Federal District Court Draws Distinction Between Disciplinary and Malpractice Defense in Coverage Decision

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Professional liability policies for lawyers and law firms often distinguish between disciplinary and malpractice defense. Some don’t cover disciplinary defense or, if they do, include a much lower coverage limit. A recent decision from the U.S. District Court for the Western District of Washington underscored the practical impact of the distinction between disciplinary and malpractice coverage.

Chochrane v. American Guarantee & Liability Insurance Company, 2020 WL 3798928 (W.D. Wash. July 7, 2020) (unpublished), was a coverage action by a lawyer against her carrier. The lawyer’s professional liability policy included coverage for disciplinary matters—but the limit was only $10,000. A grievance had been filed against the lawyer. No separate litigation for malpractice, however, was involved. Although the disciplinary matter was eventually dismissed, the lawyer incurred substantially more than the $10,000 limit in fees and costs in her defense. Because a part of the grievance included allegations of malpractice, the lawyer argued that her carrier should cover the expenses above the $10,000 limit. The carrier declined and the lawyer brought a coverage case against the carrier.

via Fine Print: Federal District Court Distinguishes Disciplinary and Malpractice Defense in Coverage Decision — NWSidebar

Learn about Oregon’s Professional Liability Fund Primary Coverage plan here.

Confidentiality Still Applies When Rebutting Online Reviews

We’ve chatted before about online reputations and how to respond (if at all) to negative online reviews. Defending yourself is a natural reaction, but usually the wrong call as an Oregon lawyer recently discovered.

In a case now on appeal to the Oregon Supreme Court, an Oregon lawyer was suspended for 30 days for revealing a client’s identity and the details of his criminal conviction in response to negative online reviews.

Isn’t it Self Defense?

We don’t really know.

The trial panel did not consider the “self-defense” exception to Oregon RPC 1.6, finding the lawyer did not show that the details contained in his rebuttal were “reasonably necessary” to reveal.

The bar argued the “self-defense” exception applies only to formal proceedings, such as responding to a legal malpractice claim or bar complaint.

Read the full post on NW Sidebar.

What We Do Know

  • The identity of your client is confidential.
  • Revealing details about a case can be equivalent to revealing the client’s name in a universe where people can follow the dots.
  • If you engage online, the fuel you add to the fire will likely push the negative post upward in search results.

What You Should Do

Going back to my post from 2017, here are some suggestions:

  • A reasonable and measured response is key. Blasting people who give you a negative review is not a good business model.
  • You can try contacting the review site and asking for the review’s removal if you can prove the review is false, defamatory or written by a competitor. In the case described above, the lawyer contacted Google, Yelp, and Avvo to have the negative reviews removed. All three sites refused, telling the lawyer they considered the reviews the former client’s personal opinions. In another instance, the Washington Court of Appeals refused to force disclosure of an anonymous online reviewer’s identity. See Thomson v. Jane Doe, 189 Wn. App. 45, 356 P.3d 727 (2015).
  • You can respond directly to the review on the site. Be courteous and explain that due to your duty of confidentiality, you can’t address the facts of the complaint, but that you do not believe it presents a fair and accurate portrayal of the events. Make clear that you are always available to meet with former clients and address any concerns they may have.
  • If possible, try to contact the reviewer directly and seek to ameliorate the situation or explain to them further why the representation unfolded as it did. If this is successful, don’t hesitate to ask for an updated review.
  • Try to avoid further negative reviews by soliciting client feedback directly as the representation continues and in exit interviews. Try to give your clients every opportunity to air their grievances with you and your firm directly so they don’t have the need to vent in public.
  • Lastly, the best antidote to a negative review is positive reviews. Keep your profile updated and facilitate the opportunity for your other clients to post their own satisfied reviews.

We’ve all heard the old saw, grow a tough skin. If you’re a lawyer, it better be twice as thick as everyone else’s.

All Rights Reserved 2020 Beverly Michaelis

Help with Working from Home

Now that you’re working from home, you might have a few questions on your mind. Perhaps you’re thinking about:

Using technology effectively
Managing your time and avoiding procrastination
Getting paid
Working with clients who are under stress
Operating your trust account remotely
Streamlining office systems
Sharing and storing electronic client files

How can you get answers quickly and efficiently?

Watch a CLE webcast.

From now through June 1, 2020 save 25% on all orders placed through my On Demand CLE store. Select the Buy Now button for any CLE, enter the discount code WFH and choose Apply.

Choose from 16 Titles

Details

All programs are current and accredited by the Oregon State Bar.  Visit my online store for details. Every discounted CLE purchase includes: MP4 download (combined audio and video file), M4a download (audio only), written program materials with presentation slides and resources, and answers to polling questions asked during the live CLE.

Still Have Questions?

Ask me! Send your questions through my confidential, private contact form at no charge. I’m happy to help.

Suggestions about Future CLE Topics?

I’d love to have them. Use my confidential, private contact form and send me your requests.

Stay safe!

All Rights Reserved 2020 Beverly Michaelis

Using Zoom for Video Conferencing

I love Zoom, but like any tech, there are potential vulnerabilities for new users.

Protect your Zoom account and avoid Zoombombing (aka hacking) by following these suggestions:

  • Be wary of links. Login at Zoom directly rather than using the meeting link. Enter the provided meeting ID to join a meeting.
  • Set screen sharing to host only. Doing so prevents your meeting from being hijacked by a hacker.
  • Use the waiting room feature to prescreen and approve attendees.
  • Try Zoom webinars instead (this is the method I use for all my CLEs). Webinar settings offer advanced controls, including several approaches to prescreening attendees.

Read more about these safety tips here.

Are Zoom Conferences Recorded?

Webinars

When I conduct Zoom CLE webinars, I record them. This is a setting I activate as host. It isn’t automatic.

Meetings

Zoom meetings are recorded by default. Zoom help explains this and instructs hosts on how to change settings. This is one area where the USA Today article is misleading. For information on Zoom encryption, see this.

Give Others a Heads Up

No matter what you do, it is common sense to give clients and others a heads up on how your video meeting will be conducted. Advise if you plan to record. Let attendees know if your conference is listen only, whether they can raise their hand, or submit questions.

Documenting Your File

Recordings have their place. For example, preserving the meeting as part of your file. Advanced settings in Zoom allow you to include all participant names, add a time stamp, save chat files, and automatically transcribe audio.

All in all, Zoom is a pretty terrific tool.

All Rights Reserved 2020 Beverly Michaelis