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 InsuranceCompany, 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 July 7, 2020) (unpublished), was a coverage action by a lawyer against her carrier.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.
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.
Be open to limited scope representation, aka unbundling.
Update your marketing. Specifically your website, blog, social media accounts, and whitepapers as suggested in the post. Get the word out that you are open for business and include a COVID-19 statement.
Improper redaction has been in the news repeatedly over the past few years, thanks to the revelation of confidential information in a handful of high-profile cases by way of failure to redact completely. Redaction is not a complicated process if you’re using the correct software, but you do have to know how to use it correctly. “How To…Properly Redact Your Documents” takes a look at this process in Adobe Acrobat DC Pro. Watch it to make sure you don’t wind up the next headline!
Excellent advice from our comrades at the Chicago Bar Association! For newbies, let me add a few thoughts:
How redaction works in Acrobat Pro DC
Redaction permanently removes visible text and graphics from a document. To begin redaction, open a PDF in Acrobat Pro DC and choose Tools > Redact. In the redaction toolbar, select Mark for Redaction > Text & Images. You may also redact entire pages or search for content to redact. To remove the marked items, click Apply in the redaction toolbar, and then click OK.
Redaction is permanent, no joke. You can’t undo it once your document is saved. If this is your first attempt, make a copy of your document and experiment.
Best practices are to save a before and after copy of your PDF (unredacted and redacted). This should be easy enough as Acrobat will automatically save the redacted version of your file as [original file name]_redacted.pdf unless you overwrite the file name.
When content is removed, you get to choose what appears in its place – redaction codes, custom overlay text, a colored box, or nothing at all. These settings are controlled using the properties tool in the redaction toolbar. Before you start set redaction properties. If you aren’t sure what you want, make a copy of your document and test different property settings.
For complete step-by-step directions on how to redact or remove hidden sensitive information, see this post from Adobe.
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.
Since the release of “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change,” LAPs, ABA entities and other interested individuals and organizations have worked at warp speed. One recommendation, a national survey of judges, has been in the works for over a year. While we all know judges experience stress, limited data was available […]