
Demand letter
received
Settlement/
Judgment Paid
X X X
 Claims v. Circumstances
 "Tail policies"

5. How Much Coverage?
• Per claim and aggregate
• "Self-insured retention" (not a deductible)
• "Wasting" or "burning" policy – coverage limit
is for defense and resolution

6. 2. Put Client Interests First
6

7. Elements of Breach of Fiduciary Duty
Whether characterized as breach of fiduciary duty or
constructive fraud, the elements of such a claim are:
(1) an attorney-client relationship
(2) breach of a fiduciary obligation by the attorney
(3) proximate causation
(4) damages to the client
(5) no other recognized tort encompasses the facts
alleged
Klemme v. Best, 941 S.W.2d 493, 496 (Mo. 1997)”
7

8. Lawyer as Fiduciary
Principal (Client)
Agent (Lawyer)

9. Fiduciary Duties Owed to Clients
Loyalty
Confidentiality
Safekeeping PropertyIndependent Judgment
Communication
Candor

10. 3. Do Not DABBLE!!

11. 11
11.3
8.9
8.8
8.6
6.7
6.6
5.9
5.4
5.3
5
0 2 4 6 8 10 12
Failure to Know/Apply Law
Planning Error
Inadequate…
Failure to File…
Failure to Calendar
Failure to Know Deadline
Procrastination
Failure to Obtain Client…
Conflict of Interest
Fraud
10 Most Common Legal Malpractice Error Allegations
Source: ABA Standing Committee on Lawyers’ Professional Liability

12. 12

13. 13

14. 4. Use Engagement Agreements

15. Contents
• Client identity – who is excluded
• Scope of Representation – what is excluded
• Implementation of plan
15

16. 5. Gather Sufficient Information

17. Ensure Completeness of Work
• Questionnaire
• Checklist
• Time discussing matter
17

18. 6. Maintain Client Communications
18

19. Keeping Client Informed – Rule 4-1.4(a)
A lawyer shall:
(1) keep the client reasonably informed about the
status of the matter;
(2) promptly comply with reasonable requests for
information; and
(3) consult with the client about any relevant limitation
on the lawyer’s conduct when the lawyer knows the
client expects assistance not permitted by the Rules
of Professional Conduct or other law.
19

20. 7. Document Client Decisions

21. Items to Document
• Goals of representation
• Strategies rejected by client
• All special instructions
• Should client obtain copy?
21

22. 8. Spell Out On-Going Obligations

23. Potential Material Changes
• In law
• In circumstances
• In lawyer’s drafting (expertise)
23

24. 9. Beware Joint Representations

25. DeBold v. Case (8th Cir. BAP 2005)
“When two or more persons, each having an interest in
some problem, jointly consult an attorney, their
confidential communications with the attorney, though
known to each other, will of course be privileged in a
controversy of either or both of the clients with the
outside world, that is, with parties claiming adversely
to both or either of those within the original charmed
circle.”
25

26. Attorney-Client Privilege
Client Lawyer
Rendition of
Legal Services
26

27. Joint Representation
Client 1 Client 2
Lawyer
27

28. 10. Beware Clients With Diminished
Capacities

29. Rule 4-1.14 Guidelines
• Maintain “normal” relationship ”as far as reasonably
possible”
• “Reasonably necessary protective action”
1. the client “has diminished capacity”
2. the client is “risk of substantial physical, financial or other
harm unless action is taken” and
3. the client “cannot adequately act in the client's own
interest”
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30. Duty of Confidentiality Applies
“Information relating to the representation
of a client with diminished capacity is
protected by Rule 1.6.”
30

31. 11. Protect Client Information –
Delicately

32. (Anticipated) Rule 4-1.6(c)
Protection of Confidences.
Model Rule 1.6(c): "A lawyer shall make reasonable
efforts to prevent the inadvertent or unauthorized
disclosure of, or unauthorized access to, information
relating to the representation of a client."
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33. Evaluation of Safeguards
Factors to be considered in determining the reasonableness of
the lawyer’s efforts include, but are not limited to,
– the sensitivity of the information
– the likelihood of disclosure if additional safeguards are not
employed
– the cost of employing additional safeguards
– the difficulty of implementing the safeguards (and)
– the extent to which the safeguards adversely affect the lawyer’s
ability to represent clients (e.g., by making a device or
important piece of software excessively difficult to use)
33

34. Subpoena for Client File
ABA Opinion 473
• Provide notice and consult with client
– May obtain informed consent to respond
• If no consent, challenge subpoena
– Non-frivolous arguments
• Appeal
– Cooperate if client requests
– Not required if no client communication
• Pay for work?
34

35. 12. Address Mistakes Appropriately

36. Dealing with Mistakes
• Remain calm
• Confirm “real” mistake
• Enlist help from colleague(s)
• Formulate a possible fix/response
• Notify firm and insurer
• Notify client
• Consider ending representation
36

37. 13. Don’t let client problems
become your problems
37

38. Michael Downey
Downey Law Group LLC
(314) 961-6644
(844) 961-6644 toll free
mdowney@DowneyLawGroup.com
Thank You