Washington Lawyer - July/August 2021 - 56

A SLICE OF WRY
Risk and Reward
By Paul Kiernan
W
ell, it's that time of year
to renew your malpractice
policy. Time to
comb your memory,
sort through your emails, update
your docket, and cross your fingers
as you fess up to past errors and
try to anticipate future omissions.
In a time of increasing complexity and turmoil
in the law business, insurance carriers are
getting very granular in their questions to prospective
or renewing customers. They are
trying to tease out signs of trouble and
pinpoint signs of risk so that they can adjust
the premiums accordingly.
Let's see what is making underwriters
overwrought:
1. Number of attorneys in firm:
Number admitted in primary jurisdiction
of practice:
Number admitted in jurisdiction where
they work remotely:
Number I thought were admitted but
now not so sure:
Number I thought were attorneys but
now not so sure:
2. Primary areas of practice (check all that
apply):
n Estates and trusts
n Trusts and estates
n Escheat
n Letters of marque
n Trades of marque
n Con law
n Pro law
56 WASHINGTON LAWYER * JULY/AUGUST 2021
n Emigration
n PI
n M&A
n L&E
n PTO
n WFH
n STP
n PDF
3. Has a client served written notice that it
is unhappy with your work? Your invoice?
Your shoes?
4. During the past year, during any Zoom
hearing, were you
n Without your client?
n Without your notes?
n Without your pants?
5. Many potential claims can be avoided if you
have a protected network and use current
cybersecurity protocols. Would you be the
right person to answer questions about your
office's computer system?
n Not me
n Not I
n Not even close
6. Do you have a standard rule in opening
matters - identification of client, written
engagement letters, appropriate retainers,
clear statement of basis for fees, provisions
regarding end or termination of representation,
and so on? And do you still believe that
the exception proves the rule?
7. Does your docketing system rely on AI?
8. Does my what rely on what?
9. Please list any occasions during the last
12 months when
n The file you needed at the office was
at home.
n The file you needed at home was at
the office.
n The file you needed was at your parents'
lake house.
n The file you needed never actually
existed.
So, you grit your teeth and work your way
through increasingly tough questions. You
think about the number of times you just
missed being tagged. You vow to do better
with your practices. You promise to be more
careful, to double check your doublecheck.
Good advice: Don't get sued for malpractice.
Surround yourself with quality people and be
one yourself. Better advice: Pay your malpractice
premiums.
Still, lawyers get sued for (allegedly) making
mistakes that (allegedly) cause clients harm. And
you may then have to work with someone you
hoped you would never have to meet: your
defense attorney. That person functions at the
unique intersection of counsel, archaeologist,
confessor, and proctologist. She vigorously fights
for you - all the while casting some serious
side-eye at your choice of partners or clients.
During the ordeal, your time sheets and
invoices are subject to scalding scrutiny.
Viewed five years on, those paragons of clarity
and detail dissolve into a puddle of muddle.
What was I doing when I billed a client 15
minutes for " Conf. con. w/ RDS re 3d rev. to PPL
dox " ? Or " Rev. revs to Rev Rule " ? And that's if
you can decipher your cryptic references to
former colleagues or discharged employees of
former clients. Why was " Sandy " in every third
entry and who was she (or he)?
Look, it's unfortunate but true that lawyers
make mistakes sometimes and those mistakes
have to be addressed. No one's prefect.
This column is dedicated to ace lawyer and ace
friend Pam Bresnahan.
Washington Lawyer - July/August 2021

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