ALPS 411

Trial Lawyer Ed Moriarity to Headline Missoula Law Event

R. Kiffin Hope — Wed, 22 Feb 2012 22:08:00 +0000

On March 9, 2012 a diverse group of experts in the legal profession will gather at the DoubleTree in Missoula for a full-day Continuing Legal Education seminar entitled “From the Courtroom to the Classroom: A Multi-Dimensional Look at the Legal Profession in the 21st Century.” Headlining the event is world-renowned trial lawyer and educator, Ed Moriarity. Born in Butte, Montana, Mr. Moriarity has practiced law for nearly four decades in the American West. He started his practice in Cheyenne, Wyoming and went on to work with famed trial lawyer, Gerry Spence, as a partner in his Jackson Hole firm, Spence, Moriarity & Shockey. Mr. Moriarity and Mr. Spence worked together on many high profile cases, including the defense of former Filipina politician Imelda Marcos.

Enthusiastically willing to share his trial law experience, Mr. Moriarity is a frequent featured speaker at legal conferences and events. He also taught at both the Trial Lawyers College in Dubois, Wyoming and the Wyoming Trial School at the University of Wyoming in Laramie. Mr. Moriarity now heads the firm of Moriarity, Badaruddin & Booke, LLC with offices in Salt Lake City, Utah, Wilson and Cheyenne, Wyoming, and Three Forks and Missoula, Montana.

Recognizing the needs of local Little League, Missoula Rotarians Bob Minto, Dan Carlino and Kevin Miltko came together to put on this world class CLE event for attorneys and to raise funds for Missoula youth. Missoula-based lawyers’ professional liability insurance company ALPS is providing logistics support and coordination of the event as an in-kind sponsorship. ALPS has long supported ongoing education for the legal community, primarily in the areas of ethics and risk management. ALPS Educational Services produces live and online CLE opportunities throughout the country. The speakers for this event have also waived their honorarium to support the cause.

In addition to Mr. Moriarity, the full-day CLE event will feature speakers from diverse legal backgrounds focusing on some of the most salient legal issues of the time – from civil rights to international law to ethics and risk management. The full agenda is as follows:

8:00 - 10:00 a.m.

From the Old to the New and the Beyond - Ed Moriarity, Moriarity, Badaruddin & Booke, LLC

10:00 - 10:15 a.m.

Break

10:15 - 11:15 a.m.

An Introduction to Section 1983 - Michelle Badaruddin, U.S. District Court/District of Montana

11:15 - 11:30 a.m.

Break

11:30 a.m. - 12:30 p.m.

Legal Ethics – A Transatlantic Perspective – The US and England, How Do They Compare and What Can We Learn? - Bill Burns, ALPS Account Manager, Former Judge and International Professor of Law

12:30 - 1:30 p.m.

Lunch

1:30 - 5:00 p.m.

Ethics and Managing Business Risk in the Law Firm –

Mark Bassingthwaighte, ALPS Risk Manager

Dustin Cole, Attorneys MasterClass

Online registration is open and is $200 per participating attorney. The State Bar of Montana has approved this event for 7 hours of CLE credits, including 4 ethics credits. For more information, including speaker profiles and registration, please visit www.alpsnet.com/missoulacle

Legal Ethics – US and England compared – What Can We Learn from Our Transatlantic Cousins?

Bill Burns — Wed, 22 Feb 2012 15:00:00 +0000

The perception of attorneys in the US is dismal. The perception of the legal profession in the US is unfortunately unfavorable in general. A 2007 Gallup Poll looking at “unfavorable attitudes” showed that only advertising executives (58% highly unfavorable) and lobbyists (42% highly unfavorable) fared worse than lawyers (35% highly unfavorable). This is a bleak state of affairs that has not improved in recent years. In 2011 another similar Gallup Poll, which looked at “positive perception” showed similar results concerning the relative ranking of attorneys. Nurses (84% positive) and doctors (70% positive) rated as the most highly admired professionals while Lawyers (19% positive), lobbyists (7% positive), congressmen (7% positive), and car salesmen (7%) positive were at the bottom of the heap.

On the other hand British barristers not only have a much better track record for reported ethics violations per capita than do US attorneys, but the barristers are also perceived by the public as performing ethically. Why the disparity? The legal system of the US was derived from and grew out of the British legal system (except for Louisiana which is a Civil Law jurisdiction). The traditions are extremely similar. Both employ the same burdens of proof in civil and criminal cases. The rules of evidence are similar. Both legal systems use the jury to decide tried cases. What happened?

Well, there are as many answers as there are experts on the topic, but there are a few points which can be agreed by virtually all parties on this point.

One thing that helps the barristers maintain a better image is the fact that their relationship to the client is not nearly so close as it is between an American lawyer and his or her client. The distance is maintained by having the solicitor act as a buffer between the barrister and the client. The client does not pay the barrister directly, he pays the solicitor who in turn is supposed to pay the barrister. However, if the solicitor does not pay the barrister the barrister may not sue either the solicitor or the client. At most he can refer the solicitor to a disciplinary board. The solicitor interviews witnesses and passes this information on to the barrister. The barrister does not interview witnesses except for the client and possibly experts. The barrister does, however, appear in court for the client because the barrister has the “right of audience” whereas the solicitor does not (except in certain exceptional instances). These factors contribute to a more detached approach for the barrister and less propensity to do something improper. There is not much we can do about this without a complete overhaul of the US legal system and the creation of two classes – barristers and solicitors. It is not going to happen.

A major problem area is that of the contingent fee. It is a fundamental component of the American legal landscape. It can and does lead to the perception by the public that attorneys are overpaid at the expense of the client. Yes, there are benefits accruing to the client who would be unavailable otherwise, but nevertheless it has a negative impact on public perception of the profession. Such fee arrangements are generally prohibited in English law. Is the contingent fee going to disappear from the American legal landscape? No chance. However, it certainly could be monitored and regulated much more than it is now. This could possibly improve public perception of the legal profession in the US.

Another point, however, about which there is practically unanimous agreement is that the one year "apprenticeship" or "mentoring" process which each barrister must complete. It is extremely effective and beneficial in molding the young barrister into one who will practice law ethically. This is something that certainly could be incorporated into the process of legal education in the US to a much greater extent than it is now. There have been a few very nascent steps in this direction in recent years, but this is a big mistake. We do not need to make some small steps in this direction, we need to make wholesale changes to achieve this fundamental reshaping of legal education in this country. The benefits would be manifold and would enhance the legal profession as well as improving the perception of lawyers by the public at large.

By achieving substantial and sweeping changes in the area of mentoring in the US legal profession, it is very likely that the overall perception of the profession would improve as would actual ethical performance.

Help in Developing Internet, E-mail & Social Media Use Policies

Mark Bassingthwaighte — Mon, 20 Feb 2012 15:00:00 +0000

Let's start with a reminder. The people who use your firm's computers, which includes portable devices such as smart phones or computer tablets, represent a significant risk not only from things like their falling prey to a phishing scam but to intentional misuse. One effective risk management tool that can help address this concern is a well-written online activity policy that is coupled with education and enforcement.

The establishment of rules regarding personal use that address such issues as personal browsing on the Internet, the use of peer-to-peer file sharing networks, personal email accounts, file downloads, and use of social media are of particular importance. Detail ownership and privacy ramifications so that everyone in the firm is aware that they should have no expectation of privacy while using the firm network or any firm provided portable device. You might also consider developing sexual harassment and discrimination policies so that everyone is aware that these rules are in play while online. Underscore the necessity of maintaining a high level of professionalism perhaps by defining inappropriate behaviors via content rules.

Said policies should be set forth in writing and coupled with signed acknowledgement by everyone who will have access to the computer system to include all attorneys at the firm. The policy should include a statement along the lines of failure to comply with the policy will result in discipline that could include termination.

There are a number of resources available that can assist you in developing an online activity policy. The SANS Security Policy Project posts a number of policy templates online that address a variety of important security concerns, many of which you may not have even thought about. These resource materials are available to the public without cost. Topics addressed include an Acceptable Use Policy, a Dial-in Access Policy, an E-mail Policy, a Password Protection Policy, a Remote Access Policy, and a Wireless Communication Policy among many others. The SANS (SysAdmin, Audit, Network, Security) Institute is a cooperative research and education organization established in 1989. Over the years, the institute’s programs have reached over 165,000 security professionals worldwide. Learn more about the SANS Security Policy Project and access the sample policy language at http://www.sans.org/security-resources/policies/.

A second resource worth reviewing is an article written by Michael Downey, an attorney with Hinshaw & Culbertson LLP, entitled "Law Firm Online Activity Policy." This primer is available at http://www.closersgroup.com/pdf/Downey_Law-Firm-Online-Activity-Policy.pdf.

Finally, for a long list of social media policies that a variety of businesses already have in place see http://www.compliancebuilding.com/about/publications/social-media-policies/ or http://socialmediagovernance.com/policies.php#axzz1fmkRy0OX. I strongly recommend taking a look at all of these excellent resources before taking on the task of developing your own policies. While no online activity policy can ensure a 100% risk free environment, a well-drafted and enforced one can certainly go a long way.

Claims-Made Reporting Requirement

ALPS Report — Wed, 15 Feb 2012 13:00:00 +0000

Professional liability insurance policy is provided on a claims-made basis, and not the more common occurrence basis. One significant difference between claims-made and occurrence policies is the timing required when making the claim. Claims-made insurance requires that a policy be in effect at the time the claim is made regardless of when the act, error or omission occurred. (Of course, this assumes the error in question occurred after your loss inclusion date or retroactive date for your current claims-made policy.) For occurrence based insurance to cover a loss, the act causing the harm had to occur during the policy period. In claims-made insurance, it is the report to the carrier that triggers the carrier’s duty to indemnify―not the act, error or omission that gave rise to the claim or potential claim. When the act, error or omission occurred is just one of the facts we consider. It is not the ultimate determiner of coverage.

When an Insured becomes aware of facts or circumstances which could reasonably be expected to give rise to a claim the duty to report is triggered. In ALPS’ policy of insurance, this trigger is an objective test. It is irrelevant whether the attorney subjectively believes the claim to be frivolous. If objectively the facts and circumstances could give rise to a claim, it must be reported. The operative language in your policy states you must give ALPS a written report when you become aware of facts or circumstances that happened “before the end of the policy period and which could reasonably be expected to be the basis of a claim or suit.” As attorneys, you are trained to spot issues from fact patterns. Your reporting requirements are akin to the issue spotting you do for your clients on a day-to-day basis which is nothing more than the issue spotting that you had to do in law school or on your bar exam. It is not just what does become a claim but also what could reasonably lead to a claim. At ALPS, we have a twenty-four hour a day claim’s hotline you can call if you have any doubt whether you should be reporting a set of facts and circumstances. Call us at (800) 367-2577.

As mentioned above, failing to report can nullify coverage and in certain circumstances may give a carrier the right to rescind a policy altogether. A full explanation of how and why in claims-made insurance notice is important is too complex and factually driven to be covered here. Suffice it to say, all carriers take notice issues very seriously.

If you are covered by a claims-made malpractice insurance policy, reporting a claim or a potential claim is one of your most important obligations, if not THE most important obligation, that you have under your policy. Why is it so important? Simply put, if you fail to timely report a claim or a potential claim, you jeopardize your coverage for that claim and risk rescission of your policy.

Are You Suffering from a False Sense of Security with Technology?

Mark Bassingthwaighte — Mon, 13 Feb 2012 15:00:00 +0000

Have you ever stopped to think about why your Internet security program updates on a fairly regular basis or why Microsoft, Apple, Adobe and other software companies release patches with similar frequency? The reason is that for all practical purposes computer security is something of a reactive defensive play. Internet security suites defend your computer or network from known and understood attacks. Once there is a new virus or other nasty program released by some cybercriminal, software and computer security companies investigate the malware and write code that will protect you from this new threat. Here is the problem. We all are potentially exposed to new and unknown attacks particularly if the computers that we're using have not been updated with the latest software updates or the most recent version of various programs. For example, Internet Explorer 6 is far more vulnerable than Internet Explorer 8 because the newer version has been written to be more secure.

Now, if we are all exposed to new threats, how much exposure is that and should we be worried? Consider this. The security company Symantec reported that in 2010 they identified 286 million distinct new malicious programs! Wow. Yes, most law firms have deployed Internet security software suites, intrusion detection systems, firewalls, and the like and these efforts do make a significant difference. We trust that the efforts of our in-house IT staff or outside IT consultant will keep us safe. This is where the false sense of security comes from because the interesting question is "Are these efforts enough?" The answer is no. While IT folks can do quite a bit and their tool box of solutions will continue to get better, one significant vulnerability remains. It is a vulnerability that IT simply cannot control and that vulnerability is us, the people who actually use the system.

As users, our actions can unintentionally circumvent the security tools that have been deployed. What we do with email, Internet browsing, downloading, social networking, and even how and where we do these things matters. Unsecured Wi-Fi is exactly that, unsecured. Just because a signal is there doesn't mean using it is a good idea. Cybercriminals have the same ability to access that signal as you do and how would you know they're there? Perhaps you are smart enough to avoid most attacks but how about the other attorneys in your office or your staff? Do you know what they are doing online?

What's the solution? How does one address the very real threat that comes from 286 million new malicious programs? I wish it were easy. Unfortunately, it isn't; but it is manageable. This is one of those situations where IT and firm leaders need to work together.

Part of the solution will lie in periodic and ongoing training in safe practices to include how to identify threats. This needs to be ongoing because the attack vectors will continue to evolve and change. Topics such as what is social engineering and how one can be tricked into allowing the computer network to be hacked, why peer-to-peer file sharing networks like the ones that use a BitTorrent protocol can be dangerous, and how can one securely login into the network from a remote location would all be worth discussing. Personally, I would start with a short session that teaches all attorneys and staff about how the particular security program that you run on your network will respond should there be an actual threat detected. What will that look like to the user and what should they do if it happens? Why do this? How many of your users know that if and when a pop-up box suddenly appears informing them that their computer is infected and telling them to click "yes" in order to start a scan that this is not, in fact, your security software doing its job? Instead, this can be an actual attack. If the user actually clicks on "yes," truly believing that this is the right thing to do in order to protect the system, that act will initiate the malicious program. That's not what you want to have happen.

Another part of the solution will be in establishing and enforcing a firm wide Internet use policy that spells out the dos and don'ts. Define what might be acceptable to download and what wouldn't. Allowing someone to download an eBook off Amazon might be okay if they were to do it over the noon hour, but downloading free stuff along the lines of screen savers, emoticon programs, desktop wallpaper, and even music may not be the best idea. What about accessing Facebook, LinkedIn, and MySpace? There are security concerns that come with participation in social media. Do you want to allow access to things like Skype, Instant Messenger, YouTube, or even personal email accounts? In the absence of defined rules, there will be some who will expose the network if for no other reason than through naivety. Don't focus just on the Internet spaces listed here. They are simply examples. All can bring value but all also bring a certain amount of risk.

Again, there is no easy solution, and unfortunately there is a Catch 22 for many attorneys. For example, there is often a temptation to simply block access to Facebook but this may be a bad idea because there will be times when visiting Facebook will be absolutely called for as part of handling a client's matter. The good news is that a great resource is available online to assist in the identification of the issues as well as in the development of a firm policy or policies. For additional information see www.sans.org/security-resources/policies/.

The final piece will be in committing to seeing that systems and software remain as current as economically feasible. Why? If you have an older version of a program still in use at your firm, do you know if it is still being supported? As newer and more secure versions of software come to market, software companies eventually stop supporting the older versions. Now this doesn't mean the program stops working; but it does mean the security updates stop coming. Continuing to rely on older software in order to save a little money is a serious misstep because many malicious programs specifically target older software. Cybercriminals know that the vulnerabilities in these older programs will never be addressed and that works to their advantage. Don't make it easy for them. Understand that when it comes to computer security, newer and better solutions for hardware and software will continue to enter the marketplace. When you think about what is at stake, isn't the investment cost of updating to the most current version of a software program available well worth it?

Mark Basssingthwaighte is Risk Manager with ALPS Corporation. He can be contacted at: mbass@alpsnet.com.

"Getting Started Solo" Excerpt

R. Kiffin Hope — Fri, 10 Feb 2012 21:57:00 +0000

Note: “Getting Started Solo,” a new 38-page white paper by the ALPS Risk Management team, is available for free download at the Above The Law Resource Corner. It just takes 10-seconds to register and then you can select to start the download (PDF format). Click here.

Starting your own practice: exciting, scary, busy, crazy are all words that may come to mind when you are contemplating opening your own practice.

Following is a list of issues you should consider and some resources that may help you. Investing time to be prepared and well informed will be important to building a successful practice.

Are you ready to open your own practice? Who will your clients be? Do you have a niche/specialty? What will your ongoing costs be? Do you have capital resources and credit available? What will your marketing plan be? What management issues will you face? Answering these critical questions and having a plan is very important to your success. To help you address some of these issues consider the topical list and resources that follow.

Business Plan and Budget: A business plan is a comprehensive road map document that identifies critical information about what your business is and the steps you will need to take to successfully operate it. It is an important document to create because it clarifies what issues and steps you will need to execute to achieve success. It may include long term and short term planning (1 to 5 years and 10 years.) It is also often used to raise capital and obtain credit. Failure to have a budget and adequate capital resources is the most common reason new businesses fail. Most experts would agree that the four key elements of a plan are a clear and concise description of what your business does; calculation of financial information such as operational expenses, projected revenue, and how to repay creditors and investors; the specific steps that you will take to achieve a viable and financially successful business; and your unique qualifications that will help you achieve success. There are numerous templates and resources on line that can help you develop a business plan and budget. Depending on how comprehensive it is, a plan and budget can easily take from 30 to 100 hours of time to prepare, but it is an important benchmark for identifying your goals and how you will achieve them. Click here for additional Business Plan Resources.

Select your Legal Structure: Before starting your practice, you will need to choose an organizational structure and take steps to properly form and register with any appropriate state agencies. As a solo practitioner, you cannot protect yourself from individual liability for professional negligence by forming a business entity, but doing so may be wise for future growth plans and tax reasons. The most common organizational structures for law firms include: sole proprietorship, general partnership, professional service corporation, and professional limited liability company. A brief description of each type of company follows, and the decision you make should include an informed evaluation of the tax implications. Consider consulting with an accountant on issues related to organizational structure and taxes. You will also need to obtain the appropriate business licensees and a tax payer identification number for the entity. Consider the resource How to Start and Build a Law Practice by Jay Foonberg.

Download the entire document here: http://abovethelaw.com/research/

The perfume of the premium must overcome the stench of the risk

ALPS Report — Thu, 09 Feb 2012 13:00:00 +0000

As an LPLI policyholder, you may wonder exactly what an underwriter does. The basic purpose of underwriting is to evaluate risk, decide whether that risk will be accepted and determine an appropriate premium to cover that risk.

A quote that has been floating around the world of underwriters for a long time is “The perfume of the premium must overcome the stench of the risk.” It is our attempt at humor. However, when it comes to your firm, everyone can help decrease the cost of the “perfume” in the following ways:

Have the firm’s individual attorneys complete three hours of continuing legal education in the areas of ethics, risk management, loss prevention and/or office management. This will automatically qualify for a 10% credit applied to the premium of each attorney.
The firm can participate in a voluntary in-house risk management visit. Once the firm releases the report along with the firm’s response to underwriting, a credit will be applied for three years should the firm remain claims free.
Employ an experienced full-time office manager/administrator to ensure good office procedures are implemented and used throughout the firm (i.e. a written conflict avoidance process).
Review the docket control system and procedure. The underwriter is looking for a computerized system that requires two independent date controls, produces a weekly calendar and requires that the attorney assigned to the case be responsible for docketing.
Require the consistent use of engagement, disengagement and declination letters.
In an office sharing situation, make sure there is an indication of separation between the firms, a written office sharing agreement and require proof of professional liability insurance from the other firm(s).
In the case of a solo practitioner, have a designated back-up attorney to handle cases in your absence.
Review and update the firm’s website whenever there is a change within the firm. Be sure the home page includes an appropriate disclaimer that an attorney-client relationship cannot be created by visiting the site.
When submitting the application, include a cover letter with details of the outstanding features of your law firm.

All of the information listed above will have a positive impact on an underwriter when assessing risk and charging appropriate premium. Let's face it. We all prefer perfume over the alternative.

Designing a Law Office Brochure on a Budget

Stan Anglen — Wed, 08 Feb 2012 15:00:00 +0000

So you just got handed the task of creating a brochure for your law firm. There are a couple of questions you need to answer before getting to far down the road. How are you going to print and distribute your brochure? On your desktop printer/copier, a local commercial printer, emailed PDF file? How much is your budget on this project? If you have more than zero dollars budgeted, keep reading. If your budget is zero, quickly find a way to pass this off to someone else.

You’re still reading. Okay, first and foremost do not try designing it yourself without a template. Trust me, operating design software is not the same as being a graphic designer. If you’re looking for a creative outlet, you will have lots of creative freedom with a well designed template and get compliments on your final product as well.

What is a template? Templates are professionally designed brochures within which you can place your own logo and information. Templates take many forms and most design software programs have their own templates.

Here is a basic rule, beware of the word “Free.” If you don't pay anything for the template chances are good that it's either a bad design or there is a catch somewhere along the line. It might be that you can only print the final design on your desktop printer or, worse yet, you spend hours putting the design together only to find that you can't save the file or print it at all without coughing up a credit card charge you didn't expect. I have found it is better to pay a fair price up front and have total flexibility to print on your desktop, a local printer, Internet printer or use it on the web.

When selecting a template don't limit yourself to the categories of law firm or professional. You might find a really terrific design that fits exactly your style in a totally off the wall category. Remember, your copy and logo will still be the focal point of the brochure.

Below are links for several reputable template vendors to get you started:

www.stocklayout.com

www.brochurewind.com

www.brochuremonster.com

You will need some sort of design software to work within your template. The best software program to use is Adobe InDesign. It is flexible, powerful and consistent on many platforms. It is what the pros use, but it comes with a hefty price tag. If you can’t justify the expense of InDesign another option is Microsoft Publisher. You may already have it available as part of your Microsoft Office suite. Check your computer or ask your IT person. Publisher is not nearly as powerful as InDesign but it is somewhat easier to use. A warning – frustration can set in quickly with Publisher when objects don't behave as you would like. Remember, help is only the Internet away. Use it for quick tutorials and how-to tips. I would not recommend using Microsoft Word under any circumstances. While it is familiar and easy to use, the quality, flexibility and consistency are not adequate, especially for the novice. Also the specialty software packages like, PrintShop Pro, are also inconsistent and limiting. If you are using a local print shop to print your brochure, call them and ask for help. They should be more than willing to give you software advice.

Good luck and be prepared to spend a whole lot more time that you ever imagined. But the final results will be rewarding and personalized to your specific law firm.

Stan Anglen, Print Media and Production Manager
ALPS Corporation

Counsel for Those Considering Entering into Of Counsel Relationships

Mark Bassingthwaighte — Mon, 06 Feb 2012 15:00:00 +0000

"Of counsel" is one of those terms that has multiple meanings. This term has traditionally been used as an honorary designation for retired partners, as a special designation for firm attorneys who are neither a partner nor an associate, and as a way to describe part-time attorneys who have created an association with a firm. In recent years, however, more attorneys seem to want to use the term solely as a way to generate additional business. After all, the increased exposure coupled with the presentation of close ties with another firm can be an effective marketing tool, right? Well perhaps, but there are risks that come into play and these risks should not be taken lightly.

What is an Of Counsel Attorney?

The "of counsel" designation as envisioned by the authors of various ethics opinions refers to something altogether different from a traditional attorney within a firm. These opinions generally define an of counsel attorney as an attorney who is not a partner, associate, shareholder, or member of a firm, and they further state that the attorney may only be designated "of counsel" to the firm if the attorney has a close and continuing relationship with the firm. This means that any attorney that works with the firm and has a significant degree of shared liability with the firm or managerial responsibilities to the firm and/or its staff should not be designated as "of counsel." Related terms such as "special counsel," "tax counsel," "senior counsel," and the like are understood to have the same meaning as "of counsel" and thus the requirement of a close and continuing relationship apply here as well.

The requirement of a close and continuing relationship has been defined as providing for close, ongoing, regular and frequent contact for the purpose of consultation and advice. Further, the of counsel attorney must be more than an advisor on only one case or just a forwarder or receiver of legal business. Attorney's can get into serious disciplinary trouble by designating someone who is merely a referral attorney as "of counsel" because that is usually considered to be a misleading client communication in violation of the ethical rules. This is where the idea of creating "of counsel" relationships solely for marketing purposes falls flat.

Who Can Properly Be Designated "Of Counsel?"

Evaluating the appropriateness of the designation in the light of what a disciplinary committee could perceive as misleading will help avoid some of the common "of counsel" pitfalls. Remember that the average person will take the term at face value so come at the decision from the perspective of the average person's expectations. If you are thinking about being listed on another firm's letterhead as "of counsel" only do so if you are able to be readily available and actually will provide counsel to that firm. Also, remember to disclose jurisdictional limitations on your practice.

Examples of acceptable relationships for "of counsel" designation have included, but are not limited to: 1) retired lawyers, 2) withdrawing partner or associate, 3) part-time practitioner, 4) permanent non-partner/non-associate, 5) partner on leave, and 6) probationary partner-to-be. Examples of unacceptable relationships for "of counsel" designation have included, but are not limited to: 1)outside consultants, 2) suspended lawyers, 3) when the affiliation involves only a single case, 4) those who merely share office space and nothing more, and 5) public officials who are not engaged in active practice with their former firm.

Can a law firm be of counsel to another firm? Can an attorney be of counsel to more than one firm? Can an attorney be of counsel to an out-of-state firm? The answers to these questions and a number of others differ depending upon the jurisdiction in which you practice. Given the numerous state specific rules regarding the "of counsel" designation, I would recommend that prior to establishing any of counsel relationship you review any relevant ethics opinions and/or contact bar counsel in your jurisdiction.

What Are the Risks?

There are a few generally applicable issues that take on special significance in an "of counsel" affiliation. In particular, imputed disqualification, vicarious liability, and insurance coverage disputes warrant special attention.

Imputed Disqualification - For conflict purposes, the "of counsel" affiliation means that the affiliated firm and the of counsel attorney will often be treated as one entity. The conflicts that the of counsel attorney bring to the table may prevent the affiliated firm from continuing to represent current or future clients. Likewise, the of counsel attorney has to be concerned about apparent or actual conflicts between his own clients and those of the affiliated firm. The imputed disqualification rule is a two-way street and there is little that can be done to correct the problem once it has arisen. Conflict checks can be burdensome and the potential cost in lost business if a conflict was missed can be substantial. Always address the conflict issue prior to establishing of counsel relationships so that everyone understands what the additional burden will be and can agree that the benefits outweigh the costs.

Vicarious Liability - While the affiliated firm is not going to be liable for the independent acts and omissions of the of counsel attorney that were outside of the apparent scope of the of counsel's involvement with the affiliated firm, this doesn't prevent claims from arising. Problems can and will arise based upon any given client's perspective of the affiliation. Unrestrictive use of letterhead listing the of counsel attorney by the affiliated firm or the of counsel attorney sends the message that all participants are involved on any and all matters, even if this isn’t the case. To help avoid becoming a named co-defendant in each other's suits, use different versions of your firm letterhead. Only use letterhead showing the of counsel attorney's name when that attorney is actually working on a firm matter. Likewise, make sure that the of counsel attorney abides by the same rule.

Insurance Coverage Disputes - In the unfortunate event of a claim, coverage problems can arise when an affiliated firm has done work on a matter that the of counsel attorney had no involvement in, or awareness of, but was unfortunately listed as of counsel on the letterhead in use. Should this of counsel attorney not have coverage under the affiliated firm's malpractice policy there may be a significant problem because the of counsel attorney's own policy will often not afford coverage either. Why is this? The of counsel attorney's own policy will only cover work done on behalf of clients of the named insured which is the of counsel's firm. In this situation the of counsel attorney is facing a claim that arose out of work done for a client of the affiliated firm thus the coverage gap. These sorts of "who is the client," "who is the attorney of record," and "who is the named insured" are common challenges that underscore the necessity of investigating and addressing the insurance coverage issues early on. Appropriate coverage for the exposures of both the affiliated firm and the of counsel attorney can usually be obtained, so long as the issue is addressed at the outset.

Closing Thoughts

Beyond the above, the best risk management advice that I can give regarding of counsel relationships is to encourage you to always keep in mind joint accountability. Of counsel relationships can be quite valuable but clients will rightly respond to these affiliations as if they represent a single "entity." Mutual accountability will be in play, particularly when a client is directly involved with both parties to the of counsel affiliation. I do believe that of counsel relationships are of significant value as long as these relationships are entered into with client interests in mind as opposed to being a marketing strategy. Overlook this, and problems may lie just around the corner.

There’s No Place Like Home

Guest Blogger — Wed, 01 Feb 2012 20:40:08 +0000

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

For many seniors, staying in their own home — as opposed to a nursing home or similar facility — is a priority. Indeed, according to a Sun News article, surveys show that “aging in place is the overwhelming preference of Americans over 50.” But it can be a major challenge to find ways for seniors to continue living at home as their need for care increases. There are things that attorneys can do to help make the desire to stay at home a reality.

To carry on their activities of daily living at home, seniors need many different types of services. Depending on their physical and mental condition, they may need medical services, therapy, personal care (such as assistance with dressing and bathing), homemaker chores (such as cooking and house cleaning), and transportation.

Here are some ways that you can help pave the way for a senior to continue to live at home comfortably:

Legal planning. You can provide legal planning so that the senior’s desires on residential placement can be implemented, even when that person can no longer articulate those desires effectively. Planning involves incorporating the senior’s wish to stay at home, if applicable, in durable powers of attorney for property, health care directives, and trusts. It may also involve advocating a position for the person or his or her family in conservatorship proceedings in which the decision on residential placement may ultimately be made by a court or a court-appointed conservator.
Obtaining resources. You can also help the senior and his or her family obtain government benefits or help in using available financial resources most effectively to pay for care at home. There are government programs, such as In-Home Supportive Services (IHSS); Medi-Cal Home and Community Based Waivers; Medi-Cal coverage for Adult Day Health Care Centers (ADHCs), and a variety of community services (e.g., home-delivered meals, case management, care registries) funded by the Older Americans Act (42 USC §§3001-3057). Financial resources include those intended to pay for long-term care, such as long-term care insurance policies and income tax benefits, and those not originally intended to pay for long-term care, such as home equity loans, life insurance, and IRAs.
Planning for in-home help. Even if financial resources are available, issues may arise when the senior requires care at home, such as liability, employee benefits, insurance, and elder abuse. All of these issues should be considered and addressed as part of the plan for the senior to stay at home.

The state budget crisis will likely result in a reduction or termination of some federally and state-funded services that help seniors planning to stay at home, so you need to stay on top of these developments and be prepared to advise your clients accordingly.

Planning, coordinating, and paying for care at home often requires creative solutions culled from many disciplines and sources. Here’s an opportunity to use all of your skills and creative abilities in the aid of seniors.

For more on what counsel can do to help a senior continue to live at home, including a discussion of government benefits, turn to CEB’s California Elder Law Resources, Benefits, and Planning: An Advocate’s Guide, chap 6.

About the Author.

This material is reproduced from Julie Brook’s blog entry, There’s No Place Like Home, CEB Blog (January 25, 2012, http://blog.ceb.com/2012/01/25/theres-no-place-like-home/).Copyright 2012 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar - California. For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site, CEB.com.

A Form Of Substance―Using Intake Forms

Wendy Inge — Tue, 31 Jan 2012 15:00:00 +0000

Recently a lawyer called to ask whether or not intake forms are useful. As is often the case the answer to that is “it depends.”

A basic intake form that is very general in content may do little to improve your intake process. But a well thought out intake form focused on a particular practice area can be very beneficial for streamlining and gathering useful information from the client.

To be used effectively you should develop a different intake form for different areas of practice. This will allow you to obtain the types of information required for each area of practice. For example, if you practice in wills and trusts, business formation, and family law, these areas each require different types of information. In a wills and trusts matter, it is critical to have an accurate list of assets owned by the client, evaluations, and tax implication information; in domestic matters it is important to know how long the parties have been married, number of children, work information, social security information; in a business formation it is important to know the nature of the business, who is contributing what, the terms of any agreement between the parties, and proprietary property if any. Having a well-developed intake form allows you to specifically identify and focus on what information you will need for the particular type of representation. It should be a work in progress that is revised and improved upon over time.

A well thought out intake form can also help you identify other legal services the client may need. For example, intellectual property or trade mark issues may come up when setting up a business. If your firm can provide these services presently or at a later date, good; otherwise the client may appreciate an explanation of the additional legal needs and a referral to another lawyer. If you are representing an existing client on a new matter, it is good procedure to use a new intake form for that particular matter.

Also, the use of an intake form serves the important purpose of documenting the information provided by the client. Whether the client fills out the intake form, or the lawyer does; it is important to review the information with the client and have them sign off that it is accurate. It is not uncommon for a client to fail to disclose assets relevant to an estate plan, or misspell names, or provide other incorrect information. Thus, signing or initialing intake information by a client can help protect the lawyer where incorrect information was provided by the client. Note that it is important for the lawyer to always check the intake information against other sources of information received in an effort to catch errors, but there are times when the error has been solely created by the client.

Finally, regarding intake forms on the firm’s web site, I encourage lawyers to limit the amount of information that a “prospective client” can provide be it by website or otherwise. Until an engagement agreement is executed you should avoid taking actions that could cause the client to believe that you are representing them. While disclaimers on a web site can help control this (click troughs’ are best), it is still wise to be careful about the amount of information you are collecting from a “prospective client.” In most jurisdictions, Rule 1.18 creates certain duties of confidentiality and a conflict maybe created by the information received even if you decide not to represent the “prospective client.”

You can download a sample intake form created by ALPS here (Word doc).

Wendy Inge, Esq. is the Virginia Risk Manager for ALPS. She is available to answer risk management questions at no charge for all members of the VSB. She can be reached at 1- 800-367-2577 or winge@alpsnet.com.

Why a voice response system should be human

Matt Lubaroff — Mon, 30 Jan 2012 13:00:00 +0000

IVR. Stands for Interactive Voice Response. They are designed to improve the customer experience, reduce costs and even drive sales. In fact, a quick Google search brought up the following results and sponsored ads:

<Company X>'s IVR solutions, hosting, and platform will delight your callers.
Customer Satisfaction = Revenue. Improve your IVR with our 14 points.
Automate complex conversations cost effectively with artificial intelligence.

Stop it. Seriously, just stop it. With full disclosure, I worked as a Training and/or Quality Manager for over 10 years with companies like US Bank, Charter Communications, FTD.COM and DIRECTV. IVR's are not used to improve customer service. They are used to cut costs. In a perfect world, they may route you to the right person (I can leave the topic of the right person for another day). We don't live in that world now, do we?

Just look at some of the words used to tempt our clicking finger! "Delight your callers?" "Artificial Intelligence?" The only thing artificial is a company's belief that these systems do anything but anger customers and drive them to yell "Agent! I said Agent!"

Don't get me wrong, I understand that every business, large or small, is looking for an edge - whether that is reduced costs or improved technology. What businesses often lose sight of is the actual customer experience. People call with questions; either questions that when answered well will drive new business, or problems solved that will result in continued business. You know what? Even in this age of technological interaction, at the heart of it people want to talk to people. Quickly.

Where is this going besides a rant against the almighty IVR? It's about understanding that whatever your business, whether it is the practice of law, legal liability insurance or any other business; the choices you make about your 'back office' support when you begin will dictate how you manage your client relationships. Who answers your phone? Is it a staff member? Is it an answering service? The more time (and often money) you spend ensuring that every call is answered by a person and a person who cares, the more your customers will feel like you care - and that is over half the battle.

If you feel like talking to a person, call ALPS. Nancy will answer the phone. If not Nancy, it will be Kristine. Or Dawn. Maybe even Val. If you want to talk to me? Ask for Matt. Heck, call us just to say hi. We'll answer and we'll care. 1-800-367-2577.

Corporate Citizenship: Musings of an Unlikely Girl Scout Leader

Bob Minto — Wed, 25 Jan 2012 23:07:00 +0000

I've been thinking a lot lately about leadership, both in the context of businesses and communities. At times the concept makes me crazy, because many business leaders I know won't get involved in community leadership as they lack the patience to try to drive consensus. In truth when a friend suggested that I run for the legislature, I rolled my eyes and made some comment about not having the time to devote; this from the guy that drives corporate civic involvement home as being so important. This really got me going on an internal dialogue about what I have personally done in my community, and the importance of contributions, large and small.

It may surprise some of you to know that at one point in my life I was a registered Girl Scout. When my children (all girls) were younger my wife got involved as their Brownie Leader and later Junior Scout leader. I don't remember exactly what happened, but my wife needed to give up the leadership role and no other mothers from the group stepped up to take on the job. Faced with the choice of letting the troop dissolve or taking it on myself, I talked another father into co-leading the troop with me. To make a long story short the state and national scouting organization didn't know what to do with two men from Missoula, Montana who wanted to be Girl Scout Troop Leaders. After we got over the hurdles of ulterior motives of an unsavory kind we got down to making it happen and I had to become a Girls Scout to do it.

I had no idea what I had taken on. When I agreed to this responsibility I really had to juggle being a scout leader with growing my practice and finding time for myself and my wife. Interestingly this troop led by dads became the largest and most active in Missoula and everybody had a blast. It also ate a bunch of time. But to the positive it stands as one of the greatest leadership learning experiences of my life. I had to plan the impossible schedule, manage the unmanageable (thirty pre-teen girls) and organize an untrained sales team (contrary to popular belief cookies don't just sell themselves).

There is a family moral here that may well become an entirely different Blog post, but it's not the point of this one. While the time I spent helping set up wall tents for winter camping, teaching wood working, fire building, compass reading, outdoor cooking skills, knot tying and the like didn't contribute to the bottom line of my practice, it profoundly shaped my way of thinking about my work , community, civic commitment and the obligation to participate on a 24/7 basis. Giving back as a Girl Scout Leader challenged me to innovate. Along the way I rattled the cage of a longstanding institution, and in a very small way, advanced the cause of equality of the sexes. The process showed me the value of challenging conventions constructively to help people and organizations grow. Perhaps more importantly volunteering my time gave me a refreshed view of the real value of time.

Everything we do every minute of every day matters. What we do can move society and the people around us forward. Even our inaction matters. By doing nothing, we become part of the roadblock that makes up the status quo. In an era of streamlining and doing more with less, giving back gets pushed to one of the lower priorities for all of us. Especially in companies where time is money, corporate giving and community involvement seem like diversions from efficiency. In the interest of the bottom line they become a seemingly easy line item to cut. However it's times like these when charitable giving and community involvement become the most important. When times get tough, hours long, and staff short, the soul of a company gets cut in the interest of the bottom line and nobody will notice until it's too late to revive.

As federal and state budgets decline, non-profit organizations, not surprisingly end up having to do more with less and rely more heavily on private sector funding. Just as stable funding sources dwindle, the need for programs goes up. How do we promote the health of our society without promoting a level of equity in our communities? This remains a vicious circle that never ends, and at some level we all feel it. Whether it's the phone calls at dinner time asking for a donation, a massive increase in non-profit solicitation mailings or endless invitations to this gala event or that auction, at some point we all want to crawl in a hole and just not respond. That doesn't solve the problem either, individually or corporately. We must be part of the solution at some level. We as individual must allocate limited resources, and as corporate leaders we must not only do that we have to look at a public view of our organization. Even if we avoid or put off making a decision to help or be involved we make one; the decision to stay on the sidelines and not participate in society.

Despite the economic climate, corporate citizenship and charitable giving has a place. It says as much about the company as the quality of the services or products it offers. I find corporate citizenship and charitable giving, even when it's not publically recognized, builds a loyalty that transcends price and direct competition. People want to do business with companies that they trust and believe have a soul. Once you have these values fully integrated in the fabric of the company you would no more get rid of them than you would the sign on the door. Without these values the company identity vanishes.

At ALPS Corporate Citizenship and Charitable giving stand as one of the five pillars of our strategic plan. We encourage employees to volunteer their time (both on and off the clock) through our community involvement program. As a company we also give of our time collectively for various events. We provide a corporate match for our employees' private donations. ALPS also commits a percentage of its annual profits to charitable and community causes as determined by our senior management or our Charitable Giving Committee.

I have found that serving our community and serving our clients are not mutually exclusive activities. In truth, being engaged in our community helps us stay connected and creative. It keeps the staff motivated and engaged no matter what the daily crisis in the office might be. It also helps us attract people who care about people, which ultimately translates into caring about the integrity of our product and the level of service we provide to our clients.

I am proud of the difference ALPS has made over the years in the lives of people I will likely never know. In the end it is not about recognition, but rather peace of mind and soul. For me, it's about ALPS, to borrow from the Girl Scouts, leaving this "camp site" a cleaner and better place than we found it.

I look around Missoula and ALPS doesn't stand alone in this philosophy. A number of other companies, large and small step up every day to make a difference, however small. We need to get everybody on board for the benefit of their customers, the community and most of all their employees. Community involved employees have energy and drive businesses to success, which in turn drives the local economy, etc. In the end everybody wins.

Author’s Note: I want to give special recognition to Laura Churchman from ALPS marketing team who inspired this blog by laughing at my girl scout leadership story and prompting me with ideas for content that really made this blog post what it is - really important for society.

Should You Be in the Cloud?

Guest Blogger — Wed, 25 Jan 2012 15:00:00 +0000

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

Many attorneys have taken to the cloud, but others are hanging back, primarily because of concerns about security and accessibility of their documents. Here are some things you should know before using cloud computing in your law office.

Let’s start with defining what we mean by cloud computing: Cloud computing (or software as a service (SaaS)) is a service accessed via the Internet that allows businesses and individuals to create, edit, and store data and documents online. Instead of buying and installing software on your computer system, users upload information onto the Internet—“the cloud”—where it is stored with a software service.

When thinking about using cloud computing services, you need to give significant thought to:

what information you plan to produce and store there,
your statutory, ethical, and fiduciary responsibilities related to that information, and
whether the cloud computing contract or terms of use are consistent with those responsibilities.

Keep in mind that many cloud computing providers store data from multiple clients on a common server and won’t modify standard contractual terms for particular clients. This means that you have to be sure that your statutory, ethical, and fiduciary requirements as well as your business needs can be fully met before choosing to use a particular cloud vendor or using cloud computing at all.

These issues can become even more complicated if a cloud computing service provider subcontracts parts of its service to third parties. The privacy, confidentiality, and security of the information may be further impacted by the policies and procedures of these additional parties, which could be located in different states or even different countries and be subject to varying standards for everything from government access to trade secret protection.

Here’s another issue: with greater accessibility comes the potential for inaccessibility. Cloud computing offers the ability to remotely access documents and data through any Internet connection, but if these documents or data become temporarily inaccessible due to an outage or corrupted in some way, the impact on a client can be profound. And it’s happened. A series of outages affecting Google’s cloud computing services affected many of its cloud services customers. Attorneys should consider the service level guarantees of a particular cloud provider, including its uptime guarantees, remedies, and disaster recovery provisions.

There’s also the issue of disclosure. Many cloud computing services reserve broad latitude for disclosure, stating that they may respond to any “legal process,” and do not promise to provide notice to the customer that information has been sought. See Cloud Computing: Storm Warning for Privacy?, ACLU of Northern California (Feb. 2010).

And there’s unintended disclosures. As the ABA Journal reports, Dropbox, an online document-sharing service, experienced a programmer’s error that enabled any password to access any Dropbox site. Attorney Arlen Tanner told the ABA Journal that, although Dropbox stated it fixed the problem,

“if an internal programmer’s error could create that vulnerability, a disgruntled insider or one with an agenda could do similar damage to data stored for a law firm using a service like Dropbox.”

Attorney Tanner advises that “[a]dding your own encryption to data gives another layer of security, especially from internal risks.”

So, before you go floating on a cloud, think about the potential problems and plan for them. If you don’t feel comfortable with the risks, the cloud might not be the place for your law office. At least not yet.

For a discussion of the legal and business issues relating to cloud computing, go to CEB’s Internet Law and Practice in California, chap 6. On internet and electronic privacy issues, turn to CEB’s Privacy Compliance and Litigation in California, chap 4. On the ethical issues of cloud computing, check out CEB’s program Lawyers in the Cloud: Professional Responsibility Issues Raised by Cloud Computing, available On Demand.

About the Author.

This material is reproduced from Julie Brook’s blog entry, Should You Be in the Cloud? CEB Blog (January 6, 2012 http://blog.ceb.com/2012/01/06/ethics-and-safety-with-cloud-computing/). Copyright 2012 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar - California. For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site, CEB.com.

New Online CLE’s Available to Virginia Lawyers from ALPS

R. Kiffin Hope — Tue, 24 Jan 2012 17:32:00 +0000

ALPS, the endorsed professional liability carrier for the Virginia State Bar, is offering two new Ethics CLE programs produced by ALPS Educational Services. These online and on-demand programs are for the 2012 VSB CLE year which runs from November 1, 2011 to October 31, 2012.

The two courses provide invaluable information for the practicing lawyer and are reasonably priced. Preview and register here.

Course Descriptions

2012 Top Ten Technology Traps and How to Avoid Them

The latest in computer technology, be it hardware or software, isn't the final answer when it comes to reducing exposure to a malpractice claim or avoiding ethical problems. In fact, the use of technological tools can increase one's risk. While computers can't commit malpractice or make an ethical misstep, those of us who use the tools certainly can. This 1-hour Ethics program will not only discuss common concerns that come with the use of technology in the law office setting, but present solutions to
those concerns as well. $35 for ALPS insureds; $65 for non-ALPS insureds.

2012 Top Ten Malpractice Traps and How to Avoid Them

This 2-hour Ethics program will identify the top ten most common malpractice concerns, discuss how problems can arise, and provide helpful practice tips and advice that can help the attorney stay out of trouble with each area of concern. You'll learn what some clients know about legal fees that you don't,
what keeps malpractice carrier claims and risk attorneys awake at night, and why the clients who actually sue you aren't the ones you're concerned about. $45 for ALPS insureds; $75 for non-ALPS insureds.

Another Online Learning Opportunity

* Managing One's Self

*This program was previously offered in Virginia live and on-demand in October and November of 2011.It has been renewed for 2012.If you have previously viewed it no additional CLE credit can be earned for repeating it.

This 3-hour Ethics program offers an interactive presentation that includes video vignettes interspersed with insightful discussions from a knowledgeable panel of attorneys. Topics discussed during the program include: Firing a client; balancing personal and professional life; leaving a practice; Of counsel relationships; the hidden dangers of social media; and dealing with purloined documents. $60 for ALPS insureds; $90 for non-ALPS insureds.

Note: These courses were last substantively revised January 16, 2012. Registration fees collected by ALPS are used to support the risk management initiatives of the Virginia State Bar through the Lawyer Malpractice Insurance Committee.

If you have questions about these programs, please contact ALPS Educational Services at: educationalservices@alpsnet.com or 1-800-990-3412.

If you are a bar executive from another state and are interested in having these courses made available in your jurisdiction, we invite you to give us a call.