Emerging Legal Technologies and Malpractice

New technologies have evolved the way in which legal practices serve client needs. Some features and functions of legal practice management software include: case management, time tracking, document assembly, contract management, calendaring and docketing, and time and billing.

Not only is the purpose of such software, as discussed above, to assist law firms with everyday practice needs, but many seek to reduce the possibilities of engaging in legal malpractice.

Essentially, it can be agreed that regardless of a lawyer’s competency to handle a legal matter, the possibility of a malpractice claims become increasingly more possible as the matter becomes more complex. Some of the major areas in which malpractice claims tend to follow, involve, but are not limited to, the following: deadlines, failure to settle, poor management of expectations/poor communication, lack of knowledge or preparation, and conflicts of interest.

According to one report on legal malpractice, depending on which malpractice carrier supplied the information, the highest figures reported 12 out of every 100 attorneys being targeted by malpractice suits.^[1] Figures from the same report, found the median figures being between $10,000 and $30,000 for total malpractice damages, in which a claimant was successful in recuperating. Furthermore, about 9.4 to 12 percent of malpractice damages exceeded $100,000.

  

1 This particular report stated, the “[Lawyers Mutual Insurance Company of Kentucky] and [Wisconsin Lawyers Mutual Insurance Company], report frequency of claims per 100 lawyers insured... WILMIC shows rates ranging from about 3.75 to 4.75 100 lawyers while for LMICK the corresponding rates range from 2.71 to 3.79 claims for 100 lawyers... The [Oregon State Bar Professional Liability Fund]... claim rate was about 12 per 100 insured.“ Reports for the Attorneys’ Liability Assurance Society are much lower because it reports claims per 1,000 lawyers and figures 6.5 and 8.5 per 1,000 lawyers since about 2000. Herbert M. Kritzer & Neil Vidmar, When the Lawyer Screws Up: A portrait of Legal Malpractice Claims and their Resolution (2015), available at 
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=6182&context=faculty_scholarship 

THE RION CORP STANDARD:

RION Corp. has developed a cutting edge conflicts software application that is accessible in the Cloud. RION provides a secure, audit friendly, intuitive software program that is easy to use, highly accessible and customizable, and provides value through time and cost savings.

We promise that with our software, law firms are able to engage in the representation of clients knowing they are not violating the professional rules of responsibility.

MALPRACTICE VIOLATIONS BY TYPE

Type of Error	Percentage	U.S. Ranking
Legal Competency	11.3%	1
Planning Error	8.9%	2
Failure to Investigate	8.8%	3
Failure to File Documents	8.6%	4
Fail to Calendar	6.7%	5
Fail to know Deadlines	6.6%	6
Procrastination	5.9%	7
Fail to Obtain Consent	5.4%	8
Confilct of Interest	5.3%	9
Fraud	5.0%	10

* These are the top 10 violations reported by the American Bar Association. The complete chart listing all violations can be found at http://www.americanbar.org/publications/law_practice_home/law_practice_archive/lpm_magazine_webonly_webonly07101.html.

“Conflict of interest claims were down slightly to just 5 percent of all claims.  Computerized conflict checks, combined with standardized conflict resolution procedures, resulted in some improvements in this area.” 

* Randy Evans and Shari Klevens, How High Is Your Legal Malpractice Risk?, The Recorder, available at http://www.therecorder.com/id=12 02740408791/How-High-Is- Y our- Legal-Malpractice- Risk?mcode=0&curindex=0&curpage =2.

JOIN US TODAY!!!!!!

With our legal practice software we can lower the possibility of embarrassing, time-consuming, and potentially expensive risks associated with the failure to complete a comprehensive conflict check. With our highly efficient system we can lower the risk of an ethical violation for the failure to exhaustively complete a conflict check analysis. RION Corp. can offer affordable prices that will depend on the size of the firm. We also offer assistance in helping your firm successfully integrate our cutting edge software. 

Eric Fortineaux, Esq.
eric@rioncorp.com

Malpractice Insurance & CoI Avoidance

It is a good idea for all law firms of all sizes to have malpractice insurance, and we all know that comes at a price. In 2002 the ABA published a paper called "Controlling Legal Malpractice Insurance Cost and Availability in a Changing Marketplace".

It focuses on eight parts of the firm, that with a few focused efforts can drive down the cost of your malpractice insurance.

1. Docket & Calendar Control
2. Mail Handling
3. Conflict of Interest Avoidance
4. Serving as Corporate Director/Officer
5. File Opening Procedure
6. Fees & Billing Practices
7. Work Product Control/PeerReview
8. Client Selection

We see the third focus area is Conflicts of Interest Avoidance. Since this is our wheelhouse, we should take responsibility and actively participate in lowering malpractice costs.

Here's the CliffsNotes of what's recommended in this article:

• Be familiar with the Model & Code for Conflicts of Interest
• Keep current with recent case law regarding Conflicts of Interest for the latest interpretations.
• Even a robust and sophisticated Conflicts Checking system can only be as high quality as the information that's entered into it.
• The commitment to the Conflicts Checking System, Policies & Procedures must be firm-wide.
• Continuing education for Conflicts Avoidance should have an established and important place.
• Have a written policy & guidelines around Conflicts Avoidance with procedures and system use outlined, and stick to it.
• Firm members should not enter into business until firm management has approved.

How does your malpractice policy affect your CoI program or vice versa?  Please share in the comments section below.

Cori Blackburn
cori.blackburn@rioncorp.com
224-277-3855

Navigating through the Various Rules of Professional Conduct

To catch potential conflicts of interest, firms can easily keep track of the clients, adverse parties, and third parties involved in each matter, in a database that can be searched for a record of the parties involved in new matters, and for new parties involved in existing matters.

Here is a summary of some of the American Bar Assiciation Model Rules of Professional Conduct that govern conflicts in the legal industry.

Rule 1.7 - Conflict of Interest: Current Clients

The typical client-lawyer conflict of interest in a U.S. law firm involves the representation of a client who is directly adverse to another client, or if there is a risk that the representation will be limited by the lawyer / law firm's responsibilities to another client, a former client or a third person, or by a personal interest of the lawyer.

Rule 1.8 - Conflict of Interest: Current Clients: Specific Rules

The specific rules forbid a lawyer from entering into a business transaction with a client. What happens if a business contact asks to retain a firm lawyer for a legal matter, does your firm keep a record of business relationships to catch potential conflicts?

Rule 1.9 - Duties to Former Clients

How does your firm treat former clients? If a lawyer has formerly represented a client in a matter, the rules prohibit the representation of another person in the same or a substantially related matter in which that person's interest are materially adverse to the interest of the former client, unless the former client gives informed consent confirmed in writing. 

Rule 1.10 - Imputation of Conflicts of Interest: General Rule

What about new lawyers joining the firm? Generally, while lawyers are associated in a firm, none of them are allowed to knowingly represent a client when any of them practicing alone would be prohibited from doing so.  How does your firm handle potential conflicts when lawyers are bringing in business that has not yet been screened?

All of the above rules are important reasons why it is critical to keep, in addition to the parties, a record of the description of each matter, the practice area, and the roles and relationships of each party involved in your matters. 

Further, corporate affiliations and relationships between the many parties involved in legal matters at law firms are complex and also important to know when running conflict checks. 

For more details on the ABA Model Rules of Professional Conduct, see: http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents.html

For a list of states that have adopted the ABA Model Rules of Professional Conduct, see:
http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/alpha_list_state_adopting_model_rules.html

I invite you to share your thoughts or questions in the comments section below.

Thank you,
Ryan Vago
Founder & President
RION Corp.