In 2009 the Kentucky Supreme Court substantially revised the Kentucky Rules of Professional Conduct.
Articles in this index written before 2009 citing Kentucky Rules of Professional Conduct must be checked for any changes to the rule cited.

Risk Management Analysis

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Content

I. CLIENT INTAKE

  1. Incomplete information on firm’s client intake form
  2. No independent review of client intake decisions
  3. Inadequate independent review of client intake decisions
  4. No engagement letter sent
  5. Inadequate engagement letter sent
    1. Failure to use form engagement letter
    2. Inadequate definition of clients/non-clients
    3. Inadequate description of scope of service
    4. Inadequate limitation of scope of service
    5. Failure to include conflicts disclosure language
    6. Inadequate conflict disclosure language
    7. Failure to obtain any/adequate waiver or consent
    8. Failure to obtain client’s timely countersignature
    9. Failure to send any/adequate non-engagement letter
    10. Failure to identify after-arising conflict of interest
    11. Failure to send closing letter

II. TIME RECORDING, FEES, BILLING AND COLLECTIONS

  1. Fee dispute with client
    1. Firm threatened suit for fees
    2. Firm initiated suit for fees
    3. Firm counterclaimed for fees
  2. Improper timekeeping/time recording
    1. Timekeepers entered time seven or more days after date work performed
    2. Substantive (more than editorial) changes in description of work made subsequent to original time entry
    3. Substantive (other than to conform matching entries of multiple timekeepers) changes made in amount of time spent on task after date of original entry
    4. Impossible (e.g., 25 hour day) time entries recorded
    5. Identity of person performing task changed after original time entry
    6. Inadequate or inaccurate description of work performed
  3. Improper withdrawal of representation for failure to pay

III. SUBSTANTIVE ERRORS – INADEQUATE OVERSIGHT OF PARTNERS, PROFESSIONALS AND MATTERS IN PROGRESS

  1. Substantive Errors
    1. Categories of Substantive Error
      1. Failure to know/properly apply law
      2. Improper Advice
      3. Inadequate discovery/investigation/due diligence
      4. Improper strategic/procedural choice
      5. Unethical Conduct
      6. Failure to Advise
      7. Improper Drafting
      8. Defective Research
      9. Misrepresentation
      10. Inadequate Preparation
      11. Ineffective Negotiation
      12. Failure to understand/anticipate tax
      13. Error in formal opinion (including audit response) letter
      14. Error in public record search
      15. Error in mathematical calculation
    2. Causes of Substantive Error
      1. Attorney suffering from impairment (alcohol, drugs, other addiction or psychiatric problem)
      2. Attorney practicing out of normal area of expertise
      3. Attorney handling file/matter alone
        1. No other attorney in firm with knowledge of practice area
        2. Inadequate or no review or oversight of file by second attorney
      4. Paralegal handling matter alone – inadequate or no review or oversight of file by an attorney
      5. Inadequate or no practice group management
  2. Client Relations
    1. Categories of Failure
      1. Failure to follow client’s instruction
      2. Failure to obtain client consent
      3. Failure to inform client
      4. Improper withdrawal other than for failure to pay
    2. Causes of Failure
      1. Attorney practicing out of normal area of expertise
      2. Attorney handling file/matter alone
        1. No other attorney in firm with knowledge of practice area
        2. No review or oversight of file by second attorney
        3. Inadequate practice group management
    3. Intentional Wrongs
      1. Categories of Failure
        1. Malicious prosecution/abuse of process
        2. Fraud
        3. Defamation
        4. Violation of civil rights
      2. Causes of Failure
        1. Attorney handling file/matter alone
          1. Failed to make adequate investigation
          2. Ignored information making client’s claims suspect
        2. No review or oversight of file by second attorney prior to commencement of litigation
        3. Inadequate review or oversight of file by second attorney prior to commencement of litigation
          1. Failed to make adequate investigation
          2. Ignored information making client’s claims suspect
        4. Inadequate practice group management

IV. CASE MANAGEMENT AND THE PROTECTION OF CLIENT CONFIDENCES

  1. Failure to Protect Client Confidences
    1. Client confidences inadequately protected
      1. Disclosure during discovery process
      2. Disclosure resulting from inadequate protection of electronic communication (e.g., instant messaging, e-mail, fax, telephone or voicemail)
    2. Nonexistent or inadequate firm policies and procedures for protection of client confidences
    3. Nonexistent or inadequate training of law firm personnel regarding protection of client confidences
  2. Missed Deadlines
    1. Categories of Failure
      1. Failure to know/ascertain correct deadline
      2. Failure to calendar properly
      3. Failure to react to calendar
    2. Causes of Failure
      1. Attorney maintaining personal calendar (no central or practice group software available for deadline calculation and/or entry)
      2. Paralegal/staff maintaining attorney’s personal calendar (no central or practice group software available for deadline calculation and/or entry)
      3. Deadline missed by attorney maintaining personal calendar (attorney not using available central or practice group software for deadline calculation and/or entry)
      4. Deadline missed by paralegal/staff maintaining attorney’s personal calendar (attorney not using available central or practice group software for deadline calculation and/or entry)
      5. No independent checking of deadline calculation and/or entry and/or timely completion of task by an attorney responsible for calendar/docket control
    3. Other Administrative Errors
      1. Categories of Failure
        1. Failure to file document (no deadline)
        2. Lost file, document or other item of evidence or client asset
        3. Loss or Destruction of Valuable Client Property (e.g., Wills, Bonds Original Documents, Necessary Evidence)
      2. Causes of Failure
        1. Attorney suffering from impairment (alcohol, drugs, other addiction or psychiatric problem)
        2. Attorney practicing out of normal area of expertise
        3. Attorney handling file/matter alone
          1. No other attorney in firm with knowledge of practice area
          2. Inadequate or no review or oversight of file by second attorney
        4. Paralegal handling matter alone – inadequate or no review or oversight of file by an attorney
        5. Inadequate or no practice group management
        6. Inadequate or inappropriate document or file retention/destruction policy
        7. Failure to follow document retention/destruction policy

V. HANDLING PROBLEMS, POTENTIAL AND ACTUAL CLAIMS

  1. Failure to give notice to insurer
    1. Inadequate or no defined internal reporting policy
  2. No designated general counsel, risk management or claims partner
  3. Failure to manage impaired lawyer
    1. Inadequate or no human resource or employment manual or policies
  4. Failure to manage dealings with the media
    1. Inadequate or no policy for responding to media inquiries

VI. DISASTER RESPONSE/BUSINESS RECOVERY PLANNING

  1. Inadequate or no disaster recovery plan
    1. Failure to secure adequate data backup
    2. Failure to secure adequate backup premises
    3. Failure to secure adequate backup equipment
    4. Inadequate or no off-site data backup
    5. Inadequate training of personnel
  2. Failure to follow disaster recovery plan
  3. Loss of key personnel

VII. FINANCIAL CONTROLS AND MANAGING ESCROW ACCOUNTS/CLIENT FUNDS

  1. Categories of Failure
    1. Theft, embezzlement or diversion of firm funds
    2. Theft of client funds
  2. Causes of Failure
    1. Inadequate human resource management procedures
    2. Inadequate audit or review of finances
    3. Inadequate review of purchasing procedures
    4. Inadequate oversight of client accounts

VIII. LAW FIRM MANAGEMENT

  1. Inadequate or no partnership/shareholder agreement
    1. Compensation structure encourages solo practice mentality – discourages centralized management
  2. Inadequate resources allocated to firm management
  3. Inadequate time spent on firm management
  4. Inadequate supervision of satellite office
  5. Inadequate oversight of firm finances

 


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