United States: Looking Ahead To 2016

Like last year, 2015 continued to see law firm revenues drift lower as demand remained weak. With new law firm combinations and greater lateral movement, the number of motions for disqualification also continued to grow.

Trust and estate and probate claims now represent the greatest frequency of legal malpractice claims. While overall the frequency of legal malpractice claims remained constant, that frequency is still higher than it was in the years preceding the 2008 downturn in the legal profession. Not all news is good news, however. Although claim frequency stabilized in 2015, claim severity continues to be an issue. The data shows that legal malpractice claims continued this year to be more expensive than last year, both in the potential damages and in the defense.

The legal malpractice insurance marketplace remains in a state of flux, with some insurers abandoning or selling their books of business while others seek to expand them. Managed programs and bar endorsements are exploring alternatives as the competitive marketplace offers better coverage, expanded services, and enhanced ancillary benefits for insureds.

Both state bars and courts are continuing to develop a focus on "lawyers law" with increased frequency as technology continues to impact the legal profession, creating issues of first impression at an alarming rate. In addition, creative law firm structures, alternative fee arrangements, and the expansion of domestic legal services on a global scale have led to new and unique challenges for law firms and their management while at the same time being the focus for many clients to ensure efficiency and value.

Looking ahead to 2016, it is clear that lawyers law is one area where published literature cannot keep pace with the changes, developments, and evolution of the law. Here are some continuing trends and new issues that are developing:

  • It is undeniable that technology has become an integral part of the practice of law. However, with the increased use of electronic mail, the Internet, tablets, and smart phones comes an increased risk of a cyber breach. While firms continue to take steps to avoid such a breach, the highest risk of disclosure of confidential client information comes from "low tech" issues, such as computers forgotten on airplanes, phones left in cabs, and misdirected emails. Law firms of all sizes will need to find ways to protect confidential information and to respond effectively and quickly to lost information in the coming months.
  • As legal malpractice judgments continue to increase, with some judgments as much as hundreds of millions of dollars, attorneys and law firms will face new challenges in securing affordable legal malpractice insurance. These challenges will include not only the price of premiums, but the availability of insurance, especially to those that have unsuccessfully defended a malpractice claim in the past.
  • As the value of legal malpractice claims continues to rise, so does the media attention on those claims. This means that law firms will need to be equipped to deal not only with a high dollar claim itself, but also with the increased public attention and scrutiny that often accompanies these high-profile claims.
  • Legal malpractice claims that arise from representations involving insurance carriers bring with them unique privilege issues. Recent cases have concluded that not all communications between an attorney and an insurer were privileged, even when made with the understanding and intent that they were privileged. These decisions will create challenges for both insurers and attorneys representing insurers or their insureds regarding how to protect confidentiality and privilege, along with how to manage the associated professional liability risks.
  • Trust and estate attorneys will continue to face unique challenges that give rise to potential legal malpractice claims. Attorneys in this practice area will continue to be challenged with potential conflicts of interest, complex legal issues, and difficult relationships in an area of the law that often involves highly emotional clients.

Law firm mergers have been prevalent the last few years, as have corporate mergers and bankruptcies. With these changes in business structure come new challenges in identifying and responding to potential and actual conflicts of interest. In 2016, law firms will experience additional challenges arising from these developments and will need to take proactive measures to prevent such conflicts of issue and any resulting malpractice claims.

Below is a list of our publications from 2015, which touch on these many issues:

Date Article Publication Authors
Winter
How to Choose and Hire an Appellate Attorney In-House Defense Quarterly Alanna Clair (and Larry Ebner)
January
Conflicts Check - Just Do It The Colorado Lawyer Randy Evans and Shari Klevens (and Lino Lipinsky)
January 7 Minding the Fine Print in Law Firm Mergers The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
January 13 In 2015, Law Practices Will Change but the Risks Remain Daily Report Randy Evans and Shari Klevens
January 15 Protect Your Firm from Attorney Exit Blowback The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
January 22 Don't Make These Five Law Firm Merger Mistakes The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
January 23 Ethics Compliance: The Outsourcing Option Daily Journal Randy Evans and Shari Klevens (and Suzanne Badawi)
January 27 How to Manage the Risks of Investing in Clients Daily Report Randy Evans and Shari Klevens
January 27 Who's Minding the Practice While You're on Vacation? The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
February
Effective Conflict Waivers The Colorado Lawyer Randy Evans and Shari Klevens (and Lino Lipinsky)
February 3 Attorney Suicide Can be Prevented with Increased Awareness The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
February 10 Simple Fixes Can Prevent Stolen Legal Data from Lost Devices Daily Report Randy Evans and Shari Klevens
February 12 Don't Let Partner Pay Fracture Your Firm The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
February 13 Staff Lateral Moves Raise Tricky Ethical Questions, Too Daily Journal Randy Evans and Shari Klevens (and Suzanne Badawi)
February 19 Four Steps to Mitigate Attorney Misconduct The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
February 24 Three Steps to Shield Innocent Partners from Malpractice Liability The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
February 24 Using Clawback Agreements to Protect Inadvertent Disclosures Daily Report Randy Evans and Shari Klevens
February 27 Handing Over the Reins to a Practice Daily Journal Randy Evans and Shari Klevens (and Suzanne Badawi)
March 2015 Attorney - Mediators Need to Check for Conflicts The Colorado Lawyer Randy Evans and Shari Klevens (and Lino Lipinsky)
March 5 Bringing Your Law Firm into the 21st Century The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
March 10 You Need to Know 'How to Save a Life' Daily Report Randy Evans and Shari Klevens
March 10 How to Manage Law Firm Lay-Offs The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
March 13 Asking a Partner to Leave, the Right Way Daily Journal Randy Evans and Shari Klevens (and Suzanne Badawi)
March 19 Guarding Firms and Laterals Against Impacts From Jewel Doctrine The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
March 24 The Biggest Mistakes in Fighting a Motion to Disqualify Daily Report Randy Evans and Shari Klevens
March 24 Advance Planning Can Help Avoid the Risks in Law Firm Failures The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
March 27 Sharing Office Space to Save on Expenses? Daily Journal Randy Evans and Shari Klevens (and Suzanne Badawi)
March/April Transportation Legislation: Fix It Plus James Magazine Randy Evans
April
Four Things to Know About Motions to Disqualify The Colorado Lawyer Randy Evans and Shari Klevens (and Lino Lipinsky)
April 2 Who Should Represent a Law Firm Against a Motion to Disqualify Daily Business Review Randy Evans and Shari Klevens
April 7 How to Effectively Select Malpractice Insurance Coverage Daily Report Randy Evans and Shari Klevens
April 8 Legal Malpractice Claims Are Costing Firms Big Bucks The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
April 16 Five Tips for Enforcing Fee Agreement Arbitration The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
April 17 Associates on the Move: A Checklist Daily Journal Randy Evans and Shari Klevens (and Suzanne Badawi)
April 21 Key Steps to Take When Hit by a Sanctions Motion Daily Report Randy Evans and Shari Klevens
April 21 Legal Malpractice Insurance—What Coverage is Best for You? Texas Lawyer Randy Evans and Shari Klevens
April 22 Experts Offer Advice on Bolstering Privilege When Insurance Coverage Is in Dispute ABA/BNA Lawyers' Manual on Professional Conduct Alanna Clair
April 24 Managing Risk When Working with Experts and Consultants The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
May
Alternative Fees May Ease Billing Tensions The Colorado Lawyer Randy Evans and Shari Klevens (and Lino Lipinsky)
May 1 When Attorneys Abruptly Depart Daily Journal Randy Evans and Shari Klevens (and Suzanne Badawi)
May 5 Spend Time on the Legal Malpractice Insurance Application Daily Report Randy Evans and Shari Klevens
May 11 The Legal Malpractice Insurance Application: Don't Risk Losing Coverage Texas Lawyer Randy Evans and Shari Klevens
May 15 Evaluating Whether to Change Firms Daily Journal Randy Evans and Shari Klevens (and Suzanne Badawi)
May 19 Litigators Beware: The Risks Keep Multiplying Daily Report Randy Evans and Shari Klevens
May 20 Five Tips for Avoiding Trouble as Replacement Counsel The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
May 21 Maintaining Ethical Integrity as a Creative Litigator Texas Lawyer Randy Evans and Shari Klevens
May 22 Ensure Lateral Moves are a Win-Win Daily Journal Randy Evans and Shari Klevens (and Suzanne Badawi)
June
Collecting Fees: Making Life Easier The Colorado Lawyer Randy Evans and Shari Klevens (and Lino Lipinsky)
June 1 Mind State Lines When Taking on New Clients The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
June 2 Law Firm Laptops Are No Laughing Matter Daily Report Randy Evans and Shari Klevens
June 3 Is Your Law Firm Adequately Securing Its Data? Five Areas to Help Protect Against Unauthorized Disclosures Bloomberg BNA's Corporate Counsel Weekly Randy Evans and Shari Klevens (Mindy Rattan)
June 5 When Partners are Liable for Something They Didn't Do Daily Journal Randy Evans and Shari Klevens
June 10 Keep it Civil, or Face the Consequences The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
June 16 Some Risks to Consider When Hiring a Contract Attorney Daily Report Randy Evans and Shari Klevens
June 18 Defending Your Insurance Defense Work The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
June 26 Discovering Law Partner Misconduct Daily Journal Randy Evans and Shari Klevens (and Suzanne Badawi)
June 30 When the Firm Moves: Keeping or Destroying Old Documents Daily Report Randy Evans and Shari Klevens
July
Deciding When to Sue a Client for Unpaid Fees The Colorado Lawyer Randy Evans and Shari Klevens (and Lino Lipinsky)
July 2 Plan Ahead for a Successful Retirement Transition The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
July 9 Stay Ethical While Growing Your Law Business The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
July 14 More Risks to Consider When Using Contract Attorneys Daily Report Randy Evans and Shari Klevens
July 19 Outsourcing Your Ethics Compliance The Recorder Randy Evans and Shari Klevens
July 21 Tackle Billing in July to Avoid a Year-End Surprise The Recorder Randy Evans and Shari Klevens
July 28 Learning from Other Firms' Mistakes Daily Report Randy Evans and Shari Klevens
July 29 Four Steps to Take When Changing Firms The Recorder Randy Evans and Shari Klevens (and Suzanne Badawi)
August
The Key to Effective Collections: Address Billing Issues Early The Colorado Lawyer Randy Evans and Shari Klevens (and Lino Lipinsky)
August 5 Know the Risks When Sharing Office Space The Recorder Randy Evans and Shari Klevens
August 11 Limits on Attorney-Client Agreements Daily Report Randy Evans and Shari Klevens
August 13 How to Win with Lateral Hires The Recorder Randy Evans and Shari Klevens
August 19 The Billy Graham Rule and the Modern Law Firm The Recorder Randy Evans and Shari Klevens
August 24 Independent Counsel has Obligations, Ruling Says Daily Report Randy Evans and Shari Klevens
August 26 Sex with Clients is Flirting with Disaster The Recorder Randy Evans and Shari Klevens
September
Enforcing ADR Provisions in Fee Agreements The Colorado Lawyer Randy Evans and Shari Klevens (and Lino Lipinsky)
September 3 Beware: FDCPA Applies to Work in Court Daily Report Randy Evans and Shari Klevens
September 9 How to Show a Partner the Door The Recorder Randy Evans and Shari Klevens
September 15 Staff Lateral Moves Raise Tricky Ethical Questions Too The Recorder Randy Evans and Shari Klevens
September 21 Joint Defense vs. Common Interest Agreements Daily Report Randy Evans and Shari Klevens
September 23 Save the Practice of Law, Professionally Speaking The Recorder Randy Evans and Shari Klevens
September 29
What Associates Need to Know When Changing Firms The Recorder Randy Evans and Shari Klevens
October 5 What to Do When Computer Hackers Steal Client Funds Daily Report Randy Evans and Shari Klevens
October 6 How to Prepare for an Unexpected Departure The Recorder Randy Evans and Shari Klevens
October 13 Protecting Client Files During a Move The Recorder Randy Eans and Shari Klevens
October 16 Ethically Navigate Law Firm Downsizing Daily Journal Randy Evans and Shari Klevens
October 20 Helping Colleagues and Staff Stay Out of Trouble Daily Report Randy Evans and Shari Klevens
October 21 How High Is Your Legal Malpractice Risk? The Recorder Randy Evans and Shari Klevens
October 23 Who Owns Unfinished Business? Daily Journal Randy Evans and Shari Klevens
October 28 How to Protect Against Inadvertent Disclosures The Recorder Randy Evans and Shari Klevens
November
Reduce the Risk of Malpractice Claims The Colorado Lawyer Randy Evans and Shari Klevens (and Lino Lipinsky)
November 2 Who Can Sue an Attorney, and How to Stop Them Daily Report Randy Evans and Shari Klevens
November 4 Know the Ground Rules for Investing in Clients The Recorder Randy Evans and Shari Klevens
November 10 How to Prevent Data Theft From Lost Devices The Recorder Randy Evans and Shari Klevens
November 13 Jettison High Malpractice Premiums Daily Journal Randy Evans and Shari Klevens
November 16 What to Do If the FBI Comes Knocking Daily Report Randy Evans and Shari Klevens
November 17 Avoid Pitfalls When Battling a Motion to Disqualify The Recorder Randy Evans and Shari Klevens
November 20 The Biggest Mistakes in Law Firm Mergers Daily Journal Randy Evans and Shari Klevens
November 24 Litigators, Beware of Special Ethical Risks The Recorder Randy Evans and Shari Klevens
November 30 Turning Conflicts Checks From a 'No' to a 'Yes' Daily Report Randy Evans and Shari Klevens
December
Five Mistakes to Avoid When Facing a Legal Malpractice Claim The Colorado Lawyer Randy Evans and Shari Klevens (and Lino Lipinsky)
December 2 Avoid Missteps in Legal Malpractice Insurance Applications The Recorder Randy Evans and Shari Klevens
December 4 Tips for Minimizing Your Firm's Malpractice Exposure Daily Journal Randy Evans and Shari Klevens
December 8 Top Tips for Firms Hiring Contract Attorneys The Recorder Randy Evans and Shari Klevens
December 14 Beware the Risk of Giving Holiday Legal Advice Daily Report Randy Evans and Shari Klevens
December 14 How to Handle a Motion for Sanctions The Recorder Randy Evans and Shari Klevens
December 18 Don't Become Another Legal Malpractice Statistic Daily Journal Randy Evans and Shari Klevens
December 23 Know the Limits on Attorney-Client Contracts The Recorder Randy Evans and Shari Klevens

In addition, Dentons attorneys were interviewed and quoted in articles on areas of legal malpractice law, ethics, and claim prevention. Here are a few examples:

Date Article Publication Lawyer
January 10 After Spirited Debate, Bar Backs Pay Raises for Judges, DAs and PDs Daily Report Randy Evans
March 10 More Law Firms to Face Suits Over Sensitive Client Data Law360 Shari Klevens
March 12 Pro Bono Appeals: Opportunities to Get Involved DRI the Newsletter of the Appellate Advocacy Committee Alanna Clair
April 16 Governor Confirms Tax Tribunal Appointment; Process is Murky Daily Report Randy Evans
June 2 Dennis Hastert's Arraignment Rescheduled for Next Week The National Law Journal Randy Evans
June 8 Deal Makes His Mark on Georgia's Judiciary, and It's Likely to Grow Atlanta Journal-Constitution Randy Evans
July 23 Wage Lawsuit Against Skadden Arps Can Proceed, Appeals Court Says The Wall Street Journal Shari Klevens
November 12 Four Tips for Coverage Counsel to Avoid Malpractice Claims Law360 Shari Klevens

Members of our group presented at more than 25 events this year, including national seminars and webinars, panels at the ABA National Legal Malpractice Conference, on-site client presentations, and numerous state bar presentations and CLEs. As a follow-up to last year's publication of our treatise on California Legal Malpractice Law, we also released the newest edition of Georgia Legal Malpractice Law. Our practical guidebook, The Lawyer's Handbook: Ethics Compliance and Claim Avoidance, also is proving helpful to our clients and colleagues.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Events from this Firm
24 Oct 2017, Seminar, Washington, DC, United States

The Dentons Forum for Women Executives invites you to join us for a luncheon featuring guest speaker Liza Mundy, journalist and author. Ms. Mundy recently released her latest book, Code Girls, the riveting untold story of more than 10,000 spirited young American women who cracked German and Japanese codes to help win World War II.

27 Oct 2017, Seminar, New York, United States

Please join us for a milestone event, our 10th annual CLE Seminar for In-House Counsel.

24 Jan 2018, Seminar, San Francisco, United States

Dentons will host our Fourth Annual Courageous Counsel Leadership Institute in January, centered on the theme "Cultivating Innovation."

 
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