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Notes – Malpractice Prevention Seminar

by merlin on November 11th, 2014
  • Sumo

It has been a couple of weeks since last I posted here, having been out of town for a badly-needed vacation, and having been pouring too much work into a project that I cannot post here yet (but will as soon as I finish).

 

However, this morning involved a malpractice prevention seminar in Atlanta, and the notes I took from it might be useful for other practitioners:

isbar/CNA Law Practice Management Seminar

November 11, 2014 – Mariott-Marquis

 

Securities: MUST be kept in a safe-deposit box

Need to implement a redundant electronic database

  • Create a BUSINESS CONTINUITY PLAN (what to do when the office is lost entirely)

 

 

Firm Automobiles

  • Got to watch out for claims against the firm as a result of any accidents
  • What about non-employees driving?!

 

Data Breaches

  1. Danger of theft or disclosure of 3rd party data
  2. Privacy injury liability
  3. Network security liability
  4. Content liability
  5. Spread of virus or malicious code

 

Recent ABA Rule Amendments:

  • Rule 1.1, Comment 7: Competence requires that a lawyer maintain familiarity with current software to prevent confidential info disclosure
  • Georgia hasn’t adopted it yet, but trend is that it will
  • Electronic Discovery
  • Facebook falsehood (can’t pretend to be somebody else online ethically)

 

See the CNA risk-control website for info on Internet Protection methods, self-assessment primer for security, and a guide to Cloud Computing; also check the ABA-released handbook on computing safety (Cloud Computing)

 

CNA will NOT decline coverage if you don’t use their particular approved vendor list.

 

Conflicts of Interest

“Compromise or influence that is likely to negatively affect the lawyer’s ability to represent the interests of the client.”

  • HUGE driver of malpractice claims
  • Normally – breach of fiduciary duty claims

 

The economic downturn caused more lateral movement by attorneys and law firm mergers so new conflicts of interest result (and because of dabbling).

 

Conflicts of Interest – DIFFICULT CLAIMS TO DEFEND AGAINST

  • Because of jury’s existing negative perception of lawyers, jury tends to sympathize with client
  • Emotional component; idea of betrayal

 

Risk of INFLATED DAMAGES:

  • See Evans v. Baker & McKenzie, et al., 2013 WL 5648724 (Miss. 2013) – $103 MILLION damages

 

ABA Model Rule 1.7: Duties to current clients (can’t continue to represent if there is a significant risk that abilities will be limited due to duties to others or former client)

 

Vs.

 

ABA Model Rule 1.9 – Duties to FORMER clients

 

DON’T FORGET TO GET WAIVERS!!!!

 

DRAFT A CONFLICT LETTER AND INCLUDE THE RULE TEXT

  • Check the CNA website for form letter

 

In Georgia – THE ATTORNEY NEEDS TO GIVE THE RISKS (detailing chance to consult with independent counsel to verify) IN WRITING!!!!!

 

Duties to FORMER clients:

  • Attorney cannot represent current client whose interests are substantially adverse to former client (if new matter is substantially related to former matter)
  • Can’t represent if interests of new client are materially adverse to those of former client
  • Can do it with INFORMED CONSENT (need it to be written)

 

599 s.e.2d 206:  Firm represented both initially, but falling-out and firm kept representing ONE.  Sued for taking strategic steps that protected other by harming the one.  Court found that conflict of interest improperly influenced their judgment.

  • Make sure you GET IT IN WRITING!

 

Useful step to add: Send a follow-up letter of these important conversations.

  • Check whether your malpractice prevents coverage for ownership of a business interest.

If you have support staff (ABA Model Rules of Professional Conduct 5.3):

  • SHALL establish procedures and policies for internal staff;
  • SHALL make sure their behavior conforms to proper standards (IT IS ON YOU!!!)
  • SHALL be held responsible for nonlawyer conduct if you were supervisory at the same time as it happened and let it go on.
  • Remember: Under 1.4 (Communication), support staff CANNOT give legal advice, offer a legal opinion, or create an attorney-client relationship
  • Have to go over the rules no matter prior experience if you hire support staff.
  • Don’t forget to have employees sign a social media policy and confidentiality policy, too.
  • DON’T FORGET TO RE-TRAIN, RE-TRAIN, RE-TRAIN!

 

They don’t have a checklist for these things YET on the website, but hope to write one soon.

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