December 2016 Bar Bulletin
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December 2016 Bar Bulletin

The Top Ten Ways a Lawyer Gets in Trouble

By Christopher Howard
and Allison Krashan

 

Lawyers can find themselves in various forms of trouble, including losing clients, lawsuits or grievances. Why? This top 10 list is not scientific, but it draws from many sources, and includes recent apparent trends. The order is somewhat arbitrary, but certain behaviors and practices are consistently more risky for lawyers, justifying their relative ranking. In most cases, these risks can be addressed and mitigated by careful practice.

10. Being the Victim of a Trend

“Trends” can be as simple as targeting lawyers in the client trust account scams, usually set up from offshore by scammers who have a better understanding of our banking rules than most lawyers. Other trends can be observed from the lawsuits being filed against law firms. Many suits relate to economic events, such as the blip up when lawyers were sued as the deep pocket of last resort after the widespread real estate crash of the last decade. There appears to be a current upswing in lawsuits related to estate planning as the parents of the Baby Boom generation transition their wealth.

One way to avoid being such a victim is to resist trying to catch the popular wave or fad in legal business, whether that is trying to cash in on the next Dot-Com Boom or on real estate mania. Many lawyers get caught up as defendants in litigation when the bubble bursts. This is compounded by the temptation of a lawyer to dabble in a new popular area.

9. Technology, Including E-Discovery

Ever-changing technology presents many risks to lawyers. A lawyer takes a huge risk when he does not fully understand the technology issues necessary to comply with e-discovery requests. The lawyer should take early steps to document advice given to a client for a litigation hold.

Adequately assisting in appropriate discovery responses requires an understanding of the client’s technology. Cases around the country have held the lawyer responsible for a client’s inadequate e-discovery responses. The lawyer cannot sit back and simply wait for the client to provide its electronic discovery. A lawyer must be proactive and learn the necessary technology to understand the process and guide the client in responding when electronic discovery is appropriate.

Another technology risk occurs when the lawyer does not understand her own tools. A lawyer needs to know and be conversant in the technology she is using (e.g., email, wireless Internet, cloud storage, etc.). RPC 1.1, Comment [8], requires a lawyer to keep abreast of changes in relevant technology as part of competence.

A lawyer should be aware of the risk that data can be intercepted when using a non-encrypted or unsecure public network, or placing confidential client information in the cloud. Lawyers and firms have a responsibility to make reasonable inquiry in this area, including such niches as cloud service providers, or face potential liability.

8. Fiduciary Duties

Once a lawyer accepts a client, a fiduciary relationship is established. This may limit the lawyer’s freedom of action.

In lawsuits, lawyers frequently get blindsided by assertions of breach of fiduciary duty that were not obvious except in retrospect. A frequent example is representing one’s own transactional work in subsequent litigation (e.g., undertaking the litigation to enforce a contract drafted by one’s firm). In later litigation, the lawyer will be asked if he disclosed any inherent conflict in a provision (e.g., the firm’s incentive to not question the quality or validity of the contract it drafted). The allegation will be that the lawyer put his interest in defending his own work over the client’s interest.

Fiduciary issues can also arise with negotiations or renegotiations of billing arrangements, etc. Alleged breaches of fiduciary duty are rarely the reason a lawsuit is started, but they get thrown in and include additional remedies such as disgorgement, often not covered by insurance.

7. Conflicts

Conflicts are still getting law firms in trouble. Lawyers, anxious to get new work, may breeze through the conflict process without getting all names or correct names or without completely analyzing the conflict report. This can leave time bombs in the representation. Surprisingly, the person seeking representation may not know the correct corporate identity. This must be clarified before conflicts can be adequately completed.


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