Malpractice Claim Trends in Oregon [Infographic]

The 2013 Professional Liability Fund Annual Report is now available for Oregon lawyers on the PLF Web site.  The report reveals the following legal malpractice claim trends and data:

Number of claimsAverage Cost Per ClaimFrequency of Claims by Area of LawCost of Claims by Area of Law

 

 

Notice from the Washington Attorney General’s Office: Beware of Loan Modification Scams Soliciting Washington Lawyers

beverlym:

Yet another scam hitting lawyers in the Pacific Northwest.

Originally posted on NWSidebar:

Alert!

From the Washington Attorney General’s Office:

The Washington Attorney General’s Office, the Washington Department of Financial Institutions, and other state agencies across the country, along with the Consumer Financial Protection Bureau and the Federal Trade Commission, are conducting a mortgage rescue fraud sweep, taking legal action against companies who prey on homeowners seeking to avoid foreclosure.

As part of the sweep, Attorney General Bob Ferguson wishes to alert Washington lawyers to problems that may arise from working with a for-profit loan modification or foreclosure rescue company as part of their practice.

Such companies are often located out of state and could be attempting an end run around state regulations and consumer protection laws by integrating Washington lawyers into their operation. These companies typically promise Washington borrowers that they can modify their loan, stop or postpone their foreclosure, or reduce their debt — usually for a hefty upfront fee.  Not only…

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Free Shred Days: Pendleton, Astoria, Grants Pass

The Professional Liability Fund is expanding its free shred events statewide for Oregon lawyers.  We will be in the following cities in August:

  • August 2 – Pendleton
  • August 9 – Astoria
  • August 23 – Grants Pass

For details, including start time and directions to the shred events, check your email inbox.  Broadcast emails will be sent soon to lawyers in eastern Oregon, the northern Oregon coast, and the south valley.

Shredding generally continues until the trucks are filled to capacity.  Please respect the box per firm limit so we can provide this service to as many regional law firms as possible.  You must wait until your material is shredded and retrieve your boxes.  We cannot dispose of cardboard.  Paper clips and binder clips can be shredded, but 3-ring binders cannot.

shred

If you have any questions about the upcoming shred events in Pendleton, Astoria, or Grants Pass, please contact DeAnna Shields at 503-639-6911, ext. 440 or deannas@osbplf.org.

Free shredding services are provided courtesy of the PLF and Blue Mountain, Clatsop County, and Rogue Community Colleges, respectively.  Mobile shredding trucks from Recall, the PLF’s document management company, will be shredding the materials on site.

Calling all Marion and Polk County Lawyers

On Saturday, July 26 the Professional Liability Fund (PLF) and Willamette University College of Law (WUCL) are hosting a FREE shred event in Salem at the university.  All Marion and Polk county lawyers are encouraged to participate.  For details, including start time and directions to the shred event, check your email inbox.

Shredding generally continues until the trucks are filled to capacity. Please respect the box per firm limit, so that we can provide this service to as many Marion and Polk county firms as possible. You must wait until your material is shredded and take your boxes back with you. Paper clips and binder clips are okay to shred but 3-ring binders should be removed.

If you have any questions about the July 26 shred event in Salem, please contact DeAnna Shields at 503-639-6911, ext. 440 or deannas@osbplf.org.

Free shredding services are provided courtesy of the PLF and WUCL.  Mobile shredding trucks from Recall, the PLF’s document management company, will be shredding the materials onsite.

 

 

 

The Five C’s of Hybrid Fee Agreements

Call it a hybrid fee agreement (HFA) or an alternative fee agreement (AFA).  Lawyers are looking for creative ways to appeal to clients who are resisting the traditional hourly rate approach.

Employment Law HFA

Consider the employment law case that is less than a slam dunk.  You could put in many hours only to see no fee. Ah, the life of a contingent fee practitioner.

Or is it?  One creative lawyer decided to offer his client a hybrid fee arrangement: a reduced hourly rate of $100 per hour with a 25% contingent kicker in the event of a recovery. (Lower than the “going” contingent rate of 33%.)  If the client agrees, and your fee agreement passes the test below, there is nothing wrong with such an arrangement.

Family Law HFA

Among family law practitioners – who are forbidden to take a contingent fee – a popular hybrid fee arrangement incorporates a flat fee earned upon receipt with an hourly rate that kicks in at a specific stage. The flat fee compensates the lawyer for work done in the early stages of a case: initial consultation; file opening; drafting and finalizing the Petition for Dissolution (or preparing a response); serving the opposing party; drafting and serving the first request for production of documents.  The flat fee could encompass additional services – each lawyer can determine where the cut-off should be – but charging a flat fee for time spent from the first consultation through initial discovery is predictable and easy to do.  Again, if the client agrees and your fee agreement passes the test below, this is a perfectly fine arrangement.

Does your HFA or AFA Pass the Test?

Every fee agreement must satisfy the 5 “C’s” test:

  • Clarity
  • Completeness
  • Compliant
  • Common sense
  • Can’t be excessive

Clarity

If a fee agreement is ambiguous, it must be construed against the lawyer. Cf. OSB Formal Ethics Op No 2005-15.” Oregon State Bar (OSB) Formal Ethics Opinion No. 2005-124.

If you decide to experiment with your fee agreements, strive to be as clear as possible.  With the employment law scenario, the main challenge is the math.  Conceptually the idea is pretty clear.  With the family law scenario, the number one problem is failing to explain what the client is “buying” with the initial flat fee earned upon receipt.  Just how far does the $1,000 initial payment go and when does the $200 per hour rate kick in?

Completeness

Consider all possibilities.  A good example in the employment law context: if you have the right to recover attorneys fees, address this in your agreement.  See OSB Formal Ethics Opinion No. 2005-69 [Attorney fee awards are the property of the client unless "the terms of the fee agreement expressly provided that Lawyer was entitled to the greater of the fee computed thereunder or the court-awarded amount."]  Fee agreements should address all conceivable outcomes.

Compliant

If your client is entering into a contingent fee agreement, he or she must execute the “Oregon State Bar Model Explanation of Contingent Fee Agreementbefore signing an agreement with you.  If you are charging a flat fee earned upon receipt, read and comply fully with Oregon RPC 1.5, Oregon RPC 1.15, and OSB Formal Ethics Opinion 2005-151 (Revised 2011).  May I also suggest reviewing this excellent article: Helen Hierschbiel, “Alternative Pricing Models: What’s in a Fee?,” Oregon State Bar Bulletin (November 2011).  Practice Tip: flat fee earned upon receipt fee agreements must include special “disclosure” language set out in Oregon RPC 1.5.

Common Sense

Don’t torture yourself or the client trying to figure out the math of your hybrid fee agreement.  Once you’ve developed a sample, run it by your next door neighbor or another lay person.  Ideally, run it by several nonlawyer friends.  Does it make sense to them?  If not, go back to the drawing board.  Remember: “If a fee agreement is ambiguous, it must be construed against the lawyer. Cf. OSB Formal Ethics Op No 2005-15.” Oregon State Bar (OSB) Formal Ethics Opinion No. 2005-124.

Can’t be Excessive

“The Oregon State Bar Legal Ethics Committee has also said that split contingent/hourly fee agreements do not automatically violate the rules of professional conduct. See OSB Formal Ethics Opinion No. 2005-54. However, the committee cautions lawyers that a fee that appears to be lawful at the outset, may turn out to be clearly excessive in the end….” Helen Hierschbiel, “Alternative Pricing Models: What’s in a Fee?,” Oregon State Bar Bulletin (November 2011).

All fees are subject to a look-back at the end of the case. The employment law HFA is more likely to be challenged than the family law HFA.  In the employment law scenario, tabulate the total hourly fees charged to the client and your contingent fee share of the recovery.  Add the two together.  Do these exceed the standard contingent rate of one-third?  If they do, you may be on perilous ground. Helen’s article, Alternative Pricing Models: What’s in a Fee? discusses all the factors that go into gauging the reasonableness of a fee.

Parting Thoughts

Developing HFAs or AFAs that are ethically compliant and legally enforceable can be done – don’t get discouraged.  In fact, the ABA Law Practice Division (ABA LPD) will soon release Alternative Fees for Business Lawyers and Their ClientsIf you are an Oregon lawyer and want this book (who wouldn’t?) but do not belong to the ABA, use the Professional Liability Fund discount code at checkout to save money: OSBPLF.

All Rights Reserved [2014] Beverly Michaelis

 

Ethical Issues and Responsibilities in Billing for Paralegals

On July 25 I am presenting Ethical Issues and Responsibilities in Billing for Paralegals on behalf of the National Business Institute and Institute for Paralegal Education.  This program is a practical course designed to enlighten attendees on using ethical billing practices while still satisfying billable hour requirements.  Here are the details:

Program Description

The requirement of paralegals to maintain a certain number of billable hours can sometimes lead to a slippery slope of what qualifies as billable. As you enter your time, you need to be conscious of the fact that every bill tells a story. What do your entries convey? Is your time frequently written off? Do clients fail to appreciate the value of your services? Examine hands-on, practical tips any one can implement so you can avoid ethical missteps and see immediate improvement in your overall productivity and billing practices.

Attendees Will Learn

  • The three key steps to success in billing
  • How to keep time accurately – even if you don’t have sophisticated software
  • How to avoid time being written-off or written down
  • How to manage your time to meet monthly/annual billable hour requirements
  • The magic formula for transforming time entries into the perfect bill
  • The ethics of billing: dos, don’ts, and the role of professionalism
  • Landmark cases establishing the client’s right to collect paralegal fees in conjunction with an attorney fee award
  • Tips for beginners

Who Should Attend

  • Paralegals
  • Legal Assistants
  • Anyone who bills time

CLE Credit

The program has been accredited for 1.0 ethics credits in Washington, California, Delaware, Florida, Indiana, Montana, North Carolina, Ohio and New Mexico.  NALA and NFPA have also accredited the program for 1.0 ethics credits.  Detailed information is available here.

Registration

Register now by following this link.  This is a Web-based audio program, which includes a Q & A session.  Upon registering, attendees will have access to the downloadable coursebook.  Cost:  $99.00 for the first registrant; $89.00 for each additional registrant.

All Rights Reserved [2014] Beverly Michaelis

 

Progress Update: Limited License Legal Technician (LLLT) Program

Originally posted on NWSidebar:

news
The first courses for legal technicians are being taught. Learn more about the next steps and how the legal community is reacting.

newsAs you may recall, the Supreme Court adopted the Limited License Legal Technician (LLLT) rule in June 2012, which authorizes new legal professionals who meet certain educational requirements to advise and assist clients in approved practice areas of law. The LLLT Board began implementation of the rule in January 2013, and I want to provide an update on our progress.

We began the process of implementation by addressing the following parts of the process: define the scope of practice; develop an education program that teaches to the scope of practice; develop Rules of Professional Conduct; develop examinations that will test the competency of the applicants.

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