Well-Being Week in Law

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Well-Being Week in Law

Posted on: May 15th, 2023 by David Lipson


May 1-5, 2023 marked the fourth annual Well-Being Week in Law (“WWIL”).

Occurring in conjunction with Mental Health Awareness Month, WWIL is an industry-wide initiative supported through the Institute for Well-Being in Law to address general health, mental health, and problematic substance use in the legal profession, often frequent but unspoken factors in professional liability claims. WWIL provides concrete, actionable ideas and resources to encourage innovation and improved well-being for all involved in the legal profession. In recognition of the importance of these issues, our live webinar includes a section devoted entirely to addressing lawyer well-being and offers helpful resources for our insureds.

Our previously published article also discusses data and resources related to well-being and mental health, and can be found here.

Money for Nothing? Best Practices for Referral and Fee Splitting Agreements

Posted on: April 10th, 2023 by David Lipson


It is an everyday occurrence. Attorneys refer cases to one another and then collect the fees for those same referrals. Client referrals and the income generated from fee splitting agreements are not only an important revenue stream, but also serve to assist those clients in need of quality legal representation when the attorneys are unable to take on all prospects themselves as a result of availability, retirement, or differing practice areas. However, these fees are not simply easy and risk-free money; there are strict requirements that the referring attorney must satisfy in order to collect the referral fee, and proactive risk management pertaining to fee splitting agreements is critical. The failure to meet these requirements may result in an ethical violation, may cause the loss of the fee, and may result in vicarious liability being placed upon the referring attorney for the misdeeds or negligence of the working attorney ultimately involving the referring attorney in a legal malpractice matter or disciplinary proceeding.

Why Refer?

Referral fees and fee sharing agreements play an important role. They incentivize lawyers to seek out or partner with other lawyers to ensure that clients obtain competent representation. They make good business sense in that an attorney cannot and should not try to handle every case that walks through the door. The attorney may have more work than she can handle at this time, the matter may be beyond the attorney’s current skill level or expertise, or perhaps the matter requires upfront costs that the attorney may not be in the financial position to bear on behalf of the client. Declining business is never easy, and the temptation to take on that representation can be difficult to resist. However, doing so may precipitate both disciplinary and legal malpractice problems. In order to derive income from the client matter, referral of the matter to another counsel and entering into a fee splitting agreement generally represents an acceptable approach. Here are some examples of situations when a fee splitting between attorneys may appear.




Serving on Boards: Blurred Lines May Blind Lawyers to the Risks

Posted on: March 21st, 2023 by David Lipson


Lawyers serving on a board of directors may derive many benefits from such service, including honing one’s business skills, developing professional relationships, enjoying the prestige and recognition of board membership, and strengthening the lawyer’s ties with an existing or potential law firm client. Lawyers contemplating board service must weigh the potential benefits against the risks inherent in such appointments prior to acceptance and throughout the tenure of any board service. Ambiguity concerning the lawyer-director’s precise role, as well as inattention to conflicts of interest and other liability issues may lead to negative consequences for the company, the lawyer’s law firm, and the lawyer herself.

There is no rule or law that prohibits lawyers from simultaneously serving as legal counsel and board members for an organization. Comment 35 to ABA Model Rule of Professional Conduct [“ABA MRPC”] Rule 1.7 cautions, however, that if “there is a material risk that the dual role will compromise the lawyer’s independence of professional judgment, the lawyer should not serve as a director or should cease to act as the corporation’s lawyer when conflicts of interest arise.” Moreover, if the lawyer contemplating board service determines that conflicts probably would arise frequently and be significant, the lawyer should either decline the offer to serve as a board member or decline to represent the company as legal counsel.

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Third Party Vendors and Your Practice: How Allied Vendors Help Streamline Firm Operations

Posted on: March 13th, 2023 by David Lipson


As with every other aspect of our lives, technology continues to redefine how lawyers practice and how firms operate. In view of that basic premise, the pace of changing technology provides the opportunity for firms to regularly reassess their processes, operations, and systems. Routine system-wide assessments permit greater operational efficiency and productivity, improved client service, increased new client generation, and ultimately improved financial success. Moreover, a systematic reevaluation of law firm operations (which should typically occur at least once a year) is one tool out of many that firms have at their disposal to help minimize the risk of potential malpractice claims or claims of ethical impropriety. With pervasive and ever-evolving ethics rules, opinions, and legal malpractice precedents, this protocol becomes especially important.

This challenge creates a number of questions. The questions lawyers ask themselves should not be “Must I accept electronic payments?” or “Should my solo practice need an incident response plan?” Rather, those questions are better phrased as “How do I improve my practice?” Or “How do I more efficiently track and follow up on my accounts receivable to free up more time to devote to clients?” “How can I organize my documents to be more accessible?” “Drastically reduce mistakes or human-led errors?” Compile large amounts of data while seeing only what I need when I need it without missing a beat?” “How do I more securely communicate with my clients?” “Or keep my firm and clients protected against non-stop cyber risks and attacks?” And of course, “How do I ensure that I get paid, and faster, for my work?”


Read about the Lawyers Allied Vendors Program…


Making Time to Retire: Best Practices for Succession Planning and A Smooth Transition

Posted on: March 7th, 2023 by David Lipson



People often ask, “When is the right time to retire?” But like so many questions about important decisions, there is no “right” answer. To find a meaningful answer, the questions should be reframed as, “When is the right time for me to retire?” And the only person who knows the right answer to that question is you. The key is to ask yourself that question now and then revisit it from time to time throughout your practice. The earlier you begin to think about it, with an eye toward retirement someday in the future, the more likely you are to be ready for a smooth transition out of practice whenever the time comes.

Lawyers tend to work longer than the general workforce. While some lawyers retire in their 50s, others continue into their 80s and even older. According to the recent ABA report, “Profile of the Legal Profession 2021”, roughly 14% of lawyers are 65 or older, double the number of that age group in the general workforce (7%). The Covid-19 pandemic has caused about a third of the lawyers over the age of 62 to reconsider their retirement plans; of that group, about half decided to accelerate retirement (47%) and the remainder (53%) decided to postpone it.


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Second Chances Abound

Posted on: February 24th, 2023 by David Lipson

In Practice…..with CNA

Second Chances Abound: Opportunities for Correcting Certain Omissions and Mistakes in Tax Elections

“Ignorantia juris quod tenetur scire, neminem excusat.”

Latin, philosophy and legal scholars alike may recognize this Latin phrase which roughly translates to “Ignorance of the law, which everyone is bound to know, excuses no one.” While this principle may be unforgiving, it is important to recognize that in practice, the tax law and in particular the tax regulations can be forgiving when it comes to failing to make timely tax elections. Understanding these opportunities for forgiveness can be an important tool in avoiding legal and accounting malpractice claims which involve tax law. Specifically, when tax practitioners make certain filing errors, particularly as to making tax elections, the potential exists for significant tax liability for their clients, and thus professional liability for the law firm. Practitioners should be mindful that relief (forgiveness of a sort) may be found in Treasury Regulation (Treas. Reg.) 301.9100-2 et seq.

301.9100 Relief in General

Treas. Reg. 301.9100-2 et seq. grants the Commissioner of the Internal Revenue Service (IRS) the authority to grant taxpayers relief from certain filing errors. 9100 relief does not cure improper filings, but it does allow taxpayers an opportunity to correct missed deadlines for making tax elections. Treas. Reg. 301.9100-2 et seq. provides standards for the IRS to use in determining whether to grant extensions of time to make both statutory and regulatory elections (but no more than six months except in the case of a taxpayer who is abroad) when the taxpayer has failed to do so on a timely basis. In evaluating the property of 9100 relief for their clients, practitioners must first consider whether the extensions they seek are automatic or discretionary.

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Professional Liability Fact Sheet: Plaintiffs Personal Injury/Property Damage

Posted on: February 10th, 2023 by David Lipson


Description of Practice Area

Includes the representation of parties in actions to recover for personal injury, wrongful death, or property damage resulting from intentional or unintentional acts, negligence, and other causes. Libel and slander actions, medical malpractice and product liability suits where any form of personal injury or property damage is involved are also included.

Risk Management Tips

The top three allegations in this area of practice are related to calendaring errors. It is imperative that attorneys and legal support staff recognize the crucial role correct calendaring plays in avoiding a legal malpractice allegation.

At a minimum, a master calendar should have at least one back up that would not be affected by a ransomware or software crisis. Rather than relying on the incident dare provided by a prospective or current client, attorneys should verify by documentation, electronic record or video surveillance/recording. Attorneys should inquire about all potential parties to a matter or litigation, and potential witnesses.

Beyond calendaring the stature of limitations, attorneys may was to calendar a potential withdrawal date or time to review the status of the matter and determine if the representation should proceed. This is an evaluation that should take place at least six months out from a trial date or stature of limitations to allow a current client to locate new counsel to take over the representation, if necessary.

Click the link to view the Fact Sheet

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.


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…

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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.

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