Kevin T. Merriman (585) Risk Management Bar Association of Erie County

Competency in Area of Practice Rules of Professional Conduct 1.1—Competence (a)A Lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. (b)A lawyer shall not handle a legal matter that the lawyer knows or should know the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it.

Competency in Area of Practice Referrals and Associations with Attorneys Proficient in Area Do what you know how to do; refer other matters –Reciprocal referral agreements are permissible: “A lawyer also may agree to refer clients to another lawyer or a nonlawyer in return for the undertaking of that person to refer clients or customers to the lawyer.” (Comment [4] to Rule 7.2) –Must be non-exclusive

Competency in Area of Practice Referrals and Associations with Attorneys Proficient in Area Referral Fees –Attorney may not accept compensation or anything of value solely for referring a client to another attorney (Rule 7.2) –Dividing fees is permissible, if: Fee proportionate to services performed by each lawyer or, by writing given to client, each lawyer assumes joint responsibility for representation; Client agrees in writing to employment of other lawyer after full disclosure of fee division and share each lawyer will receive; and Total fee is not excessive. (Rule 1.5(g)(1)-(3))

Competency in Area of Practice Referrals and Associations with Attorneys Proficient in Area Joint Responsibility—Not to be assumed lightly: –Referral presumably was made because matter was outside referring lawyer’s are of expertise; referring attorney subject to malpractice claims –Client remains referring attorney’s client, with attendant obligations: “Joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.” (Comment [7] to Rule 1.5)

Competency in Area of Practice Referrals and Associations with Attorneys Proficient in Area When Making Referrals: Refer only to lawyers who you reasonably believe are competent to handle matter Provide multiple references Confirm lawyer has professional liability insurance Disclose any relationship you have with lawyer (e.g., reciprocal referral agreement) Confirm that referral has been made, and that you’re not representing the client with respect to the matter

Competency in Area of Practice Referrals and Associations with Attorneys Proficient in Area When Making Referrals and Receiving Fees: Are you prepared to assume joint responsibility? Has client agreed, in writing, to the referral and division of fees? Have you listed the area of practice in your professional liability policy application?

Competency in Area of Practice Continuing Legal Education Required by Part 1200 of the Rules of the Appellate Division –Purpose—to maintain professional competence by continuing attorney education throughout period of active practice –Attorneys required to complete 24 credit hours each biennial reporting cycle—4 hours in ethics or professionalism –Newly admitted attorneys must complete 32 credit hours within first two years of admission—16 hours each year (3 ethics; 6 skills; 7 practice management) –New rules regarding format for newly admitted attorneys

Competency in Area of Practice Office Sharing and Implied Partnerships American Bar Foundation reports that nearly 50% of attorneys in U.S. are solo practitioners Nearly 6% of new law school graduates pursue solo practices for their first job Office sharing arrangements are common

Competency in Area of Practice Office Sharing and Implied Partnerships Benefits: Defray expenses Share resources Develop collegial relationships Risks: Implied partnerships Confidentiality Conflicts of interest

Competency in Area of Practice Office Sharing and Implied Partnerships Rules of Professional Conduct 7.5—Professional Notices, Letterheads and Signs (c) Lawyers shall not hold themselves out as having a partnership with one or more other lawyers unless they are in fact partners.

Competency in Area of Practice Office Sharing and Implied Partnerships May be source of legal liability: –If a client has reason to believe that two or more attorneys sharing office space are working together, tenants ultimately may be liable for torts of co-tenants.

Competency in Area of Practice Office Sharing and Implied Partnerships Maintain Strict Autonomy: Separate letterhead, business cards, litigation backers, signage Specify that attorney are practicing separately in retainer agreements Separate telephone lines; answer with name of attorney or firm, not “law firm”

Competency in Area of Practice Office Sharing and Implied Partnerships Minimize and manage conflicts –practice groups within shared office space should compliment, not compete with each other –Practice groups each should run conflict checks for new matters of all tenants

Competency in Area of Practice Office Sharing and Implied Partnerships Maintain client confidentiality (Rule 1.6) –Shared personnel should avoid substantive messaging, and should not handle confidential mail, faxes and files –Client files should be physically segregated and locked to prevent third-party access –Computers, servers, scanners and copiers should not be networked together and should be password protected –Client matters should not be discussed in communal areas

Competency in Area of Practice Office Sharing and Implied Partnerships Enter into written office-sharing agreement: –Strict prohibitions against representations about practice as a single firm –Requirements that tenants have professional liability insurance –Mandatory use of retainer agreements specifying nature of shared space –Policies regarding conflict-checking, client confidences and use of shared space

Competency in Area of Practice Docket Control Administrative errors account for 30% of alleged errors leading to claims –Failure to calendar properly—4.34% –Clerical error—3.54% –Failure to react to calendar—2.34%

Competency in Area of Practice Docket Control Critical Components of Effective System: –Centralized calendar/docket entry system with cross check to catch potential errors –Tickler system for critical events and tasks –Redundancy (e.g., PDA or other secondary access) –Back-up system –System training –Mandatory participation and accountability among users

Competency in Area of Practice File Retention Rules of Professional Conduct 1.15(d)—Required Bookkeeping Records Seven years: –Deposits and withdrawals from accounts affecting lawyer’s practice of law –Special accounts –Retainer and compensation agreements –Bills rendered to clients –Payments to lawyers, investigators and others not in lawyer’s regular employ

Competency in Area of Practice File Retention No retention deadlines or procedures for other records Consult ethics opinions and develop guidelines: –Materials belonging to lawyer may be destroyed –Clients should be consulted regarding disposition of their materials

Competency in Area of Practice Acknowledgements: Risk Management 2014, New York State Bar Association, October 24, 2014, PowerPoint presentation by Matthew K. Flanagan, Catalano, Gallardo & Petropoulos, LLP Profile of Legal Malpractice Claims: , American Bar Association Standing Committee on Lawyers’ Professional Liability

Kevin T. Merriman (585) Risk Management Bar Association of Erie County