Category Archives: Malpractice

New Digital Assets Law Coming to California???

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What happens to your Facebook account when you die… does it die too? What about your PayPal account, iTunes library and all your other valuable digital assets? States around the country have begun to pass legislation that allow individuals to access social media accounts and other digital accounts on behalf of a deceased individual.

To date, over 20 states have passed their own laws to protect digital assets and give the heirs/executor the right to access and manage online accounts after death. There have been tragic examples of people who have passed away and family members and loved ones were unable to access their social media and other electronic accounts due to terms of use and privacy policies.

California Digital Assets Law

An individual may “use an online tool to direct the custodian to disclose to a designated recipient or not disclose some or all of the user’s digital assets.”

California is the latest state to pass a digital assets bill. If it makes it out of the Assembly and is signed by governor Jerry Brown, the California Revised Uniform Fiduciary Access to Digital Assets Act will provide guidelines for how companies can share deceased individuals’ digital records such as emails and social media accounts following death. The law will grant the social media website or online company the right to grant full or partial access to a designated recipient.[1]

The California digital assets law is a sign of our new electronic times. It is also a reminder that attorneys must now recognize their client’s digital assets and identify how their clients want the assets to be accessed or distributed after their death. To access a CLE course on digital assets please click here: Digital Asset Landscape: Preparation for Changes in Legislation.

[1] The company must first receive a written request, a certified copy of the death certificate and/or a certified copy of the letter of appointment of the representative, along with authenticating information about the deceased user.

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CLE: Ethical Issues in Social Media and eDiscovery

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Social media offers attorneys and law firms the opportunity to build credibility & trust with clients, uncover relevant facts & information about cases, clients and opposing attorneys, and to bring in new business. Unfortunately, social media also creates many new ethical pitfalls for attorneys. Law firms, attorneys, and staff must ensure that their online activities adhere to ethical and professional rules of conduct – even without the guidance of specific electronic ethical rules.

Ethics 2.0

  • Can you list specialties or endorsements on your LinkedIn page?
  • Is it ethical to send a Facebook friend request to an individual involved in pending litigation?
  • Can you ethically advise clients to remove tweets from their Twitter account on the eve of trial?

In this timely presentation, attorneys Kathryn Konzen and Ross Mecham provide best practices for the ethical use of social media, offer practical ethical guidance regarding common scenarios and highlight situations & online activities to avoid. The main ethical duties covered include the Duty of Competence, candor & fairness to the court & opposing counsel, the duty to supervise, requesting & producing documents & data, accuracy of discovery certifications and protection of the attorney-client privilege. To access the course please click here: Ethical Issues in Social Media and eDiscovery.

Further issues discussed in this CLE:

  • Ethical pitfalls & risks
  • FRCP Rule 1
  • Zealous advocacy
  • ABA Model Rule 1.1 & the Duty of Electronic Competence
  • Examples of unethical online conduct
  • Examples of ethical/unethical advertising
  • Website disclaimers
  • Retention
  • Inadvertent formation of the attorney-client relationship
  • The Duty of Confidentiality
  • Avoiding online Conflicts of Interest
  • Recruiting
  • Investigation
  • Facebook
  • Twitter
  • Blogging about prior cases
  • LinkedIn
  • Examples of social media policies
  • Ethical references & citations

Kathryn Konzen joined DTI in 2014 as a Regional Business Development Executive, and returned in 2016 after going in house with a law firm as the Director of Business Development and Litigation Technology. She is a California licensed attorney that focuses on efficient and cost effective solutions for her clients when dealing with electronic data, whether it is for a government investigation, litigation matter, or internal issue. Kathryn has presented various CLE programs on such topics as Managing ESI, Ethics in Social Media, and Ethical Issues of eDiscovery. Ross Mecham is an eDiscovery Consultant with DTI. He helps law firms and corporate legal departments understand and manage their eDiscovery needs, using technology and efficient workflows to reduce risks and costs while increasing deliverable quality. An attorney with over a decade of experience across all phases of electronic and paper discovery, his career spans state, federal, and international matters, as well as the development of internal corporate discovery practices. His prior cases include intellectual property, employment, and business tort actions, data breach and internal investigations, and regulatory requests.

This CLE course is offered in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Hampshire (NH)
  • New Jersey (NJ)
  • New York (NY)
  • North Dakota (ND)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers CLE for attorneys in New York and around the country. For more information about CLE in New York please click the following link: NY CLE.

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CLE on Bankruptcy, Money Laundering & Terrorism

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Spearheaded by the Financial Action Task Force (FATF), leaders and governments have sought to monitor and suppress money laundering and terrorism financing around the globe. This became even more pressing here at home after the 9/11 terror attacks. Due to our legal system and the use of anonymous entities like LLCs, the United States is an easy place to hide money and terrorists have begun using our financial and legal systems to launder dirty money and clandestinely move it around the world to finance terrorist and other illegal operations. Unfortunately for attorneys, there is a very fine line between assisting clients and crossing into criminal activity.

Dirty money gets produced by organized crime and other criminals though drug trafficking, prostitution, tax evasion, corruption, financial crime and many other sources.

Peter W. Bowie, the former Chief Judge of the U.S. Bankruptcy Court for the Southern District of California, has seen these matters develop first hand from his view from the bench. In this CLE course, Judge Bowie explores the evolving link between bankruptcy, money laundering & terrorist financing and the attorney’s duty to investigate. The main topics addressed by Judge Bowie include money laundering around the globe, the use of anonymous entities to hide money and the attorneys increased duty to investigate. To access this course please click here: Bankruptcy, Money Laundering and Terrorist Financing.

Additional topics presented in this CLE course:

  • The Financial Action Task Force (FATF) on Money Laundering’s 40 recommendations
  • The 2002 ABA Task Force
  • ABA Formal Opinion 463
  • Risk based client due diligence
  • How individuals hide money from creditors
  • The anonymous purchase of numerous high end American properties
    The 2016 GlobalWitness.org report
  • The Panama Papers
  • Confidentiality
  • Attorney-client privilege
  • Rule 11
  • Recent case law regarding attorney investigations

Peter W. Bowie, former Chief Judge of the U.S. Bankruptcy Court for the Southern District of California, spent 27 years on the bench. He leverages his vast experience in the courtroom to conduct mediation settlement conferences and contribute to the firm’s mediation practice. A skilled mediator, Judge Bowie has successfully resolved several vigorously contested, large fee application disputes, and other important cases. Before joining the bench, he served in the U.S. Attorney’s Office for the Southern District of California for 14 years, the last six as Chief Assistant U.S. Attorney, overseeing operations of the criminal and civil divisions. Earlier in his career, he served as a trial attorney in the U.S. Department of Justice, where he was hired through the Department’s prestigious Honors Program.

This CLE course is offered in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • Missouri (MO)
  • New Hampshire (NH)
  • New Jersey (NJ)
  • New York (NY)
  • North Dakota (ND)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers CLE for attorneys in California and around the country. For more information about CLE in California please click the following link: CA CLE.

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CLE Course on Conflicts of Interest in an Increasingly Complex World

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In our increasingly complex and intertwined legal and business world, ethically navigating through the conflicts of interest rules can give you headaches and leave you confused and befuddled. Unfortunately, failing to spot or address a potential conflict of interest could even lead to disqualification, disgorgement… or even a malpractice lawsuit.

Attorneys who believe that violations of ethics rules may only be used against them in a disciplinary proceeding are, unfortunately, mistaken. Among the courts that have addressed this issue, the overwhelming majority have held that evidence of an ethics violation is admissible in an action for breach of fiduciary duty or professional negligence.

To learn more about the practical application of the conflicts of interest rules, join attorney Edward J. McIntyre as he shows you how to approach and analyze conflicts of interest by highlighting key ethical issues from a series of recent case examples. The main topics that Mr. McIntyre covers includes ethics & risk mitigation, conflicts between current clients, conflicts in successive representation, conflicts based on an attorney’s personal interests and conflicts based on the receipt of confidential information outside of the attorney-client relationship. To access the course please click here: What Me Worry? Conflicts of Interest in a Multijurisdictional and Increasingly Complex World.

Further topics discussed include:

  • The ABA Conflicts of Interest Rules
  • Model Rules 1.7
  • Model Rule 1.9
  • Model Rule 1.18
  • California Rule of Professional Conduct 3-310
  • Actual vs. potential conflicts
  • Where conflicts arise
  • The standard of care
  • Breach of fiduciary duty
  • The duty of loyalty
  • Conflict checks & advance waivers
  • Informed written consent & written disclosure
  • Possible consequences of rules violations
  • Disqualification vs. discipline
  • Conflicts-check systems
  • Joint/dual representation

A veteran trial attorney, Edward J. McIntyre practices complex business litigation in federal and state courts. An expert on the topic of professional responsibility, he now focuses on advising and representing attorneys on issues of professional responsibility, risk mitigation and professional negligence issues. He testifies as an expert witness in court, writes a monthly column on professional responsibility in the San Diego Lawyer Magazine and frequently lectures on this topic. He is also a member and chair of the San Diego County Bar Association Legal Ethics Committee and received the 2013 Top Lawyers of San Diego distinction.

This CLE course is offered in the following states:

  • Alaska(AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Hampshire (NH)
  • New Jersey (NJ)
  • New York (NY)
  • North Dakota (ND)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers CLE for attorneys in New York and around the country. For more information about CLE in New York please click the following link: NY CLE.

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CLE: Preventing and Defending Malpractice for the Small Firm Attorney

An attorney’s job is to counsel clients to avoid getting sued. Unfortunately, when things go bad or legal fees start climbing too high, the attorney is the one that ends up on the wrong side of the lawsuit – a legal malpractice lawsuit.[1]

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In this presentation, attorney Howard J. Franco focuses on how the small firm practitioner can retain and maintain good client relationships while minimizing the risk of legal malpractice. The main topics discussed by Mr. Franco include retainer agreements, pre-claim issues, malpractice litigation, damages and insurance. To access the course please click here: Preventing and Defending Malpractice for the Small Firm Attorney.

Further topics addressed:

  • Common sense clauses to include in the retainer agreement
  • Communicating the scope of work
  • Scope creep
  • The pros & cons of alternative dispute resolution
  • Mediation clauses
  • Requests for the file from the client
  • Subpoenas of records
  • Statutes of limitation
  • Figuring out who’s the client
  • The case within the case doctrine

Howard J. Franco has practiced law for over thirty years. In addition to product liability and medical technology practice, Mr. Franco also represents professionals including architects, engineers, surveyors, brokers, attorneys and other professional license holders. He represents both insured and self-insured private and public entities in civil litigation, in addition to policyholders and insurers in insurance litigation. A Certified Legal Malpractice Law Specialist by the State Bar of California Board of Legal Specialization, Mr. Franco is AV-Pre-eminent Rated by Martindale Hubbell TM.

This CLE course is offered in the following states:

  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • Missouri (MO)
  • New Hampshire (NH)
  • New Jersey (NJ)
  • New York (NY)
  • North Dakota (ND)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers CLE for attorneys in Illinois and around the country. For more information about CLE in Illinois please click the following link: IL CLE.

[1] Image found on ABA Law Practice website: http://www.americanbar.org/publications/law_practice_home/law_practice_archive/lpm_magazine_webonly_webonly07101.html

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CLE Course: Ethical Traps for the Unwary

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How well do you know the California Rules of Professional Conduct (CRPC), the Business & Professions Code (B&PC) and the State Bar Act? Do you know them well enough to avoid lurking ethical traps?

Lawyers & Ethics

Unfortunately, many lawyers think that the MPRE is the last time they need to study ethics rules and quite a few attorneys have little or no familiarity with the rules of the ethical road in California.

There are many traps for the unwary hiding within those ethical rules – traps that could lead to a malpractice violation or even state bar discipline and disbarment. Join David Carr as he discusses the source of ethical rules in California and ethics traps you need to avoid. To access the course click here: Ethical Traps for the Unwary.

The main topics presented and discussed by Mr. Carr include:

  • Failing to account for client funds
  • Accounting for unearned advanced fees
  • Accepting fees from third parties without client consent
  • Failing to disclose a lack of malpractice insurance
  • Settling a legal malpractice claim without advice to seek counsel
  • Failing to maintain membership address
  • Seeking agreement to withdraw or not make a state bar complaint
  • Candor toward tribunal
  • Moral turpitude through gross negligence

David Cameron Carr is Senior Counsel in the Legal Ethics and Law Firm Practice Group of Klinedinst PC. Mr. Carr specializes in legal ethics and the law of lawyering, including discipline defense, bar admissions, attorney fee disputes, legal malpractice, attorney professional responsibility and ethics advice. Mr. Carr graduated from Loyola Law School in 1986 and was admitted to the California Bar that year. After practicing in business litigation and commercial law, Mr. Carr spent 12 years as staff attorney, discipline prosecutor and manager at the State Bar of California, before returning to private practice in 2001 and then joining Klinedinst PC in 2016. Mr. Carr is an active member of the San Diego County Bar Association, where he serves on the Legal Ethics Committee.

This CLE course is currently offered in the following states:

  • California (CA)

For more information about the CA MCLE requirement please click the following link: CA CLE.

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CLE Course: Substance Abuse & the Legal Profession

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Untreated addictions can seriously affect an attorney’s competence to practice law. Substance abuse and addiction can lead to late filings, missed court appearances, client defaults, poorly drafted pleadings, inappropriate settlements, local & state bar suspension, legal sanctions, restrictions & probation, unpaid dues & bills, disbarment, cancelled malpractice insurance and malpractice lawsuits against the lawyer and his or her client.

Substance Abuse & Attorneys

Substance abuse is the dirty little secret of the legal profession. The long hours, conflict and pressure of the profession leads some attorneys to abuse drugs and alcohol to cope with the stress of the profession.

In this substance abuse course, Commissioner K. Riley provides her unique perspective on alcohol and drug abuse amongst attorneys. The main topics covered by Commissioner Riley include substance abuse & attorneys, the addiction disease model, the physiology of alcoholism, competence & substance abuse, where to get help, the Other Bar, the Lawyer Assistance Program (LAP) and 12 step programs. To access this substance abuse course please click here: Substance Abuse & the Legal Profession.

Additional subjects in this Substance Abuse CLE course:

  • Why attorneys are at such a high risk
  • Lawyer defense skills
  • Neurochemistry
  • The Duty of Competence
  • The ABA Model Rules
  • Rules of Professional Conduct
  • Intervention
  • Relapse
  • Maintaining sobriety
  • Triggers
  • Getting help for attorneys
  • Legal discipline & getting help
  • The cost of discipline
  • Peer support groups
  • The Other Bar
  • AA
  • Additional resources for attorneys

Commissioner K. Riley has worked for the San Diego Superior Court system since 1992. Before she began working for the court system, Commissioner Riley was in private practice for over ten years. Because of her unique perspective, Commissioner Riley is frequently called on by bar associations and legal groups to speak about the plight of substance abuse in the legal profession.

This CLE course is offered in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Hampshire (NH)
  • New Jersey (NJ)
  • New York (NY)
  • North Dakota (ND)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in California and around the country. For more information about CLE in California please click the following link: CA CLE.

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CLE on Substance Abuse, Depression & Competence

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Substance abuse and depression are two of the main contributors that affect an attorney’s competence to practice law. Substance abuse and depression also lead to high rates of suicide amongst lawyers. Attorneys are nearly twice as likely to have problems with drugs & alcohol and are nearly four times more likely to suffer from depression when compared to the general population. In fact, the depression rate in the legal profession is the highest amongst all professions and over 50% of all discipline cases involve an underlying substance abuse issue.

The leading cause of premature death among attorneys:

  • It’s not heart attacks or car accidents.
  • Suicide is the leading cause of premature death for lawyers

In this course, Richard P. Carlton discusses the connection between substance abuse, depression and your competence to practice law. The main topics discussed include the law as a high-risk profession, substance abuse & depression disorders, personality traits of attorneys, ways to cope with the stress & the mental challenges of the legal profession and managing client expectations. To access the course please click here: An Attorney’s Duty: Competence & Substance Abuse.

Further issues presented and discussed in this CLE course:

  • Brain chemistry
  • Depression
  • Traits of pre-law students
  • The effects of law school
  • Lawyers as pessimists
  • Thinking like a lawyer
  • Resources & assistance for attorneys
  • The stress response
  • Negativity bias
  • Fear & negativity
  • Mindfulness
  • The pace of life for attorneys
  • Time shifting
  • Mindfulness
  • Hardwiring happiness
  • Resources & assistance

Richard P. Carlton, MPH, is currently the Acting Director of the Lawyer Assistance Program (LAP) of the State Bar of California. He has been addressing mental health and disability concerns in the legal profession for over twenty-five years and he frequently delivers continuing legal education (CLE) presentations on addressing substance abuse and managing stress to bar associations, State Bar sections and law firms throughout California. In addition to his work with the LAP program of the State Bar of California he is also a consultant to the U.S. Courts for the Ninth Circuit, the National Conference of Bankruptcy Judges and the Idaho Judicial Branch on matters of judicial stress and wellness.

This CLE course is currently offered in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Jersey (NJ)
  • New York (NY)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in Illinois and around the country. For more information about CLE in Illinois please click the following link: IL CLE.

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Show Me The Money! Ethics of Trust Accounting CLE

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If you are like me, one of the first things you do while perusing your state bar journal or website is to flip quickly to the back and the scan the discipline pages. There is something that fascinates me about the stories of those attorneys that were unfortunate enough to get a public censure… or even disbarment in the most extreme circumstances. And it seems that almost every time an attorney gets disbarred it’s because they committed serious ethical violations when handling their client’s money.

The mishandling of client funds is a top complaint in both legal malpractice cases and State Bar proceedings.

Heather Rosing presents this course because attorneys continue to (intentionally or unintentionally) mishandle client funds. In this course, Ms. Rossing will show you how to ethically deposit, account for and disburse client funds so that you can properly navigate and comply with the complex & technical rules of client trust accounting so you can avoid a legal malpractice claims and State Bar discipline. While Ms. Rosing mainly bases her discussion on the ethics rules and opinions of California, the strategies and tips that she provides will benefit attorneys around the country. To access the course click here: Show Me The Money: Ethical Client Trust Accounting.

Subjects covered in this ethics CLE course:

  • Ethical rules & resources
  • State bar findings on trust accounts violations
  • Preserving the identity of funds & the property of the client
  • Ethically handling papers, property & fees when terminating the representation
  • IOLTA vs. Non-IOLTA trusts
  • Helpful ethics opinions
  • Co-mingling funds
  • The receipt & clearance of funds
  • Advancing costs & fees
  • Credit cards
  • Non-client funds
  • Loans from trust
  • Fee disputes
  • Trust as escrow or “holding account”
  • Trust account scams

The former President of the San Diego County Bar Association (SDCBA), Heather L. Rosing is the Chairperson of the Professional Liability Department overseeing a team of Klinedinst lawyers across the state of California in the defense of professionals such as lawyers and accountants. She has developed a nationwide reputation for her experience & skill in litigating complex malpractice and fraud cases; in delivering sound advice in the areas of ethics & risk management; and in defending lawyers, accountants, and judges in disciplinary matters. Ms. Rosing also serves as a consultant & expert witness in the areas of privileges, fee disputes, professional responsibility and attorney duties.

This CLE course is offered in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • Missouri (MO)
  • New Hampshire (NH)
  • New Jersey (NJ)
  • New York (NY)
  • North Dakota (ND)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in California and around the country. For more information about CLE in California please click the following link: CA CLE.

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The Naked Lawyer CLE: Understanding Professional Liability & Insurance Coverage

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Robert is the Managing Partner of a very successful five-lawyer firm that has been in business for over thirty years. In that time, Robert’s firm has built up a substantial reputation that is second to none in the local community… and then “it” happened. Robert received calls from two of the firm’s top clients on the same day – they had both been the victims of identity fraud. At first Robert was baffled and frankly insulted that they would blame him, as his firm has state of the art firewalls protecting their computer systems. “How does this happen and why blame us,” he thought. Then he remembered that one of the associates at the firm had lost his tablet a few weeks ago in a taxi when he was taking a taxi back to the firm.

Cyber Liability and Data Breach protect attorneys and law firms from any type of occurrence where clients or employees information becomes compromised. This includes third party damages and defense costs.

A lawyer and law firm’s liability is much great than malpractice exposure. Cyber liability, car accidents by employees in the course of employment, discrimination lawsuits – these are just a few areas where lawyers and firms face potential exposure to liability. In this course, Michael Carroll will teach you how to protect you and your firm against these potential risks. Michael mainly discusses data breach insurance, cyber liability, office business insurance, hired and non-owned auto coverage and the grisly gremlins of insurance exclusion (earthquakes, floods, harassment, discrimination & termination) and malpractice liability & coverage. To access the course please click here: The Naked Lawyer: Understanding Professional Liability.

Additional topics covered in this CLE course:

  • Workers’ compensation
  • General liability
  • State data breach laws
  • The results of a data breach for your law firm
  • Cyber liability
  • Car accidents by employees in the course of employment
  • Employment Practices Liability Insurance (EPLI)
  • Optional endorsements
  • The fine points of deductibles
  • Loss only deductibles
  • CEOL (Claim Expenses outside Policy Limits) vs. CEIL (Claim Expenses inside Policy Limits)

Specializing in law firms for over twenty-five years, Michael Carroll started Insuring Lawyer in 2002 and now has offices in Ohio and Arizona. His firm has been selected as a Best Practices agency for fourteen consecutive years. Michael is a featured speaker at many national events to lawyers. He also has authored a critically acclaimed book for Lawyers titled The Naked Insurance Lawyer. Michael also is the host of his national TV Show for Lawyers titled The Naked Lawyer Show with Michael Carroll.

This CLE course is currently offered in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Hampshire (NH)
  • North Dakota (ND)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in California and around the country. For more information about CLE in California please click the following link: CA CLE.

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