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AttPro Ally

Page 2: Planning for Your Retirement, Death or Disability

Page 3: Tip Jar:

Page 4: Dealing with Digital Detractors

Page 7: 10 Ways to minimize the chance of a legal malpractice suit

SUMMER 2016 ISSUE 19

PLANNING FOR YOUR RETIREMENT,

DEATH OR DISABILITY

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By Jordan Galve, JD

Ordinarily when we as lawyers prepare for retirement, we make meticulous plans regarding how best to wind down our practices and transfer our existing matters so that our clients have as seamless a transition as possible. However, when it comes to more unforeseen events like death and disability, few of us have comprehensive contingency plans.

But we should. Both the rules of professional responsibility and our fiduciary responsibilities require us to ensure clients’ interests are protected even in these types of unanticipated situations. And the client should never be disadvantaged by a lawyer’s failure to plan for such common life events. Although we rarely can predict the time and place of our own professional incapacity, we can and should anticipate that incapacity can occur at any time.

The need for such plans is even more acute for those of us who

practice in small and solo firms, where the failure to plan can be extremely detrimental to our clients and those left behind to pick up the pieces. Clients can be left without an attorney in pending litigation or business negotiations, with looming (or worse, unknown) deadlines. The client may have already paid a retainer and have no funds to hire a replacement lawyer, or may be up against an impossibly short limitations period. Our docketing and computer systems may be set up to be inaccessible to anyone other than us. In such cases, our family and friends may be left not only to grieve, but also to try to sort out the mess of legal matters, client needs, case files, financial problems and impending deadlines we’ve left behind—often with no idea what to do. And, in a worst case scenario, the failure to plan could expose an attorney or his or her estate to an ethics complaint or a malpractice claim. In contrast, with a good plan in place, clients can be notified, deadlines met, funds and property belonging

to clients returned promptly, client files protected, and office bookkeeping records adequately maintained.

Your plan should be in writing, and should always provide for the designation of a backup attorney. The backup attorney, upon your retirement or incapacity, would primarily be responsible for notifying your clients, reviewing your client files, and either taking over the cases or transferring them to other attorneys. One way to designate a backup attorney is to execute a contract with detailed provisions, including a limited power of attorney or an authorization and consent form to close or manage a law practice. If you are operating as a professional corporation, resolutions may be required authorizing you, as sole shareholder and director, to appoint another lawyer to manage or close your practice. For smaller firms, engagement letters should include notice of use of a designated backup attorney as well as a requirement that the client consent to this

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PLANNING FOR YOUR RETIREMENT, DEATH OR DISABILITY

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contingency in advance.

After you have designated a backup attorney, it is important to discuss your contingency plan with trusted family members and friends, as well as your designated backup attorney and your key office staff. You should also prepare detailed written instructions for use by these people in the event of unanticipated events affecting your practice. These written instructions should contain general information about your plans, as well as certain authorizations such as those needed to: (1) release your medical records if required to determine your incapacity; (2) provide all relevant people with notice of closure of your law practice (such as clients, the court, opposing counsel); (3) allow your backup attorney to contact your clients, take over their cases, and/or transfer their files; (4) obtain extensions of time in pending matters; and (5) close your law practice.

If you are a lawyer in a medium or large sized law firm, planning for retirement, death, or disability is likely simpler, but a detailed plan should still be in place. Written procedures should be implemented detailing what actions are needed in the event of any lawyer’s incapacity for any reason, including notification of clients, the court, and opposing counsel, as well as ensuring that all of the impending deadlines on that lawyer’s calendar are being handled by other lawyers in the firm. Special consideration should be made with respect to the incapacity of any attorney who is a managing partner, or who controls a significant portion of the firm’s business.

Finally, to learn more about planning for your retirement, death, or disability, contact your local or state bar association and ask about any available resources.

TIP JAR

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• Get CLE for free by attending our one-hour webinars offered throughout the year. Visit www.attorneyprotective.com/webinar to register.

• Do you like to read multiple newspapers, blogs and other publications on topics that matter to you, but hate having to go to multiple locations? Apps like Feedly, Inoreader, NewsBlur and others will allow you to organize all of your newsfeeds into one location, and better yet, some have integrated tools to help you easily post links to articles on social media.

• As we all know, cybersecurity is a topic of great concern today. One easy change that you can make to help guard against risks is to ensure that you have complex passwords that are changed frequently. Also, have a different password for each program.

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ETHICAL CONCERNS WITH RESPONDING TO ONLINE REVIEWS

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DEALING WITH DIGITAL DETRACTORS:

By John Browning, JD

In today’s digital age, everyone can easily air grievances to the world, and comments posted on lawyer rating sites like avvo.com and lawyerratingz.com or consumer complaint sites like yelp.com and ripoffreport.com can live online forever and pop up in response to Internet searches for your name. So what can a lawyer do when his or her professional reputation is attacked online by a client or former client? As with any criticism, there’s a right way and a wrong way to respond – and the wrong way can land you in front of the disciplinary board. Chicago employment attorney Betty Tsamis learned this lesson the hard way in January 2014, when she received a reprimand from the Illinois Attorney Registration and Disciplinary Commission for revealing confidential client information in a public forum.1 Tsamis had represented Richard Rinehart in an unsuccessful quest for unemployment benefits. After firing Tsamis, Rinehart posted a review of her on avvo.com. In the post, Rinehart expressed his dissatisfaction bluntly, claiming that Tsamis “only

wants your money,” that her assurances of being on a client’s side are “a huge lie,” and that she took this money despite “knowing full well a certain law in Illinois would not let me collect unemployment.”2 Within days of this posting, Tsamis contacted Rinehart by email, requesting that he remove it; Rinehart refused to do so unless he received a copy of his file and a full refund of the $1,500 he had paid.

Sometime in the next two months, Avvo removed Rinehart’s posting. But Rinehart posted a second negative review of Tsamis on the site. This time, Tsamis reacted by posting a reply the next day. In it, she called Rinehart’s allegations “simply false,” said he didn’t reveal all the facts of his situation during their client meetings, and stated, “I feel badly for him, but his own actions in beating up a female coworker are what caused the consequences he is now so upset about.”3 According to the Illinois disciplinary authorities, it was this online revelation of client information by Tsamis that violated the Rules of Professional Conduct, as well as the fact that her posting was “designed to intimidate and

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embarrass Rinehart and to keep him from posting additional information about her on the Avvo website,” which constituted another violation of professional conduct rules as well as conduct that tends to “bring the courts or the legal profession into disrepute.”4

An even more recent case serves as a cautionary tale of how not to respond to a negative online review. Colorado attorney James C. Underhill, Jr. was retained by a married couple to help with the husband’s ongoing post-divorce decree issues with his ex-wife. When the clients had problems paying his full fee, Underhill threatened to withdraw unless paid in full in two business days. When the clients terminated the representation, Underhill failed to refund a “filing fee” (nothing had been filed). The clients posted complaints about Underhill on two websites. He responded with postings of his own that, according to Colorado disciplinary authorities, “publicly shamed the couple by disclosing highly sensitive and confidential information gleaned from attorney-client discussions.”5 As if that wasn’t bad enough, Underhill then sued the couple for defamation, and even though he was aware that they had retained counsel, he continued to communicate with them ex parte despite being instructed not to by their lawyers. Underhill’s lawsuit was dismissed, but he then brought a second defamation suit in a different court, concocting an unfounded tale of further internet postings by his former clients that Colorado authorities found to be frivolous. Among the myriad disciplinary breaches by Underhill, he was also found to have violated Colorado Rule of Professional Conduct 8.4 (d) (“a lawyer shall not engage in conduct that prejudices the administration of justice”). As a result of his misconduct, Underhill received an 18-month suspension effective October 1, 2015.6

Occasionally, a defamation suit might prove successful. In a recent Georgia decision, Pampattiwar v. Hinson et al., the appellate court upheld a $405,000 trial verdict in favor of divorce lawyer Jan V. Hinson, who sued her former client Vivek A. Pampattiwar over negative reviews he allegedly posted online.7 Hinson represented Pampattiwar in a divorce proceeding until a series of disagreements ensued over the representation and billing and she stopped representing him. Approximately six weeks later, Hinson Googled herself and found a sharply negative review that Pampattiwar had posted on a professional services review site, kudzu.com. Among other comments, he allegedly described Hinson as “a CROOK lawyer” and an “Extremely Fraudulent Lady” who “inflates her bills by 10 times” and had “duped 12 people i[n] the last couple of years.”8 Although the comments were posted under the screen name “STAREA,” an investigation would reveal that STAREA’s IP address matched the IP address used by Pampattiwar to send several emails to Hinson.9

Hinson sued for fraud, breach of contract over the unpaid legal bills, and libel per se, and she added a count for invasion of privacy and false light after a second pseudonymous review was posted on kudzu.com, accusing Hinson of using her office staff to post “bogus” reviews.10 The appellate court rejected Pampattiwar’s argument that Hinson had shown no actual damages from the defamatory postings, finding that applicable Georgia tort law allows recovery for “wounded feelings,” a form of personal injury to reputation.

However, as another recent decision illustrates, it’s one thing when you know who’s smearing you online, but what about when you don’t? Courts in many jurisdictions are hesitant to unmask anonymous commenters, and websites like Avvo.com, Yelp.com, and others enjoy broad protections under the law. Tampa attorney Deborah Thomson found this out first-hand when she filed a defamation suit against an anonymous reviewer on Avvo.com and asked courts in Seattle (where Avvo is based) to enforce a subpoena for information unmasking her critic. Both the trial court and the appellate court denied her motions.11

Besides the ethical risk of revealing confidential client information when responding to a negative online review, there is another equally disturbing way for an attorney to get in trouble over reviews on websites: by posting false testimonials, both negative and positive. In 2013, an attorney was publicly reprimanded by the Minnesota Supreme Court for “falsely posing as a former client of opposing counsel and posting a negative review on a website.” In Dallas, a pending lawsuit brought by one law firm accused a rival firm of a campaign of false postings while posing as unhappy ex-clients. And in August 2013, Yelp took the extreme step of suing the McMillan Law Group, a San Diego bankruptcy firm, for allegedly “gaming the system” through the “planting of fake reviews intended to sway potential clients with false testimonials.”12

With the Internet assuming an ever-increasing marketing importance for lawyers, legal analysts are starting to pay more attention to a lawyer’s options and risks in addressing online reviews.13 But surprisingly to date, only a handful of ethics opinions have emerged that deal squarely with the question of whether an attorney may respond to a client’s negative online review.

In December 2012, the Los Angeles County Bar Association issued Formal Opinion No. 525, which dealt with the Ethical Duties of Lawyers in Connection with Adverse Comments Published by a Former Client.14 In the scenario discussed in this opinion, the adverse comments posted by the client did not disclose any confidential information, nor was there any pending litigation or arbitration between the lawyer and the

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former client. (If there had been, so-called “self-defense” exceptions to discussing a client’s confidential information, analogous to those in legal malpractice or grievance context, might apply.) The LA Bar Association committee concluded that an attorney may publicly respond as long as he or she does not disclose any confidential information, does not injure the client with respect to the subject of the prior representation, and is “proportionate and restrained.”15

In January 2014, the Bar Association of San Francisco weighed in on this subject as well.16 Like its Los Angeles counterpart, it addressed a scenario with “a free public online forum that rates attorneys,” in which the negative review by the ex-client did not disclose any confidential information.17 And like its fellow association, the San Francisco Bar reasoned that while an attorney “is not ethically barred from responding generally” to such an online review, the ongoing duty of confidentiality would prohibit the lawyer from disclosing any confidential information. In addition, it concluded, if the matter previously handled for the client was not over, “it may be inappropriate under the circumstances for [the] attorney to provide any substantive response in the online forum, even one that does not disclose confidential information.”18

Other state ethics opinions have come to similar conclusions. In October 2014, the New York State Bar issued Ethics Opinion 1032, in which it stated that “A lawyer may not disclose client confidential information solely to respond to a former client’s criticism of the lawyer posted on a website that includes client reviews of lawyers.” The Pennsylvania Bar agreed, and like its California counterparts held that the “self-defense” exception to preserving client confidentiality did not apply where online reviews were concerned. In Opinion 2014-200 (2014), the Pennsylvania state bar ethics committee opined that an online disagreement about the quality of a lawyer’s services is not a “controversy” and that no “proceeding” is pending or imminent just because a client impugns his lawyer in an online review. It did, however, propose the following generic response to a negative online review:

A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point-by-point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.

So just what is the best approach for dealing with negative online reviews, where posting a rebuttal that’s too specific may result in a trip to the disciplinary board and a defamation suit is chancy at best? Lawyer-coach Debra Bruce of Houston recommends refraining from lashing out. Instead, she says, ask happy clients to post their own positive reviews, and consider “addressing the comment with a gracious apology or regret for their dissatisfaction, appreciation for the feedback, and an invitation to address the matter with the complainant personally.”19 This advice is echoed by Josh King, general counsel to Avvo, who calls negative commentary “a golden marketing opportunity.”20 King says:

By posting a professional, meaningful response to negative commentary, an attorney sends a powerful message to any readers of that review. Done correctly, such a message communicates responsiveness, attention to feedback, and strength of character. The trick is to not act defensive, petty, or feel the need to directly refute what you perceive is wrong with the review.21

This is sound advice. After all, when responding online to a negative posting, you’re not just responding to one former client but to a reading audience of many potential clients.

John Browning is a Partner at Passman & Jones in Dallas, Texas and a trial lawyer with more than of 24 years of experience. He is the author of numerous articles and the leading book on social media’s impact on the law. Mr. Browning received his Doctor of Jurisprudence from the University of Texas School of Law and his Bachelor’s degree from Rutgers University (Rutgers College), in History, and in Comparative Literature 1986 graduating with general honors and departmental honors in both majors.

1. In the Matter of Tsamis, Commission No. 2013PR00095, available at http://www.iardc.org/13PR0095CM.html. 2. Id.3. Id.4. Id. 5. People v. James C. Underhill, Jr., Colorado Attorney Disciplinary Proceeding 15PDJ640 (August 12, 2015) 2015 WL 49441026. Id. 7. Pampattiwar v. Hinson et al., 2014 WL 943230 (Ct. App. Ga., Mar. 12, 2014). 8. Id.9. Id.10. Id.11. Thomson v. Doe, 356 P. 3d 727, 31 Law Man. Prof. Conduct 421 (Wash. Ct. App. 2015).12. Yelp, Inc. v. McMillan Law Group, Inc., Case No. CGC-13-533654 (Sup. Ct. Cal., Cnty. San Fran., filed Aug. 20, 2013). 13. See, e.g., Debra L. Bruce, How Lawyers Can handle Bad Reviews and Complaints on Social Media, 75 Tex. B.J. 402, 403 (May 2012); Josh King, Your Business:

Someone Online Hates You, The Recorder, Aug. 16, 2013: Laurel Rigertas, How Do You Rate Your Lawyer? Lawyers’ Responses to Online Reviews of Their Services, 4 St. Mary’s J. Legal Mal. & Ethics (2014).

14. LA Cnty. Bar Assoc. Professional Responsibility and Ethics Comm., Formal Opinion No. 525 (Feb. 2013)15. Id.16. Bar Assoc. San Fran. Ethics Opinion 2014-1 (Jan. 2014), http://www.sfbar.org/ethics/opinion_2014-1.aspx. 17. Id.18. Id. 19. Bruce, supra note 13, at 403.20. King, supra note 1321. Id.

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By Cal Watson, JD

Despite best efforts, dissatisfied clients sometimes file legal malpractice suits. Although there are no guaranteed methods preventing suits from being filed, there are tried and true ways that often reduce the risk of being sued, or minimize exposure once suits are filed. Below are ten steps that are frequently effective as risk management techniques for reducing the risk of suit for attorneys in any area of practice:

Screen clients carefully: Don’t ignore the warning signs of a problem-client (i.e., overly-litigious, multiple prior lawyers, and unbending and unrealistic expectations). Resist the temptation to take every client. Always guard against conflicts of interest: Be vigilant about possible conflicts of interest. When a waivable conflict arises, make sure consent is timely, informed, in writing, and signed by the client. The waiver should clearly set out the complete nature of the conflict. Also, be aware that not all conflicts can be waived. Always send an engagement letter: Always send an engagement letter that plainly sets out what you are retained to do and how you will be paid. In cases involving multiple related parties, make certain that you identify which parties you represent and which parties you do not represent. In cases where you are refusing representation, send a non-engagement letter documenting your refusal to accept the matter. Manage client expectations: Make every effort to understand your client’s goals and expectations. Listen. Ask questions. Make sure you and your client are on the same page. Inform the client of bad news directly and quickly. Be honest about what is possible, and what is not. Don’t ever overpromise. Maintain active communication: In all stages of the matter, make sure your client is informed. With email and other readily available technology, this process can be simple and, in some cases, automated. Stay current: Don’t dabble in unfamiliar areas. Regularly review new opinions, statutes, rulings, articles, or other guidance available in your practice areas. Attend continuing legal education seminars that apply to your practice. Maintain procedural and administrative safeguards: A common malpractice claim stems from a missed statute of limitations or other deadline. Consistently use calendars, docketing systems, and other safeguards to ensure that no deadlines are missed. Make sure you have a backup system so that if one system fails, the other kicks in to prevent misses. Make and preserve paper (or electronic) trails: Documented instructions and written advice to clients is critical in defending legal malpractice suits. Reduce your communication to writing in the event your client has a different recollection in the future. After important conversations, especially when conveying bad news or when setting expectations, follow up with a confirming email documenting the conversation. Confirm resolution of the matter: When involved in negotiations or other efforts to resolve a matter or case, actively involve clients in the discussions and make sure your client agrees to the resolution. Make sure much of the process is in writing. Reduce the client’s agreement to writing. Always send an end-of-engagement (or disengagement) letter: When the case or matter is over, make sure the client understands that the attorney-client relationship has ended. A letter confirming the end of your engagement can easily be included with the final invoice. Mr. Watson is a Member of Sowell Gray located in Columbia, South Carolina. His practice areas are Professional Liability

and Ethics, Commercial Litigation and Business Dispute Resolution and Alternative Dispute Resolution. Mr. Watson

earned his Doctor of Jurisprudence from the University of South Carolina School of Law where he graduated cum laude,

and his Bachelors degree from Wofford College, where he graduated summa cum laude.

WAYS TO MINIMIZE THE CHANCE OF A LEGAL MALPRACTICE SUIT

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LACY CRIPE, EDITORPolicies are written by either National Liability & Fire Insurance Company or National Fire & Marine and administered by Attorney Protective. All coverage is subject to specific policy terms and conditions. 2015 Attorney ProtectiveSM. ® All Rights Reserved. Information provided by AttPro Ally is not intended as legal advice. This publication provides best practices for use in connection with general circumstances, and ordinarily does not address specific situations. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by use of the suggested practices. Though the contents of AttPro Ally have been carefully researched, Attorney Protective makes no warranty as to its accuracy, applicability or timeliness. Anyone wishing to reproduce any part of the AttPro Ally content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to lacy.cripe@attorneyprotective.com.

This is AttPro Ally. A newsletter for today's modern law firm — AN ALLY IN A WORLD OF RISK.

READ OUR ARTICLE ON DEALING WITH DIGITAL DETRACTORS ON PAGES 4-6.

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