Tuesday, 23 March 2021
The LMICK Minute - Issue #12
To Our Policyholders:
2020 is in the rear-view mirror – thank goodness. Whether 2021 is going to be appreciably better and get us back to “normal” remains to be seen. There certainly seems to be the beginnings of movement in the right direction. Your law offices may have been shuttered for much of the past year as we all transitioned to remote work because of the pandemic. Hopefully, you can now resume working from your office, have all your staff back at their posts, and welcome guests and visitors back into your workplace once again. Certainly, it feels like the dawn of a new phase of practice – perhaps a hybrid of in person and remote client meetings, court appearances, depositions, mediations, trials, etc. with more and more in person activities on the horizon.
From a risk management perspective, we at LMICK see this time as an opportunity for a little law practice spring cleaning. We recommend that you take stock of your clients, case load and case management practices and position your practice for some better days ahead. If you’ve been lucky enough to have had a busy, successful and profitable practice since March 2020, your practice management strategies can still benefit from a check-up. Below are a few tips and best practices to help you steer clear of claims in 2021 and beyond.
De-clutter your workspaces
Your workspace includes your office, your home office and (more than ever before) your computer. A messy workspace is a breeding ground for potential mistakes and mishaps. Get rid of unnecessary paper and electronic files. Organize and categorize the materials and files you need to keep. Be honest about whether you’re really going to read that pile of industry magazines and publications. If not, purge it and make space for your required reading or that novel on your nightstand that you’ve been wanting to start.
Get it in writing! [or Document, Document, Document!]
Assess your cases. Are you and your client on the same page about how to resolve the matter? If you and your client have discussed a particular strategy in a case, especially if the client has decided to select a strategy contrary to your recommendation, send an e-mail or letter documenting the discussion, including the alternative strategies discussed, your recommendation, and the client’s choice to proceed against your advice.
Answer the phone…or at least return the call! [or Can You Hear Me Now?]
Tackle your list of “to be returned” calls / e-mails. Contact those folks who are waiting to hear from you, especially if it’s a call that involves difficult news or a hard conversation. Putting those calls off will not improve the nature of the conversation when you have it. Going forward, if a client calls or sends an e-mail requesting an update, respond as soon as you are able. The best practice is to return all phone calls and e-mails within 24 hours; however, this may not be possible if you are in a mediation, deposition or otherwise out of the office. Use out of office replies for e-mail to let clients know that appreciate hearing from them and that you will respond as soon as you are able.
Evaluate your docketing system to confirm there are no gaps in your processes that would allow a jurisdictional deadline to slip through the cracks. Is the system centralized? Do the necessary staff members have access? Are there redundancies and backups in the system? Are the ticklers set appropriately? Are there safeguards in place to account for remote work? Review all active files to ensure all deadlines are calendared with the necessary alerts and reminders.
Dormant Cases Clause
Review all of your cases, both active and inactive. Determine which matters can be closed, and send termination of representation letters as appropriate. Assess any dormant matters that have been inactive, and create a plan to move forward, resolve or close those files. A case rarely gets better with the passage of time.
“I’ll be back.”—Termination Letters
Review all closed cases, and ensure termination of representation letters were indeed sent in each matter. For clients that you do not represent in other matters, be clear that no attorney-client relationship will exist regarding future matters unless and until a new engagement letter is executed. Advise the former client of any applicable record retention policies – and if you have a record retention policy, then adhere to it. Not following your retention policy is probably worse than not having one and retaining too many old files.
If You File Often, File Early!
Determine the applicable statutes of limitations for each of your files and be sure to calendar the dates. Set up a reminder sufficiently ahead of the deadlines so that the complaints can be prepared and filed in advance of time running out.
To Conflict or Not to Conflict
Conflicts are one of the problems that generate the most frequent legal malpractice claims. Ensure you have a reliable system to vet conflicts and that all attorneys in the practice or firm are complying with the process. Take a moment to review the rules of professional responsibility; plan to attend an ethics CLE regarding conflicts; or check out any of the on-demand CLE offerings on conflict issues.
Ensure that every existing file and client has an executed engagement letter clearly defining the purpose and scope of the representation, the fee agreement, and client and attorney duties and responsibilities. Create a new matter check list that requires each matter have an engagement letter, executed by you and the client, in the file before the matter can be opened. Equally important, if you decline to take a case for a potential client, send a declination letter so that there is no mistake as to whether an attorney-client relationship has been established.
Assess all matters in which you represent multiple parties, and obtain consent to joint representation from all parties. Your joint representation letter should describe informed consent, address confidentiality, sharing of information, and what will happen in the event a conflict arises later. All parties will need to execute the joint representation letter.
Not every client is one that you should have taken. Do you have that one client who makes you miserable? It is ok to fire a client. Of course, you cannot leave a client in a lurch, jeopardize the client’s case, or otherwise prejudice your client with your withdrawal. Assuming, however, the client has adequate time to find other representation and won’t be harmed if you part ways, then return any fees that should be refunded and move on. Your other clients will benefit from you having jettisoned the stress inducing client. You will do better work for those that remain.
Make certain all confidential client information is protected from cybersecurity attacks, scams or phishing attempts. Take a moment to review best practices for storing confidential information, including client financial information or personal identifiers (date of birth, social security number), electronically. Cybersecurity risks have been exacerbated by the pandemic. The hackers, scammers and other ne’er-do-wells are fully aware that many lawyers were forced to quickly pivot to remote work arrangements – perhaps with few or less than ideal safeguards to protect electronic data and files. Take steps to lessen your vulnerability.
Thanks to Sarah McKenna, a LMICK Board Member from Dinsmore & Shohl, for her assistance with some of the content for this communication.
Finally, thanks for choosing Lawyers Mutual for your legal professional malpractice needs. Please refer us to a friend. Stay well – physically and emotionally.
Angela Logan Edwards – President/CEO
Nancy Meyers – Marketing Director