ALPS 411 is a multi-authored blog from the ALPS Corporation featuring expert staff and guest writers with a focus on making lawyers safe and successful in their practice.

CLAIMS CORNER: "I Knew I Shouldn't Have Taken That Case"

Tuesday, May 15, 2012 by ALPS Report

“I knew I shouldn’t have taken that case.” Unfortunately, this is the statement we hear all too often when an insured attorney reports a malpractice claim to ALPS. In light of that fact, this article will encourage you to listen to your own judgment when determining whether or not to take a case and emphasize the importance of appropriate client selection and file opening procedures.

Hindsight offers the benefit of much clearer vision when reviewing a file. This is particularly true in legal malpractice cases. Appropriate client selection and file opening procedures are important risk management tools that you can incorporate into your law practice. Not only does this enhance work satisfaction, we believe that it can provide your clients...

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INSIDE UNDERWRITING: QUIET! Artist at Work.

Tuesday, May 15, 2012 by ALPS Report

In a previous column, we described some of what an underwriter does as they try to find an appropriate match of risk and premium. Yes, there is a science to underwriting – The Law of Large Numbers, actuarial statistics, etc. But there’s also an art to it. We are not Robo Underwriters who simply plug numbers into a formula, hit a button and wait to see what premium is spit out. We have to consider factors that are not quite as quantifiable. For example, if a firm has claims, we would need to know more than just how many claims. We look further to understand the severity and the frequency of claims, the practice areas they fall under, the attorneys involved and so on. Instead of just knowing what practice area(s) an attorney specializes in,...

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The Contract that Binds: Your Fee Agreement

Monday, May 14, 2012 by Guest Blogger

The Contract that Binds: Your Fee AgreementThe following is a guest blog post by Julie Brook, Esq., Legal Editor with the CEB Blog.

The contract binding you and your client is the fee agreement. This is not the time for simple boilerplate and formulaic thinking: Draft your fee agreements with care and attention to the particular case at hand. 

As a general rule, attorney and client may contractually agree to the measure and mode of an attorney’s compensation. CCP §1021. Although statutes, case law, and rules of professional conduct may put some substantial limits on fee agreements, they are nonetheless contracts.

Many attorneys prefer to set out their fee agreements in numbered paragraphs. Some attorneys prefer to draft their agreements in a letter that the client signs to indicate his...

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Retirement and the Solo Practice – A Gold Mine for a Young Lawyer

Wednesday, May 9, 2012 by Bob Minto

Last week I turned sixty-five and realized that I am not far off being eligible for Social Security and Medicare. The problem is I don't feel old enough to be eligible for either, and I have no desire to retire. Sixty-five used to be the milestone that people kept in mind as the date when they got the gold watch and started drawing their retirement from their employers defined benefit pension. Very few of those exist anymore and most of them have been turned over to the Pension Benefit Guarantee Corporation (PBGC) as part of a corporate chapter 11 bankruptcy filing. Now for many of us it's just another birthday with no meaning greater than any other. This thought string got me thinking about lawyers and retirement generally.

The world has...

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Free Resources for the Legal Community from ALPS

Tuesday, May 8, 2012 by R. Kiffin Hope

ALPS Resources for LawyersIn 2011, ALPS formalized its commitment to education and risk management with the advent of ALPS Educational Services (AES). With over two decades of working in all phases of the professional liability insurance industry — from underwriting to sales, to marketing and education — there are real benefits ALPS brings to our policyholders and the legal profession. Not only does ALPS provide premier protection to its policyholders, but we have always been committed to Continuing Legal Education and risk management programs.

In order to provide our insureds and the larger legal community with practical solutions to help avoid risk and strengthen practices and professional lives, we offer the following free resources, with more to be added in the...

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Don’t Do Stupid Things When Browsing the Internet

Monday, May 7, 2012 by Mark Bassingthwaighte

For years my kids viewed me as not very tech savvy. I suspect that was because I wasn’t a power gamer or perhaps they believed that parental units just don’t get it. Over time however, I have found it ironic that several of these now young adults occasionally call home for instructional help and guidance with their laptops and smart phones. One call of note occurred a few years ago and concerned a laptop that was dying a painful death due an inordinate number of nasty viruses and Trojans that had erased restore points and data as well as turned over control of that laptop to someone else. I was not able to help with this problem since we were separated by several thousand miles at the time. My only advice was to suggest that the time had...

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Mediation and Solo Construction Practice

Wednesday, May 2, 2012 by Christopher Hill

Wow! My second post here at ALPS411. I was thrilled to be invited back and decided to follow up my last post on solo construction practice in the cloud with a more specific post that is near and dear to my heart as a construction attorney here in Virginia. Namely mediation and how it can help lawyers (solo or otherwise) and their clients reach a business decision in the face of an the emotional roller coaster of litigation or other methods of dispute resolution.

I can speak to this truth from two perspectives: the litigator representing a client and the mediator whose role is to assist the parties reach a resolution in a neutral fashion. 

As a litigator and counselor I almost (though not quite) always recommend mediation at some point during...

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“Conversing” versus “Communicating”

Monday, April 30, 2012 by Wendy Inge

We’re all taking advantage of it; in fact many of us say we couldn’t live without it. We use technology throughout the day to help us stay in touch and communicate. We can text, e-mail, Facebook and blog (like I’m doing right now.) from just about any place with our smartphones and laptops. When it comes to handling a busy practice, the efficiency and convince this can create are indisputable. However, it has changed our work pace and our work place and perhaps not always for the better. Are you addicted to checking your e-mail at all hours of the day and night? Can you unplug when on vacation or a family outing? And what about the pace….do you feel compelled to respond right away even though you may have been working on another task or...

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How to Stop Them from Hitting the Delete Button

Wednesday, April 25, 2012 by Guest Blogger

Guest blog post by Julie Brook, Esq., Legal Editor with the CEB blog

Electronically stored information is so easy to alter or delete without a trace, which is particularly challenging when that information is evidence in a lawsuit. How do you make sure that this virtual evidence stays put?

When your case involves electronically stored information and you don’t want it to disappear with a touch of the delete button, a preservation order in the form of an injunction from the court at the outset of the litigation might be just what you need. See Dodge, Warren & Peters Ins. Servs., Inc. v Riley (2003) 105 CA4th 1414, 130 CR2d 385.

A preservation order will require that sources of electronically stored information are preserved pending discovery....

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A Plan to Die at Your Desk Isn’t the Best of Plans

Monday, April 23, 2012 by Mark Bassingthwaighte

A Plan to Die at Your Desk Isn't the Best of PlansThe past few years have been a bit rough in terms of the economy and there are few signs that things will dramatically improve anytime soon. The national debt continues to rise and there are still way too many who are unemployed or under employed. For those who went into this downturn living paycheck to paycheck, the past few years have been particularly hard. One lesson that can be taken from all this is the following. There is value in planning ahead in order to be financially prepared for the unexpected. So, how prepared are you? Not surprisingly, I see the failure of an attorney to appropriately plan ahead, not only as a financial misstep, but a risk management concern as well.

I constantly meet and work with attorneys who have done,...

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Why Paying Attention to Minor Details Does Matter

Wednesday, April 18, 2012 by Mark Bassingthwaighte

A typical law firm is not a place where everyone sits around all day drinking coffee and catching up on the latest gossip. More often than not, attorneys and staff are balancing several client matters at any given time. I suspect many feel as if there is never enough time because the workload simply seems to never have an end point. One ramification of this reality can be that attention to certain seemingly minor details goes by the wayside.

The kinds of details that I am referring to are those that are all too easily overlooked. They are the details of presentation and interaction as opposed to relevant legal details. Things like allowing a bill to go to a client that has one or more errors in it, sending a letter to a client with the...

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CLE – Staying Sharp and Staying Home (if you want)

Monday, April 16, 2012 by Bob Minto

CLE - Staying Sharp and Staying Home (if you want) by Bob Mento, CEO ALPSIt's hard to believe that ALPS has been around for twenty-four (24) years as of this past March 1st. Over that time we have amassed a lot of experience, mostly good and some not so good, but on the whole it allowed us to become the best prepared Lawyers' Professional Liability Insurer in the country to meet the needs of lawyers in rural areas. During that time we've gotten very good at defending lawyers when malpractice claims arise and to quote Kenny Rogers, "We know when to hold-em and we know when to fold-em." I don't mean to sound glib, but this experience has allowed us to produce some of the highest quality live CLE events in the country for our affiliated Bars and thousands of lawyers throughout the country.

At ALPS we take pride in...

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Yes, Referrals Can Come Back to Haunt You

Wednesday, April 11, 2012 by Mark Bassingthwaighte

Yes, Referrals Can Come Back to Haunt YouWe have all made referrals. For some, making a referral is almost a daily occurrence. Lawyers often make referrals after work is declined. Staff may make them in response to cold calls or to clients who need a service that the firm doesn’t provide. Referrals are sometimes made during dinner conversations, at social events, or after a presentation made to the general public. We may pass along a name to a family member, a friend, a colleague, and especially good clients. After all, we do want to make sure our good clients are well taken care of. Too often, however, referrals seem to be made without any thought of the potential malpractice exposure. Is such casualness justifiable? Unfortunately, the answer may be no.

Malpractice coverage...

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Have a Plan Before the Feds Come Knocking

Monday, April 9, 2012 by Guest Blogger

Guest blog post by Julie Brook, Esq., Legal Editor with the CEB blog

In light of the Penn State sex abuse scandal, many institutions are considering what they would do if a criminal investigation came to their doorstep. Don’t wait for that possibility; have a plan ready to put into effect if anything like the nightmare at Penn State should happen to your institution.

Having a clear, step-by-step plan to deal with a criminal investigation is essential for every institution — from companies to governmental entities to (obviously) schools.

Every plan should consider the following steps:

  • Ascertain what is known. What allegedly happened? Who is involved? Who in the institution knew about the alleged conduct? What do the law enforcement authorities...
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The Practice of Law is Dead – A Postscript

Thursday, April 5, 2012 by Bob Minto

I received more public comments on The Practice of Law is Dead blog post than any other I've written and they covered the waterfront as to cause and cure. Clearly, lawyers have concerns about the future and much of that concern revolves around lawyer population control. Apparently, Time Magazine was so impressed with my post that they published an entire article, written by Bill Saporito, on the subject entitled The Law vs. Supply and Demand - Is becoming a lawyer a bad investment? The article is so well written and so on point to my earlier blog discussion that I encourage you to read it so you can get the full impact without having to read my paraphrase of it in this post. Unfortunately, you may have to pay to read the article (it's worth...

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Managing File Handoffs

Wednesday, April 4, 2012 by Mark Bassingthwaighte

The old file handoffBelieve it or not, file handoffs can lead to trouble if not properly managed. It doesn’t matter if the handoff is from a partner to an associate, from one firm to another post referral or purchase of a practice, or is to a new firm or attorney after the current attorney’s practice has ended due to death, disability, retirement, or disciplinary action. There are concerns that should be addressed with all of three situations. Why? Because an attorney’s liability for a client file isn’t limited to the decisions made or actions taken solely during the time he or she is personally responsible for doing the work on that file.

 

Consider the partner to associate handoff. What if the partner’s perspective is that the work on the file being handed off...

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5 Tips for Successful Mediation

Monday, April 2, 2012 by Guest Blogger

Guest blog post by Julie Brook, Esq., Legal Editor with the CEB blog

Mediation has been increasingly used to resolve many types of legal disputes. And it’s no wonder why — mediation gives the parties an opportunity to settle the dispute without incurring substantial litigation expenses. Here are some tips to make your mediations as successful as they can be.

Although there are no universal rules about how to conduct a mediation, these 5 tips are useful and effective:

  1. Be willing to listen. To negotiate effectively, it is important to hear the other side’s concerns and to understand what options might be available that your client hasn’t yet considered. Even if the mediation doesn’t result in a settlement, the mediation process is useful for...

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The Practice of Law is Dead; Long Live the Practice of Law

Thursday, March 29, 2012 by Bob Minto

Okay so it's a bad paraphrase, but it makes a point. At some point in life every lawyer realizes that the practice culture, practice rules, client demands and expectations have changed drastically from what they knew oh so may years ago, and for many not for the better. I think this probably holds true for most lawyers who entered the practice in the last century, but I suspect it applies more for those of us that started practice just before the beginning of the information age. Population growth and concentration, inflation, speed of communication, ease of research and economic expectations all played a role in the meteoric change. The future of the practice of law belongs to the younger generation of lawyers and they face a daunting and...

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Service Via Social Networking?

Wednesday, March 28, 2012 by Guest Blogger

Guest blog post by Julie Brook, Esq., Legal Editor with the CEB blog

Serving a complaint via Facebook may be in our future. As BusinessWeek.com reports, the practice of online legal service is spreading around the world as courts look for new ways to keep their dockets moving.

In California, service of summons is generally made by

  • personal service (CCP §415.10),
  • substituted service (CCP §415.20),
  • service by mail and acknowledgment of receipt (CCP §415.30), or
  • service by publication when the plaintiff cannot with reasonable diligence serve the defendant by any of the other methods (CCP §415.50).

Service of notices and other papers may be made by mail in most circumstances. CCP §1012. Electronic service, i.e., serving papers by e-mail, is...

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Lawyer’s Duty of Confidentiality and Securing Your Smart Phone and Hand Held Device

Monday, March 26, 2012 by Wendy Inge

ALPS 411 - Secure your smartphoneLove My Smartphone: What’s not to love about a smartphone, it’s a great tool for keeping up while on the go. And smartphones aren’t just phones, they’re computers. The use of smart phones and other mobile devices like iPads is pervasive, and lawyers too have embraced these devices. But like all technology used by lawyers, we have certain ethical duties that apply. State bars have consistently held that the use of technology, such as e-mail, cloud-computing and portable devices requires consideration of the rules of professional responsibility addressing competency and confidentiality. Specifically, layers using this technology should be competent in understanding the technology (Rule 1.1 Competence) and how its use might impact the client...

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