Category Archives: Malpractice

Canada Revokes Paralegal’s License.

13 Wednesday Jul 2016

Posted by in Malpractice, Rules of Professional Responsibility

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Paralegal License Revoked, by Mike Frisch, Legal Profession Prof Blog (with hat tip to William P. Statsky)

http://bit.ly/29ASMw6

There has been increasing discussion in the United States about creating class of paralegal often called “legal technicians.” Some states already have them. There are arguments pro and con on both sides. The underlying idea is to find a way to provide legal services at a lower rate making legal services more affordable.

But here’s the sticker. There are rules and laws to address situations where lawyers commit malpractice. Are there similar provisions for legal technicians and, if so, what are they? How do they protect consumers, is there any kind if discipline, and who is responsible for that oversight and discipline?

Canada might be good example to help answer some of these questions. What do you think? -CCE

Unlike its American counterparts, the Law Society of Upper Canada has and exercises disciplinary authority over paralegals,

The Law Society Tribunal revoked a paralegal’s license.

‘[M]r. Djukic’s actions clearly brought discredit upon the paralegal profession. Through his work as an immigration consultant and his standing as a paralegal, Mr. Djukic was able to meet and, ultimately, to persuade members of two families to provide him with monies totaling more than $900,000.’

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Big Law Firms Miss $1.5 Billion Dollar Mistake.

07 Friday Aug 2015

Posted by in 2nd Circuit Court of Appeals, Diligence, Lawyer Supervision, Legal Ethics, Malpractice, Paralegals/Legal Assistants, Rules of Professional Responsibility, Supervising Support Staff

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Mayer  Brown & Simpson Thacher Make Epic Screwup, by Joe Patrice, Above The Law (with hat tip to William P. Statsky)

http://abovethelaw.com/2015/01/mayer-brown-simpson-thacher-make-epic-screwup/

It is rare indeed to find such a dearth of responsibility among so many fine legal professionals. If you can, follow the bouncing ball. –CCE

Mistakes happen. It’s why pencils have erasers. But it’s also why law firms install tier after tier of increasingly senior professionals to second-guess every ounce of work product. It’s remarkably effective — and fairly lucrative on an hourly basis.

Unfortunately, the flip side of a tiered system is a tendency toward over-delegation. And that’s how an unwary paralegal ends up costing a bank millions. . . .

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Don’t Have A PIN Lock On Your Phone? Hope Your Malpractice Insurance Is Up To Date.

16 Monday Feb 2015

Posted by in Android Phones, Attorney Discipline, Blackberry Phones, Cell Phones, Confidentiality, Cybersecurity, E-Filing, Emails, iPad, iPhones, Law Office Management, Legal Ethics, Legal Technology, Malpractice, Office Procedures, Passwords, Rules of Professional Responsibility, Supervising Support Staff, Technology, Technology

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Most Consumers Don’t Lock Mobile Phone Via PIN, by Ed Hansberry, DARKReading, InformationWeek©

http://tinyurl.com/plw76ut

My guess is that most people who use a smart phone access some kind of confidential information, such as your bank account or conversations with a client or the office. If you do not have a PIN lock on your smart phone, this truly is special kind of stupid.

This is not a hard one to understand. If you use your cell phone to communicate with clients, sync your phone to your office computer and docket, or attach yourself to your office and confidential information – without taking simple, basic security measures – you are  inviting a dangerous breach of confidentiality. -CCE

44% of respondents say it’s too much of a hassle, new survey reports.

People put a lot of sensitive info on their phones, but they often give little though to how secure their data is. In a survey by a security company, over half of the respondents said they didn’t bother with a PIN lock. This takes on a whole new dimension when you begin to understand how many of these people keep corporate data on the device.

Losing an unlocked phone can be far worse than losing a wallet. Emails on the device alone can reveal a wealth of information about the person, including where they bank, where they live, names of family members, and more. If company email is on the device, and it often is, there can be competitive information, salaries, system passwords, etc. If any of those emails contain links, often clicking on it will take you into the website, be it Facebook or a corporate portal.

According to Confident Technologies, 65% of users have corporate data on their phone, even though only 10% actually have a corporate issued device.

For that majority that don’t lock their phone at all, 44% said it is too much of a hassle to lock it and 30% said they weren’t worried about security. These are likely the same people that store things like social security numbers, passwords, and other sensitive information in text files or basic note applications. They may even store their computer’s password on a Post-It Note in their center desk drawer. . . .

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What Is A “Zero Knowledge” Cloud And Why You Should Care.

24 Wednesday Dec 2014

Posted by in Clouds, Confidentiality, Document Retention, Law Office Management, Legal Ethics, Legal Technology, Malpractice, Technology, Technology

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‘Zero Knowledge’ Encrypted Cloud Service Sees Business Boom, by Steven Nelson, U.S. News & World Report

http://tinyurl.com/q9fj4l8

If you have been paying attention, you have heard about “zero knowledge” clouds — and you are thinking about changing from Drop Box or other clouds that can access the information you put in them. If you know nothing about zero knowledge clouds, don’t stop here. Read more about them, and decide whether it is time for your firm to change to a more secure cloud platform. -CCE

File-storing service SpiderOak says it’s experiencing a business boom – rapidly nearing one million users and doubling its site metrics in six months – amid a constant trickle of news reports revealing Internet surveillance by the government.

Files stored using SpiderOak are encrypted and their contents unknown – and unknowable – to the company. Sharing such files will soon be ‘zero knowledge,’ too, as the company prepares to roll out Crypton, its open source app-building framework, which will be publicly available within the next couple months.

‘Essentially what we did was we inverted the Internet,’ says CEO Ethan Oberman. ‘We created a world where the server is actually a big dumb machine. It only sees encrypted data blocks.’

A free version of the file-hosting service offers 2 GB of storage in exchange for a name, email address, username and password.

‘We don’t really fact check that information,’ Oberman says.

The company does know the IP address of users, he says, but IP-masking browsers – such as Tor – can conceal that information as well, making it possible to store files without disclosing any identifying information.

If the government were to come to the company with a valid legal demand for data, Oberman says, ‘We could turn over the data, but it is literally in encrypted data blocks and not decryptable by us. The only way it’s decryptable is if you have the key, which we do not maintain.’ . . .

Attorney Disbarred For Mishandling Administration of Mother’s Estate.

06 Saturday Dec 2014

Posted by in Ethics Opinions, Legal Ethics, Malpractice, Probate, Probate and Trusts, Rules of Professional Responsibility, Trusts, Wills

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Brother Can You Spare A Disbarment? by Mike Frisch, Legal Profession Prof Blog

http://tinyurl.com/m8bcrmw

The Washington State Supreme Court has disbarred an attorney for misconduct in connection with the administration of his mother’s estate.

The attorney was appointed as personal representative on his mother’s death in 1995. He lived with her at the time of her death and had his law office in her home.

The estate was to be equally divided between him and his three brothers.

The court affirmed findings that the attorney had engaged in frivolous motions and appeals, ignored discovery obligations and mis-valued estate assets.

In this case, the hearing officer reasonably concluded from the evidence presented at the hearing that Jones filed frivolous motions and appeals that harmed his brothers and the administration of justice. Jones filed numerous motions and appeals in the trial court, the Court of Appeals, and this court. Each motion was denied, and sanctions were awarded against Jones. Because Jones received sanctions, the hearing officer reasonably concluded that Jones was put on notice of the frivolous nature of his motions before refiling and appealing them. Like in Sanai, the hearing officer did not rely solely on a particular judicial ruling, but rather used judicial decisions as evidence that Jones filed repetitive frivolous motions that resulted in sanctions. The hearing officer’s conclusions were additionally supported by the testimony of six witnesses, resulting in over 1,500 pages of transcripts, as well as nearly 200 exhibits.

The court found seven aggravating factors including refusal to acknowledge the ethical violations

Jones argues that the record does not support refusal to acknowledge because he is not required to agree with the charges made or to confess. However, the aggravating factor of refusal to acknowledge the wrongful nature of conduct was correctly applied. Jones continued to file motions, lawsuits, and appeals even after being sanctioned numerous times for the frivolous nature of such filings. By receiving sanctions, Jones was aware of his RPC violations but persisted with his conduct.

Is Email Between You And Your Client Safe? No, And This Is Why.

01 Monday Dec 2014

Posted by in Android Phones, Apple, Blackberry Phones, Clouds, Confidentiality, Emails, Encryption, iPad, iPhones, Legal Ethics, Legal Technology, Malpractice, PC Computers, Technology

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How to Encrypt Attorney-Client Communications, by Lisa Needham, Lawyerist Blog (with hat tip to Allen Mihecoby, CLAS, RP!)

http://tinyurl.com/kfrpqz3

If you have decided you need to get serious about client data protection, you will need to consider encrypting both your data and your communications. We have previously covered how to encrypt your data and will focus here on how to encrypt your email communication.

What Is Encryption?

Simply by using the Internet, you are probably using some sort of encryption scheme during some activities, whether you know it or not.

Encryption is simply the act of turning your data into unreadable gibberish. If your data is intercepted or hacked, the thief now has nothing but a pile of garbage.

End-to-end encryption is a must for transferring sensitive data across the internet. In end-to-end encryption, your data is encrypted while it travels towards your intended location and the same encryption occurs on the reverse trip. Your bank (hopefully) uses end-to-end encryption. Your practice management software (hopefully) uses end-to-end encryption if it stores and syncs data remotely. This sort of encryption is done for you without any effort on your part, as it is just a standard feature of the infrastructure you are using to bank or update client data or similar activities.

Why Do You Need to Care?

A few years ago, the ABA issued a formal ethics opinion stating that if there is a significant risk that a third party might gain access to the email, attorneys have to warn clients about that risk.

This poses a problem, because unlike your bank and practice management software, email is usually unencrypted. This is true whether you are using a desktop client or a web-based email like GMail. . . .

Do You Ever CC Clients On Emails? Here’s Why You Shouldn’t.

28 Friday Nov 2014

Posted by in Confidentiality, Emails, Law Office Management, Legal Ethics, Legal Technology, Malpractice, Office Procedures, Rules of Professional Responsibility

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Don’t CC Clients on Emails, by Sam Glover, Lawyerist Blog

http://tinyurl.com/mrm3ucz

This one seems like a no-brainer, but I suspect many lawyers and paralegals alike have not realized the danger in this practice. -CCE

As a general rule, you should not CC your clients on emails.

First, because it gives every other recipient a chance to communicate directly with your client. In fact, it looks like an invitation to do so. Opposing counsel should know better, but even they might use Reply All accidentally, accidentally-on-purpose, or maybe even intending — albeit misguidedly — to be helpful.

In the case of recipients who are not bound by the rules of professional responsibility, you can hardly be surprised if they take the inclusion of your client’s email address as an invitation to keep them in the conversation or communicate with them directly. And remember that the recipient might forward your email, giving anyone not already included the chance to do so. This could be harmless if your email is related to a friendly business transaction. It could also be disastrous.

Don’t forget that clients can make mistakes, too. Even if you BCC your client to avoid the above problems, it could be your client who uses Reply All.

Second, part of your job is to counsel your client, which is difficult to do without providing at least a sentence or two of summary or context or explanation. If all you do is CC your client on every email (or forward every email with little more than “FYI”), you are missing a chance to do your job.

The better practice is usually to wait until the end of the discussion (or at least a decision point), so you can bring your client up to speed with a brief summary, some context, your analysis, the options you need to discuss, etc. Go ahead and include all the back-and-forth if you like, but don’t just hand it off. It is safe to assume given the fact of your representation that your client wants you to use your legal acumen to help them understand what is going on.

So don’t CC your client. There are certainly some exceptions to this ‘rule,’ or times when it doesn’t really matter. But at a minimum you should think twice before adding your client to the CC or BCC field of an email you are about to send.

When Working Freelance, Get An Agreement In Writing.

30 Thursday Oct 2014

Posted by in Confidentiality, Conflict of Interest, Legal Ethics, Malpractice

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Get It In Writing: Freelance Attorney Work Agreement, by Emerald Gratz, Lawyerist Blog

http://tinyurl.com/ntjd2gk

A quick word to paralegals who consider freelance work. Please remember that only lawyers can give legal advice. Except for specific circumstances provided by state or federal statutes, a non-lawyer cannot appear in court on behalf of someone else. If you work freelance, please review and follow the ethical requirements for our profession when working freelance. –CCE

The question of whether the work of a freelance attorney requires a written agreement seems obvious at first glance — “get it in writing” is the golden rule, after all. In practice it is not always that simple. There may be situations, depending on the client, project, or timetable, where getting a written freelance work agreement is not possible or necessary. If a hiring attorney is looking for last-minute emergency assistance, there may not be time to negotiate an agreement. Or the hiring attorney and freelance attorney may have an existing relationship and are comfortable working without a formal agreement.

In these situations, it still benefits both sides to set forth basic project terms in an email, at least. Ultimately, the freelance attorney is responsible for defining the business relationship and running his or her own freelance law practice. . . .

Is It Legal Malpractice If You Are Technologically Incompetent?

01 Friday Aug 2014

Posted by in Law Office Management, Legal Ethics, Legal Technology, Malpractice, Social Media, Technology, Technology, Technology, Trial Tips and Techniques, Using Social Media

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Luddite Lawyers Are Ethical Violations Waiting To Happen, by Megan Zavieh, Lawyerist Blog

http://tinyurl.com/lo9fs45

Do you have a smart phone but only know how to make a telephone call? Do you think of a cloud as some white puffy thing in the sky that looks like a ducky? Do you have a computer on your desk but never turn it on? Is the password to your computer actually “password”? Then this article is for you. Technology is here, and it is not going away. Resistance if futile. -CCE

Technological incompetence used to be merely a competitive disadvantage. Now, it is a potential ethics violation — or even legal malpractice.

During my first year of law school, we were not allowed to do computerized research. Instead, we were taught to use the leather-bound reporters, Shepherds, and treatises. It was only during our second year that we were deemed worthy to use Westlaw and Lexis to ‘confirm’ our book findings. (Of course, I doubt any of us ventured into the stacks again.)

This approach reflected the general attitude of the legal profession in the mid-to-late 1990s. Technology was grudgingly accepted, but not required. Lawyers at big firms had online research accounts and solos went to the law library to use the books. Nobody thought anything was wrong with this, although online research did give big firms a competitive edge.

In 2013, email is ubiquitous, and just about every lawyer has some form of electronic research available on his laptop, tablet, or phone. And everyone — lawyers included — uses Google to find everything else. In law practice, that includes research on witnesses, opponents, judges, and anything else not found in a Fastcase, Westlaw, or Lexis database. Technology is an unavoidable part of practicing law.

Ethics rules follow practice

The ethics rulemakers have taken note of this evolution, and the rules have grown to require technological competence.

Lawyers cannot ignore technology

The ABA made it abundantly clear that lawyers must keep up with technology when it amended comment 8 to Model Rule 1.1 on competence. Comment 8 now reads:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

(Emphasis added.)

As Nicole Black, Director of Business Development at MyCase, puts it, ‘I think it’s pretty clear that […] lawyers can no longer turn a blind eye to technological advancements and their effect on the practice of law.’ . . .

A Double Treat – Two-Part Posts On Cybersecurity and Outsourcing From Ralph Losey.

19 Monday May 2014

Posted by in Computer Fraud and Abuse Act, Computer Virus, Confidentiality, Document Retention, Emails, Encryption, Heartbleed, Law Office Management, Legal Ethics, Legal Technology, Malpractice, Malware, Technology, Technology, Trojans

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The Importance of Cybersecurity to the Legal Profession and Outsourcing as a Best Practice – Part One, by Ralph Losey, e-Discovery Team®

http://tinyurl.com/oalblet

and,

The Importance of Cybersecurity to the Legal Profession and Outsourcing as a Best Practice – Part Two, by Ralph Losey, e-Discovery Team®

http://tinyurl.com/mjek896

It is worth taking the time to read the Comments for both Part One and Part Two. -CCE

Time Management Tips From Jim Calloway.

09 Sunday Mar 2014

Posted by in Apps, Emails, iPad, iPhones, Law Office Management, Legal Ethics, Legal Technology, Malpractice, Microsoft Office, Office Procedures, Outlook, Tablets

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Time Management by Buckets and Lists, by Jim Calloway, Jim Calloway’s Law Practice Tips Blog

http://tinyurl.com/lbgd94z

How much time is wasted prioritizing ever-changing deadlines, projects, and e-mail? As always, Mr. Calloway provides common sense approach to time management, including management of e-mail, to-do lists, and more. -CCE

Time management is a challenge for us all these days. There are so many more distractions and so many more electronic avenues for assignments to come our way. It is a constant struggle to maintain productivity and a constant goal to improve. Missing a calendar entry can be critical in a law firm, so we live by our calendars. But making certain that critical tasks are completed promptly is equally important. Many lawyers put critical to-do items or deadlines on their calendars, even though they should be in a task list.

A Guide to Legal Conflict of Interests.

09 Sunday Mar 2014

Posted by in Conflict of Interest, Legal Ethics, Malpractice

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Freivogel on Conflicts – A Guide to Conflicts of Interest for Lawyers

http://www.freivogelonconflicts.com/home.html

This Guide is a good place for your research. Of course, you should update any research you find on the Internet. As in all legal research, please verify that no rules, regulations, case law, or other controlling legal authority has made any changes to what you find here. – CCE

This guide is built around the categories listed in the Table of Contents below. The What’s New page contains very recent decisions and opinions on those categories. It is updated several times a week.  Before using these materials, please read the “Ground Rules and Tips for Using this Site,” by clicking here.