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                                                              NLADA I                N S U R A N C E           P   R O G R A M          • vol 2      l   Summer 2007

  The NLADA Insurance Program Risk
  Management Initiative: A Progress Report
  by Clint Lyons

                          n the fall of               appears in this issue of the                 been highly informative and very
                          2004, we                    Bulletin; and                                well received by attendees.
                          announced the
                      creation of a risk           • trends in the law regarding legal                 Finally, as part of this effort, the
                      management                     malpractice claims against                    NLADA Insurance Program has
                      initiative with the            indigent defense practitioners.               sponsored ethics training and other
                      twin goals of                                                                outreach programs. For example,
                      reducing civil and              If you haven’t already done so,              the July 2006 and 2007 Substantive                    Look for the
                      disciplinary                 we encourage you to check out                   Law Conferences in San Jose
                      liability for                these Bulletins at the NLADA                    included ethics training for newer                           Risk
  member insureds, and raising the                 Insurance Program website,                      lawyers on issues such as
  quality of legal aid and indigent                http://www.nlada.org/Insurance/Ins              confidentiality, conflicts of interest,            Management
  defense practice generally. Much                 urance_Home.                                    and witness preparation. And the
  has happened in the past three                      A second aspect of this initiative           New York State Bar Association                        Workshops
  years, and we thought this would                 has been a series of high quality               Legal Assistance Partnership
  be a good time to reflect on where               programs at the NLADA annual                    Conference in Albany in June 2006                     at the 2007
  we’ve been and where we’re going                 conferences. After a general                    featured a panel discussion on risk
  in this effort.                                  introduction of the risk                        management issues of interest to                        NLADA
                                                   management effort in 2004 at the                legal aid lawyers. Based on these
  What Have We Done So Far?                        Washington, D.C. conference, we                 efforts, we’re well on our way to                       Annual
     We have focused so far on three               have offered separate sessions for              achieving the original goals of this
  areas. First, we have issued a series            legal aid and indigent defense                  initiative.                                           Conference
  of Insurance Program Bulletins with              lawyers at the two most recent
  useful risk management information               meetings in Orlando, FL and                     Where Are We Going?
  and tips. Topics that have been                  Charlotte, NC. In 2005, we                         We look forward to continuing
  discussed in the Bulletins include:              focused on the benefits of creating             what we’ve started in the coming
                                                   the formal position of general or               months, issuing more Risk
  • the use of written retainer                    ethics counsel to serve as point                Management Bulletins and offering                NLADA Insurance Program
    agreements defining the scope of               person in a legal organization for              more informative programs at the
                                                   claims handling and investigations,             NLADA annual conferences. In                     1140 Connecticut Ave. NW
    the engagement, closing letters,
    and calendaring and tickling                   ethics advice and training, and                 addition, we plan to expand the                  Suite 900
    systems in legal aid practice                  malpractice prevention. In 2006,                program by focusing on two major
    (thanks to Neil McBride of the                 Judith Colbert offered practical tips           areas: creating a community of                   Washington, DC 20036
    Legal Aid Society of Middle                    on employment law issues,                       ethics and risk management
    Tennessee & the Cumberlands                    supported by an extensive set of                advisors and developing a set of                 (800) 725-4513
    for his excellent contributions!);             excellent materials. With the                   useful loss prevention resources.
                                                   thoughtful participation of Neil                   It is clear that lawyers fulfilling           (202) 452-9870
  • an update by Houston lawyer                    McBride and Toby Rothschild on                  counsel functions and performing                 (202) 452-9879 Fax
    Judith Colbert on employment                   the legal aid side, and Jim Neuhard,            ethics and malpractice avoidance
    law issues, including best                     Vince Aprile, and Deborah Del                   tasks in indigent defense and legal aid          www.nlada.org/Insurance
    practices to avoid discrimination              Prete Sullivan on the indigent
    claims, the second part of which               defense side, these programs have                                      Continued on page 2

This Bulletin is presented to provide information about risk management issues, not to provide legal advice for a specific situation or to create an attorney-client
relationship. If you have a legal problem involving an issue presented in this Bulletin, you should research and analyze it carefully based on the law of your particular
jurisdiction, and if necessary, obtain legal counsel familiar with ethical and malpractice issues governing the practice of law.
         Bulletin                                                                                                       vol 2   l   Summer 2007

            The NLADA Insurance Program Risk Management Initiative: A Progress Report                                 From Page 1

organizations itch to share their experiences       engagement/retainer and closing                interested people in both the legal aid and
with, and learn from, each other. As law            letters, conflict waivers, and                 indigent defense communities. This is
practice has become more complex, and               employment policies;                           where we need your help. If you’re
ethics and professionalism issues have                                                             interested in working with us on this effort,
moved higher on lawyers’ and managers’            • Ethics and risk management training            or know someone in your organization or
                                                    resources; and                                 locality who would be, please let us know.
radar screens, the benefit of forming a
                                                                                                   It is only with your involvement that our
community of people performing these              • Claims handling procedures and tips.           efforts can truly succeed.
functions has become obvious. After
working to identify people performing this           We’re fortunate to have a wealth of           Conclusion
work in our community, we envision taking         knowledge and experience in our                     We’re pleased with what has been
steps to link them together, not only in          community, and combining materials at            accomplished so far, and are excited
person at conferences but also using              NLADA’s and our members’ disposal with           about continuing to build our community
available technology in creating, for             information and data available from CNA          and a bank of resources in the coming
example, a Listserv dialogue to share             to the Insurance Program about claims            months. With your help and participation,
knowledge and ideas.                              asserted against member insureds should          there is no doubt that proceeding with
   Technology will also assist in our second      provide a rich pool of resources to assist       this initiative will assist in minimizing our
goal, to facilitate creating and sharing ethics   those rendering ethics and risk                  members’ exposure to malpractice and
and risk management resources. These              management advice in our organizations.          disciplinary liability, and raise the standard
might include, for example:                          Finally, in completing our risk               of practice provided to our legal aid and
                                                  management strategy, we are putting in           indigent defense clients.
• Manuals discussing commonly
                                                  place the capacity for on-site risk
  confronted issues, including conflicts of                                                           Clint Lyons is the president and CEO of
                                                  assessment audits and technical assistance
  interest, client intake, confidentiality,                                                        the NLADA Insurance Program. He was
                                                  for member insureds.
  and employment law;                                                                              president and CEO of NLADA from 1983 to
                                                     In carrying out our goals the logical first
• Forms and prototype policies, including         step is to form working committees of            2005.

vol 2   l   Summer 2007                                                                                                       Bulletin

by Judith A. Colbert                      illegal drugs do not have disabilities     and usable by people with
                                          for purposes of the ADA, and may,          disabilities.                           An individual
                                          therefore, be denied employment               When the appropriate
                    I. Introduction       on that basis.                             accommodation is not readily                 with a
                      This article is         A substantial impairment is one        apparent, an employer must make a
                   the second of a        that significantly limits or restricts a   reasonable effort to identify one. An   disability must
                   two-part piece         major life activity, such as hearing,      employer seeking to identify an
                   discussing             seeing, speaking, breathing, walking,      appropriate accommodation should             also be
                   important federal      caring for oneself, learning, or           consult informally with the applicant
                   employment             working.                                   or employee about potential               qualified to
                   statutes and               An individual with a disability        accommodations that would enable
                   providing tips for     must also be qualified to perform          the individual to participate in the     perform the
avoiding discrimination and other         the essential functions of the job         application process or perform the
employment practice liability claims.     with or without reasonable                 essential functions of the job.            essential
Part 1, which appeared in the Fall        accommodation in order to be                  It is not necessary to provide a
2006 issue of the Insurance Bulletin,     protected by the ADA. This means           reasonable accommodation if doing       functions of the
focused on Title VII of the Civil         that the applicant or employee             so would cause an undue hardship
Rights Act of 1964, Section 1981 of       must:                                      on the part of the employer. For          job with or
the Civil Rights Act of 1866, and the                                                example, if accommodating would
                                          • Satisfy the employer’s job
Age Discrimination in Employment            requirements for educational
                                                                                     be unduly costly, extensive,                without
Act. Here, we discuss the                                                            substantial, or disruptive, or would
                                            background, employment
Americans with Disabilities Act, the        experience, skills, licenses, and
                                                                                     fundamentally alter the nature or         reasonable
Pregnancy Discrimination Act, the                                                    operation of the business, the
                                            any other qualification standards
Equal Pay Act, and the Family and           that are job-related; and
                                                                                     employer need not accommodate.          accommodation
Medical Leave Act.                                                                       Under the ADA, it is unlawful
                                          • Be able to perform those tasks           to:                                      in order to be
II.The Americans with                       that are essential to the job, with
                                                                                     • Ask an applicant whether he or
Disabilities Act, 42 U.S.C. §               or without reasonable
                                                                                       she is disabled or about the
                                                                                                                              protected by
12181, et seq.                                                                         nature or severity of a disability,
                                                                                                                                the ADA.
    The Americans with Disabilities                                                    or
                                             Reasonable accommodation is
Act (ADA) makes it unlawful for           any change or adjustment to a job          • Require the applicant to take a               s
employers with 15 or more                 or work environment that permits a           medical examination before
employees to discriminate against         qualified applicant or employee              making a job offer.
qualified individuals with disabilities   with a disability to participate in the
in all employment practices,              job application process, to perform           An employer may ask an
including recruitment, pay, hiring,       the essential functions of a job, or       applicant questions about ability to
firing, promotion, job assignments,       to enjoy benefits and privileges of        perform job-related functions, as
training, leave, lay-off, benefits, and   employment equal to those enjoyed          long as the questions are not
all other employment related              by employees without disabilities.         phrased in terms of a disability. The
activities.                               Reasonable accommodations may              employer can also ask applicants to
    Under the ADA, a person has a         include: (i) acquiring or modifying        describe or to demonstrate how,
disability if he or she has a physical    equipment or devices; (ii) job             with or without reasonable
or mental impairment that                 restructuring; (iii) part-time or          accommodation, they will perform
substantially limits a major life         modified work schedules; (iv)              job-related functions.
activity. The ADA also protects           reassignment to a vacant position;            After a job offer is made and
individuals who have a record of a        (v) adjusting or modifying                 prior to the commencement of
substantially limiting impairment,        examinations; (vi) training materials      employment duties, an employer
and people who are regarded as            or policies; (vii) providing readers       may require that an applicant take a
having a substantially limiting           and interpreters; and (viii) making        medical examination if everyone
impairment. Persons currently using       the workplace readily accessible to
                                                                                                      Continued on page 4                   3
         Bulletin                                                                                                    vol 2   l   Summer 2007

          Employment Law Overview –Part 1I From Page 3

who will be working in the job category        Employers must hold open a job for a            substantially equal work in the same
must also take the examination.                pregnancy-related absence the same              establishment. The jobs need not be
   The ADA prohibits retaliating against       length of time that jobs are held open for      identical. It is job content, not job titles,
applicants or employees for asserting          employees on sick or disability leave. If an    that determines whether jobs are
their rights under the ADA. The Act also       employer provides any benefits to               substantially equal, considering these key
makes it unlawful to discriminate against      workers on leave, the employer must             concepts:
an applicant or employee, whether              provide the same benefits for those on
disabled or not, because of the individual's                                                   • Skill: measured by factors such as the
                                               leave for pregnancy-related conditions.
family, business, social, or other                                                               experience, ability, education, and
                                               Employees with pregnancy-related
relationship or association with an                                                              training required to perform the job.
                                               disabilities must be treated the same as
individual who has a disability.                                                                 The key issue is what skills are required
                                               other temporarily disabled employees for
                                                                                                 for the job, not what skills the
                                               accrual and crediting of seniority, vacation
Tips:                                                                                            individual employees may have.
                                               calculation, pay increases, and temporary
• Train members of management on the           disability benefits.
  ADA and other basic employment                  Pregnant employees must be                   • Effort: the amount of physical or
  laws.                                        permitted to work as long as they are             mental exertion needed to perform the
                                               able to perform their jobs. If an employee        job.
• Include the essential functions of a job     has been absent from work as a result of
  in the job description.                                                                      • Responsibility: the degree of
                                               a pregnancy-related condition and
                                                                                                 accountability required in performing
• The ADA does not interfere with an           recovers, her employer may not require
                                                                                                 the job.
  employer’s right to hire the most            her to remain on leave until the child’s
  qualified applicant, nor does it impose      birth. An employer also may not have a          • Working conditions: encompassing
  any affirmative action obligations on        rule that prohibits an employee from              two factors: (1) physical surroundings
  employers. The ADA simply prohibits          returning to work for a predetermined             such as temperature, fumes, and
  an employer from discriminating              length of time after childbirth.                  ventilation; and (2) hazards.
  against a qualified applicant or                Any health insurance provided by an
  employee because of his or her               employer must cover expenses for                Tips:
  disability.                                  pregnancy-related conditions on the same        • Pay differentials are permitted when
                                               basis as costs for other medical                  they are based on seniority, merit,
• Contact the NLADA Insurance                  conditions. Employers must provide the            quantity or quality of production, or a
  Program for interview tips and a             same level of health benefits for spouses         factor other than sex.
  position description checklist.              of male employees as they do for spouses
                                               of female employees. Pregnancy-related          • In correcting a pay differential, no
III.The Pregnancy Discrimination               benefits cannot be limited to married             employee's pay may be reduced.
                                               employees.                                        Instead, the pay of the lower paid
Act, Public Law 95-555, 92 Stat.                                                                 employee(s) must be increased.
2076                                           Tips:
   Under the Pregnancy Discrimination                                                          V. Family and Medical Leave Act,
Act (PDA), an employer cannot refuse to        • It is also unlawful to retaliate against an
                                                 individual for opposing employment            29 U.S.C. § 2601, et seq.
hire a pregnant woman because of her                                                              The Family and Medical Leave Act
pregnancy, because of a pregnancy-               practices that discriminate based on
                                                 pregnancy or for filing a discrimination      (FMLA) applies to employers with 50 or
related condition, or because of the                                                           more employees within a 75-mile radius.
prejudices of co-workers, clients, or            charge, testifying, or participating in any
                                                 way in an investigation, proceeding, or       The Act applies to employees who have
customers. An employer may not single                                                          been employed for 12 months and
out pregnancy-related conditions for             litigation under Title VII.
                                                                                               worked 1,250 hours for an employer.
special procedures to determine an             • Contact the NLADA Insurance                      An employee who meets the minimum
employee's ability to work.                      Program regarding insurance                   service requirements is eligible for up to
   If an employee is temporarily unable to       recordkeeping.                                12 weeks of unpaid leave in any 12-month
perform her job due to pregnancy, the                                                          period due to: (1) the birth of a child; (2)
employer must treat her the same as any        IV. The Equal Pay Act, 29 U.S.C. §              the adoption of a child (within the
other temporarily disabled employee.           206(d)                                          preceding 12 months); (3) the care of a
                                                 The Equal Pay Act (EPA) requires that         parent, spouse, or child with a serious
4                                              men and women be given equal pay for
vol 2   l   Summer 2007                                                                                                   Bulletin

 Employment Law Overview –Part I1 From Page 4

health condition; or (4) the need to            required to "make a reasonable effort to       Tips:
receive care for the employee's own             schedule the treatment so as not to
                                                disrupt unduly" the employer's operations.     • An employer may require that an
serious health condition. If the company
                                                    When leave is requested by a married         employee obtain a medical release
has a paid leave plan, the company may
                                                couple employed with the same company            before the employee returns to work
substitute paid leave for unpaid leave to
                                                to care for a newborn or a sick parent,          from FMLA leave. However, pursuant
the extent that the employee has accrued
                                                the couple is only entitled to a combined        to the ADA, an employer should not
paid leave.
                                                12 weeks of leave. This limit does not           refuse to rehire a disabled employee
    The Act defines a "parent" as being
                                                apply if leave is needed to care for a sick      whose disability can be accommodated
either a biological parent or a person who
                                                child or an ailing spouse.                       without an undue hardship.
stood "in loco parentis" to the employee
(stepparents or grandparents under some             An employer is permitted to obtain a       • The FMLA also requires the company
circumstances). A "child" is a biological,      doctor’s certificate regarding the nature of     to provide "intermittent" leave when
adopted, foster, or stepchild (or other         the condition, its expected duration, and        required due to the employee's own
child for whom the employee is guardian         the date of commencement of the                  health care problems or those of a
or stands in loco parentis). The child must     condition. The employer may further              covered relative.
be under the age of 18, or, if over 18,         require periodic reporting regarding the
                                                status of the employee or relative, and may    • It is a violation of the FMLA to
must have a serious disability that renders
                                                obtain a second opinion where the validity       terminate an employee for excess
the child incapable of self-care.
                                                of the certification provided by the             absences if any FMLA-covered
    A "serious health condition" is a serious
                                                employee is in question. The employer            absences are included in the total.
condition (mental or physical) that
requires inpatient care or continuing           must pay for any second opinion, and the
                                                employer may not use a physician who is
outpatient care by a healthcare provider.                                                         Both parts of this article have focused
The Department of Labor Regulations             employed by the employer on a regular
                                                                                               on significant federal employment law
considers a "serious health condition" to       basis to provide the second opinion.
                                                                                               statutes, but keep in mind that state
include any illness that disables the           Where there is a conflict of opinion
                                                                                               statutes and local ordinances also provide
employee (or relative) for more than            between the employee's physician and the
                                                                                               employees with extensive protection
three calendar days. The Regulations also       employer's physician, the employer and the
                                                                                               from employment discrimination. You
treat subsequent follow-up care for the         employee must select another physician
                                                                                               should consult your attorney about
same condition as covered by the Act.           for a third opinion. The employer must pay
                                                                                               employment issues that arise in your
The Act considers all chronic health            for this third opinion, which is final and
                                                                                               practice. And please feel free to contact
conditions to be "serious health                binding on the parties.
                                                 Upon return from FMLA leave, employ-          Kevin Horsted at 202-452-9870, ext. 240,
conditions," and no minimum calendar                                                           or by e-mail at k.horsted@nlada.org, for
days of absence are required for FMLA to        ees are entitled to reinstatement either to
                                                                                               forms referenced in this article or with
apply. All absences due to pregnancy are        their previous jobs or to substantially
                                                                                               any questions you have about the NLADA
also considered to be for a "serious health     equivalent jobs. That said, a highly com-
                                                                                               Insurance Program.
condition."                                     pensated employee may be replaced while
    When leave is desired to care for a         out on leave and denied rehire if hiring a
relative, the physical or mental condition      replacement is essential to the operation of
                                                the business. A “highly compensated                Judith Colbert is a principal in the Law
of the relative must render that person
                                                employee” is defined as an employee who        Offices of Judith Colbert located in Houston,
unable to conduct regular daily activities.
                                                is among the top 10% income bracket of         Texas. She represents employers in labor
If the relative only requires emotional
                                                all employees in the 75-mile radius. Such      and employment matters, conducts training
support, the absence is covered if a
                                                an employee may be refused rehire only if      for companies, and develops strategies to
doctor certifies that the patient needs the
                                                the cost of reinstatement would result in      address employment matters before
                                                "substantial and grievous economic injury      litigation ensues. Ms. Colbert may be
    In order to qualify for leave, the
                                                to the operations of the employer.” If the     contacted at jc@jcolbertlaw.com.
employee must provide 30 days of
advance notice of the anticipated leave,        company determines that it cannot rein-
unless it is impracticable to do so, in         state a highly compensated employee, it
which case the employee is required to          must notify the individual promptly regard-
give as much notice as reasonably can be        ing its decision.
given. Where the absence is foreseeable
and can be scheduled, the employee is

   Insuring Equal Justice
    The NLADA Insurance Program was created to work with an outstanding
    underwriter and broker to meet your needs at the highest level of quality and
    the most affordable premiums. Formed in 1994, the program currently serves
    more than 800 organizations and individuals.

                                              The NLADA Insurance Program is the only
                                              professional liability insurance provider with a wide
                                              array of products tailored to meet the special
                                              needs of civil legal aid and indigent defense
                                              attorneys and offices.
       Look for the Risk
         Management                           •Compendium of “best practices” for helping to
      Workshops at the                         assess risk and avoid losses
         2007 NLADA                           •Case studies to promote networking and dialogue
      Annual Conference,
         Nov. 7-10, in                        •Information about loss experience and risk factors
          Tucson, AZ                           through printed and Web-based materials
                                              •Discussion of important issues affecting our
                                               member insureds

      NLADA Insurance Program is administered by NLADA Service Corporation, a wholly-owned subsidiary of NLADA.

           NLADA Insurance Program • 1140 Connecticut Ave. NW • Suite 900 • Washington, DC 20036
             (800) 725-4513 • (202) 452-9870 • (202) 452-9879 Fax • www.nlada.org/Insurance
For more information about the NLADA Insurance Program, please contact: Kevin Horsted,Vice President, k.horsted@nlada.org

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