Most law firms offer health insurance to their employees. And while those benefits help attract and retain qualified workers, errors in your plan’s administration can lead to lawsuits against your firm.
For example, suppose your firm hires a new paralegal. The new hire completes the necessary paperwork to be enrolled in the firm’s health plan. However, due to a clerical error by one of the human resource employees, the new teacher is not enrolled in the plan. Sometime later, the teacher is hospitalized with a severe illness and discovers she doesn’t have any health insurance. As the medical bills pile up, the teacher seeks restitution for the mistake and sues the law firm. A general liability policy does not cover this claim but rather an employee benefits liability policy.
Employee Benefits Liability An employee benefits liability policy typically covers errors and omissions for the following:
Accurately describing plan benefits and eligibility rules.
Maintaining files and records related to benefits.
Enrolling, maintaining, and terminating employees, eligible family members, or beneficiaries in benefit plans.
What constitutes “employee benefits”? This term generally includes the following:
Plans Pension, profit sharing, stock ownership, and savings, and other plans
Benefits Social security, workers compensation, disability, and unemployment benefits
Additional Tuition assistance, maternity leave, etc.
This Liability coverage usually includes two separate limits. The Each Employee limit is the most the insurer will pay for any one employee, their family members, and beneficiaries. The Aggregate limit is the most the insurer will pay for all acts, errors, or omissions.
Employee benefits liability is a relatively inexpensive coverage to purchase. Policies will start with an annual premium of $250 to $300 and increase as the number of employees at your firm increases.
If you are interested in receiving a quote for your law firm, please contact our office.
A risk management position is an example of a role that, even when filled by a lawyer, frequently involves both legal and non-legal work. “Attorneys can be hired in a myriad of roles not requiring their status as attorneys,” says Richard T. Seymour, former chair of the ABA Section of Labor and Employment Law.
When determining whether a dual-role employee is acting as legal counsel and thus invoking attorney-client privilege protection, courts should focus on function more than a title. Status is not the same thing as role. While risk managers’ views may be partially influenced by their legal degrees, their employer is not necessarily looking for legal advice, as opposed to business advice.
Just because certain positions (like risk management positions) are not part of a company’s legal group and don’t require a law degree doesn’t necessarily reveal the employee’s accurate and complete role. Whether a dual employee is functioning as in-house counsel is not a bright-line test.
Rather than focusing on labels and bright-line tests, the emphasis should be on how the company utilizes risk management employees. There is a lot at stake in determining the applicability of privilege, so the focus should be on whether the company’s employees are reaching out to the risk management director to seek legal advice. Risk managers can deal with critical legal issues.
Bringing Risk Managers Within the Privilege
If the applicability of privilege to a risk management employee is driven by function rather than form, then companies should consider how to characterize and implement those functions. Companies should give serious thought to dual-role employees like risk managers. The intent to preserve privilege cannot be assumed—the company needs to be specific that legal advice is being sought.
Bringing risk management employees within the privilege requires planning and foresight. Place risk management departments under the supervision and control of their general counsel and have the general counsel issue instructions to them. Operational changes may also help a court see the department as more legal than business. These could include: (i) modifying risk managers’ job descriptions to state that the position will involve the company seeking legal advice concerning matters they handle; (ii) requiring risk managers to keep separate files for legal and non-legal matters, and (iii) limiting email discussions on legal matters only to those who need to be involved in legal discussions.
Litigation errors breed the largest number of malpractice claims reported each year. In recent years, errors arising out of litigation accounted for nearly 36% of all reported claims. In the vast majority of cases, the statute of limitation on the client’s case expired and there was nothing left to do but assess the damages.
Below are the top three errors that lead to malpractice claims for attorneys.
FAILING TO MAINTAIN A COMPREHENSIVE CALENDARING/DOCKET CONTROL SYSTEM
Lawyers miss deadlines for a variety of reasons, but the most common is the lack of a good calendaring and docket control system. It does not matter whether you use a computerized case management and calendaring system or an old-fashioned tickler box. The most important aspects of a good docket control system are that (a) all relevant dates, whether they be statutes of limitation, appointments, or discovery deadlines be entered into the system and (b) several advance warnings of each deadline be given to the attorney and support persons involved.
WAITING UNTIL THE LAST MINUTE TO FILE THE COMPLAINT
One of the biggest mistakes that leads to malpractice suits is the tendency for the plaintiff’s lawyer to file a complaint at the eleventh hour – on the eve of the statute of limitation deadline. Although the lawyer believes he is within the “safety zone” because the limitation period has not yet expired, filing at the last minute is often a risky practice. In many cases, the plaintiff’s lawyer may be unable to perfect service of the summons and must file an alias and pluries summons to keep the action alive.
Sometimes the lawyer and/or his support staff forget to calendar the date the original summons expires. As a result, the action is barred because the statute of limitation expires before the summons is renewed. Other times, the lawyer inadvertently names the wrong defendant, and the opposing party files a motion to dismiss on that basis. If the complaint is filed at the last minute, the lawyer has little or no time left to investigate and determine the name of the proper party before the deadline passes.
For these reasons, we strongly encourage plaintiffs’ attorneys to file the complaint well in advance of the statute of limitation deadline. Filing early will give you more time to fix mistakes such as improper service or naming the wrong party. Hopefully, this extra time will give you an opportunity to correct mistakes before a malpractice claim develops.
FAILING TO KNOW THE CORRECT STATUTE OF LIMITATION
Sometimes, even with proper docket control systems, the lawyer fails to determine the correct statute of limitation applicable to the case. As different jurisdictions and types of cases all have different time frames, it’s important to verify the applicable statute of limitation.
Occurrence vs. Claims-made Form
Most insurance policies for law firms consist of two coverage forms that determine how the policy will respond to a claim: occurrence form and claims-made form. We want to spend the next two posts explaining these two forms and how they can affect your law firm in the event of a claim.
Occurrence form is the most common type of coverage form for commercial insurance. Aside from professional and executive liability policies, occurrence is the prevailing coverage on almost every policy.
The term “occurrence” relates to the moment the claim/injury happens. Then, once the date of “occurrence” is established, the policyholder knows which policy (or policies) will respond to the incident. The policy in force at the time of the incident will be the one to defend the policyholder and possibly pay the damages resulting from the claim.
Unfortunately, as simple as the concept sounds, several different legal theories are used to identify when the claim occurs. Every state is different, and any one of the following precedents could be used to determine the occurrence date:
1. Injury-in-Fact: Some states consider that the date of ANY actual bodily injury or property damage is the date of occurrence regardless of the date of manifestation. (For example, the day the nail was driven into the electrical wire.)
2. Manifestation Theory: Most states consider the date the injury manifests itself or becomes evident as the occurrence. (i.e., the day the fire starts because of the nail driven into it. )
3. Exposure or Continuous Trigger Theory: Known by two different names, this is when the courts consider dates of exposure as the dates of occurrence. This usually means there will be multiple occurrence dates and multiple policies involved in the litigation and settlement of the claim. These types of claims rarely, if ever, affect law firms, and this primarily applies to claims for pollution or other incidents with a potential for a long exposure period.
For law firms, any one of the triggers could above apply depending upon your policy and the type of claim. However, as most law firms’ claims fall under general liability and business auto policies, it’s easy to determine which policy will respond.
Claims-made Form Differences
Unlike an occurrence-based policy, where only the date of occurrence must be determined (or occurrences – based on the legal theory applied), three dates must be known and decided to trigger coverage in a “claims-made” form. These important dates are:
1. The Date of Occurrence;
2. The Retroactive Date (found inside the policy); and
3. The Date the “Claim” is Made.
The date of occurrence was discussed in our last post, and the date the claim is made might be considered self-evident. However, the term “retroactive date” necessitates further explanation.
A retroactive date is a limiting provision in the “claims made” policy. If an injury or damage occurs BEFORE this date – the policy will not respond to the loss. If covered injury or damage occurs AFTER the retroactive date, the policy in effect when the claim is made will respond to defend and pay the claim.
For example, your employment practices liability policy has January 1, 2004, retroactive date, and the injury is determined to have occurred on November 1, 2003. The claim was then reported on February 1, 2004. In this example, the policy in effect on February 1, 2004, will NOT pay for or defend the injury because the occurrence/injury took place before the retroactive date. Even worse, the prior claims-made policy will probably not pay the loss because the claim was not made during the policy period.
Continuing the above-simplified example, if the retroactive date were January 1, 2003, the policy on February 1, 2004 (when the claim is made) would respond in defense or payment of the injury.
These examples highlight the importance of working with an insurance agency that understands claims-made policies and how they can affect you and your law firm.
If you have any additional questions, please don’t hesitate to contact us.
Avoiding Malpractice Claims through Time Management
Missed deadlines and time management-related errors are the second biggest cause of malpractice claims at all firms’ sizes. Over the last decade, they have represented over 17 percent of all malpractice claims.
The most common time-related error is a failure to know or ascertain a deadline – missing a limitation period because you didn’t know it. The good news is that this specific error has declined by almost 50 percent over the last ten years. The bad news is that the other time and deadline-related errors are holding stable or increasing slightly.
While in the longer term, we expect that the new Limitations Act will result in fewer limitations period claims, at this stage, it does not appear to have had any impact. Indeed, it may have resulted in more claims over the last year due to confusion over transition provisions.
A calendar failure is the second most common time-related error (a limitation period was known, but it was not properly entered in a calendar or tickler system). The fourth most common time-related error is the failure to react to calendar error. In this case, the limitation period was known and entered into a tickler system but was missed due to a failure to use or respond to the tickler reminder.
Lawyers at firms of all sizes seem to have a dusty file or two that sits on the corner of their desks for far too long, and this makes procrastination-related errors the third most common time-related error. By count and costs, procrastination-related errors are on an upwards trend.
These deadline and time management errors are easily preventable with better time management skills and the proper use of tickler systems. Practice management software programs such as Amicus Attorney and Time Matters are excellent tools for helping lawyers manage deadlines and tasks and better manage client communications and relationships.
Settle and Sue Trend
A recent trend within the legal industry is the “settle and sue” lawsuit. A plaintiff in this type of legal-malpractice action is unhappy with settling a prior lawsuit even after the plaintiff voluntarily agreed to settle the case. In classic buyer’s remorse mode, disgruntled clients regret deciding to settle and focus their litigation crosshairs on their former attorney who advised the “negligent” settlement. In this case, the blame for that mistake is projected toward the former attorney.
An attorney may not be able to absolutely insulate himself or herself from a lawsuit raised by a former client post-settlement. Still, there are tips that one may follow to allow a more favorable opportunity to defend such a claim. Here are some suggestions:
Establish parameters early in the representation. Use an engagement letter to the client to underscore that your objectives are not necessarily to obtain the highest monetary settlement/verdict or to defend the case so that the least amount of money is paid. Rather, the goal of resolving the case is to reach a settlement that the client can understand and accept, given the strengths and weaknesses of the case. In short, don’t promise the moon. Merely promise that you will provide the best recommendations you can.
Get client input. Communicate with your client regularly regarding what his or her expectations of the case are and document his or her potentially evolving impression of the case in writing. Clients change their attitudes and goals frequently. Therefore, an attorney would be prudent to elicit regular input from his or her client to ensure that there is no miscommunication about what constitutes a “fair” settlement.
Fully explain the release. Clients frequently will assert that they could not understand the legalese of litigation and that no one attempted to explain the legal intricacies. Avoid that issue by showing your client a copy of a standard release early in the process and invite a discussion about the ramifications of signing such a release (for example, it may mean there is no admission of liability and one party is releasing all other potential claims). Again, document that this consultation took place.
Describe the mediation process in writing. If a case mediates, ensure that the client understands what the mediation process entails. This will require putting in writing (a) the qualifications and justification for the selection of the mediator, (b) the strengths and weaknesses of the case, (c) the possible settlement range and verdict range of the case, and (d) an acknowledgment that settlement could bypass a better result at trial. Reiterate that the parties are not obligated to settle just because a mediation has been scheduled and paid for by the parties. Rather, the client must be told in writing that they should ask questions if they do not understand any part of the process and should never feel forced to settle.
Alert the client to post-settlement responsibilities. The client must be aware of how any potential liens will affect the collectability of settlement, the time frame for payment, and how the attorney fees may be paid from that settlement. The case is not over the moment an agreement to settle is reached, and the client must be kept apprised of what will be done to bring a final resolution to the case.
A purchaser stricken with buyer’s remorse is consumed by the type of regret evidenced by plaintiffs in “settle and sue” lawsuits. Most jurisdictions agree that settlement of an underlying action does not automatically bar malpractice claims. Regardless of a plaintiff’s motive, the defendant-attorney must understand the law of his or her jurisdiction regarding these types of cases and must take comprehensive steps during the underlying litigation to ensure that there are ample grounds to defend the claim if one arises. The execution of a settlement agreement is usually the final chapter of litigation. At other times, it serves as a prologue for the “settle and sue” lawsuit.
Bad clients have an amazing way of sapping time and energy in ways you cannot bill for. Remember, you cannot bill for stress. You cannot bill for screaming when you get off the phone. You cannot bill for not sleeping well. You cannot bill for spending an hour talking about why you already wrote off a third of your time and why your bill is reasonable.
Bad Clients Chase Away Good Ones
Bad clients can cause you to turn down good clients for two reasons:
Bad clients have an amazing way of sucking up more time than they should. That means you will probably turn down good clients because you are so busy dealing with your problem client.
The mental fatigue is greater than you realize. When you are in the middle of dealing with a bad client, it can make otherwise good clients seem like bad clients.
It Doesn’t Get Better
You are doing yourself a disservice if you tell yourself, “it can only get better” or “it has to get better from here.” Sure, you can cross your fingers and hope they suddenly start responding to phone calls or emails, but that probably won’t be the case. Hopefully, your retainer has a provision for these scenarios, and you should not be afraid to invoke it and terminate your representation.
Check the Warning Signs
Now that you understand all money is not created equal, you can sharpen your intake skills to avoid bad clients. Someone might call with what sounds like the greatest case in the world, but your intuition may make you question the case or the client. Instead of talking yourself into cases, trust your instincts and turn them away.
If you are not ready to live and die by your gut, here are some other warning signs that trouble could be brewing down the road:
Your client calls with a legal emergency but then doesn’t return your call for days.
Your client doesn’t know who you are because they have called so many different attorneys.
He leaves a message without any specific details, other than he knows “it’s a great case,” and you need to call back immediately.
She sends multiple emails with documents before ever talking to you.
Makes an appointment and then no-shows or reschedules repeatedly.
The client tries to bargain on your rate or explains why you are too expensive.
Explains they previously hired another attorney but want to give you a shot.
Tells one story over the phone and a completely different one in your office.
That is not an exhaustive list by any means. Those are just some of the red alerts that should warn you about potential issues looming. This is also the perfect opportunity to bounce the case off another attorney and get some feedback. But never try and convince yourself that any client is a good client. It’s not that simple.
Coverage Denial Due to Colleague’s Misrepresentations
About the only thing worse than getting slapped with a malpractice suit is learning that your firm is not covered despite the professional’s belief that insurance was in place. Consider the possibility that one of your colleagues’ actions could result in a firm-wide declination of coverage— a scary thought. A recent decision demonstrates how one colleague’s actions could result in a denial of coverage for everyone.
In Illinois State Bar Ass’n Mut. Ins Co. v. Law Office of Tuzzolino and Terpinas, the Illinois Supreme Court ruled that an insurance company could rescind the entire malpractice policy for a Chicago law firm due to one partner’s false response on a renewal application. In the underlying malpractice suit, one of the law firm defendant’s partners (“Partner A”) was tasked with filing a client’s bankruptcy action. The suit was dismissed when he failed to timely file. Instead of promptly reporting the error to the client and the firm’s malpractice insurer, Partner A allegedly lied to the client and represented that the suit was still pending.
Shortly after the client uncovered the truth about the action, Partner A attempted to renew his firm’s malpractice insurance policy. He submitted a renewal quote and acceptance form to his insurance company on behalf of himself, his law partner (“Partner B”), and the entire firm. One of the questions on the renewal form asked, “[h]as any member of the firm become aware of a past or present circumstance(s) which may give rise to a claim that has not been reported?” Partner A responded “no” and signed the verification indicating the information contained in the renewal application was “true and complete to the best of [his] knowledge.”
After the renewal application was submitted, Partner B learned of the impending malpractice claim against Partner A and promptly notified the firm’s malpractice carrier. A malpractice suit was eventually filed against Partner A, Partner B, and their firm. In turn, the malpractice insurance carrier filed suit against the firm and partners to rescind the policy based upon Partner A’s material misrepresentation.
The appeals court found that the “innocent insured” doctrine protected Partner B. Partner B was therefore entitled to malpractice coverage even though Partner A was not. However, the state high court disagreed, holding that the “innocent insured doctrine” is inapplicable in rescission and contract formation cases. The court distinguished between applying the innocent insured doctrine to scenarios where the insured’s actions may trigger some exclusion in the policy instead of the instant scenario where the policy itself is voided through misrepresentation in the formation of the contract leading to rescission.
The court reasoned that in rescission cases, the focus is the effect of a misrepresentation on the validity of the policy, not the innocence of other insureds. The court’s decision was fatal to all insureds’ insurance coverage under the firm’s malpractice policy.
The decision also serves as a good reminder to properly detect and report potential claims promptly. The process of applying for insurance should be treated as a serious and significant event, and a firm should carefully designate a representative who will act thoroughly and truthfully when interacting with the insurer because one dishonest or careless colleague could result in rescission for everyone.
After being served with a malpractice action, attorneys will often mutter, “I knew·I shouldn’t have taken on that client.” These “problem” clients are often the result of ineffective client screening.
Successful practitioners augment their “gut feelings” with standardized office-wide screening procedures. A firm-wide policy of screening each prospective client according to a predetermined set of standards is critical. Each member of the firm is responsible for the clients the other members bring to the firm. With a standardized and effective screening process, potential disaster clients may be identified and avoided.
A set of screening questions subject to review and modification goes a long way toward weaning out undesirable clients. A periodic review of problem cases to decipher warning signs of potential danger also makes sense.
Do you have the time to take on the new case and give it the proper attention that the case deserves? If not, say no.
Do you have the expertise necessary to handle the case? Don’t dabble! There is no such thing as a simple will or a cut-and-dried personal injury case. If you are not prepared to handle the difficult cases in a given area of practice, do not accept the seemingly simple things.
If this is a contingency fee case, do you have adequate funds to take the case? You want to avoid being placed in a situation where case management decisions are being dictated by economics instead of by legal judgment.
Can the client afford your services? If not, say no. A fee dispute is in the making if you accept a client who is on a different financial footing. Minimally, the collection is likely to become an issue, and if you are compelled to collect the fee, the odds of facing a malpractice claim increase significantly.
Is the prospective client a family member or friend? Don’t be fooled. First, if the work is not satisfactory, favor or not, even the family member or friend will sue. Accepting work under this situation is foolhardy. Second, if you are unqualified to represent a stranger in a particular matter, likewise, you are unqualified to represent a friend or family member. Don’t be pushed into something you are uncomfortable handling.
Has the prospective client brought you the matter at the eleventh hour? If so, say no. If you do not have adequate time to perform a thorough investigation, you run the risk of missing a possible claim, failing to identify a defendant, or letting the statute of limitations run. You don’t want to end up paying for your client’s procrastination.
Has the prospective client had several· different attorneys? Heed the warning light! The client may wish to avoid paying fees, may be impossible to satisfy, may be bringing a case all others before you believed lacked merit, or will be impossible to resolve satisfactorily.
Does the prospective client behave irrationally or appear confrontational? If you are unable to work·effectively with someone during the initial interview, it is unlikely to get better over time. The difficult client all too readily becomes the angry client who will not hesitate to bring a suit.
Does ·the client have unrealistic expectations? You cannot guarantee results nor obtain a million-dollar judgment on a simple slip and fall. Do not take on clients whose expectations are simply unobtainable.
Today, most law firms live in two worlds – the world of paper client files and electronic client files. The big issue now is how to properly conserve each file type to ensure you keep proper documentation.
Paper vs. Electronic Records
There is no distinction between paper and electronic record retention; the same retention period applies.
Electronic records can include the following:
Documents – This would include anything that you would store in your “electronic client file” (from administrative documents to trial documents and everything in between) or your document management system or including voicemails, videos, and any other type of “document.”
Email – Email is a convenient way to communicate with clients. Some attorneys move their client emails to their practice management system, but many stores their email folders by client name in Microsoft Outlook. When considering an “electronic client file,” email is an essential part of the puzzle.
Time, Billing, and Accounting records – Typically, these types of records are stored in an accounting system and should be included in your procedure for closing client files. We will not address these specifically here, but they are considered part of the electronic client file.
Now that we know what documents we need to consider, let’s start by looking at a couple of key areas of electronic client files:
Active paper files
Closed paper files
Offsite paper files
Active Paper Files
By starting electronic record management with your active files, you create a plan for the future and the past. Most active cases today are a combination of electronic documents and paper documents.
There are three rules for active cases that will help you in your future records management:
Scan anything paper related to the case to PDF. Have a procedure in place to make sure this happens.
Shred the paper. Once the document is electronic, you can print it again if it becomes necessary. There are companies available for shredding and recycling. They will even provide bins for you to dispose of your paper. Depending on your office size and the amount of paper you generate, you may want to purchase an industrial shredder.
Make sure the documents are searchable. This is key. You will want to find documents later, so you need to make sure they are searchable today. Contact your copier vendor or IT vendor to ensure that any documents you scan on a multi-functional copier are automatically made searchable.
Closed Paper Files
Most firms have closed files in their office. Consider implementing the following strategy for closed files:
Scan anything in the paper file to a searchable PDF. You can hire a scanning company or hire a file clerk or a law clerk to scan the documents.
Export the Email. To maintain all case-related information in one place, export the case-related email. If it is sitting in MS Outlook, the email is separated from the rest of the client file. Export it from Outlook and save it with the rest of the electronic files.
Shred the paper.
Make sure the existing electronic files are searchable. MS Office files are already searchable, but your older PDF files might not be. Invest in Adobe Acrobat Professional to convert multiple PDF documents to searchable text at one time by using their Recognize Text in Multiple Documents feature.
Moving Closed Files
Once your closed cases are all electronic, organize them and move them to a designated closed file area.
Create an Electronic Destruction Policy –This should be part of your file closing procedures and should document when a file is closed and when electronic data is destroyed. In addition to informing your staff, include this information in your engagement letter so the client is aware of your electronic data destruction policy.
Create an electronic closed files storage area. These documents should be organized by year or month and year of closing depending on the volume of cases and your firm’s destruction policy. If your policy is to destroy them once a year, plan on January 1st for destruction. If it is every month, use the end of the month.
By creating this secondary storage area for closed files, they can be separated from your existing active cases but still available. If they need to be relocated to cloud-based storage or some alternative storage, all of the files will be in one area with a destruction date set.
Backup, Backup, Backup. Your data backup for your active files and your closed files should be the same. A good rule of thumb is that your data should be stored in three different locations.
Calendar your destruction dates. Create a recurring appointment for you or your staff to destroy the electronic documents. If it is on the calendar, it is more likely to be done regularly.
Maintain destruction records. Like paper destruction, records of destruction for electronic documents should be maintained indefinitely and should include the file name and destruction date.
Offsite Paper Files
Offsite storage of paper documents is costly, and most firms have been doing it for years. Just looking at the monthly cost for offsite storage will make most attorneys weak in the knees. But, your firm needs to come up with a plan for those paper documents and how they should be managed. Typically, there are two strategies for offsite paper documents:
Firms retrieve paper files that have been sent offsite and scan and destroy the files following their electronic data destruction policy. This policy is good for removing some of the files from storage, but it varies depending on the firm’s record-keeping.
Firms find that the cost of retrieving the paper files, scanning, and destroying files are too expensive and continue to store files until the destruction dates. Then, the storage facility will destroy the existing files, and offsite storage is no longer necessary.
Both of these strategies work, so your decision should be based on how long you have been storing documents offsite, how much storage your firm uses, and how organized your offsite records are. The offsite storage issue may not be fixed in the short-term, but at least the firm will plan to move into the future.
Plan for the Future
As they say, the future is now. By implementing document retention and destruction strategies for all of your files, you can bring your paper documents under control, making them searchable and accessible anywhere, and saving on offsite storage costs. In short, by creating a written policy for electronic document retention and destruction, informing your clients and staff of the policy, and implementing the policy, your electronic documents and paper documents will be organized with a plan.