How to Avoid Malpractice & Disciplinary Actions - General Do's and Don'ts 2019

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Practical and entertaining education for
attorneys, accountants, business owners
and executives, and investors.
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DISCLAIMER
The material in this webinar is for informational purposes only. It should not be
considered legal, financial or other professional advice. You should consult with an
attorney or other appropriate professional to determine what may be best for your
individual needs. While Financial Poise™ takes reasonable steps to ensure the information
it publishes is accurate, Financial Poise™ makes no guaranty in this regard.
About this PowerPoint: if you are looking at this PowerPoint without the benefit of
listening to the conversation that surrounded it then you are doing yourself a disservice.
This PowerPoint was prepared in contemplation of being viewed in conjunction with
listening to a one hour webinar on the topic
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MEET THE FACULTY
Moderator:
Michelle Gershfeld – Law Office of Michelle Gershfeld
Panelists:
Rob Michaels – Goldstein & McClintock
Bernie Burk – Formerly University of North Carolina School of Law
George Kuney – University of TN College of Law
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ABOUT THIS WEBINAR:
How to Avoid Malpractice & Disciplinary Actions
- General Do's and Don'ts
This webinar presents basic practice pointers to avoid committing malpractice and disciplinary
actions, and how to respond to claims of malpractice or unethical behavior. The panel also
discusses the role that malpractice insurance plays in these situations and the ramifications of a
malpractice judgment or disciplinary action. Model Rules discussed include: (a) those that govern
the client-lawyer relationship (Rule 1.1 through 1.10; 1.13; and 1.16); (b) those that that speak to
transactions with persons other than clients (Rule 4.1 through 4.4); Rules 5.1 through 5.5 (dealing
with respective responsibilities of a partners/supervisory lawyers, subordinate lawyers, non-lawyer
assistance, independence, unauthorized practice of law, and multijurisdictional practice of law); and
communication, including advertising and solicitation of clients (Rules 7.1 through 7.5)
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ABOUT THIS SERIES:
Legal Ethics – Best Practices
Corporate scandals make the headlines periodically, but businesses and the lawyers that work with
them face ethical challenges every day, even in situations that are legally compliant. This webinar
series examines ethical issues confronted by businesses in a variety of contexts, from so called “grey
areas” to those involving outright corruption. The panels consider and recommend different
approaches to ethical decision-making and the lawyer's role in advising business clients. As with all
Financial Poise Webinars, each episode in the series brings you into engaging, sometimes
humorous, conversations designed to entertain as it teaches. And, as with all Financial Poise
Webinars, each episode in the series is designed to be viewed independently of the other episodes,
so that participants will enhance their knowledge of this area whether they attend one, some, or all
of the episodes.
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EPISODES IN THIS SERIES
2/13/19 Episode #1:
Best Practice Regarding Technology
3/13/19 Episode #2:
Hot Off the Press- Recent Cases & Decisions
4/10/19 Episode #3:
How to Avoid Malpractice & Disciplinary Actions - General Do's and
Don'ts
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Dates shown are premiere dates.
All webinars will be available
On Demand approximately 4 weeks
after they premiere.

Episode #3:
How to Avoid Malpractice & Disciplinary
Actions - General Do's and Don'ts
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MALPRACTICE CLAIMS
• Typically, to establish a valid malpractice claim, the plaintiff needs to prove
that:
✓ the attorney owed the plaintiff a professional duty and breached that duty;
and
✓ the breach proximately resulted in quantifiable damage.
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COMPETENCE
• RPC 1.1: “Competent representation requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for representation.”
• In 2010, insurers reported that out of nearly 43,000 claims, 11.3% were related
to an attorneys failure to know or adequately apply the law.
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CLIENT CONSENT
• RPC 1.2: Allocation of Authority; 1.4: Communications
• 5.4% of reported insurance claims were related to the attorney’s failure to
obtain the client’s consent.
• 4.4% were for failure to follow the client’s instructions– intentionally or not.
• The client claimed that if the attorney had fully informed him/her of available
alternatives or the possible risks, he/she would have chosen a different option.
• Client claimed that the attorney failed to communicate with the client and
obtain his/her consent to a course of action.
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ATTORNEY AGENCY
• RPC 1.2: Scope of Representation and Allocation of Authority Between Client &
Lawyer; 1.3 Diligence cmt. 1
• Louisiana attorney, Larry English, told his client, Robert McCoy, that he
intended to admit guilt at trial. And, despite his client’s protests, English told
the jury that McCoy killed the three victims.
• Trial court convicted McCoy of three counts of first degree murder and
sentenced him to death.
✓ Affirmed by Louisiana Supreme Court.
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SUBSTANCE USE AND DEPENDENCY
• “Yet even as addiction was taking over his life, Peter continued working. In the
notebooks he used to keep track of injection times and dosages, he also made
cryptic notes about client calls and meetings, lists of things needed to prepare
documents, filing deadlines.” The Lawyer, the Addict, NYT, July 2017
• In a 2016 study published by the American Society of Addiction Medicine,
20.6% of attorneys reached the “problematic drinking” level.
• Know the signs.
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TRUST ACCOUNTING ERRORS
• RPC 1.15: Safekeeping Property
• Paying office expenses out of trust account.
• Commingling funds by failing to let a deposit clear.
• Not sweating the small stuff.
✓ Know your state rules.
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BOUNCING ESCROW CHECKS
• Attorney Escrow Accounts
✓ Depositing a certified check may take a few days to clear!
✓ Wait after depositing a check.
✓ Do not disburse money that you deposited that day via check.
• Bounced Check Rule– bank must agree
• RPC 1.15: Safekeeping Property
✓ “A lawyer should hold property of others with the care required of a
professional fiduciary.” cmt. 1
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FEES
• RPC 1.5: Fees
• May be unwise to bill client for cost of withdrawing or for cost of preparing a
response in a fee dispute.
• May not bill client for responding to disciplinary complaints.
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ACCIDENTAL CLIENTS
• Be careful not to unintentionally acquire new clients at social gatherings or in
dealings with organizational clients.
• RPC 1.7: Conflict of Interest– Current Client
• RPC 1.13: Organization as a Client
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DUTIES TO NON-CLIENTS
• RPC1.18: Duties to Prospective Clients
✓ Confidentiality
• RPC 1.1: Competence
✓ Giving assistance on merits of a matter
✓ RPC 1.18 cmt. 9
• Duty of Care
✓ Intent?
✓ Knowing acceptance?
✓ Foreseeability of reliance?
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POOR INTAKE PROCESS
• Failing to check for conflicts of interest prior to discussing the matter in more
detail.
✓ RPC 1.7: Conflict of Interest– Current Clients
• Starting work before the terms of the engagement are fully documented and
agreed to.
✓ RPC 1.2: Scope of Representation; 1.16: Declining or Terminating
Representation
• Failing to specify the scope and length of the engagement with thoughtful
precision.
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BAD INTAKE DECISIONS
• The clients you take on, but maybe shouldn’t have…
✓ The client who fired his/her prior lawyer, or whose previous lawyer fired
him/her.
✓ The client who says, “I don’t care about cost.”
✓ The client who doesn’t want to talk about fees, or wants to talk about fees too
soon.
✓ The client who talks about future engagements/referrals, but wants deep
discounts on this one.
✓ The client motivated by spite.
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BAD INTAKE DECISIONS (cont’d)
✓ The client interested in remedies the legal system does not provide.
✓ The client whose story of the matter at hand (or other personal history)
contains things that most folks just wouldn’t do (exception for criminal
defense).
✓ The client who blames everyone else.
✓ The client who is rude to you or your staff during intake.
✓ The client who gives you a nagging or funny feeling.
✓ Others?
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CONFIDENTIALITY CAUTIONS
• RPC1.6: Confidentiality
• Avoid speaking about client (or non-client) matters in non-private spaces.
• Do not use or threaten to use embarrassing client confidences, not relevant to a
dispute with the client, to gain leverage in the dispute.
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INADEQUATE OFFICE PROCESS
• Failing to maintain and use a calendar system.
• Failing to maintain and use a rigorous conflicts-checking system.
• Failing to communicate with client about status of matters.
• Failing to properly customize a form document to a client’s matter.
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DEADLINES
• RPC 1.1: Competence; 1.3: Diligence cmt. 3
• In the 2010 report from insurers, 8.9% of claims were related to an attorney’s
planning error; 8.6% were from failure to file documents; 6.7% from failure to
calendar; and 6.6% of claim reported by insurers were related to an attorney’s
failure to know or correctly calculate an applicable deadline.
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LIBEL OR SLANDER
• RPC 1.6: Confidentiality
• Consider ethical obligations before writing a tell-all book about your former
client.
• 1.8% of claims reported by insurers were related to libel or slander.
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SUPERVISING OTHERS
• RPC 5.1: Responsibilities of a Partner or Supervisory Lawyer; 5.3:
Responsibilities Regarding Nonlawyer Assistance
• Even if a mistake is made by a junior associate or a staff member, you may be
responsible for it.
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CLAWBACK AGREEMENT
• RPC 1.1: Competence; 1.3: Diligence; 1.6: Confidentiality of Information
• Protect against the repercussions of inadequate office practices or mistakes with
a clawback agreement with opposing counsel.
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TECHNOLOGY
• RPC 1.1: Competence; 1.3: Diligence; 1.4: Communications; 1.5: Confidentiality
of Information
• If you’re going to have it, know how to use it.
• Set up cellphone voicemail and do not let it stay full– the judge’s chambers may
be trying to get ahold of you.
• Beware “reply all.”
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MALPRACTICE CLAIMS
• Don’t assume a claim will become a lawsuit.
• Don’t admit to legal malpractice.
✓ Consider consulting another attorney before concluding that you have
committed malpractice and before you tell your insurance carrier that you have.
• Don’t ignore the problem.
• Don’t sue to get ahead.
✓ Suing for fees can backfire.
• Don’t make settlement offers without insurer consent.
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GENERAL DO’S AND DON’TS
• Do not promise a specific outcome.
• Do not talk down to your client.
• Do not prejudice your client.
• Advise the client of any problems.
• Do not defend your own malpractice claim.
• Do not reveal that you have malpractice insurance.
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ABOUT THE FACULTY
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Michelle Gershfeld – MGershfeldlaw@gmail.com
Michelle Gershfeld is a bankruptcy attorney, debt negotiator and personal financial life coach who
advises people who are in debt, or building wealth, by identifying and overcoming obstacles that lie
in their path to securing worry-free, financial wellness.
She works with clients individually to create a strategic, customized plan for each unique financial
situation; tackling challenges while defining actionable steps that will increase awareness, change
behaviors and lead to the fulfillment of long-term financial goals.
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Rob Michaels – robm@goldmclaw.com
Rob is a partner at Goldstein & McClintock, LLP.
At G&M, Mr. Michaels works with attorneys who have hailed from top law firms around the country, all of
whom regularly represent sophisticated clients in a wide variety of commercial matters. Yet at the same time,
Mr. Michaels’ clients will immediately benefit from the greater affordability, accessibility, and individual
attention of a boutique law practice.
Rob counsels and litigates for clients in a wide variety of complex commercial litigation matters, including
fraud, RICO, shareholder disputes, professional liability and other claims arising from corporate looting and
insolvencies, as well as a range of software and technology matters. Rob has practiced in state and federal
courts around the country and has successfully argued a number of federal appeals.
Before joining RCC, Rob was a Staff Attorney and Project Director at the Environmental Law and Policy Center
of the Midwest, a Bigelow Teaching Fellow at the University of Chicago Law School, an associate at Mayer
Brown, and a law clerk for a federal district court judge.
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Bernie Burk – bernie.burk@bernieburk.com
Professor Bernard Burk previously taught at the University of North Carolina School of
Law. He is currently on sabbatical.
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George Kuney – gkuney@utk.edu
Prior to joining the faculty in 2000, Professor Kuney was a partner in the San Diego office of Allen
Matkins Leck Gamble & Mallory LLP where he concentrated his practice on insolvency and
reorganization matters nationwide. Before that he received his legal training with the Howard, Rice and
Morrison & Foerster firms in his hometown of San Francisco, California. He holds an AV Peer Rating,
Martindale-Hubbell’s highest peer rating for ethical standards and legal ability and is admitted to
practice in the state and federal courts of California and Tennessee and the federal courts of Arizona, and
the Supreme Court of the United States of America.
Kuney’s expertise and scholarly interests relate to business transactions and litigation with an emphasis
on mergers and acquisitions, recapitalizations, and reorganizations. He is the faculty editor and advisor
of Transactions: The Tennessee Journal of Business Law and the faculty advisor for the Sports and
Entertainment Society. He consults with law firms and clients nationwide in his areas of expertise in a
limited number of matters annually, generally related to business law, bankruptcy, contracts, legal
drafting and writing, commercial law, chapter 11, and insolvency. He conducts transactional training
seminars and clinics for law students, lawyers, and law firms across the country.
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IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily
for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education.
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