Surety bonds are a reality of any legal practice, though there can be some confusion about how they work and the costs associated with them. To remedy such confusion, here are five key facts about Sureties:

Two types dominate the practice of law

The first is a fidelity bond. One of, if not the most common types of surety bonds seen in law firms, fidelity bonds protect firms from employee theft. Accessing and moving large sums of money is commonplace at many law firms. To reassure clients, as well as protect firms from potential employee embezzlement, fidelity bonds insulate an employer – in this case, a law firm – from any theft by an employee.

The second most common bond type is a fiduciary bond. This type of bond holds firms accountable to their clients and their assets. Like a fidelity bond, a fiduciary bond holds a legal representative or law firm accountable for any misuse of funds. Should a loss occur, the party represented by the fiduciary bond, in most cases the client, will be covered for those losses up to the amount of the bond itself.

Costs depend on what is needed and by whom

Surety bonds typically cost between 1% and 3.5% of the total bond amount. However, that cost is also determined by a range of factors, including the applicant’s application and financial strength. Underwriters will rightly focus on the credit score and financial statements of the bond applicant as a determining factor in the final premium. Applicants with low credit scores or law firms whose financial house is less than rock solid may find the cost of a surety bond well in excess of the 3.5% typically expected.

The devil is in the details

Firms should carefully consider the general indemnity agreement which holds the principal accountable for any losses that may occur in the case of a default on the surety bond. Specifically, firms need to review:

• That the principal indemnifies and holds harmless the surety from any liabilities
• That the principal cooperates with the surety’s investigation of a claim
• That the surety has the final right to either pay or reject a claim
• That the surety may require collateral (such as funds) from the principal
• That the surety may use the principal’s collateral to pay its liabilities under a valid claim

The underlying contract can complicate the risk

In addition to the surety bond, law firms must consider the underlying contract itself. If the firm is not completely confident it can fulfill its obligations to the underlying contract, this should raise a significant red flag. Surety bonds hold the principal to a higher level of accountability compared to other insurance policies. If the firm is not 100% confident it can fulfill its duties to the obligee, the surety bond only complicates matters. Should the firm be found legally liable and a suit is filed, the surety company will pursue the firm to recoup its losses.

Default costs can be considerable

If the principal defaults on the contract terms to the agreement with the obligee, then the obligee has the right to sue the wrongful party. If a suit is filed, then the surety company is obligated to pay the suit, up to bond limits. The principal is then required to pay all fees, up to bond limits, that the surety company pays for the claim. Some surety bonds require collateral from the principal as an extra precaution for the principal defaulting to both the obligee and the surety company.

Before undertaking the effort to secure a surety bond, the attorneys involved would do well to review their options with their licensed insurance agent or brokerage to determine if such bonds are the most appropriate vehicles to achieve the firm’s goals.

An effective lawyer is a thorough lawyer. But what happens when an attorney, or an entire law firm, becomes careless in their work? Simply overlooking typographical errors can result in a lawsuit. While such cases may seem rare, one law firm faced a $636 million-dollar lawsuit just last year in a case of not reading the fine print.

George Adelman sued New York law firm Proskauer Rose in March of 2020 for including a provision in a hedge fund partnership agreement that allowed the manager to oust him from the entire operation, according to Reuters. Adelman claimed a “botched cut-and-paste” job was conducted by his attorneys, citing handwritten notes from a Proskauer partner that included expletives indicating a mistake. Last year, a Massachusetts judge ruled against summary judgement, sending the case to be tried before a jury. The case has since been settled but the lesson is the case, and its financial fallout, could have been avoided completely.  

Standardizing documentation

Administrative and clerical errors, like typos or incorrect language being included in an agreement, can cost a law firm more than money. Firms depend on a strong reputation for thoroughness and attention to detail. If even the simplest tasks are overlooked, how might that be viewed in the eyes of current and former clients, stakeholders and potential employees? As such, law firms must prioritize risk mitigation related to their work product. Some strategies might include:

• Approaching copy & paste with caution: Using language from previous contracts or agreements is commonplace in law, but like Proskauer learned in the abovementioned article, using the copy & paste function can place unnecessary risk on law firms. To avoid a similar scenario, law firms should ensure any language used from previous agreements is adjusted for the current agreement before it is placed in the document. This way, attorneys can identify any irrelevant or potentially harmful language before it is placed in a draft.
• Thorough approval processes: Law firms should have procedures in place for proofreading and editing documents before they go to clients. While this may seem rudimentary, many law firms assume people know how to proofread thoroughly. The reality is, most people miss something, especially when they are in a rush. Without procedures for attorneys to follow, they may opt to skip the second proof-read or bypass a step of the process.
• Staying organized: All documents, including notes and previous drafts, should be approached as if a client will see them. Documents should be consistently and clearly labeled to avoid sharing documents with incorrect language or errors in versioning. In terms of notes, attorneys should avoid including anything that might be inappropriate. Notes should also be saved for reference when doing a final edit on a document to ensure all provisions are made. Doing so could offer a key line of defense in a potential malpractice scenario.

When the avoidable is unavoidable Attorneys are often expected to be perfect, but as Proskauer’s case clearly proves, attorneys are human, and humans sometimes error. While not all cases will put a law firm on the hook for $636 million, a clerical or administrative error can be costly. Attorneys should review their professional liability insurance to ensure any costs related to fighting a malpractice claim are financially covered and any income lost because of the claim is paid back. Attorneys should consult an insurance professional who specializes in the legal space to ensure adequate coverage at the correct limits. To avoid a mistake altogether, consider speaking with a specialty insurance professional about risk mitigation strategies that strengthen your law firm’s defenses.

Attorneys, unfortunately, who are sued for malpractice do not constitute breaking news. However, when an attorney’s comments to news media prompt a malpractice claim, the headlines and ensuing interest are notable.

This is the case for noted attorney Geoffrey Fieger. Famous primarily for his representation of Dr. Jack Kevorkian, who was put on trial for his role in assisting terminal patients with committing suicide, Fieger is once again in the headlines. This time Fieger is the defendant, facing claims of malpractice in the case of two swimmers he represented. One swimmer died and the other was injured in the water near a Traverse City, Michigan dock. Fieger failed to keep the jury in the malpractice case from hearing his statements to the media in the case of the two swimmers, sharing his assertions as to both the value and cause of the injuries, as well as who was responsible. His defense in the malpractice claim is that the underlying case was “a dud” and the plaintiffs and their family were not deprived of financial damages.

A three-judge panel determined the malpractice jury should be allowed to weigh Fieger’s contradictory claims.

Words to Litigate By

Lawyers who opt to try their cases in the court of public opinion as well as the courtroom walk a fine line. While most litigators are savvy combatants within the halls of justice, many who are unfamiliar with the media spotlight are often surprised by how adept journalists can be at soliciting information or comments those lawyers did not intend to convey. Moreover, some lawyers take the media for granted, never considering how the editing of certain statements or on-camera comments can not only change the context of what they intended, but also have ramifications in the courtroom. Still others, riding high on a courtroom victory, sometimes misspeak as they work their way through a throng of waiting media outside the courthouse.

Fieger is just one in a long line of high-profile attorneys who have found their statements in the press to have meaningful, and often undesirable, legal ramifications.

The ABA’s Model Rules of Professional Conduct restrict lawyers from making false statements of fact or law, whether that is to the judicial system or the public. Lawyers who find themselves accused of providing false information or misrepresentations in their statements that may negatively impact their clients can quickly find themselves the subject of a malpractice claim.

While their professional liability insurance may protect these lawyers in cases subject to their Errors & Omissions coverage, knowingly making false statements about a matter or conflicting statements in the media versus the courtroom may potentially subject that lawyer to a loss of professional liability coverage entirely. This would expose the attorney in question to direct exposure in any successful litigation.

A Simple No Comment Might Do

As a matter of best practice, lawyers who choose to engage with the media on any legal matter before them should consult first with their client. If commenting in the media to protect the reputation of the client or combat scurrilous allegations against the client made in the media by others is in the client’s best interests, the attorney should obtain permission in writing from the client. Then, spell out key messages or approaches to any related media engagement.

A safer course of action may be to not engage with the media at all. Barring that, many attorneys would find themselves well represented by engaging with an experienced public relations professional who can help to ensure that a trial in the press does not become a matter of litigation in the courts, for the client or the attorney at issue.

One in four American adults believe artificial intelligence (AI) will reduce the total number of jobs in the next 10 years, as reported by a Bentley-Gallup Business in Society study. The onset of AI in everything people do is prompting concern, but law professionals know there are some things AI cannot do better than a human. In fact, there are some things AI should not do.

Robots vs. Lawyers

The self-described first robot lawyer DoNotPay was the topic of the AI debate when Chicago-based law firm Edelson proposed a class action lawsuit accusing DoNotPay of practicing law without a law license, according to Reuters. Founded in 2015, DoNotPay was designed as an application for users to contest parking tickets. Today, the tool claims on its website to use “artificial intelligence to help you fight big corporations, protect your privacy, find hidden money and beat bureaucracy.” While DoNotPay denied any allegations, the complaint argued against its credibility stating “DoNotPay is not actually a robot, a lawyer, nor a law firm. DoNotPay does not have a law degree, is not barred in any jurisdiction, and is not supervised by any lawyer.”

Arguments against AI tools are difficult to try in court because their impact is only potential. DoNotPay’s lawsuit, for example, was dismissed in Illinois on the grounds that the “…case pits real lawyers against a robot lawyer” without showing how they were harmed, as reported by Reuters. DoNotPay’s outcome demonstrates the future of AI in law is unclear, but worth understanding.

What AI Can and Cannot Do

Concerns around AI’s role in law are valid, but they should not frighten law firms from learning to safely leverage its capabilities. However, firms must understand using AI too frivolously, or depending on it too heavily, could expose them to risks resulting in malpractice claims, or other legal liabilities. Consider the list below of what AI can and cannot (or should not) do in law firms.  

AI Can:

Manage billing: Billing processes have been a longstanding, rather contentious issue in the legal space. AI can help efficiently bill clients and reduce lost billable hours.An automated billing process ensures clients are regularly billed on time for every reported hour of work.Many systems send regular reminders as well.

Streamline legal research: On any given case, lawyers will be tasked with hours of sifting through legal data. AI can help analyze databases to identify the resources lawyers might need.

Automate and manage documents: The days of paper documents are over. In fact, automating documentation management can help law firms find things quickly and reduce search times in specific documents.

AI Cannot:

Display human emotion: The client/lawyer relationship is crucial in the practice of law. AI cannot display the human emotions such as empathy required to build a trusting relationship. In many cases, people seek out AI tools because they do not trust lawyers or are looking to streamline a process. Attorneys should see this perception as a warning and lean into building relationships with clients that foster trust.

Finalize documents: No document that is automated or edited by AI should ever be considered final until it goes through an approval process by trained attorneys. Editing processes should be thorough to ensure all errors or incorrect language is caught and fixed. Law firms should ensure their attorneys understand the limitations of AI including contextual errors, misinformation or incorrect names.

Comprehend complex cases: Very few aspects of law are one-size-fits-all. AI is not able to understand the nuance between cases, especially more complex cases. Attorneys should never allow AI to interpret cases or information for them.

With so much fear around AI, many law firms are opting to avoid it altogether. However, doing so runs the risk of falling behind industry peers. AI does have a place in law, but it is not to replace law professionals. To avoid potential harm for a law firm related to AI, leaders should approach it as a tool to assist them and understand the risks involved. An insurance professional who specializes in law could be an invaluable asset to law firms looking to safely implement AI into their firms. Consider evaluating your law firm’s practices and where AI could provide value.

The sticky extracurricular activities of an attorney cannot only get that attorney in trouble, but the law firm associated with them as well.

In 2022, former New York attorney Robert Wisnicki resigned from the New York State Bar Association after being investigated for improper use of IOLA accounts. He later admitted to falsely testifying in front of a grand jury in an attempt to hide his part in a money laundering scheme. It also came to light that Wisnicki participated in a nearly $20 million Ponzi scheme in which he held money from clients to invest in real estate, then transferred the funds of other clients to the original real estate investor-clients to disguise losses. Because Wisnicki used one of his firms, Wisnicki & Associates, LLP, to carry out his crimes, the firm was named as a defendant in the case and is now out of business. As for his other firm, Wisnicki Neuhauser LLP, they now operate as Neuhauser Law PLLC to separate themselves from Wisnicki. Wisnicki’s case is currently ongoing with a plea agreement that included a $19 million forfeiture and $18.8 million in restitution as reported by Law.com.

Unfortunately, attorneys’ nuanced knowledge of the law and its “loopholes” can tempt less ethical, otherwise compromised or really any lawyer to cross lines they should not – lines that seemingly lead to big payouts. However, when all goes awry, their firms and colleagues may also pay the price. As such, firm leadership should be acutely aware of attorney fraud risks and how to protect their businesses.

The risks of fraud

Fraudulent activity can mean participating in money laundering, tax evasion, Ponzi schemes and other illegal practices. An attorney’s law firm can suffer financial, legal and reputational repercussions as a result. A lawyer’s professional liability insurance policy excludes matters of dishonest or criminal activity, meaning all costs associated with the crime should come from the attorney-at-fault’s pocket and in cases like Wisnicki’s, the firms they use to push forth their agendas. If the firm or its partners are proven to be involved in or to have had knowledge of the fraud without immediately reporting it, the firm’s insurance could void and the firm and its partners could be exposed to unimaginable liability. Reputationally, even the actions of a lone actor could imply to the public that the entire firm is connected, whether or not others in the firm were implicated in a crime. And with higher profile cases, like Wisnicki’s that drum up media attention, law firm leadership could have a difficult time protecting their brand from negative news stories.

Fraud prevention

What may be most frustrating about of fraud cases and what can make them difficult to identify are the secretive tactics required to carry them out. One of the most notorious non-attorney fraudsters of all-time, Bernie Madoff, committed his crimes over more than two decades and was successful for years due to his under-the-radar approach. To prevent fraud, law firm leaders should consider the following best practices:

• Require checks & balances: A law firm and its attorneys are trusted with complex, sensitive matters that can, in some cases, be easily manipulated based on privileged information, access to funds and other insider knowledge. No matter the case, law firms should have procedural checks and balances in place, such as case reviews, financial reporting audits and signature and approval processes. Law firm leaders should have regular conversations about the cases under their firm’s masthead and discuss any discrepancies that may arise. Leadership should also have regular conversations about procedures that might strengthen their checks and balances.

• Nurture an ethical culture: While ethical compromise can expose firms to perhaps their greatest risk, a law firm’s employees can also be their greatest line of defense. Law firm leaders should work to create a culture where people respect the value of ethics and feel comfortable coming forward with matters that might require investigation. No matter is inconsequential if reporting it could reveal room for improvement. Everyone in a law firm should be trained in what to look for such as financial discrepancies or red flag conversations. Reporting processes should be clear to all firm employees.

• Report properly: If a discrepancy is found whether via an employee report or internal review, law firms should have processes for reporting to ensure compliance and risk mitigation. Some cases may require police attention or the involvement of a state bar authority. It is important to know how to report issues and to whom to report them. During this process, law firms should review and discuss their insurance policies with an insurance professional who specializes in insurance for legal professionals. A savvy insurance specialist can help make sure leadership is aware of the steps they must take to ensure they do not implicate themselves in a crime or void their professional liability insurance coverage.

At times, particularly in cases rich in media attention, allegations of attorney fraud can seem like a made-for-TV event. The reality is law firm leaders who do not consider the real potential for fraud are putting their firms in a vulnerable position and could become their own cautionary tale. Unfortunately, even the most seasoned lawyers can engage in questionable behaviors. Protect your team as you do your clients – take a moment to consider how your team can strengthen its defenses against attorney fraud.

Imagine you helped a client navigate a complex case for more than a year, spending countless hours and late nights to complete background research and build a case, making every deadline and ultimately achieving the best possible outcome for your client. All is going well until – they refuse to pay their final bill.

What happens next? An attorney’s knee jerk reaction could be to sue the client for unpaid legal fees. However, attorneys who choose that route could see a substantial increase in their professional liability insurance premiums and even expose themselves to a possible countersuit.

A client refuses to settle up and I pay the price?

A 2022 Legal Trends Report by Clio found 11% of all hours invoiced to clients are never paid. In a high-profile example, former New York City Mayor Rudy Giuliani made POLITICO headlines just a few months ago after his ex-lawyers of Davidoff Hutcher & Citron LLP claimed Giuliani failed to pay $1.36 million in legal fees.

Though it certainly happens, suing in these scenarios is viewed by most insurers as a notable risk factor. If a law firm demonstrates a pattern – even just one or two claims – of having to sue clients for unpaid legal fees, it can open itself up to malpractice countersuits. As such, those countersuits can prompt a firm’s professional liability and malpractice insurance premiums to rise.

Best Practices for Avoiding and Managing Unpaid Client Invoices

Law firm leaders need not sit back and ignore unpaid invoices, but they should be diligent and thoughtful about their next moves. Let’s look at a few ways law firms can address unpaid legal fees.

• Keep track: For many years, the legal industry did not have an industry standard method to track hours or time spent on clients. With the emergence of time-tracking software programs, law firms now have access to time management tools and technology solutions that can help track and analyze billable hours, invoices, client communications and more. Using such tools can help to ensure the firm is billing correctly and regularly and allows for prompt follow-up on any outstanding balances. This data can also help law firms determine the best payment structure for certain clients such as retainers, fixed or capped fees or payment plans.

• Thorough screening: Prospective clients should be thoroughly screened before the firm agrees to represent them. During the screening process, attorneys should discuss costs and pay attention to the client’s reaction. If price is a concern at the beginning, it will likely be a concern down the line. Other signs might be client history. For example, if a client has had multiple attorneys work on a case in the past, that could be red flag. This could suggest personality conflicts or inability to pay. In some cases, even a cursory credit check might be recommended if there are any concerns about the client’s ability to meet their financial obligations should the firm provide representation.

• Sue only when absolutely necessary: In a case like Giuliani’s, a lawsuit was likely the only option. Despite their best efforts, any attorney could find their law firm in a similar position. To safeguard their professional liability and malpractice insurance costs, leadership must be certain moving forward with a lawsuit is the only viable and remaining option to secure payment for services rendered. Every member of leadership should be involved in making the decision to sue and it should be discussed in detail with the client’s written agreement in mind. If there is no other option and a viable breach of the written agreement is apparent, leadership should take a moment to review their insurance policies with an insurance professional who specializes in the legal space to ensure any impact on their policy and its related premiums is factored into the decision.

While it might seem logical to consider legal action when a client seemingly ducks out on their legal fees, it is not always worth it. Consider, instead, taking a more proactive approach to billing and client screening to protect your law firm’s client portfolio and bottom line.

In 2019, an American Bar Association revealed more than 2,000 lawyers were publicly disciplined in 43 states and the District of Columbia that year alone. Of those disciplined, nearly half experienced a suspension. While suspensions are not uncommon in law, could a suspended attorney threaten the business and reputation of the firm they represent?

Just this summer, Washington D.C., attorney William Francis Trezevant was indefinitely suspended by the Maryland Supreme Court after he practiced in the state without a license, as reported by The Daily Record. When Trezevant took on his great-niece’s child custody case in Baltimore County, he failed to disclose two key issues: first, that he was not licensed in Maryland, and second, that he was related to the client. Trezevant continued to misrepresent himself throughout the case and his investigation.  

When a lawyer begins to make questionable choices, those actions have implications for the clients they represent. In Trezevant’s case, by failing to follow the proper protocols to practice in Maryland, by neglecting to report his relation to the client and by refusing to comply with the investigation, Trezevant could not properly represent his client. An attorney operating in such a fashion is not only placing undue risk on his or her client, but they are also placing reputational and insurance risk on their law firm.

The actions of one affect many

An attorney can be disciplined for a multitude of reasons ranging from administrative errors to gross misconduct. In any case, disciplinary action that withstands investigation can suggest potential negligence that can lead to additional problems down the line. Insurance professionals recognize this as increased risk exposure, both for the attorney and their firm.

Further, an attorney facing discipline will likely file a malpractice claim with their insurer to assist with defense costs associated with the proceeding, causing insurance premiums for the firm to rise. If the attorney is suspended, they will likely be excluded from malpractice insurance. In some situations, insurers may opt to cancel the attorney’s coverage – or the firm’s if the error is egregious or chronic within the firm. If the attorney is later reinstated, the firm’s malpractice insurance costs will likely rise.

In addition to the insurance-related costs, law firms could endure reputational damage should they choose to maintain a suspended lawyer’s employment, either before or after reinstatement. Clients seek attorneys for help, guidance and peace of mind. If clients associate a firm with the negative actions of one attorney, they may choose to take their business elsewhere – not to mention that cases like Trezevant’s can stir up negative media attention for the firm.

Responding to a suspension

Unfortunately, attorney suspensions are a reality in the business of law. While not an ideal scenario, firm leaders should understand what is expected from them and their attorneys if a lawyer in the firm is suspended. Consider the following crucial steps to take in the event of an attorney suspension.

• Review, understand and comply with the rules around the suspension: When a lawyer is suspended, they will be notified through a lawyer suspension order. This order will outline the attorney’s infraction and the duration and terms of their suspension. First, and foremost, a suspension of course means the attorney may not practice law for a defined period and must notify their clients and reallocate their cases. Additional stipulations around a suspension will vary by state and could include proof of rehabilitation, a court ordered reinstatement or retaking the bar exam. Failing to follow rules under a suspension order could result in an attorney’s license being permanently revoked.

• Speak to an insurance professional: Law firm leaders would be wise to consult an insurance professional who specializes in insurance for lawyers to ensure proper steps are being taken to mitigate any risk to the firm related to the suspension. During a suspension, transparency with your insurance partner can help ensure the firm’s insurance coverage remains intact.

• Decide the course of action: An insurance professional can also help determine what level of risk a recently suspended attorney could pose to the firm. Understanding the risk can help law firm leaders determine if maintaining a disciplined attorney’s employment makes sense and in what capacity the attorney should be involved with the firm. For example, an attorney who should not be practicing law could serve as a paralegal.

When an attorney behaves in a manner that warrants a suspension, law firm leaders will want to keep a close eye on the situation. By understanding the situation and the risk to which it has exposed the firm, law firm leaders can minimize the impact of one’s action on their operations. Consider speaking with an insurance professional who specializes in insurance for lawyers about risk mitigation considerations in the event of a suspension.

The American Bar Association (ABA) released a pledge in 2017 to reduce substance use in the legal profession by providing dedicated educational resources. Within the first year 13 firms signed the pledge. As of the writing of this article, 227 firms have attached their names. The growth in support for the ABA’s pledge is emblematic of the ongoing issue of substance use and related mental health challenges within the legal profession. As more firms have begun to focus on the issue of substance use within the field, many recognize the benefit of prioritizing mental health and wellness within their own firms to protect their fellow attorneys as well as their practices.

This recognition comes as the industry has begun to address a pattern of substance use and mental health issues that pose serious risks to the attorneys they employ as well as the clients they represent  Last year, the Iowa Capital Dispatch reported on a story in which attorney Wesley Alan Johnson was arrested five times in a little more than one 12-month period on charges that included drunken driving, possession of methamphetamine, marijuana and LSD. Johnson faced court-mandated treatment, probation and a minimum 18-month suspension of his law license.

In any given year, the volume of legal matters attorneys can have their hands on and the representations they make on behalf of their firms can open firms up to a remarkable level of risk. While not all situations are as severe as Johnson’s, law firm leaders must be attentive, understanding and diligent when it comes to suspected substance use among their attorneys.

Why legal professionals?

In 2016, the Hazeldon Betty Ford Foundation teamed up with the ABA to complete a study on substance use in the legal profession that highlighted legal professionals as a high-risk group. The legal industry is a stressful, competitive and relentless environment that calls for legal professionals to prosper or get left behind. As noted by the American Addiction Centers, legal professionals struggle with stress, spending too little time on personal hobbies and personal fulfillment activities outside of work. In such an environment, all work and no play can lead legal professionals to substance use to relieve stress, help with depression, anxiety or sleep, or to help them stay awake to complete work or even to socialize. The pressure of the job, coupled with other normal life stressors, can manifest mental health struggles with which attorneys, despite their intellect and skills, are ill-equipped to cope. Unfortunately, these struggles are all too common in the practice of law and, until recently, were rarely discussed.

Implications and prevention strategies for law firms

The prevalence of substance use and mental health concerns in the legal profession presents significant risk for law firms, their clients and fellow attorneys. First, clients come to legal professionals for sound judgement and their understanding of and ability to interpret the law. Being impaired, either at the moment of legal consultation or in managing any aftereffects may slow or inhibit an attorney’s ability to provide sound counsel. Certain mental health issues, when left untreated, can not only impact an attorney’s judgement, but also their safety. The law firm can suffer as a result, both reputationally as well as being open to litigation. To avoid such risk, law firm leadership should consider the following approaches.

Going against stigma: Firm leaders looking to address addiction in their business must recognize the longstanding stigma around mental health and substance use issues that can prevent lawyers from coming forward and seeking help. Law firms should work to develop programs that support lawyer well-being, offering opportunities to recharge and create an open, private space to discuss substance use and mental health concerns while also providing resources to assist with either or both. An insurance professional who specializes in coverage for lawyers can be an asset in creating effective programs that benefit both attorneys and the law firm.

Training and work reviews: Substance use comes in many forms. However, the stigma attached to it, and that of mental health matters, coupled with denial often leaves those most at risk feeling alone while struggling too long without assistance. Training programs geared toward lawyers can showcase the many faces that substance use takes on, in situations attorneys can relate to, recognize and address before work and an attorney’s future in law is sacrificed. Trainings might also outline how to find confidential mental health services as well as public resources available such as local meeting groups or programs. In addition to regular trainings, all attorneys should be subject to regular case reviews that might reveal potential warning signs that would help to raise awareness of work performance issues often driven by mental health or substance use concerns.

Insurance: When an attorney’s impairment rises to the level of a client filing a malpractice claim, it can be a huge cost for a law firm if malpractice is proven. Firm management should have an open discussion with an insurance professional who specializes in professional liability insurance to ensure their coverages are up to par and risk mitigation strategies are effective.

The issues of mental health and substance use in law are longstanding and will not be fixed overnight. Today, law firms are responsible for driving this type of change in the industry, welcoming their attorneys to be more open and honest about their struggles. This, in turn, affords the legal industry the opportunity to retain often remarkably talented attorneys while also helping them to find much needed resources and support before a situation becomes a crisis. Start thinking about how your law firm can better support attorney well-being and safeguard your business from the dangers of substance use and mental health crises.  

Not so long-ago attorneys were discouraged from being active professionally on social media. However, the legal industry now appreciates that well curated and managed social media presences can help grow their businesses, introduce them to new audiences and much more. According to data from Kepios, 4.8 billion users, equivalent to 59.9% of the total global population, are on social media. Some are attorneys, and a select few of those have even become influencers, creating videos of them reacting to high profile cases through their perspective as a legal professional.

While this has proven lucrative for many in the legal space, those still hesitant to explore social media have warranted concerns regarding potential liability and ethical issues. Before diving headfirst into the internet, attorneys should consider a few social media best practices:

• Be ethical: The American Bar Association (ABA) provides ethical guidelines for attorneys regarding the use of social media. Familiarizing yourself with these guidelines will ensure you are aware of the contextual expectations. And because social media changes rapidly, revisiting these ethical guidelines on an annual basis, at minimum, is strongly advised. While there are not explicit rules for attorneys on social media, and some guidelines may vary based on what state an attorney practices in, the ABA guidelines offer a good framework to guide legal professionals.
• Use it wisely: To get the most out of social media attorneys should consider creating a social media plan that outlines the types of content to be posted and how often. This will help you create a consistent presence that fosters growth in followers and post interaction, and help ensure content is being reviewed, especially through an ethical lens. There are several resources online designed specifically for attorneys to help them manage their social media.
• Insurance: While attorneys can do everything in their power to correctly manage their social media and remain ethical, social media still presents a risk. As such, attorneys need to understand their lawyer’s professional liability insurance (LPLI) policy to ensure they are adequately covered for any type of social media mishap or unintended error. Social media interactions can quickly spiral and generally live on the internet forever, making an LPLI policy a critical line of defense.
  

Attorneys cannot risk missing the opportunities a social media presence can provide. While the increased connectivity presents greater risks, a little planning along with an appropriately crafted LPLI policy can put legal professionals in a position to grow their presence and reinforce their reputations to a wider online audience.

The legal industry depends heavily on word-of-mouth exposure. Referrals, networking and even personal relationships are the standard currency of most legal practices. But what happens when these standard practices begin to look like conflicts of interest?

Take for example the censuring of one New Jersey attorney earlier this year after allegedly steering 19 clients to use his employer without the correct waivers in place. Fortunately, there are a few steps attorneys can take to protect themselves from a complex conflict-of-interest issue.

Asking the right questions

When presented with a prospective client, attorneys must consider the relationship through the perspective of the American Bar Association’s (ABA) Model Rules of Professional Conduct. At minimum, attorneys should ask “does this client’s interest relate to another existing client’s interests?” “Does taking on this client infringe on my ability to serve another existing client?” or “Does taking on this client create a potential confidentiality breach, whether with an existing or former client?” If any of these answers is yes, there are some extra steps involved.

Understanding waivers

If an attorney considers taking on a client who presents a potential conflict-of-interest or disqualifying conflict-of-interest, they must obtain a waiver. Some cases are considered nonwaivable, such as if representation is prohibited by law, if the attorney is providing the client with financial assistance and more. Attorneys may access those rules via the ABA Model Rules of Professional Conduct.

If a conflict-of-interest waiver is applicable, the attorney should get written informed consent from the prospective client. To do this, attorneys must inform all impacted parties of the conflict-of-interest and explain the risks associated, as well as offer reasonable alternatives for the client to consider that would not pose a conflict-of-interest risk.

Protecting your business

Even with waivers and the correct documentation in place, an attorney might find themselves being sued for malpractice due to a perceived malicious conflict-of-interest. Be sure your Lawyers Professional Liability Insurance (LPLI) policy covers related litigation costs in the event of a malpractice claim. An insurance professional who specializes in insurance for legal professionals will have the necessary insight to ensure an attorney is adequately protected against such claims.

Some conflict-of-interest scenarios will present risks that outweigh the benefits of taking on a client. It is the responsibility of an attorney to determine the potential risks of taking on a client and if they are the best person to take on the case. By being thorough and leading with transparency, attorneys can focus on what they do best: serving clients.