AVOIDING LEGAL MALPRACTICE AND ETHICS CLAIMS Marc L. Bogutz Louis J. Isaacsohn Wilson Elser Moskowitz Edelman & Dicker LLP Two Commerce Square 2001 Market Street, Suite 3100 Philadelphia, PA

How to Get Sued (The 9 Step Program) Procrastinate/Miss Deadlines Poor Communication With Client Inadequate Research And Investigation Conflicts Of Interest Lack Of Adequate Documentation of Work Suing For Fees Choosing The Wrong Client Unwillingness To Believe You May Be Sued For Malpractice Dabbling

Claims Data

Duty to Investigate The Fortune Cookie, United Artists (1966)

 What is a reasonable investigation?  What are your obligations if you can’t obtain expert support for all or a part of a medical malpractice action?  How do you balance your duties to your client, the requirements of the Certificate/Affidavit of Merit rule in your State and the consequences of pursuing potentially frivolous litigation? Duty to Investigate

“No Engagement” Courtesy of the Pennsylvania Bar Association, Professional Liability Committee

A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is familiar. A lawyer can provide adequate representation in a wholly novel field through necessary study …[or] through the association of a lawyer of established competence in the field in question. Rule 1.1 Competence

When Is It Worth The Risk To Dabble? »Relative complexity and specialized nature of the matter. »Lawyer’s training and experience in the field in question. »Time and attention the lawyer is able to devote to the matter. »Whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. »In many instances, the required proficiency is that of a general practitioner. Explanatory Comment 1, Rule 1.1 (Competence)

There is a reason your LPL policy application requests information about the percentage of time that you dedicate to each area in which you practice. Dabbling

Engagement Letters Rule 1.5(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

Scope of Representation Rule 1.2 A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. Rule 1.0(e) "Informed consent" denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

Duty to Communicate with Clients Rule 1.4 (a) - A lawyer shall: 1. promptly inform the client of any decision or circumstance with respect to which the client’s informed consent …is required 2. reasonably consult with the client … 3 keep the client reasonably informed … 4. promptly comply with reasonable requests for information

Missing a Deadline Hiding mistakes will likely compound the problem Ethical obligation to disclose an error to client – “A lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person.” RPC 1.4, Comment 7 Discovery rule may apply – Statute of limitations for legal malpractice action is tolled until client discovers the lawyer’s negligence

Creating an Attorney/Client Relationship Absent an express contract, an implied attorney/client relationship will be found if 1)the purported client sought advice or assistance from the attorney; 2)the advice sought was within the attorney’s professional competence; 3)the attorney expressly or impliedly agreed to render such assistance; and 4)it is reasonable for the putative client to believe the attorney was representing him. Atkinson v. Haug, 424 Pa. Super. 406, 622 A.2d 983 (1993)

“Running Out of Time” Courtesy of the Pennsylvania Bar Association, Professional Liability Committee

Suing For Fees Suit for Fees Counterclaim for Malpractice Why does the LPL insurance application ask if you ever sue your clients for fees?

Use of Technology How do you communicate with clients? - work - shared address - text messaging - social media Courtesy of the Pennsylvania Bar Association, Professional Liability Committee

Use of Technology – Rule 1.1 Comment 8 requires a lawyer to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…”

Competency in the Digital Age “Electronic document creation and/or storage, and electronic communications, have become commonplace in modern life, and discovery of ESI is now a frequent part of almost any litigated matter. Attorneys who handle litigation may not ignore the requirements and obligations of electronic discovery.” Courtesy of the Pennsylvania Bar Association, Professional Liability Committee

Confidentiality - Rule 1.6 General rule is that a lawyer may not reveal information relating to a representation of a client unless the client gives informed consent. The duty continues after relationship is terminated. Ethical duty of confidentiality is broader than the attorney/client privilege. (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

Confidentiality - Rule 1.6 Comment 18 - Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.

Is Your Confidential? Google Privacy Policy - We will share personal information with companies, organizations or individuals outside of Google if we have a good-faith belief that access, use, preservation or disclosure of the information is reasonably necessary to: –meet any applicable law, regulation, legal process or enforceable governmental request. –enforce applicable Terms of Service, including investigation of potential violations. … –protect against harm to the rights, property or safety of Google, our users or the public as required or permitted by law.

“Compounding the general security concerns for is that users increasingly access webmail using unsecure or vulnerable methods such as cell phones or laptops with public wireless internet connections.” Is Your Confidential? Courtesy of the Pennsylvania Bar Association, Professional Liability Committee

“Reasonable precautions are necessary to minimize the risk of unauthorized access to sensitive client information when using these devices and services, possibly including precautions such as encryption and strong password protection in the event of lost or stolen devices, or hacking.” Is Your Confidential? Courtesy of the Pennsylvania Bar Association, Professional Liability Committee

“Under the Texas Disciplinary Rules of Professional Conduct, and considering the present state of technology and usage, a lawyer may generally communicate confidential information by . Some circumstances, may, however, cause a lawyer to have a duty to advise a client regarding risks incident to the sending or receiving of s arising from those circumstances and to consider whether it is prudent to use encrypted or another form of communication.” Is Your Confidential? Courtesy of the Pennsylvania Bar Association, Professional Liability Committee

The Cloud Can a lawyer store client confidential information in “the Cloud”? What are the risks that client confidences will be disclosed to the client’s detriment? Has the client consented in engagement letter? Are you insured for technology related losses? Before you can work in the Cloud you have to understand the Cloud. ABA Legal Technology Resource Center

Courtesy of the Pennsylvania Bar Association, Professional Liability Committee

DON’T UNDERESTIMATE YOUR DATA SECURITY RISKS

AVOIDING LEGAL MALPRACTICE AND ETHICS CLAIMS