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How to Avoid Malpractice & Disciplinary Actions - General Do's and Don'ts 2019

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How to Avoid Malpractice & Disciplinary Actions - General Do's and Don'ts 2019

Webinar Series: LEGAL ETHICS – BEST PRACTICES 2019 - WINTER/SPRING

This webinar presents basic practice pointers to avoid committing malpractice and disciplinary actions, and how to respond to claims of malpractice or unethical behavior. The panel also discusses the role that malpractice insurance plays in these situations and the ramifications of a malpractice judgment or disciplinary action. Model Rules discussed include: (a) those that govern the client-lawyer relationship (Rule 1.1 through 1.10; 1.13; and 1.16); (b) those that that speak to transactions with persons other than clients (Rule 4.1 through 4.4); Rules 5.1 through 5.5 (dealing with respective responsibilities of a partners/supervisory lawyers, subordinate lawyers, non-lawyer assistance, independence, unauthorized practice of law, and multijurisdictional practice of law); and communication, including advertising and solicitation of clients (Rules 7.1 through 7.5).

View On Demand Webinar: https://www.financialpoise.com/financial-poise-webinars/how-to-avoid-malpractice-2019/

Webinar Series: LEGAL ETHICS – BEST PRACTICES 2019 - WINTER/SPRING

This webinar presents basic practice pointers to avoid committing malpractice and disciplinary actions, and how to respond to claims of malpractice or unethical behavior. The panel also discusses the role that malpractice insurance plays in these situations and the ramifications of a malpractice judgment or disciplinary action. Model Rules discussed include: (a) those that govern the client-lawyer relationship (Rule 1.1 through 1.10; 1.13; and 1.16); (b) those that that speak to transactions with persons other than clients (Rule 4.1 through 4.4); Rules 5.1 through 5.5 (dealing with respective responsibilities of a partners/supervisory lawyers, subordinate lawyers, non-lawyer assistance, independence, unauthorized practice of law, and multijurisdictional practice of law); and communication, including advertising and solicitation of clients (Rules 7.1 through 7.5).

View On Demand Webinar: https://www.financialpoise.com/financial-poise-webinars/how-to-avoid-malpractice-2019/

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How to Avoid Malpractice & Disciplinary Actions - General Do's and Don'ts 2019

  1. 1. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Insert the cover image for this webinar on this slide entirely 1
  2. 2. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Practical and entertaining education for attorneys, accountants, business owners and executives, and investors. 2
  3. 3. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe DISCLAIMER The material in this webinar is for informational purposes only. It should not be considered legal, financial or other professional advice. You should consult with an attorney or other appropriate professional to determine what may be best for your individual needs. While Financial Poise™ takes reasonable steps to ensure the information it publishes is accurate, Financial Poise™ makes no guaranty in this regard. About this PowerPoint: if you are looking at this PowerPoint without the benefit of listening to the conversation that surrounded it then you are doing yourself a disservice. This PowerPoint was prepared in contemplation of being viewed in conjunction with listening to a one hour webinar on the topic 3
  4. 4. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe MEET THE FACULTY Moderator: Michelle Gershfeld – Law Office of Michelle Gershfeld Panelists: Rob Michaels – Goldstein & McClintock Bernie Burk – Formerly University of North Carolina School of Law George Kuney – University of TN College of Law 4
  5. 5. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe ABOUT THIS WEBINAR: How to Avoid Malpractice & Disciplinary Actions - General Do's and Don'ts This webinar presents basic practice pointers to avoid committing malpractice and disciplinary actions, and how to respond to claims of malpractice or unethical behavior. The panel also discusses the role that malpractice insurance plays in these situations and the ramifications of a malpractice judgment or disciplinary action. Model Rules discussed include: (a) those that govern the client-lawyer relationship (Rule 1.1 through 1.10; 1.13; and 1.16); (b) those that that speak to transactions with persons other than clients (Rule 4.1 through 4.4); Rules 5.1 through 5.5 (dealing with respective responsibilities of a partners/supervisory lawyers, subordinate lawyers, non-lawyer assistance, independence, unauthorized practice of law, and multijurisdictional practice of law); and communication, including advertising and solicitation of clients (Rules 7.1 through 7.5) 5
  6. 6. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe ABOUT THIS SERIES: Legal Ethics – Best Practices Corporate scandals make the headlines periodically, but businesses and the lawyers that work with them face ethical challenges every day, even in situations that are legally compliant. This webinar series examines ethical issues confronted by businesses in a variety of contexts, from so called “grey areas” to those involving outright corruption. The panels consider and recommend different approaches to ethical decision-making and the lawyer's role in advising business clients. As with all Financial Poise Webinars, each episode in the series brings you into engaging, sometimes humorous, conversations designed to entertain as it teaches. And, as with all Financial Poise Webinars, each episode in the series is designed to be viewed independently of the other episodes, so that participants will enhance their knowledge of this area whether they attend one, some, or all of the episodes. 6
  7. 7. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe EPISODES IN THIS SERIES 2/13/19 Episode #1: Best Practice Regarding Technology 3/13/19 Episode #2: Hot Off the Press- Recent Cases & Decisions 4/10/19 Episode #3: How to Avoid Malpractice & Disciplinary Actions - General Do's and Don'ts 7 Dates shown are premiere dates. All webinars will be available On Demand approximately 4 weeks after they premiere.
  8. 8. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Episode #3: How to Avoid Malpractice & Disciplinary Actions - General Do's and Don'ts 8
  9. 9. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe MALPRACTICE CLAIMS • Typically, to establish a valid malpractice claim, the plaintiff needs to prove that: ✓ the attorney owed the plaintiff a professional duty and breached that duty; and ✓ the breach proximately resulted in quantifiable damage. 9
  10. 10. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe COMPETENCE • RPC 1.1: “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for representation.” • In 2010, insurers reported that out of nearly 43,000 claims, 11.3% were related to an attorneys failure to know or adequately apply the law. 1 0
  11. 11. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe CLIENT CONSENT • RPC 1.2: Allocation of Authority; 1.4: Communications • 5.4% of reported insurance claims were related to the attorney’s failure to obtain the client’s consent. • 4.4% were for failure to follow the client’s instructions– intentionally or not. • The client claimed that if the attorney had fully informed him/her of available alternatives or the possible risks, he/she would have chosen a different option. • Client claimed that the attorney failed to communicate with the client and obtain his/her consent to a course of action. 1 1
  12. 12. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe ATTORNEY AGENCY • RPC 1.2: Scope of Representation and Allocation of Authority Between Client & Lawyer; 1.3 Diligence cmt. 1 • Louisiana attorney, Larry English, told his client, Robert McCoy, that he intended to admit guilt at trial. And, despite his client’s protests, English told the jury that McCoy killed the three victims. • Trial court convicted McCoy of three counts of first degree murder and sentenced him to death. ✓ Affirmed by Louisiana Supreme Court. 1 2
  13. 13. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe SUBSTANCE USE AND DEPENDENCY • “Yet even as addiction was taking over his life, Peter continued working. In the notebooks he used to keep track of injection times and dosages, he also made cryptic notes about client calls and meetings, lists of things needed to prepare documents, filing deadlines.” The Lawyer, the Addict, NYT, July 2017 • In a 2016 study published by the American Society of Addiction Medicine, 20.6% of attorneys reached the “problematic drinking” level. • Know the signs. 1 3
  14. 14. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe TRUST ACCOUNTING ERRORS • RPC 1.15: Safekeeping Property • Paying office expenses out of trust account. • Commingling funds by failing to let a deposit clear. • Not sweating the small stuff. ✓ Know your state rules. 1 4
  15. 15. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe BOUNCING ESCROW CHECKS • Attorney Escrow Accounts ✓ Depositing a certified check may take a few days to clear! ✓ Wait after depositing a check. ✓ Do not disburse money that you deposited that day via check. • Bounced Check Rule– bank must agree • RPC 1.15: Safekeeping Property ✓ “A lawyer should hold property of others with the care required of a professional fiduciary.” cmt. 1 1 5
  16. 16. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe FEES • RPC 1.5: Fees • May be unwise to bill client for cost of withdrawing or for cost of preparing a response in a fee dispute. • May not bill client for responding to disciplinary complaints. 1 6
  17. 17. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe ACCIDENTAL CLIENTS • Be careful not to unintentionally acquire new clients at social gatherings or in dealings with organizational clients. • RPC 1.7: Conflict of Interest– Current Client • RPC 1.13: Organization as a Client 1 7
  18. 18. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe DUTIES TO NON-CLIENTS • RPC1.18: Duties to Prospective Clients ✓ Confidentiality • RPC 1.1: Competence ✓ Giving assistance on merits of a matter ✓ RPC 1.18 cmt. 9 • Duty of Care ✓ Intent? ✓ Knowing acceptance? ✓ Foreseeability of reliance? 1 8
  19. 19. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe POOR INTAKE PROCESS • Failing to check for conflicts of interest prior to discussing the matter in more detail. ✓ RPC 1.7: Conflict of Interest– Current Clients • Starting work before the terms of the engagement are fully documented and agreed to. ✓ RPC 1.2: Scope of Representation; 1.16: Declining or Terminating Representation • Failing to specify the scope and length of the engagement with thoughtful precision. 1 9
  20. 20. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe BAD INTAKE DECISIONS • The clients you take on, but maybe shouldn’t have… ✓ The client who fired his/her prior lawyer, or whose previous lawyer fired him/her. ✓ The client who says, “I don’t care about cost.” ✓ The client who doesn’t want to talk about fees, or wants to talk about fees too soon. ✓ The client who talks about future engagements/referrals, but wants deep discounts on this one. ✓ The client motivated by spite. 2 0
  21. 21. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe BAD INTAKE DECISIONS (cont’d) ✓ The client interested in remedies the legal system does not provide. ✓ The client whose story of the matter at hand (or other personal history) contains things that most folks just wouldn’t do (exception for criminal defense). ✓ The client who blames everyone else. ✓ The client who is rude to you or your staff during intake. ✓ The client who gives you a nagging or funny feeling. ✓ Others? 2 1
  22. 22. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe CONFIDENTIALITY CAUTIONS • RPC1.6: Confidentiality • Avoid speaking about client (or non-client) matters in non-private spaces. • Do not use or threaten to use embarrassing client confidences, not relevant to a dispute with the client, to gain leverage in the dispute. 2 2
  23. 23. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe INADEQUATE OFFICE PROCESS • Failing to maintain and use a calendar system. • Failing to maintain and use a rigorous conflicts-checking system. • Failing to communicate with client about status of matters. • Failing to properly customize a form document to a client’s matter. 2 3
  24. 24. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe DEADLINES • RPC 1.1: Competence; 1.3: Diligence cmt. 3 • In the 2010 report from insurers, 8.9% of claims were related to an attorney’s planning error; 8.6% were from failure to file documents; 6.7% from failure to calendar; and 6.6% of claim reported by insurers were related to an attorney’s failure to know or correctly calculate an applicable deadline. 2 4
  25. 25. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe LIBEL OR SLANDER • RPC 1.6: Confidentiality • Consider ethical obligations before writing a tell-all book about your former client. • 1.8% of claims reported by insurers were related to libel or slander. 2 5
  26. 26. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe SUPERVISING OTHERS • RPC 5.1: Responsibilities of a Partner or Supervisory Lawyer; 5.3: Responsibilities Regarding Nonlawyer Assistance • Even if a mistake is made by a junior associate or a staff member, you may be responsible for it. 2 6
  27. 27. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe CLAWBACK AGREEMENT • RPC 1.1: Competence; 1.3: Diligence; 1.6: Confidentiality of Information • Protect against the repercussions of inadequate office practices or mistakes with a clawback agreement with opposing counsel. 2 7
  28. 28. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe TECHNOLOGY • RPC 1.1: Competence; 1.3: Diligence; 1.4: Communications; 1.5: Confidentiality of Information • If you’re going to have it, know how to use it. • Set up cellphone voicemail and do not let it stay full– the judge’s chambers may be trying to get ahold of you. • Beware “reply all.” 2 8
  29. 29. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe MALPRACTICE CLAIMS • Don’t assume a claim will become a lawsuit. • Don’t admit to legal malpractice. ✓ Consider consulting another attorney before concluding that you have committed malpractice and before you tell your insurance carrier that you have. • Don’t ignore the problem. • Don’t sue to get ahead. ✓ Suing for fees can backfire. • Don’t make settlement offers without insurer consent. 2 9
  30. 30. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe GENERAL DO’S AND DON’TS • Do not promise a specific outcome. • Do not talk down to your client. • Do not prejudice your client. • Advise the client of any problems. • Do not defend your own malpractice claim. • Do not reveal that you have malpractice insurance. 3 0
  31. 31. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe ABOUT THE FACULTY 3 1
  32. 32. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Michelle Gershfeld – MGershfeldlaw@gmail.com Michelle Gershfeld is a bankruptcy attorney, debt negotiator and personal financial life coach who advises people who are in debt, or building wealth, by identifying and overcoming obstacles that lie in their path to securing worry-free, financial wellness. She works with clients individually to create a strategic, customized plan for each unique financial situation; tackling challenges while defining actionable steps that will increase awareness, change behaviors and lead to the fulfillment of long-term financial goals. 3 2
  33. 33. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Rob Michaels – robm@goldmclaw.com Rob is a partner at Goldstein & McClintock, LLP. At G&M, Mr. Michaels works with attorneys who have hailed from top law firms around the country, all of whom regularly represent sophisticated clients in a wide variety of commercial matters. Yet at the same time, Mr. Michaels’ clients will immediately benefit from the greater affordability, accessibility, and individual attention of a boutique law practice. Rob counsels and litigates for clients in a wide variety of complex commercial litigation matters, including fraud, RICO, shareholder disputes, professional liability and other claims arising from corporate looting and insolvencies, as well as a range of software and technology matters. Rob has practiced in state and federal courts around the country and has successfully argued a number of federal appeals. Before joining RCC, Rob was a Staff Attorney and Project Director at the Environmental Law and Policy Center of the Midwest, a Bigelow Teaching Fellow at the University of Chicago Law School, an associate at Mayer Brown, and a law clerk for a federal district court judge. 3 3
  34. 34. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Bernie Burk – bernie.burk@bernieburk.com Professor Bernard Burk previously taught at the University of North Carolina School of Law. He is currently on sabbatical. 3 4
  35. 35. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe George Kuney – gkuney@utk.edu Prior to joining the faculty in 2000, Professor Kuney was a partner in the San Diego office of Allen Matkins Leck Gamble & Mallory LLP where he concentrated his practice on insolvency and reorganization matters nationwide. Before that he received his legal training with the Howard, Rice and Morrison & Foerster firms in his hometown of San Francisco, California. He holds an AV Peer Rating, Martindale-Hubbell’s highest peer rating for ethical standards and legal ability and is admitted to practice in the state and federal courts of California and Tennessee and the federal courts of Arizona, and the Supreme Court of the United States of America. Kuney’s expertise and scholarly interests relate to business transactions and litigation with an emphasis on mergers and acquisitions, recapitalizations, and reorganizations. He is the faculty editor and advisor of Transactions: The Tennessee Journal of Business Law and the faculty advisor for the Sports and Entertainment Society. He consults with law firms and clients nationwide in his areas of expertise in a limited number of matters annually, generally related to business law, bankruptcy, contracts, legal drafting and writing, commercial law, chapter 11, and insolvency. He conducts transactional training seminars and clinics for law students, lawyers, and law firms across the country. 3 5
  36. 36. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe QUESTIONS OR COMMENTS? If you have any questions about this webinar that you did not get to ask during the live premiere, or if you are watching this webinar On Demand, please do not hesitate to email us at info@financialpoise.com with any questions or comments you may have. Please include the name of the webinar in your email and we will do our best to provide a timely response. IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education. 3 6
  37. 37. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe ABOUT FINANCIAL POISE DailyDAC LLC, d/b/a Financial Poise™ provides continuing education to attorneys, accountants, business owners and executives, and investors. Its websites, webinars, and books provide Plain English, entertaining, explanations about legal, financial, and other subjects of interest to these audiences. Visit us at www.financialpoise.com. 3 7 Our free weekly newsletter, Financial Poise Weekly, educates readers about business, business law, finance, and investing. To receive it simply add yourself by going to: https://www.financialpoise.com/newsletter/ Email addresses are never sold to or shared with third parties.

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