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Colin Firth and Confidentiality

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My co-worker and I spent an afternoon watching a movie being filmed in downtown Raleigh starring Emily Blunt and Colin Firth.It seems like every day I read about someone getting into trouble for a posting on social media.  Whether it is the college student who had a job offer rescinded for a negative tweet or a worker getting fired for Facebook, people are facing consequences for what they say online.  As a result, I am very careful about what I say online.  However, it is equally important to monitor what I say in public.

Recently, I was reminded of this important lesson—be careful what you say, you never know who is listening. 

My co-worker and I spent an afternoon watching a movie being filmed in downtown Raleigh starring Emily Blunt and Colin Firth.  As soon as Colin Firth stepped out of the car, we were twelve year old girls at a Justin Bieber concert. 

About two hours into our waiting for Colin Firth to notice us, a woman nonchalantly sat next to my co-worker and I and engaged us in a conversation.  While she never identified herself as a reporter, it became apparent she was.  During her interview with us, the reporter asked where we worked.  As soon as I told her I worked at Lawyers Mutual, a woman standing in front of us turned around and asked me who my boss was.  As it turns out, this fellow crowd member worked for one of our local law schools, is a close friend of my boss and partners with my company throughout the year.

Later that night, as I was thinking about the interview, I realized how lucky I was to have not said anything about my company while watching the movie filming.  It would have been so easy for my co-worker and I to discuss our jobs or our company during the four hours spent trying to get Colin Firth and Emily Blunt to notice us. 

Had we said anything negative about our company, at least two things bad things could have happened:

  1. Our negative comments could have been published in a newspaper as we had no idea how long the reporter had been standing in the crowd near us.
  2. My boss’s friend could have overheard our conversation and told my boss what she heard.

Either of these scenarios could have ended with us receiving a reprimand or worst case scenario, losing our jobs.

So whether it’s posting a picture online, updating your status or, I now realize, out to coffee with friends, be careful what you say in public. Talk about last night’s game or Kate Middleton, but don’t air your company’s dirty laundry.  Save work talk for a more secure location.

Oh, and yes, my co-worker and I did get to meet Colin Firth and Emily Blunt!  Check out the Lawyers Mutual Facebook page to see pictures.

Anticipating Litigation before a Lawsuit is Filed

The duty to preserve evidence is a common law duty owed to the court by all litigants. It is triggered when a “reasonable person” anticipates litigation. While the filing of a lawsuit presents a clear example of when a reasonable person would anticipate litigation, what if a lawsuit has been threatened but has yet to be filed? What if a demand for relief is made but no threat of litigation is included? What does an employer do when an employee is terminated for cause, and the employee protests, saying “I’ll see you in Court”? Which of these scenarios, if any, would cause a reasonable person to anticipate litigation? North Carolina courts acknowledge that the “reasonable anticipation of litigation” standard is not a bright-line test, but neither the legislature nor the courts have endeavored to provide a more specific test or framework for North Carolina litigants to follow in order to avoid spoliation of evidence.

While determining when litigation is reasonably anticipated can be challenging, there are certain instances outside of the filing of a lawsuit where any reasonable person would, or should, anticipate that a lawsuit will follow. For example, certain triggering events like a significant accident or injury, and the documents that flow from them, are outside of regular business practices and likely to meet the threshold of “reasonable anticipation of litigation. ” When an employee is terminated or a dispute arises over the terms of a contract, however, the threshold is not as readily met, which means the circumstances must be monitored carefully until either the threshold is met or the threat of litigation has passed.

One situation where the duty to preserve clearly is triggered is when a litigant or potential litigant consults with an attorney, and the attorney later claims that certain documents arising from those early consultations are protected by the work product doctrine. By definition, the work product protection attaches only to documents related to litigation preparation. Accordingly, both attorneys and their clients should be aware that, if work product protection is being asserted, the duty to preserve has attached, and documents related to the impending litigation should not be destroyed.

Organizations would be wise to consider the implementation of a “decision tree” or “factor analysis” that (1) identifies potential triggering events (based on the organization’s litigation profile) and (2) documents the factors the organization will consider before (3) concluding whether its duty to preserve has been triggered. For example, if an enterprise has regular turnover of personnel, then termination, by itself, whether voluntary or involuntary, likely does not constitute a triggering event. However, if an employee makes specific complaints of harassment or discrimination and then is terminated, that may cause the organization to preserve his or her personnel file and other pertinent information for some time beyond the normal retention period, and if the organization subsequently receives an EEOC claim, then it definitely should preserve all pertinent information. By setting forth criteria for retention or preservation of records and documenting its decision-making process when confronted with a potential triggering event, an organization is better able to defend itself in the event it destroys information later deemed relevant to a dispute.

With the recent changes to the North Carolina rules governing the discovery of electronically stored information, it is likely there will be more disputes over preservation and/or spoliation and that litigants will continue to seek brighter lines as to when the duty to preserve is triggered. Until the courts respond, potential litigants and their attorneys must be mindful of issues such as contract or employment disputes that could progress quickly to the stage where a reasonable person would anticipate litigation, thus triggering the duty to preserve, at which time they must act quickly and decisively. In addition, organizations should consider implementing enterprise-wide information governance protocols to ensure that the entity is able to preserve pertinent information for business or litigation purposes and to dispose of irrelevant information in an orderly and timely fashion.

Monica McCarroll is a partner with Williams Mullen. Monica focuses her practice on commercial litigation, with an emphasis in e-Discovery issues. She can be reached at mmccarroll@williamsmullen.com.

Dabbling is Dangerous

In an ABA magazine feature last December, Practice Pitfalls, the writer David Sasseville advises, “If you don’t know it, don’t do it.” That’s a good general rule of thumb. However, in a real world environment, newly admitted lawyers have to start practicing law with no practical experience, and in a difficult economic climate, experienced lawyers have to learn new practice areas. So how do you conquer the learning curve? Here are a few tips to get you started in the right direction.

  1. Associate counsel. This might have cost associated with it early on, but having an experienced practitioner walk you through the process once or twice might be all you need to handle the next case on your own. How to find counsel to associate? Network in your local legal community, contact your law school for available alumni who are willing to work with fellow alums or look to your local bar association for contacts in the practice area.
  2. Educate yourself. Look for CLE programs in your new practice area and consider the cost start-up expenses. Attending CLE classes in your new practice area is also a great way to expand your network to include lawyers who might be willing to associate with you on cases or to serve a mentoring role answering your questions and offering guidance along the way.
  3. Use the resources of your bar association. Some have costs associated with them such as CLE programs, but others are free or have reduced fees attached. The Mecklenburg Bar Association is hosting a series of networking events called “Coffee Connections” where lawyers meet after work at the Bar Center. The November 9th event will provide resources on mentoring, suggested client agreements and vendors catering to solo/small firms. The Wake County Bar Association newsletter, The Wake Bar Flyer, includes meeting notices for at least 10 niche bar meetings from criminal law to family law. These meetings provide a great place to find a practitioner in your new area of specialty. The Wake Bar Flyer also includes a list of 21 committees. Another great way to get involved and meet your fellow lawyers. The Greensboro Bar Association is offering a new program this year, a law practice management colloquia. These presentations promote law practice management solutions to make your practice more successful. In early October, Erik Mazzone presented a technology program “Thirty Tips in Thirty Minutes: Technology and Law Practice Management Websites Designed to Help Lawyers Better Serve Their Clients”.  If lawyers learn to manage their practices effectively early on, chances are fewer bar grievances and malpractice claims.
  4. Get involved in a mentoring program. Gene Pridgen, president of the North Carolina Bar Association has named mentoring as one of his priorities during his term. The NCBA is developing a program that will bring together experienced practitioners and young professionals. Lawyers Mutual is sponsoring this program as we believe effective mentoring programs will help lawyers bridge the gap from book smart to practical experience. Many local bars have mentoring programs in place. Again, the Mecklenburg Bar is serving as a leader by offering a mentoring program called Linking Lawyers which is designed to be a resource for networking and professionalism guidance, as well as to provide an introduction into diverse areas of the law.
  5. Call on Lawyers Mutual claims attorneys. If you are insured with Lawyers Mutual, maximize your premium dollars by calling on our claims lawyers for advice and guidance. Our team of seven claims attorneys spends their days talking with lawyers about their cases and potential problems. You can brainstorm ideas or just call and ask for help. Our client services department (and our website) provide risk management advice, forms, checklists, articles, as well as free CLE for insureds.

It’s scary out there. Dabbling in a practice area where you have no experience is daunting, as well as dangerous. While it may be tempting to take any client that walks in the door regardless of your knowledge of the practice area, don’t underestimate the cost, aggravation and heartache of a bar grievance or malpractice claim. Put into practice the tips above and before you know it, you’ll be the lawyer to which others refer business in your new field.

Click here to download Dabbling is Dangerous.

What is Better Than Free?

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I love free. Today, I received a coupon for a free Joey Bag of Donuts burrito from the new Moe’s opening near me. Last week, I received a $5.00 Starbucks gift card, now I’m looking forward to my free Green Tea Frappuccino.

In your business, you write checks for things that are very expensive. Rent, salaries, overhead expenses and technology just to name a few. At Lawyers Mutual, we What is Better Than Free?believe in giving you some things for free. Why? Because everyone loves getting something for free, and because we value our relationship with our insureds. We know that by offering you value we’ll receive your trust and loyalty. Here’s a look at some free things that you can get from Lawyers Mutual.

Free CLE

First, we value education. We believe that the more we do to tell you about your potential malpractice risks, the greater job you can do of avoiding those risks. As a result, we offer all of our insureds 3 hours of free CLE every year. The savings to you is easily several hundred dollars. We make it easy by offering it in your community or partnering with your local bar association to offer the program. Our goal is to provide quality education that is relevant to our insureds.

Another way we promote education is to offer free presentations to your attorneys and staff. We come in for breakfast or for lunch meetings and talk about risk management, ethics and law office management tips to keep you and your staff safe. It doesn’t get more convenient. We show up and you walk down the hall to your conference room.

Free Risk Management Resources

Visit our website to take advantage of the many free resources available to our insureds. On our risk management resources page, you’ll find handouts, articles, and a lending library of video presentations designed to help you identify the frequent causes of malpractice and avoid them.

Free Toolkits

We have taken our most frequently requested materials and turned them into risk management “toolkits”. On the home page of our website, you can access our “opening a law office” toolkit and our “real estate” toolkit. The toolkits include checklists, form letters and tips and suggestions gathered from our claims attorneys, defense attorneys and our insureds. Another popular toolkit can be found on our risk management handouts page, “Closing a Law Practice: Through Retirement, Moving to a New Firm or Death of a Fellow Lawyer”.

Free Newsletter and Risk Management Alerts

Each month we send out an email newsletter that offers substance law articles and practice management advice. Our claims attorneys collect their best advice and tips and share them in quick, easy to digest articles. One of the topics we have discussed in several of our alerts and newsletters is the proliferation of email scams. Each time we run an article, we receive telephone calls from insureds that are in the midst of dealing with a scam.

Claims Repair

I’ve saved the best for last. At Lawyers Mutual, we believe risk avoidance is better than risk management and that helping our insureds avoid claims is better than helping them fight malpractice cases. We have seven claims attorneys who are North Carolina licensed lawyers that practiced in excellent firms who spend time every day talking with lawyers about potential problems.

Two recent cases showcase our successful claims repair program. With the help of one of our defense lawyers in Wilmington, we successfully argued that a default judgment that had been entered against our insured’s client should be set aside. Now the case is back on track, and the client is able not only to defend against the plaintiff’s claim, but also to assert his counterclaim for damages.

In another other successful repair effort, our outside defense counsel, was successful in persuading the Full Commission to reverse a deputy commissioner’s Opinion and Award dismissing our insured’s client’s workers’ compensation claim.

Both of these successful claims repair efforts would not have been possible without prompt reporting of a potential claim by our insured, quick action on our part in recognizing the repair potential and lining up the appropriate outside counsel to do the job, and excellent courtroom work. Not all repair work is completely free, sometimes a deductible will be triggered, depending on the circumstances and what is necessary to repair the claim.

Free is good. At Lawyers Mutual our goal is to provide more than just insurance, we provide value along with peace of mind.

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Can Your Firm Survive A Disaster?

The news images are shocking. Whether it is tornado damage in the mid-west or flooding after a hurricane in eastern North Carolina, disasters can strike at any time and can come in many different forms. Hurricanes come with advanced warning allowing time to prepare; others happen so quickly they are over before you have time to think. No matter what type of disaster you face, careful planning can make surviving more likely.

Designate a Leader

If a disaster strikes, someone will have to be in charge and capable of making decisions. In some circumstances, decision making includes procuring new equipment or finding new or temporary office space. It is important that this individual has the authority to make these decisions without the approval of a committee so that the firm can move more quickly toward regular operations.

Assess Your Risk

The first step in planning for disaster is to determine the vulnerabilities of your office. Evaluate your building security and your office environment to determine any potential problems. The object is to identify issues that could cause a disaster or make a situation worse. For example, would a sprinkler malfunction in your file room damage boxes on the floor or ruin files stored on top of filing cabinets?

Develop a Plan

Once you have determined the risks in your office, develop a plan for how a disaster should be handled. Your disaster plan should include how to handle a disaster in progress, the steps to take immediately afterwards and rebuilding procedures.

First and foremost, plan for personal safety and evacuation when needed. Assign someone responsibility for escorting guests out of the building. Consider the needs of anyone who may need assistance in the event of an emergency. Designate a safe meeting place so that everyone can be accounted for after evacuation.

The second piece of a disaster plan is protecting your physical assets. The best protection is adequate insurance, which should be reviewed annually. Make a list of all assets, including serial number and vendor contact information. To ensure you do not overlook items, video or photo your office. Open drawers and capture content as well. The images will capture items you may overlook.

Of course, protecting your client files is of major concern. Fire proof and water proof filing cabinets should be used to ensure that files are protected. Scanning documents into your database will provide a method of easily duplicating a file should one be destroyed. Assess the best method for protecting client property and original documents, as sometimes these may need to be stored in a bank safety deposit box for optimal security.

Once you have developed your plan, you have to be sure it’s accessible once a disaster strikes. Store a copy, along with your inventory documentation, off-site and maintain a copy within the office as well. Because personnel and equipment changes happen so frequently be sure to update your plan so that it will be accurate should it ever be needed.

Here are some steps to take to prevent or lessen the impact of the typical forms of law firm disasters:

  1. Computers and Electronic Information
    1. Physically protect firm equipment with surge protectors and backup batteries.
    2. Anticipate hardware and software failures: replace old computers and install software repairs and upgrades as they are released.
    3. Anticipate system overload and monitor system usage.
    4. Anticipate that data may be lost and locate (in advance) a specialist that can help restore any lost information.
    5. Protect individual computers and systems by limiting the type and volume of information stored on laptops, by using anti-theft software, and by using “strong” passwords.
    6. Initiate and use a system that backs-up all firm computer data and programs and store all back-ups offsite.
    7. Be careful where any sensitive data is stored, especially on a portable device such as laptop or smartphone.
  2. Loss of a Key Employee
    1. Create a firm manual that describes in detail all firm procedures.
    2. Store computer and email passwords in safe locations but ones that can be accessed if an employee leaves.
    3. Create multiple levels of review for all bank and other accounts.
    4. Create and use a firm wide calendar.
  3. Loss of an Attorney
    1. Follow all the preparation steps outlined in Item 2 above.
    2. Locate and designate another attorney to replace the attorney who becomes disabled or dies.
    3. Advise the attorney’s spouse of any plan (especially as to a sole practitioner) and make sure the plan fits with the estate plan.
    4. If the attorney is a sole practitioner, have someone designated to step in and help the staff or family wind down the practice. See the “Winding Down a Practice” risk management resource on our website.
    5. Have procedures in place that will allow for a rapid review of firm files by the designated, substitute attorney.
  4. Fires and Natural Disasters
    1. Prepare a personal data listing and keep it in a safe location.
    2. Prepare a Disaster Recovery Plan for the firm that includes a physical inventory of assets, safeguards important client and firm documents (including insurance policies), designates a specific attorney to oversee implementation of Recovery Plan, establishes alternative offices with equipment and communications, has alternative supplies available (including firm checks).
    3. Implement the Recovery Plan giving due consideration to the scope of the disaster; review actions taken to ensure that all parts of the Plan have been completed.

Lawyers Mutual hopes that you never have to face a disaster, but we’re here for advice if you need us. And to ensure that you have adequate business coverage for your office, contact Adam Pierce with Lawyers Insurance at 800.662.8843.

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