Idaho Allows Fee Disgorgement for Breach of Fiduciary Duty

Quote

In a case of first impression, the Idaho Supreme Court recently held that fee disgorgement is available as a remedy against a lawyer for breach of fiduciary duty even if there are no resulting damages.

Parkinson v. Bevis, 448 P.3d 1027 (Idaho 2019), involved comparatively simple facts: A lawyer representing plaintiff Rebecca Parkinson in her divorce proceedings shared a confidential attorney-client communication with opposing counsel. In a subsequent lawsuit against the lawyer, Parkinson conceded that she was not damaged by the unauthorized disclosure—instead framing her claim as one for breach of fiduciary duty seeking fee disgorgement as a remedy. The trial court dismissed the claim, but the Idaho Supreme Court reversed.

The Idaho Supreme Court first distinguished breach of fiduciary duty from legal malpractice: “A breach of fiduciary duty claim is an equitable claim for which a defendant may have to disgorge compensation received during the time the breach occurred, even if the plaintiff cannot show actual damages.” 448 P.3d at 1033.

via Idaho Supreme Court Allows Fee Disgorgement for Breach of Fiduciary Duty — NWSidebar

A result of interest to Oregon lawyers, since a fee disgorgement claim not involving negligence is unlikely to be covered by the Professional Liability Fund.

 

Effective Conflict Systems

Join me on Wednesday, March 11, 2020 for Effective Conflict Systems and learn the ethical principles behind conflict-of-interest screening, how to avoid common ethical traps, and the process of choosing, operating, and implementing effective conflict systems. Oregon-specific MCLE Ethics (.75) and Practical Skills (.50) credits pending.

Here are some of the issues this CLE will address:

  • When is the lawyer-client relationship formed?
  • What are my ethical duties toward prospects vs. current or former clients?
  • How essential are disengagement letters vis-a-vis conflicts?
  • Is a formal conflict tracking system ethically necessary?
  • When should I run a conflict check?
  • Who should be included in my conflict system?
  • What are best practices for conflict procedures?
  • How can I avoid ethical traps involving dual roles, multiple clients, firm transitions, office sharing, and more?
  • What resources are available to help with conflict evaluation and screening?

When & Where: Wednesday, March 11, 2020 from 10:00 a.m. to 11:15 a.m. Pacific Time. This is a live, online webinar.

Group Discounts: Available to firms who wish to register 5 or more attendees. Contact me for more information.

Participate in Polling & Ask Questions: Questions are welcome during the live event. Attendees are also encouraged to participate in live, anonymous polling.

How to Register

Register herechoose the image above, or visit the Upcoming CLE page. Secure payment processing powered by Eventbrite. Visa, MasterCard, Discover, and American Express accepted. Program materials included in the $25 registration price.

Can’t Attend?

Video and audio recordings will be available to download along with the program materials shortly after the live program event.  Price: $25. Contact me or visit my online CLE store to place an order.

Register Now!

All Rights Reserved 2020 – Beverly Michaelis

 

Create Distraction Free Time

 

All or most of these activities come with the job of being a lawyer. But we also need time to think and get work done. If you’re looking for answers, consider the following strategies.

Six Steps to Becoming a More Productive Lawyer

Set aside specific time during the day to respond to communications. Don’t allow the rings, dings, and beeps of technology to constantly interrupt your concentration. Check emails, calls, and texts when you arrive and before the end of the day. If a lunch-time check is feasible (or necessary in your opinion), add it in.

On days when your schedule won’t allow for check-ins, set up appropriate auto-replies to manage client expectations. If you have staff, let them screen and manage incoming requests. If you’re going to be gone for an extended period, inform clients beforehand.

Identify your most productive time of day and use it to do legal work. Schedule meetings during “down” time and inform staff of your preference (and when they can break the rules).

Set boundaries for using the Internet if you find that you spend too much time browsing, shopping, or looking at social media. Consider deleting cookies, logins, and bookmarks for pages that eat away at productive time.

Once a quarter, block out one week with no meetings so you can catch up. Don’t wait. Choose for weeks now. Use the time to clean up your desk and workspace, go through your to do list, attend to filing, scanning, or closing files – whatever you’ve been putting off. If you’re caught up, enjoy the uninterrupted time.

Delegate or outsource as much as you can, when you can, so you can focus on the tasks that only you can do. Billable time is precious and should be maximized doing billable work.

Feeling Overwhelmed?

There’s free help for that.

If you, or someone you care about, is feeling overwhelmed by stress, contact the Oregon Attorney Assistance Program (OAAP).

OAAP attorney counselors can help you explore ways to reduce your stress, manage your time, and achieve a healthier work-life balance. If needed, they can also refer you  to other health professionals to make sure you get the help you need. All contact with the OAAP is confidential.

All Rights Reserved 2020 Beverly Michaelis

 

Your Forms Library is Your Most Important Asset

Forms and templates are the most important intellectual property owned by a law firm. We rely on them to be efficient, effective, and productive. But is that reliance misplaced?

The answer is yes, if we fail to devote the necessary time and resources to maintaining our most valuable asset.

Here are some suggestions for keeping your forms library in tip-top shape:

  • Update your forms in accordance with the annual rules cycle. Proposed changes to the UTCRs are effective on August 1 of each year. Supplementary Local Rules (SLRs) are effective February 1 unless disapproved. Set task reminders accordingly!
  • Monitor and flag out-of-cycle rule amendments by subscribing to OJD News and Media Releases.
  • Watch for Oregon State Bar CLEs and publications discussing pertinent legislative changes.
  • Use Professional Liability Fund (PLF) resources. The PLF publishes legislation alerts on the most significant changes made by the Oregon legislature. The December 2019 issue of In Brief covers updates in 13 practice areas. The PLF also offers forms, which it strives to update in accordance with the legislative cycle. Visit the PLF Forms page for more information and to view revision dates for documents pertinent to your practice. Also of interest are “Cases of Note,” included in each issue of the PLF In Brief.
  • Create a centralized forms library that limits editing rights, but grants access to all users. Capture the library as part of your backup and regularly test backup integrity.
  • Consider appointing a forms czar or committee. Establish a process for adding, updating, and dumping forms.
  • Ensure that form content is scrubbed of metadata and does not contain confidential client information. Variables – the client-specific information you will be inserting into the form to customize it – should be readily apparent. Using document assembly software like The Form Tool is the way to go.
  • Push notifications to firm members when forms in their area of practice change.
  • Ask firm leadership to stress the importance of using the centralized library versus hoarding resources on individual desktops or copying and pasting content from one client document to the next.

Start by Downloading the latest UTCR Forms

The latest forms adopted by the Uniform Trial Court Rules (UTCR) Committee and approved by the Chief Justice of the Oregon Supreme Court can be downloaded in Zip, PDF, or Word format on the Oregon Judicial Department UTCR page. These include the following, which were revised in 2019:

Request to Segregate Protected Personal Information
Request to Inspect UTCR 2.100 Segregated Information Sheet
Request to Redact Protected Personal Information from Existing Case
Motion for an Expedited Civil Jury Case Designation
Order Designating an Expedited Civil Jury Case
Request for Hearing re: Statutory Restraining Order

All Rights Reserved 2020 Beverly Michaelis

For the latest out-of-cycle UTCR amendments – effective November 2019 and January 2020, visit the Current Rules page on the OJD website.

Fresh Start for the New Year

The new year offers each of us the chance to make changes. Not by setting lofty goals, but by committing to small adjustments that can make a big difference in attitude, health, and resilience. Here are 7 micro goals that anyone can follow.

Micro Goal 1 – Cut Your Work Hours

Several years ago I reported on a study from the Annals of Internal Medicine that found people “who work an average of 11 or more hours per day have a 67 percent higher risk of suffering a heart attack or dying from heart disease than people who work a standard seven- to eight-hour day.  Those who work between 10 and 11 hours per day have a 45 percent higher risk.”

Your micro goal: Commit to a 9 hour (or less) work day. The occasional exception is fine, just don’t backslide.

Micro Goal 2 – Stand, Move, Stretch

Sitting in your chair for hours on end shouldn’t be the norm. Stand, move, stretch. Consider a treadmill or standing desk. Better yet, leave the office for a few minutes and walk around the block! Your joints and muscles will thank you.

Your micro goal: Move at least once an hour. Use a cheap timer, an app, recurring task reminders, or whatever it takes to remind yourself to get up. No one will care if you stretch during a deposition or walk to the back of the room during a CLE.

Micro Goal 3 – Just Say No

Find it hard to turn people away? You aren’t alone. I don’t really have a choice. I need the money. Family, friends, or former clients are depending on me. These are things we tell ourselves. Follow this advice to turn the tide.

Your micro goal: Say no at least once a month. As you gain confidence, don’t hesitate to say no whenever necessary.

Micro Goal 4 – Say Goodbye

Too much to do and not enough time? Cull the herd.

  • Review your current client list for matters you regret taking.  If feasible, say goodbye to those clients.
  • Farm out work or delegate to others in your firm. If you’re a solo/small firm practitioner, reach out to colleagues for referrals to a contract lawyer who can get you over the hump.

Your micro goal: Apply your newfound client/case criteria to future matters and screen out cases that aren’t a good match for you.

Micro Goal 5 – Protect your Priorities

What do you want to get done? What are your priorities? When is the last time you even thought about what you wanted?

It’s easy to get pushed around by interruptions: phone calls, texts, emails, pop-in clients, or colleagues.

Your micro goal: Block out time on your calendar for work you want to get done. Treat this time as if it were a client appointment. (No interruptions allowed.) Stay off the Internet unless the task at hand involves being on the Internet. Give the matter your undivided attention.

Micro Goal 6 – Put Your Calendar First

If your calendar contains your personal and business commitments, including time blocks to get work done, let it determine the scheduling for all new promises.

Your micro goal: Check your calendar before promising completion of a time-related task. If there is no “deadline” per se, determine when you can reasonably fit the new project into your schedule. Add it to your calendar and back it up with a task reminder. You gain nothing by promising a quick turnaround if you can’t keep your word.

Micro Goal 7 – Triage When You Know You Can’t Meet a Deadline

If you’re in a pickle – a deadline is approaching and you know you can’t meet it  – the best approach is to face it head on. I know this can be hard. We assume clients or other lawyers will yell at us. The truth is, people are more understanding than we give them credit for. Everyone has been there. They get it.

Your micro goal: Renegotiate deadlines you can’t meet.

You can start over. You can make changes. Never let anyone tell you otherwise.

All Rights Reserved Beverly Michaelis 2020