Risk Management for Attorneys 2016 – Protect your Practice Hurwitz & Fine, P.C. Harry F. Mooney 1300 Liberty Building Buffalo, NY

Risk Management Practical advice for the prevention of claims: Put down your pen/no need for notes/no case citations/nothing you haven’t heard before How to choose and keep a client

Risk Management Effective risk management is the result of the four C’s: Choosing Clients: -Choosing not to take on a new case or a prospective client Client Communications - Managing Client relationships

Client Relations Augmented by the Wisdom of Yogi Berra, Catcher, Commentator, Malapropist and Communicator Why Yogi? We are talking about practical advice and Yogi’s malaprops are apropos: –Who but a baseball catcher would know more about Choices and Communications –Yogi is the greatest baseball catcher of all time –18 year baseball career as catcher/outfielder –16 All-star appearances –10 World Series rings (appearing in 21 World Series as player and manager) –3 American League MVP awards –First pinch hit HOME RUN in a World Series –Many iconic moments

Client Relations Choosing a Client Carefully – Ask these questions: Does he have a history of changing lawyers? Has the case been rejected by another attorney? Do you have the time and resources to handle the case? Is this case too big for you? Too Small?

Client Relations Make sure the client understands the terms of representation. Statement of Client’s Rights and Responsibilities [22 N.Y. C.R.R. §1210.1] Look for unrealistic client expectations Don’t encourage those unrealistic expectations Yogi counsels: “The future ain’t what it used to be.” and “It’s tough to make predictions especially about the future.”

Client Relations Choosing a Client Carefully: When choosing a client be careful of your promises. Yogi’s comment on promises: “Always go to other people’s funerals, otherwise they won’t go to yours.”

Client Relations Choosing a Client Carefully In accepting a case, make sure you confine yourself to your area of practice Yogi would say, “Be very careful if you do not know where you are going because you might wind up some place else.”

Client Relations Furthermore, in Carefully Choosing Clients: Be Watchful. Yogi advises… “You can observe a lot by watching.”

Client Relations Choosing a Client Carefully Clear, unambiguous letter of engagement Identifies the client Defines the scope of representation Explains billing practices Does not promise too much Contains client acknowledgment Advises fee, arbitration and mediation

Client Relations Non-engagement Prompt notice in writing No advice on merits Statute of limitations Rights to see another lawyer Make sure “non-engagement” is clear

Client Relations No unnecessary communications. Yogi recommends… “Never answer an anonymous letter.”

The Lynchpin of good client relations is timely and honest communication between lawyer & client. Yogi, chief signal caller for the Yankees, knew the need for good communication. “It was hard to have a conversation with anyone, there were too many people talking.” “I wish I had an answer to that, because I am tired of answering that question.” Client Relations Communication

Client Relations COMMUNICATION: Keep Client Informed Full disclosure Put in writing Acknowledged by client Update as appropriate Continue to report/repeat

Client Relations Be sure to keep your client abreast of his matter: Report, repeat, report, repeat In Yogi’s words… “It’s déjà vu all over again.”

Client Relations The road on which lawyer and client travel has many twists, bumps and turns. With Clear, unambiguous communications (in writing) Yogi is confident you will choose the right direction. “When you come to the fork in the road, take it.”

Client Relations Confidences and Privileges Confidence Broad based protection of any knowledge gained by attorney or his/her staff Privilege Statutory protection of actual advice given by lawyer to client under CPLR

Client Relations Your obligation to honor the confidences of your client continues even after the relationship has ended. Yogi keeps confidences and privileges by not answering the question. “If you ask a question I don’t know, I am not going to answer.”

Client Relations Disengagement Reason for disengagement Transfer of file Billing issues Client acknowledgement

Client Relations Disengagement: Sometimes, it’s just not meant to be, even if no fault of yours, a relationship may not work out. Yogi offers practical advice: Avoid former client haunts: “Nobody goes there anymore, it’s too crowded.”

Client Relations Disengagement: Handle the separation carefully. Acknowledge mistake: “We made too many wrong mistakes.”

Client Relations Disengagement: Handle the separation carefully. Yogi’s warning… “It ain’t over till it’s over.”

Conclusion “I want to thank everybody for making this day necessary.”