AttPro AllyFALL 2017 ◊ ISSUE 24

Better Safe than Sorry: Emergency Preparedness for Lawyers ’Tis the Season...for Ethical Breaches?AttPro Snippets

I N T H I S I S S U E :

A Time to be ThankfulA Letter from the Editor

Letter from the Editor:By Erin McCartney, Esq.

Over the past few months many of our clients and business partners have been impacted by natural disasters. It is inspiring to see so many friends and colleagues come together to support each other in times of need. For all of those negatively impacted by the recent disasters, please know you are in our thoughts. Sometimes when tragedy strikes, it reminds us of the things for which we should be grateful. Therefore, we thought it was appropriate to center the fall edition of AttPro Ally around the theme of gratitude.

Although many of our readers are thankful that their business was not impacted by the recent natural disasters, law firms should be constantly prepared for the possibility of a crisis. Dealing with an emergency can be overwhelming and the devastating effects are not only likely to impede your firm’s ability to conduct business as normal, but can also wreak havoc on personal lives. Having an emergency preparedness plan in place is crucial. If you are breathing a thankful sigh of relief that your firm was not affected by the latest storms, remember, as the saying goes, it is always better to be safe than sorry! See: Better Safe than Sorry: Emergency Preparedness for Lawyers on page 3.

Just as we want to extend our gratitude to all of our readers for putting their trust and confidence in our expertise, with the holiday season upon us, clients tend to want to show their appreciation as well. However, lawyers need to be conscious of adhering to the rules of professional conduct in their jurisdiction, including the rules regarding giving and receiving gifts from clients. See: ’Tis the Season…for Ethical Breaches? on page 2.

If there is time to relax over the holiday season, I recommend a wonderful book written by a lawyer after his life was at an all-time low. His story is about how being grateful for what he had and writing 365 thank-you notes over the course of one year, led him to a miraculously good life. To all of our readers, we thank you for your trust and loyalty and look forward to many more years of working together! See: A Simple Act of Gratitude: How Learning to Say Thank You Changed My Life by John Kralik.

We are approaching the season of giving when it is not uncommon for friends, colleagues, even clients to exchange gifts. Many look forward to the opportunity to express gratitude and appreciation in the form of a gift. While often well-intentioned, an attorney’s spider sense should tingle whenever a client seeks to gift something to counsel. There is a difference between paranoia and careful attention to the ethical rules governing attorneys and with that in mind, we will explore the ethical question: can an attorney accept a client’s gift?

Don’t forget that attorneys are professionals providing a service to clients in a time of need, often at a difficult crossroad in their personal and/or professional life. Clients may feel grateful to their attorney and may want to express that gratitude in the form of a gift. Depending on the form and circumstance of the gift, an attorney may accept with caution or make the decision to graciously decline.

The Model Rules of Professional Conduct under the ABA provide guidance on this quandary in the form of the rules governing conflicts of interest. As a general principle, all transactions between a client and their lawyer should be fair and reasonable to the client.

A gift exchange is considered a “transaction” under the rules. Rule 1.8(c) prohibits a lawyer from accepting “any substantial gift from a client.” Of course, as is too often the case, this rule leaves room for interpretation and debate. The ethical rules governing client gifts are somewhat discretionary and permit an attorney to subjectively define the line between a year-end “thank you” and something substantial, which could lead to an ethical violation.

According to the commentary to the Model Rules, an attorney may accept “ordinary” gifts from a client “such as a present given at a holiday or as a token of appreciation.” However, an attorney must be wary of accepting anything “more substantial” due to the “doctrine of undue influence.” The rule is based upon concerns about overreaching and imposition on the client. According to an opinion reached by the New Hampshire Bar Association Ethics Committee, “the substantiality of a gift is determined by its size relative

to both the client’s estate and the recipient’s estate.” Could an outsider interpret the gift as an attempt to alter the attorney-client relationship or, perhaps more importantly, create a sense of obligation by the attorney to client?

Although there is no bright line governing the size or substance of the gift, there can be no debate that an attorney cannot solicit any client gifts.

Much of the case law addressing client gifts exists in the context of wills and estates. Notably, there are many reported incidents of attorneys who are set to benefit from a testamentary document they drafted on behalf of their client. Although this type of transaction is not presumptively invalid, it certainly may raise red flags which call into question the transaction. Whenever a client is prepared to bequeath a gift to counsel, the best practice is to insist that the client engage an unaffiliated third-party attorney to draft the proposed document in order to avoid the appearance of impropriety under the conflict rules.

The lesson for attorneys is to use their best judgment. If a client gift feels a bit rich, it probably is and should be rejected graciously. On the other hand, counsel should feel free to accept token, modest gifts from their satisfied and grateful clients. This risk management tool should help to keep the attorney-client relationship merry and bright.

’TIS THE SEASON...FOR ETHICAL BREACHES?

Seth Laver is a professional liability

defense partner at the firm Goldberg Segalla LLP. Out of the office, he busies himself coaching

his children’s sports and attempting home renovation projects.

Here in Charleston, we count down the days until November 1st when hurricane season officially ends and then anxiously await its return on June 1st. This is the case now more than ever since over the past few years we have endured record-breaking flooding from storms and hurricanes, some of which had hit hundreds of miles from the city. Whether a hurricane, earthquake, tornado, winter storm, or any other disaster, sudden disruptions can cause professional issues for lawyers and law firms if not planned for properly. Therefore, it is a good idea for all lawyers and law firms to have procedures in place to ensure a continuity of client care, secure technology and information storage, and a plan for returning to normal business operations.

A few years ago, the American Bar Association published, “Surviving a Disaster: A Lawyer’s Guide to Disaster Planning.” It provides an excellent starting point for a lawyer or firm to address their current emergency preparedness plan and/or create a new one. It includes a sample Business Continuity Plan (“BCP”). A BCP is your firm’s action plan for responding to a disaster or disruption prohibiting access to the main business location for more than 24 hours. This plan can include everything from building evacuation maps and important

emergency numbers to procedures for remotely accessing client files and critical business systems.

BCPs are not “one size fits all,” so it is important for lawyers and firms to create a plan that specifically addresses how they intend to carry on business operations in the event of a natural disaster, or even a non-weather disruption like a power outage (my firm’s building recently had one that lasted 3 days!). If you are a sole practitioner, this may be a daunting task, as you serve many different roles beyond providing legal work. However, creating emergency checklists and compiling backup contact lists in the event of an emergency is time well spent. Likewise, for a firm, it is important to clearly identify specific roles for each employee while operating during a disruption in order to resume normal business operations. While you can not avoid natural disasters, you can take steps to ensure your clients are protected and business activity resumes as quickly as possible.

The BCP should be divided into three phases: 1.) Activation and Response 2.) Alternate Facility Operations and 3.) Reconstitution.

The first phase should address the firm’s activation and response plan. In this phase, the level of disruption must be identified and then an effective strategy should

be devised. This strategy can be tailored to your firm, but should account for the different challenges presented by minor complications, major emergencies, and disasters. The anticipated time and extent of the disruption will assist you in prioritizing response activity.

The second phase, which addresses alternate facilities operations, focuses on solutions for when the firm’s main physical location is unavailable. While the activation and response phase entails creating checklists, contact lists, and various other written tasks, this step requires actual set up and testing of systems and processes. Technology allows many of us to access our firm’s network remotely, allowing us to continue working, but does it enable full business functioning? Logging in to draft emails and documents is one thing, but filing pleadings, sending and collecting bills, and other activities might be more difficult. In this phase, assessing how your practice operates and what the essential business functions are will allow you to prepare an effective BCP.

The final phase involves reconstitution. Whether it is at your original location or your back-up site, this stage addresses how the firm is going to return to business as usual.

For a law firm, the BCP is going to have two primary goals: 1) ensuring existing clients’ needs are being addressed, and 2) enabling productivity (revenue) during a business interruption. Depending on the size of your organization, you will need to develop policies and procedures for employees, including compensation/time off, access to technology, communication with outside vendors, record retention and management, among the other considerations discussed previously.

While those of us along the coasts, near a fault line, or in tornado alley may be more prone to natural disaster, an unexpected disruption can happen to anyone or any firm, and a good plan will help you maintain your expected level of service to your clients and keep your practice running smoothly even in the most difficult of circumstances.

Doug MacKelcan is Partner in the Charleston, SC office of Carlock, Copeland & Stair, LLP where he defends professionals in malpractice suits and licensure complaints. Despite his extensive accomplishments as a lawyer, he remains the second best one in his household.

Better Safe than Sorry: Emergency Preparedness for Lawyers

AttPro SnippetsAccording to the ABA’s most recent Profile of Legal Malpractice Claims, “Failure to Know/Properly Apply Law,” was the most commonly alleged error committed by attorneys. Based on the data, this type of error accounted for more than 15% of all alleged errors. Lawyers who are giving advice or working on matters outside their usual practice area should be cognizant of complex legislation, increased regulations and ever-evolving case law. That is why it is important that lawyers regularly participate in CLE programs relevant to their practice areas in order to maintain a current knowledge of the substantive law.

Visit the Attorney Protective website at www.attorneyprotective.com/webinar for a complete listing of our FREE CLE webinars and registration information.

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ERIN MCCARTNEY, ESQ., EDITORPolicies are written by either National Liability & Fire Insurance Company or National Fire & Marine and administered by Attorney Protective. All coverage is subject to specific policy terms and conditions. 2017 Attorney ProtectiveSM. ® All Rights Reserved. Information provided by AttPro Ally is not intended as legal advice. This publication provides best practices for use in connection with general circumstances, and ordinarily does not address specific situations. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by use of the suggested practices. Though the contents of AttPro Ally have been carefully researched, Attorney Protective makes no warranty as to its accuracy, applicability or timeliness. Anyone wishing to reproduce any part of the AttPro Ally content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to erin.mccartney@attorneyprotective.com.

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’Tis the Season...for Ethical Breaches?