The Devil is in the Details

Archive for the ‘Blog’ Category

 

The Devil is in the Details

Posted on: January 14th, 2023 by David Lipson

The Devil is in the Details: Navigating Policy Limit Demands to Avoid Malpractice Exposure

It’s late Friday afternoon before a holiday, and you decide to leave early to get a head start on the long weekend. The office mail delivery is behind schedule and arrives after you leave. In your mail is a lengthy settlement demand letter in a personal injury case for which you have recently been retained by an insurance company to represent its insured. The letter arrived by certified mail. It demands payment of the full $500,000 limit of liability of your client’s insurance policy, in exchange for a release. The letter specifies that the demand will remain open for ten days. Buried on page fifteen of the letter is a requirement that all communications regarding the demand be in writing.

You take a much-needed extra day off and return to the office on Tuesday. The demand letter is waiting for you on your desk. You have only done a preliminary analysis of the claim but, based on your initial review, you believe the case likely warrants an early policy limits settlement. The plaintiff’s injuries are clearly significant (as reflected in the partial medical records enclosed with the demand.) It is likely that your client will be found at least partially responsible for the accident, and the $500,000 limit will be reduced by what are likely to be significant defense costs. Nevertheless, you think it prudent to complete your analysis and obtain additional documentation before making any recommendation to the client and the client’s insurer.

GET THE PRACTICE POINTERS

Client Intake and Proper Client Selection

Posted on: October 19th, 2021 by David Lipson

Are You Ready to Commit to Client Intake and Proper Client Selection?

Client intake should never be dismissed as an unimportant but necessary task when taking on a new client. Creating a thorough client intake process is essential in order to establish a strong foundation for an attorney-client relationship – whether the relationship lasts for weeks or years.

By investing the necessary time and effort at the outset, attorneys may save time, money and even help to avoid legal malpractice claims. When used appropriately, the client intake process may reveal a stark reality that a prospective client should not become a current client. View the full article from CNA to learn more…

Continue Reading…

The Remote-Ready Law Firm: Managing Long-Distance Relationships

Posted on: August 26th, 2020 by David Lipson

The Remote-Ready Law Firm: Managing Long-Distance Relationships

Good lawyers have their best suit at the ready, but may just as often don slippers and sweatpants. Seventy-two percent of lawyers telecommute at least some of the time according to the American Bar Association’s latest Profile of the Legal Profession. As legal technology grows more accessible and digital natives become the dominant group in the American workforce, one should only expect this percentage to rise.

Co-working spaces, cloud computing and virtual receptionists have allowed some law firms to ditch their offices entirely. Most lawyers, however, seek a middle ground: a practice capable of functioning remotely when convenient or necessary, but still anchored to a physical office. The benefits of creating a remote-capable business are well worth the investment, enabling a firm to maximize productivity when traveling, attract top-level talent, and maintain functionality during a crisis.

Minimizing Paper

If the firm does not currently have a system for doing so, digitizing client files may be the most burdensome aspect of a remote-work upgrade. Even with a system already in place, ensuring that lawyers can work remotely may require more extensive or consistent document imaging practices. All physical documents that comprise a file should be scanned, saved and, unless the original must be preserved, shredded. Lawyers should prioritize active files, with an emphasis on streamlining current and prospective workflows before tackling the mountain of closed files in storage. Remember: the goal is to facilitate remote work, not to devise a one-hundred percent paperless office, which is seldom realistic.

Depending on the volume of documents and the composition of the practice, digitizing paper files may be accomplished by in-house staff. Firms may instead consider using a third-party imaging service, especially if they intend on digitizing decades of old boxes. In any event, whether independently or in consultation with an outside vendor, lawyers must ensure that electronic files are properly labeled, organized, legible, and retrievable, which requires careful planning and the right equipment. For more on this issue, see the CNA resource Creating a File Retention and Destruction Policy.

Server Decisions

Digitizing files will reduce the cost and aggravation associated with keeping a forest’s worth of paper in a back room or offsite storage facility, but even electronic files must be stored somewhere. The default option for law firms has long been on-premise servers, which require major upfront hardware and installation costs, but allow for complete control over the security and privacy of firm data. The value of that control, however, depends greatly upon the firm’s IT expertise, which generally requires an outside consultant, as well as the firm’s commitment to its own security protocols. As the practice grows or as hardware becomes outdated, on-premise servers will likely require additional investment from the firm.

The alternative to on-premise storage, of course, is cloud storage. Most lawyers, 58 percent according to the ABA’s most recent Legal

Technology Survey Report,2 now employ cloud-based services in their practice. Undeterred and probably partially motivated by the lack of direct control over data privacy and security, lawyers opting for a cloud-based solution outsource those responsibilities to a third-party vendor. The cloud provider guarantees the integrity and accessibility of firm data, protects it from outside intrusion, and shoulders hardware costs for a monthly or annual fee. Vendors dedicated to the legal industry often provide document storage and practice management software as an all-in-one, fully integrated service.

Between firm-owned, privately managed on-premise servers and rented space within public, multi-tenant cloud servers lies a third option: a private cloud. Like more familiar public cloud-storage solutions, private clouds outsource the responsibility of owning and maintaining a server to a third-party vendor. In contrast to a public cloud, however, firm data in a private cloud is stored on a dedicated, single-tenant server, separate from other customers’ data. In addition to greater control over how firm data is managed, this allows the firm to host its software, documents and email on one platform, but at the same time places the burden of security largely on the firm itself.

(Continue Reading…)

Best Practices for Law Firms During a Pandemic

Posted on: June 12th, 2020 by David Lipson

Best Practices for Law Firms During a Pandemic

The COVID-19 pandemic continues to disrupt all aspects of everyday life. As the virus spreads throughout the United States and around the globe, the number of those infected will rise, as will the death rate. Governments have issued quarantines and shelter-in-place orders in an effort to combat the pandemic, and, as a result, several businesses, including law firms, have closed offices temporarily and instituted work from home measures for lawyers and support staff.

In this challenging environment with circumstances changing on a continuous basis, law firms must remember the fiduciary duties owed to clients and their ethical duties as defined by rules of professional conduct in the relevant jurisdiction. Law firms may limit their exposure to professional liability and other claims by identifying and responding to key issues that may arise during the crisis.

Client Communications

During these stressful times, clients may require more reassurance from their lawyers than usual, which may lead to an increased need for communication between lawyers and clients. In addition to promptly complying with reasonable requests for information, lawyers must keep clients reasonably informed about the status of their matters. If law firms have closed their physical law offices on a temporary basis, such information should be communicated to clients, including any updates contact information for the law firm. Law firms may be required to ensure that phone numbers and voicemail messages are routed to the appropriate law firm personnel working remotely. The same concern applies to regular and certified mail as well as packages sent to the law firm’s office.

Security in Remote Working Situations

Attorneys must be vigilant in maintaining the security and confidentiality of data/client files while telecommunicating. Working remotely presents certain cybersecurity risks such as accessing/sending information through unsecure WIFI networks, use of unsecure personal devices, phishing attacks, and many others. Recent media reports indicate a surge in cybercrimes against law firms as criminals attempt to exploit cyber security vulnerabilities with so many lawyers working remotely. It is important to follow firm security guidelines and policies, and review data breach response plans to ensure that each practice setting is prepared and able to respond quickly to any incident.

(Continue Reading…)

Phishing Attacks Use Bar Complaints and HIPAA Audits as Bait

Posted on: May 19th, 2020 by David Lipson

Phishing Attacks Use Bar Complaints and HIPAA Audits as Bait

Attorneys have access to sensitive information and large sums of money, and although they are experts in many areas, they are seldom on the cutting edge of new technology. It should come as no surprise, then, that a growing number of email scams are targeting attorneys and other similar professionals. By mirroring an email from a state bar, legal organization, disciplinary board or government entity, these scams take a narrower focus that scatter-shot emails offering a free cruise or a one-in-a-lifetime deal with a Nigerian prince.

This brand of phishing uses a victim’s trust (or sometimes fear) of an institution as a way of influencing that person to download a malicious attachment, click on a malicious link, or transmit sensitive information to a third party. While some phishing emails remain easy to detect, others have begun displaying an incredible attention to detail. “Spoofing”, a phishing tactic that involves the technical manipulation of the email header or IP address so that it appears to have been sent from a trusted source, is especially difficult to counteract.

The two examples below illustrate the targeted nature of newer phishing attacks and the level of sophistication they employ, but also present an opportunity to educate attorneys on what they can do to avoid becoming a victim.

Bar Complaint Scam:

Officials from state bars across the country continue to warn of fraudulent emails purportedly conveying notice of a disciplinary complaint. Attorneys in Alabama, California, Florida, Georgia and Nevada reports receiving the phony emails as early as last summer, but emails have continued to surface through 2017. A variant of the scam appeared in Florida alleging a past due invoice rather than a bar complaint, but the details have remained more or less the same.

Like most phishing attempts, the email appears to have originated from a trusted source, whether it is the state bar, bar association, or even the attorney general’s office. It includes an urgent call to action, typically a response within ten days, and prompts the recipient to download an attachment or follow a link to view the relevant complaint or invoice. Following these instructions, you may have guessed, triggers the introduction of malware onto your system.

This malware may directly extract data from your network, but with the growing frequency devices are instead infected with ransomware which encrypts the recipient’s hard drive. Only upon paying a fee, subject to strict, time-sensitive instructions, will the device by decrypted and restored. Failing to comply leaves your data unusable and likely compromised.

(Continue Reading…)

Support Staff’s Role in Avoiding Legal Malpractice Claims

Posted on: March 4th, 2020 by David Lipson

Law Firm Supporting Staff: Recognizing Their Role in Avoiding Legal Malpractice Claims

They hold various titles for their daily roles in the practice of law: paralegal, legal secretary, paraprofessional, law clerk, project assistant, docketing clerk, research assistant, and the list is ever expanding. Regardless of their title, members of law firm support staff serve a critical role in the daily practice of law. Their work, when performed with proper guidance and supervision, not only keeps a legal practice running but also helps to mitigate and avoid legal malpractice claims. Over the entire span of a client representation, law firm support staff is critical to supporting the development and maintenance of professional attorney-client relationships.

Notably, support staff has a serious impact on professional liability exposure. Data from the American Bar Association’s Profile of Legal Malpractice Claims shows that administrative errors (procrastination in performance; lost file, document or evidence; failure to calendar properly; clerical error; failure to file document – no deadline; failure to react to calendar) leading to malpractice claims peaked in the 2011 study at 30.13% of total errors claimed. In the 2015 study, however, the administrative errors had decreased to a more typical 23.15%.

Although no known specific cause was identified for the uptick in legal malpractice claims related to alleged administrative errors, it may have been related to the economic downturn. As attorneys adapted their law practices to survive the economic downturn, many ventured into new areas of practice bringing their law firm support staff with them. Without proper guidance and supervision, and lacking a mentor to address uncertainties about the new area of practice, errors were made related to proper filing of documents, clerical errors, failure to file documents among other issues, which involved steps completed by support staff. As the legal community recovered from the economic downturn, legal malpractice claims based on administrative errors returned to customary historical numbers, but still remained in the double digits. Thus, opportunities exist throughout all stages of the client representation for support staff to more effectively support law firm operations and thus reduce the risk of a professional liability claim.

(Continue Reading…)

Wills, Trusts and Estates – Professional Liability Claims Trends & Fact Sheet

Posted on: September 26th, 2019 by David Lipson

Wills, Trusts and Estates – Professional Liability Fact Sheet

Read the Entire Article

Description of practice area

The practice area includes legal services dealing with all aspects of the analysis and planning for the conservation and disposition of wills, trusts, and estates. Claims arising from both federal and state estate and gift taxes are included here. Also included within this area of practice are the preparation of legal instruments in order to effectuate estate plans, administer estates (including tax-related matters, both federal and state), professional services involving trust planning, guardianships, custodianships, and conservatorships.

Frequency of Wills, Trusts and Estates Claims

Malpractice claims frequency for the wills, trusts and estates practice area at CNA surged during the economic downturn of 2008, peaking in 2010. Today, claims frequency for wills, trusts and estates remains markedly higher than prior to the recession and constitutes the #1 area for claims frequency.

Claim counts arising from Wills, Trusts and Estates have risen from an average of about 120 claims per year in 2008 to about 210 claims per year in 2014.

Quick Stats

  • Average of 500 claims reported per year
  • Average of 220 claims paid per year
  • Average cost per claim: $100,000
  • Average yearly cost of all wills, trusts and estates claims: $23 million
  • #1 claims area by count

Source: CNA Claims Data 2006-2014

Top causes of Wills, Trusts and Estates Claims

The most frequently alleged cause of wills, trusts and estates claims is improper document drafting or recording. The second most common cause is improper handling or disbursement of funds.

(Continue Reading…)

Why Avoid a Coverage Gap At All Costs

Posted on: July 22nd, 2019 by David Lipson

We’ve all made mistakes. We’re human and sometimes we simply forget to do something. Oftentimes, this is a minor error and the consequences are insignificant. However, sometimes in our busy, chaotic lives, we completely forget to do something important. Such in the case when an attorney mindlessly forgets to renew their professional malpractice insurance coverage.

Michigan attorneys should be careful to not allow a gap in their coverage to ever occur. Your malpractice insurance policy should continue without any gap to ensure that you remain covered for every day you practice law.

For attorneys, their biggest cost is their professional liability insurance. As any lawyer knows, a lapse in coverage is very dangerous. It is risky behavior to allow a gap in your coverage. Surprisingly, many lawyers don’t seem to fully appreciate the ramifications of allowing a coverage gap to occur. The reason one wants to maintain continuous coverage throughout a legal career is to make certain coverage is in place for all prior acts. That’s why retroactive dates are so extremely important. Any alleged malpractice that occurred prior to the retroactive date would not be a covered claim, even if the claim was made and reported during a current policy period.

The problem with allowing a coverage gap to occur is that the insurance company issuing a new policy post gap can, and often will, move the retroactive coverage date forward to align with this new policy’s inception date. The result is that coverage for all prior acts has now been lost, which is a harsh outcome, particularly for those attorneys who have been in practice for many years.

To ensure you do not have a lapse in coverage of your malpractice insurance, call the Paragon Underwriters team today at (248) 851-3066.

Spring is a Time for Change

Posted on: May 8th, 2019 by David Lipson

While it has seemed that Spring has been a bit late in fully arriving to us in Michigan, we all know that May will bring more Spring-like weather. Spring is a time for planting and renewal. It’s no wonder that people get the itch to do some Spring cleaning this time of year. It just feels like the right time to get more organized, clean up, and make some changes.

Speaking of changes, this is also a good time to consider your law practice’s malpractice insurance. Many attorneys think that it would be a big hassle to shop around for alternative policies when it comes to professional liability insurance. However, Paragon Underwriters makes that process quick, simple and hassle-free. We know that change is worrisome for many people. It’s easy to become unduly content with your malpractice insurance over the years and forget that there may very well be better coverage out there. But, it is out there!

 

spring - time to change your insurance coverage

 

A few months before your current coverage is set to expire, we encourage you to reach out to us for a discussion about options that will help protect you and your colleagues should you face the unfortunate experience of a client suing you for legal malpractice. Our insurance agency spends much time researching the new policies available to attorneys like you and we’d love the opportunity to share these details with you (or a representative from your law firm).

We became the best Professional Liability choice for Michigan Law Firms because of our reputation among attorneys like you. For nearly 50 years, we have demonstrated a commitment to providing Michigan lawyers with top-quality, customized professional liability insurance. Call us today, or at least 3 months before your current policy’s expiration date, so we can work together to find you the best coverage.

Attorney Stress Has Negative Client Implications

Posted on: April 22nd, 2019 by David Lipson

Most occupational groups have some amount of stress and anxiety as a result of a heavy workload,  and the challenges of daily requirements at the office. For 21st century attorneys, the pressure of representing clients and completing daily work tasks can have negative effects on the quality of work and significantly compromise the successful delivery of services to the clients who pay the law firm.

While it is often said that air traffic controllers suffer the most workplace-related stress, studies have shown that attorneys have much more stress than previously thought. The long hours that lawyers have to grind at the office coupled with the weight of responsibility that clients place on them leads to mistakes and grave errors. Being tired and not able to fully pay attention results in a failed representation that can lead to legal malpractice claims.

Stressed Out Attorney

Studies underscore lawyers’ personal problems that interfere with their ability to ably represent clients in accordance with a recognized standard of care. This can be a recipe for disaster and can severely affect a lawyer’s reputation and that of the law firm. Lawyers in Michigan who have had malpractice lawsuits brought against them have cited exhaustion and case overload as reasons for their errors. Representing clients can be difficult when there are extenuating circumstances causing attorneys to fall short in the office.

Caffeine might be helpful in keeping you awake, but the pressures of daily life can lead to incompetence. This, in turn, leads to potential malpractice claims. At Paragon Underwriters in West Bloomfield, Michigan, we help lawyers protect their interests with professional liability insurance, but we also work with our clients in risk management — finding ways to lessen the exposure to malpractice claims.

Tags: Attorneys, Lawyers, Professional Liability Insurance, Paragon Underwriters, Malpractice, Law Firms, Risk Management

Paragon Underwriters protects Attorneys, Professionals,
Businesses & Personal Assets in the state of Michigan.

If you’re looking for a better insurance experience, we’re just a click or a call away!