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AttPro Ally

Page 2: Social Media’s Impact on Law Firms

Page 4: A Few Words from the Experts

Page 6: The Summer Barbeque

FALL 2014 ISSUE 16

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TWO OPINIONS: Two seasoned lawyers provide their opinions on the

impact of social media on law firms. Sally Field is an attorney of more than 30 years and Legal Professional Liability Leader for Attorney Protective. As a professional working in legal liability insurance for more than 20 years, Sally has extensive knowledge of the many risks presented by the practice of law. Sally earned her Doctor of Jurisprudence from the University of Houston and her Bachelor’s degree from Oklahoma State University, where she graduated with honors.

Q: What is the most significant change from social media that you’ve seen impact the practice of law?A: Without a doubt, the practice of law has changed in a lot of ways in recent years. The biggest changes have happened because of advances in technology which increase the pace of the practice of law and the speed at which clients expect an answer. Social media is just one subset of that. Additionally, social media has impacted dramatically the way law firms market their services, particularly the absolute need to have a social media strategy. How to develop a social media strategy is not something we learned in law school but is an integral part today of building a successful law practice.

Q: What do you see as the most difficult terrain for lawyers to navigate within the world of social media?A: After ethics, the most difficult terrain for most lawyers to navigate within social media is the development of social media policies for employees. Obviously, it is advisable for firms to have policies and procedures for social media activity on the part of employees. But it is a tough balancing act to balance ethical requirements like confidentiality with other concerns, such as NLRB findings. For example, a provision in policies will be found to be unlawful when they interfere with the rights of employees under the National Labor Relations Act, such as the right to discuss wages and working conditions with co-workers. Firms may need outside expert legal guidance to develop the social policies they need.

Q: What do you see as the biggest opportunity for lawyers to use social media to serve their clients better?A: The biggest missed opportunity for lawyer to use social media to serve their clients better is in the use of blogs. According to the 2013 ABA Technology Survey about 27% of law firms maintain blogs. I was surprised it was not a higher number. To either serve existing clients or to develop new business, a lawyer has to distinguish oneself

from the competition. A great way to do that is by emphasizing your expertise and client service. Clients also have come to expect that they will get some information for free. Blogs can help you meet that expectation as well as identify areas of developing law where clients might need additional help.

Q: Is there any “black ice,” so to speak, on the road of social media – any surprising sources of risk?A: The “black ice” on the road of social media is the challenge for lawyers to keep up with the ways you can use social media to investigate and advance their client’s legal matters. The ways social media are being used by creative, tech-savvy attorneys changes constantly. Social media provides so many tools, and the standard of care is evolving such that in order to be competent, lawyers will be required to keep up. It’s challenging.

Q: What resources would you recommend to lawyers to help them stay up to date on the evolution of social media and how it’s impacting legal ethics?A: I also would recommend John’s books as well as each state bar’s ethics opinions.

Q: Tell us about one example that demonstrates how you’ve seen social media impact a law practice.A: Again like the discussion about “black ice” cases like Canedy v. State, where a California appellate court held that a lawyer’s failure to locate a sexual abuse victim’s recantation on her social media profile could constitute ineffective assistance of counsel and Johnson v. McCullough, where the Missouri Supreme Court imposed an affirmative duty on attorneys to make online investigation a key part of their jury selection process, drive home the fact that advances in technology and social media are changing not just how lawyers can practice but how they arguably must practice.

John Browning is a Partner at Lewis Brisbois Bisgaard & Smith in Dallas, Texas and a trial lawyer with more than of 23 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.

Q: What is the most significant change from social media that you’ve seen impact the practice of law?A: There are so many changes that have resulted from social media’s impact, from countries adopting social networking platforms as a means of alternative service to jurisdictional considerations often involving a party’s social media presence or activities. However, I would have to say that the most significant change comes from the vast digital treasure trove of information that lawyers are now finding and using thanks to social media. Whether in formal discovery or informal case investigation, lawyers are turning to resources like Facebook and Twitter more routinely.

Q: What do you see as the most difficult terrain for lawyers to navigate within the world of social media?A: I believe the most difficult terrain for lawyers to navigate in the social media realm has been in the area of legal ethics. Lawyers are continually engaging in missteps with the use of social media – failing to maintain confidentiality, improperly “friending” parties or witnesses, and even failing to properly advise clients on pertinent evidence. Lawyers need to remember that the existing rules of ethics apply to social media just as they do to more traditional forms of communication.

Q: What do you see as the biggest opportunity for lawyers to use social media to serve their clients better?A: I think lawyers are missing a huge opportunity to exploit social media resources as a standard part of their work up of a case, and to communicate with their clients from the very beginning an agreement about social media use. Recent ethics opinions have discussed counseling clients about their social media activities at an

early juncture in the attorney-client relationship when the attorney might be able to provide guidance as what to post or not to post, use of privacy settings, etc. Lawyers need to be more open and proactive with their clients and avoid unpleasant surprises down the road.

Q: Is there any “black ice,” so to speak, on the road of social media – any surprising sources of risk?A: I would have to say that the area of social media in the workplace presents considerable risk for the unwary attorney. With the proliferation of employee-owned devices in the workplace, there are a whole host of risks that can arise from an employment situation, including data security issues, employee privacy and online harassment. With the National Labor Relations Board’s increasingly activist stance on social media policies and state legislatures dictating what an employer can and can’t ask for in terms of an applicant’s social media profile, this area presents a lot of risk.

Q: What resources would you recommend to lawyers to help them stay up to date on the evolution of social media and how it’s impacting legal ethics?A: I’d recommend both of my books as excellent resources and “must-haves” for any lawyer –The Lawyer’s Guide to Social Networking: Understanding Social Media’s Impact on the Law (West 2010), and my latest book, the Social Media and Litigation Practice Guide (West 2014). Both deal extensively with legal ethics, and both provide handy forms for practitioners.

Q: Tell us about one example that demonstrates how you’ve seen social media impact a law practice.A: Perhaps the clearest example comes from the 2013 Virginia Supreme Court case of Allied Concrete v. Lester. In this wrongful

SOCIAL MEDIA’S IMPACT ON LAW FIRMS

death case, Plaintiff ’s counsel directed the surviving husband to delete some damaging Facebook photos that wouldn’t have been consistent with his portrayal as a grieving widower. He also had the client sign sworn answers to interrogatories indicating that he did not even have a Facebook account. After a plaintiff ’s verdict, the defense sought a new trial on grounds of spoliation, and the plaintiff

attorney and his client were sanctioned a staggering $722,000. It also resulted in disciplinary action against the plaintiff ’s attorney by the Virginia Bar, and he lost his law license. A true cautionary tale for the digital age.

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concludes, send an “end of engagement” letter to avoid any misunderstanding about your future duties or any future conflict issues. If you decline a representation, immediately send a non-engagement letter to remove any argument that you owe the potential client any duties. When declining the matter, refrain from giving advice about the merits of the potential claim. Manage conflicts throughout representation.Throughout representation, constantly look for conflicts of interest. As witnesses are discovered, experts are named, and unexpected issues arise, new or previously unknown conflicts may surface. While virtually all lawyers have systems to check for conflicts at the beginning of a representation, many lawyers do not check for conflicts that may arise later. Make sure you actively manage conflicts until the case is over.

Safeguard funds.Finally, money issues are often at the heart of malpractice claims. Educate your staff on handling client funds and have as many safeguards in place as practical. It is critical that your trust account be protected by a system of checks and balances that can be defended if later questioned. Never allow one person – no matter how trusted – to handle trust account funds without oversight or involvement by others.

Elizabeth Cristofaro Partner, Goldberg Segalla in Hartford, Connecticut

Write effective engagment letters. Since we live in a world with constant and instantaneous communications, why do lawyers so frequently fail to send their clients effective engagement letters? In fact, studies show that in 85% of all legal malpractice claims, an effective engagement letter was not sent to the client, and that in 65% of the claims, no engagement letter was ever even drafted. This failure occurs despite the Model Rules of Professional Responsibility’s strong recommendation (and oftentimes,

Cal Watson, Member, Sowell-Gray in South Carolina

Maximize the quality of your work. While no lawyer can completely eliminate legal malpractice suits, lawyers can take steps to minimize common legal malpractice claims. Surveys show that most legal malpractice claims stem from poor work or poor communication with the client. For this reason, an obvious first step is to do excellent work. Find ways to maximize the quality of your work: read advance sheets, allow sufficient time to research and prepare important documents, do not “over delegate” or “under prepare,” and ask for assistance when needed.

Engage in meaningful communication. Meaningful communication with your client goes hand in hand with an excellent work product. Set up systems which allow you to easily keep the client informed. Ask your assistant to forward routine correspondence or pleadings to your client. Send emails or correspondence to update your clients regularly (even if nothing is happening), and keep clients informed about the status of fees and costs. Invite questions and suggestions, and involve your client in decisions about the strategy and handling of the case. When a client makes a decision, be sure to memorialize it in writing to avoid misunderstandings. If you cannot return a call or email within a reasonable time, have your assistant let the client know that you will respond as soon as practical.

Send an engagement letter.Other malpractice claims stem from issues that can be addressed in advance. At the beginning of any legal matter, make sure your engagement letter clearly sets forth the parameters of your representation to avoid misunderstandings. Clearly identify the client (and if necessary, who is NOT the client) and exactly what you are engaged to do. Specifically set out how your fee will be calculated and the likely costs. When the case

Check out50 Simple Ways You Can Market

Your Practice, by D. Stephanie Francis

Ward, ABA JOURNAL (Jul. 1, 2013), http://

www.abajournal.com/magazine/article/50_

simple_ways_you_can_market_your_practice/.

See who is linking to your law firm website

or blog by visiting opensiteexplorer.com. When quality websites link to your site, it can help to increase your rank on Google and

other search engines.

Register for a free CLE webinar on conflicts

of interest, being held on September 16, 2014, by visiting: attorneyprotective.

com/webinar.

TIP JAR

AttPro Ally Fall 2014 www.attorneyprotective.comAttPro Ally Fall 2014 www.attorneyprotective.com

A FEW WORDS FROM THE EXPERTS:

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requirement) that engagement letters be sent in all matters, and despite the fact that a good engagement letter often works to substantially limit an attorney’s liability.

Additionally, poorly drafted engagement letters can operate to impose liability where none exists, thus leaving lawyers worse off than had no engagement letter been sent. Without certain basic elements in an engagement letter, an attorney is not only not protected from suit, but also can be harmed by the letter. At a minimum, an engagement letter should: (1) clearly identify the client, (2) contain a detailed description of the legal matter and the work to be performed, (3) recommend that the client obtain independent counsel before entering into an attorney/client relationship or signing the engagement letter, (4) disclose the fee structure and the arbitration provisions, and (5) explain required state-specific disclosures. Additionally, before services are provided, attorneys should require the client to sign the engagement letter, thus acknowledging in writing that its terms are understood and agreed to, and that the client had the right to consult with independent counsel before entering into the attorney/client relationship.

Clearly set out which matters you will and will not handle.Equally as important as having a carefully crafted engagement letter is communicating with the client when you decide not to represent him or her, or when you decide to handle only part of the client’s legal matter. Thus, if you are asked to represent an existing client in a new matter outside your expertise and you decide not to accept this representation, send a letter clearly setting out which matters you will not be handling, while making clear which matters you will continue to handle. For example, if you are retained to represent a homeowner whose home is in foreclosure and who seeks out your services to assist in a bankruptcy filing, the engagement letter should make very clear whether you will or will not be representing the client in the contemporaneous foreclosure action.

Document who is not the client. Non-client liability is also a growing risk for attorneys. This is commonly seen in business transactions, such as formations of corporations or partnerships, private borrower-lender transactions, and real

estate transactions. When the corporation or partnership fails, or the loan is in default, the risk that one of the parties will claim reliance on the represented party’s attorney is real. In this case, it is suggested that at minimum a letter is sent with proof of receipt to the non-client advising that you are not representing him or her. Additionally, it is highly recommended that you have all parties sign a document showing who you are and are not representing. As added reinforcement, the documents that have been drafted by the attorney should identify who was represented by whom as well as list unrepresented parties to the business transaction.

Avoiding frivolous legal malpractice claims can sometimes be as simple as spending the time to draft a template for an engagement letter and customizing it as needed for every matter you handle. A long history of legal malpractice claims has shown that clear and effective engagement and disengagement letters often help avoid protracted litigation. If you and your firm are not presently following this practice, the time to start is now.

John Drath Shareholder, Bishop, Barry and Drath

Listen to your inner voice.We each possess an inner voice that lets us know when trouble is brewing. No matter how soft the voice is, we need to pay heed - because it is usually on the mark. A client with unrealistic expectations at the outset of a relationship is likely to hang on to those expectations throughout your representation. Other red flags include: (1) you will be replacing other, competent counsel; (2) there are third parties in the background whose advice may likely trump yours; and (3) there is inordinate wrangling over your fees and a retainer requirement. If you have your doubts, they are probably valid. Listen to that voice.

Communicate.Failing to communicate got Paul Newman

in trouble in Cool Hand Luke, and it gets lawyers in trouble as well. Not returning phone calls, not responding to emails and not adequately explaining matters are among the most common complaints. Communicate early, often and clearly.

ConfirmGiving good advice is only good if the client hears it, understands it and remembers it. Putting the advice in writing increases the likelihood of it reaching its mark, and eliminates the “he said – she said” debate in the event of a dispute. Written confirmation of all agreements reached or authorization conveyed will also reduce the likelihood of the client misunderstanding. Be the bearer of bad news.Is the client’s case worth less than they thought or you had initially predicted? Has some damaging evidence been unearthed? Has an important witness turned out to be more harmful than helpful? Did an important motion not go your way? Our job as lawyers is to keep our clients fully and timely informed as to both the strengths and weaknesses of their matters, so that they can make informed decisions based on the advice given. Realistic evaluations and discussions should take place throughout the representation, not just before heading into a mediation or trial. In “settle and sue” cases, clients claim, that they felt pressured into accepting a settlement and that they thought they had no choice but to accept what was being proposed, even though it varied substantially from what they were led to expect.

Send detailed monthly bills.The fact is a significant percentage of fee disputes turn into malpractice claims. Fee issues should be dealt with swiftly, as they arise. Clients should be billed monthly, and in detail, so the client can readily see what was done. Legal work is expensive, but if you have been regularly communicating, if the client has been involved in the process, if you have been confirming your discussions, and if you have been realistic in your assessment, a fee dispute is unlikely.

6 7AttPro Ally Winter 2014 www.attorneyprotective.comAttPro Ally Winter 2014 www.attorneyprotective.com

A MALPRACTICE DANGER ZONETHE SUMMER BARBEQUE

The thought of helping friends, family and existing clients can often tempt attorneys to dabble in areas of law where they lack expertise. The dangers of dabbling are probably obvious to us, but we’re often tempted to do it anyway for any one of a number of reasons, including:

• A trusted friend or family member has asked for help, and we don’t want to let them down.

• An existing client asks for advice in a matter that is completely different from matters we’ve previously handled for the client, and we don’t want to lose the client to another firm.

• The matter seems interesting.

• The expertise needed appears minimal.

• The matter looks trivial, and a common sense answer seems obvious.

• Revenue woes.

The ABA’s most recent Profile of Legal Malpractice Claims (2011) found that 45% of all reported claims result from substantive law errors. Dabbling can be a driver of these types of malpractice claims when lawyers take on legal issues without

expertise given that substantive law errors (and therefore malpractice) occur more frequently in unfamiliar areas of practice.

Making matters even more dicey, there are ethical considerations that add to malpractice risk. For example, Rule 1.1 of the Model Rules of Professional Conduct provides:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

While Ethical Consideration 6-3 of the Model Code of Professional Conduct provides that a lawyer can provide competent representation in a novel area of practice by undertaking the needed study and investigation, this type of representation is ethical only if the lawyer’s study and investigation will not result in unreasonable delay or expense to the client. So be warned - if you’re taking on a matter in a new area of practice, you’ll face not only the additional burden of showing that you’ve gained the necessary expertise but also that your billing for the matter is reasonable given the additional study.

Given all the risks in dabbling, ask yourself these questions before you jump in:

Have I handled matters like this one before? If so, to what degree? Was the experience gained sufficient to become competent? Is this matter truly within my expertise?

If not within my areas of expertise, can I study up? Can I become qualified through study and investigation?

How will I know when I am competent? (If you don’t know the area of practice, how will you know the extent of your knowledge is enough?)

If I can become qualified through study and investigation, how much time will it take and how much expense to the client will there be? Can I become qualified without unreasonable expense or delay to the client? What part of my study can be reasonably billed to the client?

Am I willing to take on this study and investigation knowing that I may not be able to bill the client for the time? Can I devote the time to learning a new area? Am I willing to?

Is my practice set up to take on this new area? Can my staff and systems handle the work presented by this new practice area? Am I willing to devote the time and resources to get them ready to support this matter?

If unreasonable expense or delay for the client is possible, can I resolve that issue by associating in a lawyer with established competence?

Have I explained fully to the client why I am associating in another lawyer and has the client agreed to the association? Do I have my client’s informed consent to associating in competent counsel after full disclosure?

Am I willing to continue to expand my knowledge and skill in this area of practice throughout the representation?

Is the better option to refer the case to competent

counsel, or to associate in competent counsel and remain on the matter?

What is in the best interest of the client, referral to another attorney with expertise, or retaining the client through the end of the matter?

If you have determined that you are competent (or can become competent) and have met your obligations to your client as described above, as you move forward, keep these practice tips in mind:

Document, document, document. Memorialize and document work performed, communications, advice, consent, billing agreements and expectations, and the scope of the representation performed by you and any attorneys you associate in on the matter.

Invest a little more time in staff supervision. You will not be the only one venturing out into a new area. Continue to ensure your staff and your systems are up to the task.

Carefully outline responsibilities. If you have referred the case or associated with another lawyer, make sure who does what is clearly outlined in writing and understood by all. You do not want to be held liable for the malpractice of another attorney. Communicate, communicate, communicate with your client, your associated counsel and your staff.

Continue to seek the advice of experts. This is especially important.

Keep track of every effort to become an expert, including all of the work done that is not billed to the client.

Finally, while lawyers can and do expand into new areas of practice, it is important that we do so deliberately and with a willingness to learn what is necessary to provide quality legal services to our clients.

Staying too long in the sun or getting too close to the flame are not the only ways that a

lawyer can get burned at the summer barbeque. As you’re sipping lemonade and engaging

in casual conversation, a friend or family member may look to you and say, “Hey, you’re

a lawyer, right? I’ve got this issue that has just come up with my business [homeowners

insurance, car accident, mother’s estate, etc.] . . . I’m not sure what I should do. Do you

think that you could help me? I’m really in a tight spot.” You take in a breath and then say,

“Well, I normally only practice criminal law defense, but I could probably help you.”

STOP! The summer barbeque has just become a malpractice danger zone.

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LACY CRIPE, EDITORProduct availability varies based upon business and regulatory approval and differs between companies. All products administered by Attorney Protective and underwritten by National Liability & Fire Insurance Company or its affiliates. Visit attorneyprotective.com/affiliates for more information. ©2014 Attorney Protective.® 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.

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