New ABA Study on Malpractice Claims

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Approximately every four years since 1985, the American Bar Association has published a “Profile of Legal Malpractice Claims.” Plaintiffs’ personal injury and family law are the most frequent source of claims, according to the latest profile. Although the Profile does not correlate the severity of claims by practice area, the Profile’s “anecdotal observations” section suggests  that business and commercial law have traditionally been higher-risk areas on this score…

Risk Management by the Numbers: New ABA Study on Malpractice Claims — NWSidebar

Closer to Home

It is no particular surprise that Oregon mirrors the national statistics.

In 2019, the most recent year for which data is available, personal injury, domestic relations, and bankruptcy/debtor-creditor law top the list for frequency of claims in our state. They do not, however, represent the biggest payout. In fact, they don’t make the list.

If your concern is cost, look to business transactions, securities, other civil litigation, tax/non profit law, intellectual property, and construction.

Here are the details:

Don’t become a statistic

The risk of a legal malpractice claim can be greatly reduced by taking advantage of practice management resources. HOW you run your practice matters as much – or more – than the area of law you choose. Reading blogs, getting advice, and scheduling a webinar are all ways to educate yourself on malpractice traps.

Learning to manage your workflow and properly track deadlines is a must. So is managing your time. Reach out if you need help or have questions. Take advantage of PLF and OAAP resources. Getting your systems and procedures in order is the single most effective step any lawyer can take to manage the risk of a claim. This applies to those practicing in larger firms too. Your firm supplies the software and procedures, but when it comes down to managing your personal caseload that’s up to you.

All Rights Reserved 2020 Beverly Michaelis

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.

How COVID-19 Will Change Solo and Mid-Size Law Firms

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A recent report by Clio assessing the impacts of the coronavirus on the legal industry and consumers found that the virus has created a 40 percent drop in the number of new legal matters opened per week. Almost half of the polled consumers said that if they had a legal issue, they would delay seeking legal help until after the virus subsided. Further, 22 percent of consumers indicated they were under the impression that attorneys stopped working altogether because of COVID-19.

From our friends at NW Sidebar.

This post focuses on how COVID-19 is likely to affect small to mid-size law firms. I encourage you to read the full post. Here are some key points of interest:

Life is different and also the same. Clients expect you to cater to their needs. Put yourself in their shoes and you will do well.

All Rights Reserved 2020 Beverly Michaelis

 

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