Monday, 04 May 2020
The LMICK Minute - Issue #5
To our Policyholders,
First and foremost, we hope you and your loved ones are well and that you’ve settled into a new normal that is sustaining you professionally and personally. The LMICK staff continues to work remotely, but we are responding to all of your needs from assisting with a new claim to processing a renewal application to arranging for electronic premium payments. There may be a slight delay in our ability to address your inquiries, so please be patient and follow up if you haven’t heard from us within 48 hours for electronic inquiries. It will take us longer to handle your communications sent via “snail” mail.
We have received a number of questions about whether statutes of limitation are extended and whether notarization can be done remotely during these most unusual of circumstances in which you are practicing law. The purpose of this communication is to provide you some information in that regard that may be useful to you in your practice.
As to whether statutes of limitation have been extended, we caution against any assumption that there has been, or even will be, any extension of the limitations periods. Our read of the legislation is that there is no extension of the statutes of limitation unless and until the Supreme Court declares a judicial emergency. While the Courts in the Commonwealth are limited in their operations, there has NOT been any declaration of a judicial emergency. As recently as April 24, 2020, the Supreme Court of Kentucky issued an order providing additional guidance on the handling of court matters and proceedings during the pandemic. There is no mention of any extension of statutes of limitation and no declaration of a judicial emergency. Rather than delay the filing of cases, it would seem that the Supreme Court is encouraging the filing and prosecution of cases so that when the courts of the Commonwealth can resume more normal operations a backlog does not cripple the courts.
To the extent possible and consistent with social distancing practices, attorneys should continue to prepare and litigate cases during the effective dates of this Order, including providing discovery, negotiating possible resolutions, filing motions, and conducting investigations, for the purpose of minimizing delay in bringing cases to trial or resolution upon the expiration of this order. (Administrative Order 2020-28).
As such, continue filing your complaints and administrative matters within the applicable statutes of limitations to protect your client and avoid malpractice. Do not be confused by the Supreme Court’s extension of appellate deadlines. (See Amended Administrative Order of Supreme Court of Kentucky 2020-29). This specific extension does not apply to limitations periods. On the LMICK website, we are collecting the key orders of the Supreme Court for your ready reference should you need them.
With regard to the new rules of electronic witnessing and notarization, we’ve most recently received the following question: “with the corona virus upon us, do you agree it would be in compliance with the law and not malpractice in light of KRS 369.102(2) and 394.040 that SB 150 temporarily permits a Will or POA may be signed by a testator in the presence of 2 witnesses (and a notary if the will is to be self proving), and then the witnesses and the notary can witness electronically?” We responded in agreement that you can witness and notarize a will electronically via video conference. The “presence” requirements in KRS 394.040 with respect to executing and witnessing wills is covered by SB 150 Section 11 which states that video teleconference equals “presence.” Notarization may also be done by video conference if the provisions of KRS 423.455 are followed. There does not appear to be any conflict between KRS 423.455 and KRS 369.103(2), which only exempts wills from the Uniform Electronic Transactions Act, not the remote notarization rules. Thanks to our insured Robert L. Goodin, Jr. who reached out for advice and counsel to avoid making a mistake and to our board member Sarah McKenna and her colleague Danny O’Gara of Dinsmore & Shohl for their assistance in analyzing the new protocols and evaluating how to comply with same.
Finally, please remember a few key practical risk management pointers to safeguard your practice during the pandemic and beyond.
- Understand that there are benefits and risks in using video conferencing technology for meetings, mediations and depositions and implement reasonable measures to mitigate against those risks. There is no shortage of information available about the various platforms (Zoom, GoToMeeting, Webex Meeting, etc.) and their security features and/or shortcomings. Your duty of competence requires you to do your homework and become proficient in whatever platform you choose.
- Communicate with your clients now more than ever before. Managing your clients’ expectations has never been more important.
- Understand how the judge before whom you are practicing a case is conducting court business during limited operations. Do not assume all judges are managing their dockets in the same way. Call the court for clarification if there is any uncertainty about how a particular judge is operating.
- Implement a system for receiving and monitoring the mail coming to your office if you are working remotely.
- Be extra careful about maintaining client confidences and preserving privileged communications.
- Look and act like a lawyer even if you’re on videoconference. Don’t let the perceived informality of your Zoom mediation or GoToMeeting meeting cause you to be less than the diligent professional you would otherwise be in a more formal environment.
Please share this LMICK Minute with every attorney in your office. We attempted to send this communication to every insured attorney. We are aware, however, that changes in e-mail addresses or an inadvertent typo in an e-mail address in our files may cause us to miss getting this communication to every intended recipient.
With the cancellation of the KBA Annual Convention, plans for LMICK’s Annual Policyholder Meeting (normally held on Wednesday morning of KBA Convention week) are being modified. Please be on the lookout for information about the Annual Meeting and how you might participate in the proxy materials being mailed to you for receipt on or about May 20, 2020 and in a future LMICK Minute.
We appreciate having you as an insured. Stay well.
Angela Edwards – CEO
Nancy Meyers – Marketing Director