Legal Malpractice by mmcsx


									                      Special Advertising Supplement


             Legal Malpractice


                 NOVEMBER 15, 2010 • VOL. 26 • NO. 19
                    Site Plans

• Complete access for every firm or company employee

• Free 30-day, no-obligation trial for all

 Texas Lawyer print subscribers

• No more user names and passwords

• No more routing slips

• Five years’ worth of searchable archives

• Most cost effective

  subscription available

Please contact Joseph Nnadi to start your 30-day trial.
( 800.456.5484, ext. 762 8
                                                 Special Advertising Supplement
                                                                                             LegaL MaLpractice
                                               The ABA is still studying those statis-       and when their lawyers let them down,

          he proposed rule amendments          tics to try and better understand why         they feel a great sense of betrayal in
          to the Texas Disciplinary            there would be a 60 percent increase of       that trust. And, oftentimes, they’re like
          Rules of Professional Con-           malpractice because of the bad econ-          the Shakespeare’s character. They don’t
  duct are out and have gotten a lot of        omy, but that’s an important statistic        want just justice. They want a pound
  attention. All of these changes, from        to keep in mind. The insurance carriers       of flesh. And it’s difficult, as a mal-
  the controversial rule regarding sex         are aware of that, and they’re already        practice lawyer, to temper that. And
  with clients, to the rule addressing         increasing rates in anticipation of that      you need to understand the difference
  ex parte contracts with state agency         trend. And the final important piece          between going and seeking justice in
  decision-makers, to arbitration and          of information is, the smaller the firm,      their case and not, you know, being so
  settling professional misconduct             the more likely you are to be sued for        emotional and going over the top and
  claims, can be daunting. To help sort        malpractice. So those are the three big       trying to seek that pound of flesh. So
  them out, as well as address many            pieces of news on a national basis, and       I don’t know about my colleagues, but
  other legal malpractice issues, are          we’ll discuss those as this morning goes      I’m very careful about representing
  a panel of experts brought together          along and if you have any other ques-         folks. I turn down meritorious cases
  by the business department of Texas          tions.                                        for plaintiffs. I just felt that they would
  Lawyer. The following discussion                                                           have unreasonable expectations and
  has been edited for length and style.        DARRELL L. KEITH, founder, Keith
                                               Law Firm, P.C., Fort Worth: I’m just a        unreasonable demands that they would
                                               simple country malpractice lawyer. I’m        place upon me and that they might not
MIKE ANDROVETT, moderator, at-                 honored to be here. My practice is legal      ever be satisfied in the case. I think,
torney and owner of Androvett Legal            malpractice, medical and other profes-        also, that a cardinal principle for un-
Media & Marketing, Dallas: I’ve asked          sional types of malpractice. I have pret-     derstanding legal malpractice cases,
the members of the panel today to intro-       ty much devoted my life to learning           and this is borrowed from the great
duce themselves to you and talk to you a       the behavior of malpracters and learn-        William Osler, one of the practitioners
little bit about the nature of their work      ing about them, what makes them tick,         of modern medicine at John Hopkins
and then also how it relates to this more      what makes them think or not, what            that I think applies equally to lawyers,
general topic of legal malpractice. So, Joe,   makes them act the way they do or not.        and that is the secret — and I’m para-
if you’ll indulge me and let me start with     And my practice is a mission to me, be-       phrasing Dr. Osler, a great physician:
you, talk to us a little bit about who you     cause I believe that the folks in the great   The secret to proper legal care is to
are and what you do.                           state of Texas deserve quality services       know enough but also to care enough.
JOSEPH C. SCOTT, vice president                from all professionals, including law-        And a lawyer can know enough about
and general manager, CompuLaw,                 yers. And when I started practicing law       how to represent a client in a transac-
Los Angeles, CA: I was asked to be on          40 years ago, not only was it unpopular       tion, litigation or matter, but if that
the roundtable today, because I spend          for lawyers to sue doctors, but it was        lawyer doesn’t care enough about the
much of my time talking with risk              even more unpopular to sue lawyers,           client to dot their Is and cross their Ts,
management partners and their insur-           because lawyers don’t like to get sued        then they can get in trouble real fast.
ance carriers about risk management            any more than doctors do. I view cases        And also, you know, just standing up
and malpractice claims. I was asked to         primarily in litigation malpractice. I        and not knowing enough is oftentimes
be here to bring the national perspec-         handle a wide range of legal malprac-         a real problem. And lastly, I just want
tive and highlight some big-picture            tice cases, but my special interest is in     y’all to know that my experience in try-
issues. Mike mentioned some of the             civil litigation malpractice. That may        ing these cases in front of juries in the
news you can use. The main issues that         be because that’s where I spent my life       great state of Texas is the jurors in the
I have been speaking about during the          and have a better understanding, ap-          jury box, as a general rule, they have a
past several years are the major trends        preciation of what the litigation lawyer      lot of respect for the legal profession
with malpractice claims and calendar-          ought to do in prosecuting or defend-         and for lawyers, and despite all the
ing errors. Although it is probably one        ing a claim in the proper, right way for      public polls to the contrary about the
of the more boring and tedious things          clients. Ya’ll may know this, but when        public’s attitude toward lawyers, most
that happens in a firm, it’s the leading       clients come to lawyers like me, they’re      folks like their own lawyers and respect
cause of malpractice claims. That’s ac-        unhappy with their lawyer or law firm.        them. And when they get in the jury
cording to the last several ABA stud-          Most of the time, it’s a deep sense of a      box and they see the process and they
ies on malpractice claims. The other           betrayal of a trust. And you need to un-      see the judge and they see the lawyers
interesting pieces of news is that dur-        derstand that, that there’s a deep hurt,      and the way they conduct themselves,
ing the last economic downturn — this          deep pain, because folks, they put their      assuming they do so appropriately, they
is a nice way of describing what we’re         cases, their claims, sometimes their          have a whole new respect for the legal
going through — malpractice claims             financial livelihood and well being in        system. And lawyers, in my opinion,
went up 60 percent on a national basis.        the hands of a lawyer, their businesses,      are not prejudiced. They’re just lawyers
November 15, 2010                                                                                                                     3
                                            Special Advertising Supplement
    LegaL MaLpractice
as defendants.
JETT HANNA, Senior Vice Presi-
dent, Texas Lawyers’ Insurance Ex-
change, Austin: Just a little bit about
TLIE: We were formed in 1979 out of
a project started by the State Bar of
Texas. We are not affiliated with the
state bar, but we’re a little different
than your average insurance carrier. We
are owned by our insureds, and if you
are a TLIE insured you get to vote for
the board of directors. This means we
are in tune with what is going on with
lawyers, and we want to share with the
legal community what we have learned
over the years about avoiding legal mal-
practice claims. My overall philosophy
about legal malpractice is that doing
quality legal work and avoiding legal
malpractice is really the same thing. If
you are keeping your clients satisfied,
if you let them see how you are doing
                                           gal malpractice, legal ethics, almost      claims will go down. But there’s anoth-
things and keep them informed, you
                                           exclusively. I handle legal malpractice    er important part to avoiding claims.
are 95 percent of the way there. A lit-
                                           cases and disciplinary matters, on both    That’s client relations. There is a won-
tle bit about me: I am a lawyer. I have
                                           sides of the docket. But much of my        derful book Blink: The Power of Think-
been at TLIE since 1987. I’m a senior
                                           time is spent simply advising lawyers      ing Without Thinking, by Malcolm
vice president there, and I have done a
                                           and advising law firms, helping them       Gladwell. It recounts experiments by
little bit of everything in TLIE at one
                                           avoid problems or solve problems. For      psychologists. In one, a psychologist
time or another. I foolishly thought
                                           20 years I’ve written a book on legal      recorded hundreds of conversations
in 1986 that, as the real estate market
                                           malpractice law in Texas, Texas Legal      between doctors and patients. Half of
was tanking, that the safe place to go
                                           Malpractice & Lawyer Discipline [9th       the doctors had been sued for malprac-
would be a legal malpractice insurance
                                           ed., ALM Media Properties, Inc. 2010]      tice. The other half had not. What they
company. I wasn’t smart enough to
                                           I serve on the Texas Supreme Court’s       found in studying the conversations
realize yet that all the legal malprac-
                                           Grievance and Oversight Commit-            was that the doctors who had not been
tice claims from the savings and loan
                                           tee, and I have served on the Supreme      sued talked to their patients longer
process were going to hit. We suffered
                                           Court’s Advisory Committee. So I           than the doctors who had been sued —
some hard times, yet we also learned
                                           spend a lot of time working with rules.    about 18 minutes versus 15 minutes.
a lot. It was a fascinating way to see
                                           Sometimes I actually dream about rules     The doctors who hadn’t been sued
the legal profession as a young lawyer.
                                           — that’s when I know I need a break.       also related to their patients by asking
I started out in the claims end. Since
                                           As you know, we’re in the throes of the    follow-up questions, using humor, and
that time, I’ve been an underwriter,
                                           rule amendment process right now, so       they used “orienting” statements at the
assessing applicant firms and whether
                                           I’m sure we’ll spend a little time talk-   outset, telling the patients exactly what
they have problems. I have now moved
                                           ing about that today. Let me respond       would happen in the exam from be-
into loss prevention. I talk to lawyers
                                           to a couple of points the other speakers   ginning to end. Those were the differ-
a lot. If you’re TLIE insured, you can
                                           made. Yes, you’re more likely in a small   ences. Substantively, the doctors said
call up and we’ll be happy to talk over
                                           law firm to have a legal malpractice       the same thing. But the doctors who
any issue with you. I spend quite a bit
                                           claim. But, keep in mind, if you’re go-    took the time to interact with patients
of my time on that. I appreciate the
                                           ing to sue small-firm lawyers, find out    — treat them like human beings they
opportunity to speak with you here
                                           if the firm has legal malpractice insur-   cared about — didn’t get sued. Then
today and certainly afterwards, if you     ance. According to a State Bar survey,     they took the experiment further.
have any questions, I’d be glad to talk    over 60 percent of solo practitioners      They took two ten-second clips from
to you further.                            do not carry insurance. So ask yourself:   those conversations for each doctor
CHUCK HERRING, Partner, Her-               Do you want to chase someone who’s         — and they removed the words, con-
ring & Irwin, L.L.P., Austin: My           not insured? Second, I agree with what     tent-filtered them, so that the listener
practice is the law of lawyering — le-     Jett Hanna says. If you do great work,     could just hear the intonation, pitch,

4                                                                                                        November 15, 2010
                                                  Special Advertising Supplement
                                                                                             LegaL MaLpractice
rhythm. Then they had listeners grade           increased. The Bar now also uses a
the conversations on criteria such as           Client-Attorney Assistance Program
warmth, anxiousness, dominance, hos-            (CAAP) to try to divert some poten-
tility. The listeners still were able to tell   tial grievance matters into mediated
the two groups of doctors apart. That’s         resolution. Incidentally, I highly rec-
a very important lesson for us lawyers.         ommend the CAAP program if you
Treat clients like people. Show you             encounter a client who says he or she
care. Develop a relationship. If you do         is thinking about filing a grievance
that, you’re much, much less likely to          against you. Someone even said “Well,
have problems, to get sued or to have           now we have more women in the pro-
a grievance filed. A former President of        fession, and they’re just more ethical
the State Bar tells a story that illustrates    and moral.” Not all observers would
the same point. He once handled a le-           agree with that.
gal malpractice case. He won a big ver-
                                                ANDROVETT: Another theory is that
dict, but he ultimately lost at the Texas
                                                more aggrieved clients are just skipping
Supreme Court. The Court held that                                                            Jett Hanna is a Senior Vice Presi-
                                                the grievance process completely, and
his basic legal position was correct, but
                                                they’re getting themselves a lawyer, just
that he had not phrased the proposed                                                          dent at Texas Lawyers’ Insurance
                                                suing the lawyer right off the bat.
jury question in the case quite right.
When he received the Supreme Court’s            HERRING: It is true that quite a few          Exchange. His duties have included
opinion, he immediately called his cli-         of the post-grievance questionnaire re-
ent, told her what happened, and ad-            sults from complainants whose griev-          supervision of lawyers’ and judges’
vised her to see another lawyer about           ance get dismissed are pretty negative
possibly filing a claim against him. She        in evaluating the disciplinary system.        professional liability claims, under-
said, “No, I won’t do that. You’ve been         But I don’t think they’re necessarily
so nice and worked so hard, I’m not             just filing suit.                             writing, loss prevention and com-
interested in a claim against you. Just         HANNA: I just thought I’d say from
forget it.” Maintaining a good relation-        our insurance company perspective,            puter operations. Hanna received
ship is incredibly important.                   we have seen somewhat of a decline in
ANDROVETT: In June Texas Lawyer                 claims over a similar time period. My         his B.B.A. Summa Cum Laude in
newspaper reported on a 15-year trend in        frame of reference is more from 1989,
the number of grievances that were filed        1990 to present. 1989 to 1990 was kind        Management Science and Comput-
against lawyers in Texas, and in 15 years       of the height of the S&L and banking
the number of lawyers in the state had          problems in Texas, and at that point we       ers from Southern Methodist Uni-
increased from 60,500 to 84,183. Yet,           were seeing seven claims per hundred
the number of grievances dropped from           lawyers. In the last several years we’ve      versity in 1980, and his J.D. from
9,582 in 1994, ’95, with 673 actual             been pretty consistent between two
disciplinary actions, to 7,180 grievances,      and three claims per hundred lawyers          the University of Texas School of
so roughly 2,400 less; and 335 disciplin-       annually, and we’re actually at the low
ary actions, roughly half in 2008 and           end of that right now. So there may           Law in 1983. Hanna is a member
2009. What do you make of that?                 very well have been some changes in
                                                the quality in a positive way. Whether        of the State Bar of Texas and is a
HERRING: On the Texas Supreme
Court’s Grievance Oversight Commit-             that directly relates to what’s going on
tee, we’re studying some of those issues        in the grievance system, I can’t tell you.    Registered Professional Liability
right now. That’s a very stark statistic:       For many people, it’s not worth it to go
a 50 percent decrease in the number             through the grievance process if they’re      Underwriter (RPLU). He lectures
of lawyers disciplined during a period          going to file a malpractice claim. That
when the number of lawyers increased            generally means the higher dollar prob-
                                                                                              and writes on legal malpractice and
by 40 percent. What explains that?              lems do not end up going through the
That is a very interesting question. In         grievance system. For example, there
                                                                                              insurance topics. Hanna also is an
conjunction with the 2004 change in             are not a whole lot of conflict of in-
the disciplinary procedure rules, en-           terest matters going through the griev-
                                                                                              Adjunct Professor at The Univer-
forcement funds were reduced, offices           ance system.
were closed. Obviously, that could be           KEITH: My view is obviously not em-           sity of Texas School of Law.
a factor. But over the years CLE has            pirical, Chuck. But from my view, as a
November 15, 2010                                                                                                                     5
                                               Special Advertising Supplement
    LegaL MaLpractice
practicing plaintiff ’s legal malpractice
lawyer, our firm has seen a dramatic
increase in the number and frequency
of legal malpractice claims come to us
over this period of time, in stark con-
trast to these statistics. And, as far as,
grievances are concerned, I think in
complex cases the grievance system
is relatively ineffective. I agree with
Mike’s comment that many of the cli-
ents that I talk to and folks that at least
come to us with a legal malpractice
complaint are generally more interest-
ed in using the legal system, the court
system, than the grievance process.
And I also believe, at least from my
experience, that the lawyers who make
mistakes in handling particular litiga-
tion cases, I mean, they come up with
stories their own mother wouldn’t be-
lieve, but they sell that chili to the cli-
ents. And so a lot of folks, particularly
in complex cases, the lawyers don’t           of time and attention as the plaintiffs’    basis, and I know that what they do is
shoot straight with them, as my lawyer        legal malpractice lawyer.                   take information from insurance car-
friend Broadus Spivey did in the Willis                                                   riers. It is not always the same insur-
                                              HANNA: Something I see sometimes
v. Maverick case. And, instead, they’re                                                   ance carriers in the mix, and I know
                                              from individuals, not so much from
misled and it’s confusing, they don’t                                                     some significant insurance carriers
                                              people who are represented by legal
understand it, and they don’t always                                                      who do not participate. So I think a
                                              counsel, is an attempt to leverage the
follow up and contact lawyers about           discipline against malpractice-a de-        60 percent increase, I would be sur-
valid legal malpractice cases.                mand letter that says, “I won’t file a      prised if it said exactly that, though,
                                              grievance if you pay the malpractice        certainly, I think one thing we have
HERRING: Would you advise them                                                            seen, in our experience, is an increase
to not file a grievance if they come to       claim.” I always have to smile at that,
                                              because that’s, to me, our first piece of   in claims when there is an economic
you with a potential malpractice case,
                                              evidence showing that the client is try-    downturn. Unquestionably, there was
in most instances?
                                              ing to blackmail our insured into do-       one around the 2001 time frame, and
KEITH: Well, it’s on a case-by-case                                                       it takes a long time for those to clear.
                                              ing something.
basis, but I talk to them about it and                                                    The claims coming out of Enron were
make the appropriate recommendation           SCOTT: Gentlemen, I would be cu-            not concluded until 2006, 2007. So I
under the circumstances. If I think           rious as too any insights or thoughts       fully agree that economic downturns
that the grievance process could be ef-       you may have in regards to the ABA          often produce an increase.
fective and contribute to helping them        statistic about claims going up 60 per-
                                              cent during the last economic down-         ANDROVETT: To clarify, what you’re
work through it and may get a reason-
                                              turn. Do you have any insight on why        saying is that claims arising out of the
able result, yes. Otherwise, sometimes
                                              that might be and what you anticipate       current economic downturn haven’t re-
I’ll discourage it, and sometimes I’ll
                                              coming up in the near future?               vealed themselves statistically yet. Is that
just leave it up to the clients whether
to pursue it.                                 HANNA: One of the things that’s
                                              very interesting there is that real es-     HANNA: That’s correct.
HERRING: I would almost always dis-
courage filing a grievance if the client      tate claims went up significantly as a      ANDROVETT: Because I remember
wants to file a legal malpractice claim.      proportion of all the claims. There had     two years ago Chuck and Darrell talk-
In the grievance system, the claim is         been about a four- to five-point spread     ing about these very issues. Both of you
out of the control of the grievant’s          between real estate and plaintiffs’ per-    anticipated that there would be more
lawyer, for the most part. The investi-       sonal injury claims in the 2003 study,      claims, real estate, because of the sub-
gative staff and lawyers don’t necessar-      and it narrowed to about one and a          prime meltdown and others related to
ily approach the complaints with the          half percent in the 2007 study. I think     advice that lawyers gave in the financial
same perspective or spend the amount          those ABA statistics are not on a gross     services industry.

6                                                                                                             November 15, 2010
                                                Special Advertising Supplement
                                                                                           LegaL MaLpractice
HERRING: This is purely anecdotal,            different distribution of proceeds than
but I have seen more claims against           appears on the closing statement. That
lawyers involved in the debt collec-          can be a way that somebody covers up
tion process. Claims based on alleged         an inflated appraisal, or at least alleg-
violation of the fair debt collection         edly does so, and we’ve seen a couple
practices statutes. There’s often a lag       of claims out of the current economic
time between the economic decline             crisis where that has happened. Also
and the claims. When the Texas sav-           I think real estate, when you start
ings and loans collapsed in 1987 or so,       talking about commercial transac-
the feds filed quite a few suits. For a       tions, there’s a lot of room for conflict
time, it seemed that everyone I knew          of interest issues. I don’t want to go
in big firms was either prosecuting           through each area of law right now,
those claims or defending them, suing         but family law has seen a significant
or getting sued, over the S&L collapse.       increase in frequency, and the dollar
Those claims continued in the system          amounts are higher. In some of the
well into the 1990s.                          higher dollar divorces there are now          Charles “Chuck” Herring, Jr. is a
ANDROVETT: Joe, you touched on this           more claims. In estate probate trust          partner in Herring & Irwin, L.L.P. in
topic about calendaring. That’s the num-      areas, serious claims occur frequently.
                                                                                            Austin. His practice focuses on the
ber one source of claims and problems in      Ordinary business transactions are way
malpractices. Can we create a short list,     up on the list. What the ABA classifies       “law of lawyering,” representing cli-
maybe two lists, one, the kinds of things     as business transactions and corporate        ents on both sides of the legal mal-
that get lawyers in trouble, and then,        law accounts for about 9.0 percent
                                              of the total claims. Just because you         practice and grievance dockets. He
also, are there certain practice areas and
areas of law that are more prone to get a     don’t see particular practice areas in        is board certified in Civil Trial Law,
lawyer in trouble than others?                the stats, don’t take that to mean that
                                                                                            served two terms on the Texas Su-
                                              you are safe. Securities practice has a
HANNA: The ABA statistics on this                                                           preme Court’s Advisory Committee
                                              low frequency, but when something
are very informative and correspond
                                              goes wrong, it goes very wrong, and           and was appointed by the court to
pretty much to what our own internal
                                              the claims are often expensive. Patent
statistics show as well. If you’re look-                                                    chair the Statewide Task Force on
                                              law right now has some intense, heated
ing at the subject areas, plaintiffs’ per-
                                              malpractice cases going on. There have        Sanctions. Herring received a Presi-
sonal injury, that’s always been at the
                                              been some huge losses in that area.
top of the list. I think there are a lot of                                                 dential Citation from the State Bar
reasons for this. It’s not that personal      HERRING: Conflicts of interest can
                                                                                            of Texas for his service as Chair of
injury lawyers are worse lawyers or           make some of the best legal malprac-
anything like that. I think that people       tice cases. They provide a built-in mo-       the Committee on the Prevention
who have personal injury claims have          rality tale: “This lawyer sold out one        of Legal Malpractice and Griev-
some of the most dire economic needs,         client for another client and for anoth-
                                              er fee.” Clients and the public expect        ances, and received the First An-
and when they hear about people who
have been successful in solving those         loyalty. Experts testify about the bibli-     nual Professionalism Award from
and then they aren’t successful, that of-     cal origins of conflict of interest prohi-    the Texas Center for Legal Ethics
ten leads to an inquiry about what my         bitions — Matthew 6:24, “No one can
lawyer did wrong. And there certainly         serve two masters. Either he will hate        and Professionalism and the Tra-
are a lot of tricks and traps in there        the one and love the other, or he will        vis County Bar Association. He is
that can be real gotchas in that area.        be devoted to the one and despise the
                                                                                            the author of Texas Legal Malpractice
Real estate has been the No. 2 area na-       other. You cannot serve both God and
tionally, not quite as high in Texas. A       Mammon.” Cases cite that. Juries re-          and Lawyer Discipline and co-author
lot of that has to do with the structure      late powerfully to that gut-level disloy-     of the Handbook on Texas Discovery
of real estate transactions in different      alty. Another common problem these
parts of the country and, of course,          days is expenses. Plaintiffs’ legal mal-      Practice. He has taught, lectured and
how bad the particular economic situ-         practice lawyers review expenses with         written many articles on legal mal-
ation is in the real estate market. But a     a microscope. We’ve seen lawyers who
                                                                                            practice and legal ethics. Herring is
lot of the things that can go on there,       have charged clients for season tickets
one of the things that we have seen           to football games or for alcohol during       an honors graduate of the Univer-
some increase in is claims that lawyers       a trial that the lawyer lost. Of course       sity of Texas School of Law.
who close transactions may permit a           that sort of thing looks terrible.

November 15, 2010                                                                                                                   7
                                               Special Advertising Supplement
    LegaL MaLpractice
ANDROVETT: Okay. That’s an ex-
treme case. I’m talking everyday kinds of
things that lawyers can struggle with.
SCOTT: Again, my expertise is in the
calendaring area, and I typically get in-
volved in conversations with the risk
management partner and their insur-
ance carrier because they’re looking
for protection from malpractice claims
and often discounts on the insurance
side of things. It is the leading cause of
malpractice, and the law firms feel that
if they’re doing something to prevent
it, shouldn’t that be reflected in their
malpractice rates? I think one of the
initial thoughts about the ABA statis-
tic on the 60 percent claims increase,
although I think it’s a small percentage,
but there’s a cautionary tale there, that
because of bad economic times, some
attorneys are attempting to handle liti-
gation in legal areas whey they don’t
                                             point that I wanted to mention is that         folks know. I know both sides of it, but
have the expertise that they normally
                                             since good and bad trends oftentimes           I’m for it. To answer the question that
would or in jurisdictions they don’t
                                             start in California, I thought I would         everybody else was asked to address,
normally practice, so there’s some
                                             mention that in California now, the            primarily my special interest area is lit-
unique rule or situation they weren’t        rule is that if you’re not covered by          igation malpractice. I see a lot of what
aware of that leads to an error. So that     malpractice insurance, you have to             I call the violation of the Clint East-
was one of the issues. Another issue         disclose that to your client. There are
they are still studying is the personnel                                                    wood Dirty Harry rule. If you’ll recall,
                                             some exceptions, but they’re minor.            Dirty Harry said, “A man’s got to know
layoff issue. Those layoffs can affect       That’s could be a big trend that the in-
the calendar side of things because it                                                      his limitations.” Similarly, some of the
                                             surance carriers like. Typically clients,      lawyers — and I see so many cases,
is often that staff that you delegated       if you tell them up front that you don’t
those tasks to, and although you can                                                        particularly in the personal injury area
                                             have insurance, they may consider us-          where personal injury lawyers, who can
delegate the task, you can’t delegate        ing an attorney who does just, in case
the responsibility. So, oftentimes, lay-                                                    try car wreck cases, grocery store and
                                             there’s a malpractice issue down the           exploding coke bottle cases think they
ing off some of those staff creates some     line and they want the deep pockets.
problems. We actually had a very large                                                      can take on a complex case that they
firm that had laid off 200 attorneys         ANDROVETT: Darrell, that sort of re-           don’t really have a lot of experience or
shortly after they had purchased our         minds me of the old rule about that you’re     knowledge in. And they won’t go get
calendaring software. That was curi-         not certified by the Texas Board of Legal      help. They won’t go to the books and
ous to us, because normally, in those        Specialization. A lot of laypeople would       get the answer, or they won’t seek out
kinds of situations, they’re looking to      see that disclaimer and think, well, that      experienced, seasoned counsel who has
cut costs. Apparently it was their in-       lawyer doesn’t have a license to practice.     expertise in a particular area. And that
surance carrier who was so concerned         What do you think of this notion of forc-      is very pronounced in medical mal-
about 200 lawyers being laid off and         ing lawyers who don’t have malpractice         practice. Statute of limitations are very
all the calendar entries that their staff,   insurance to have to disclose it?              complex. You can’t just read the statute
who might not be around for long, had        KEITH: Well, at the Keith Law Firm             and know what about the limitations.
to move, to other people’s calendars.        we think of little else, but, obviously,       So many personal injury lawyers amaz-
They were concerned that they were           I’m for all of y’all out there having in-      ingly think that the discovery rule still
not the most highly motivated people,        surance and telling your client that you       applies in medical malpractice cases,
because they know their job is next. So      do. I know that it’s controversial, from       and if they’re covered by the old law or
the insurance carrier, to prevent some       the recent state bar proposals, whatev-        the new law — the new law too — it’s
of those concerns, specifically required     er. I truly think it is part of the lawyer’s   not unless you have an open courts ex-
that they act to safeguard themselves        obligation to the public and to their          ception, very complicated. They often
against those possible errors. Another       clients to carry insurance and to let          don’t know about the expert reporting

8                                                                                                              November 15, 2010
                                                Special Advertising Supplement
                                                                                            LegaL MaLpractice
requirements, 120-day rule, getting           claims-made basis. So, if the lawyer
your expert reports in and calendaring,       tells the client today that they’ve got
the conflict of interest, breach of fidu-     insurance, that doesn’t mean they’re
ciary duty in litigation is where lawyers     going to have it at the time that they
get grieved, and the lack of informed         get sued. That has the potential to
consent, not telling their clients about      mislead clients. Another problem,
the benefits and the risks of important       sometimes policies are very limited.
things in the case, including the litiga-     I’ll give you one example. We issue a
tion, weighing the risks and benefits of      policy that covers nothing but what
a settlement or getting great settlement      the lawyer does on behalf of a referral.
offers but pushing the envelope, and          And so that lawyer could tell clients,
then that settlement offer disappears,        I guess, I have legal malpractice insur-
the case goes to trial and the plaintiff      ance, but are you going to be required
loses. You know, I’m just seeing a whole      to say it doesn’t cover what I’m doing
lot of that, in addition to just basic cal-   for you? There are also subject matter
endaring, people not just keeping up          exclusions in insurance policies as well.      Darrell L. Keith, a plaintiff’s trial
with their deadlines and things falling       Like I say, TLIE really is not taking          attorney for almost 40 years, is the
through the cracks. So that’s a quick         a position — I’m just saying this is a         founder of the Keith Law Firm,
overview of my view on that point.            complicated issue, and there certainly
                                                                                             P.C. in Fort Worth, Texas. His
                                              is something to be said favorably about
HANNA: I’d like to comment on the                                                            focus areas of practice include le-
                                              the ABA’s position and the number of
disclosure issue. First of all, TLIE has                                                     gal, medical and professional mal-
                                              states that have adopted it.
very meticulously avoided taking any                                                         practice, personal injury and civil
kind of stand, one way or another, on         HERRING: I think on the State Bar
                                                                                             law litigation in state and federal
that. We figure it is up to the bar to        Board, the vote was 49 to 1, against the
                                              proposed rule. So I don’t think we’re          courts. Keith received his B.A.
figure out what the best way is to regu-
late. It’s the same with the new rules.       going to see it come up again soon             from Baylor University and his
So we don’t have a position one way or        there. And I agree that the strongest ar-      J.D. from Baylor Law School. He
the other.                                    gument against it is the inevitable lack       is included in The Best Lawyers
                                              of detail: What claims will be covered?        in America list (1991-2010), the
HERRING: You mean you don’t have
                                              How long will the coverage apply? But          Texas Super Lawyers list (2003-
a position you’ll disclose publicly?
                                              of course you can say the same thing           2010) and Texas Lawyer named
HANNA: No. Seriously, we have mem-            about car insurance. The issue may             him the “Best Plaintiff’s Lawyer in
bers who have strong feeling on both          resurface in the Legislature. The State
sides of these issues. So, as an organi-                                                     Fort Worth.” The Dallas Bar Asso-
                                              Bar’s poll showed over 70 percent pub-
zation, we have decided not to take a         lic approval for a rule.                       ciation recognized him as among
position either way.                                                                         the legal profession’s “Texas Trial
                                              KEITH: Well, I don’t agree with all
HERRING: But as a publicly respon-                                                           Legends” in 2010. He is a former
                                              that hypothetical argument that y’all
sible insurance company, I mean, sure-                                                       president of the Tarrant County
                                              are making. The state bar has imposed
ly you think the lawyers ought to be          advertising rules on us that are very          Trial Lawyers Association. A pro-
forthright and out front if they don’t        detailed, that govern us and all of our        lific writer and frequent speaker,
have insurance.                               areas of conflict are complicated, and         he has authored numerous articles
HANNA: There are some problems                it seems to me that a fairly comprehen-        on legal and medical malpractice
with disclosure. You could say that           sive list of information can be prepared       and civil trial law topics. He is
some disclosure is better than none,          and handed out to clients that at least        an adjunct faculty lecturer in trial
but there are some situations where it        put them on notice to make further             advocacy courses at Baylor Law
could cause problems. For example —           inquiry and learn about claims-made
                                                                                             School. Through The Keith Foun-
                                              policy have a duty to handle it, let their
HERRING: But Jett, what about the                                                            dation, he has endowed a law and
                                              clients know if they’re maintaining in-
fact that 25 of the 29 states that consid-    surance and get coverage or at least           medicine professorship and schol-
ered the rule adopted it, and the Texas       disclose that their claim may not be           arship and financially contributed
Supreme Court’s Grievance Oversight           covered, and they can consult with an-         to other programs at Baylor Law
Committee resoundingly endorsed it?           other attorney if it occurs. I just think      School and Baylor University.
HANNA: Let me just say what the               it’s professionally hypocritical for law-      For more information see www.
problems are. One is that most legal          yers, particularly those of us in the civil
malpractice insurance is written on a         justice system, criminal justice system,

November 15, 2010                                                                                                                    9
                                               Special Advertising Supplement
  LegaL MaLpractice
for that matter as well, to champion
the cause of justice and accountability
and responsibility for the wrongdoing
of our citizenry, yet we want to duck
and run and avoid being responsible
and accountable for the damages that
we may cause. We make mistakes and
those mistakes may hurt a client. I just
think being a lawyer is a high calling.
If we have a responsibility, if we hurt
a client through malpractice, then we
ought to have either malpractice insur-
ance or the financial assets to right that
wrong. I think it’s as basic as that.
ANDROVETT: This may be addressed
to Jett or not, but can you make an argu-
ment with a straight face that a lawyer
would say, “You know what? If I get that
insurance, I’ve made myself a little bit
of a target for lawsuits, and, frankly, if
I don’t have the insurance, I’m doing a
good job. I know I’m ethical. It’s just a
good business decision that may discour-     from your early years of practice comes       enough for them.
age somebody from going after it?”           back to bite you for which you will not       HERRING: Under current law, legal
                                             have coverage. We have this conversa-         malpractice claims don’t usually have
HANNA: I think that depends upon             tion quite a bit with lawyers. Everybody
the situation of the individual lawyer                                                     much of a chance in criminal cases.
                                             here has said don’t sue if there isn’t in-
and law firm. Certainly, the larger a                                                      In Peeler v. Hughes, [909 S.W.2d 494
                                             surance, and I think you would have a
firm is the less likely lack of insurance                                                  (Tex. 1994)], the Texas Supreme Court
                                             hard time finding a plaintiff ’s lawyer
is to discourage suits. If your firm has                                                   held that a plaintiff who has been con-
                                             to take a case without insurance. But
a number of people with significant                                                        victed in a criminal case faces a sole-
                                             that isn’t always true, and sometimes
assets involved, and certainly more                                                        proximate-cause bar to asserting a legal
                                             defense costs are significant even when
successful you’ve been, the less that                                                      malpractice claim against criminal de-
                                             lawyers are eventually released because
argument plays. I think that there are                                                     fense counsel. As a practical matter, the
                                             they don’t have insurance.
a number of things to keep in mind.                                                        criminal defendant has to win the ap-
You know, the reason you have insur-         HERRING: In practical terms, lack of          peal or habeas corpus relief and be ex-
ance is so you can sleep at night, and       insurance can be an effective defense.        onerated. That’s rare. I had such a case
what helps you sleep at night may be         I’ve had uninsured lawyer/clients as          once and took a large judgment against
economic, and it may be personal. I          defendants on occasion. Unless an             a criminal defense lawyer, so occasion-
think that a lot of lawyers carry insur-     uninsured defendant is obviously in-          ally it happens.
ance exactly for the reason that Darrell     dependently wealthy, a plaintiffs’ legal
                                             malpractice lawyer is very unlikely to        KEITH: And no one is making you do
is talking about, that they believe that                                                   it now.
it is the right thing to do and that they    want to chase them. Do you have a
should protect their clients in case of      question in the audience?                     ANDROVETT: I want to make sure
an innocent mistake. Any lawyer could        AUDIENCE MEMBER: It seems like                that we have time to get into the proposed
make an innocent mistake, could get          it could be a very sticky wicket. I get ap-   amendments to the disciplinary rule. Just
the wrong numbers on something. If           pointed a lot of criminal areas, type cli-    to tie up this issue, I’m hearing both mis-
you were looking at it solely from an        ents and do I have to go down there and       conduct and misconduct that rises to the
economic perspective, it is, perhaps,        tap on the window and tell them, every        level of malpractice in substantive areas
possible for a starting lawyer to say,       time I go to speak with them, that I do       but also what I would maybe crudely call
“Insurance is just something I can’t af-     not have malpractice insurance if I am        the management of the practice. Technol-
ford at this time.” On the other hand,       representing them? I’m going to be the        ogy has come a long way in the last 5
once you get insurance, you will not be      first one to jump off the criminal wheel      to 10, 15 years. Yet, I personally know
able to purchase the years of prior acts     if the proposed rule is imposed, because      lawyers who are still working on what
coverage for when you first started.         everybody behind bars is going to want to     are really legacy software systems, such
If you do well in practice, something        sue me because I didn’t do their job well     as Word Perfect and the like. Are there

10                                                                                                             November 15, 2010
                                             Special Advertising Supplement
                                                                                        LegaL MaLpractice
just basic standards that we can write      26 years. For PCs, it was 16 years.
down on a piece of paper to keep us out     For Facebook it was less than 3 years.
of trouble on the practice management       There are some 500 million Facebook
side? And to talk a little bit about what   users now. I was in a big case in Dal-
you’re seeing in technology — and Joe,      las recently and half the lawyers in the
obviously, this is in your wheelhouse —     courtroom were using iPads. I guess we
that helps a lawyer with the stuff that     all will soon or something like that. So
gets overlooked.                            changing technology will be an ongo-
SCOTT: There is some great software         ing challenge for lawyers.
and websites out there that can help        HANNA: I want to second the idea
them. Remember, Computers do not            that missed deadlines are a huge fac-
make human errors, and most of the          tor in legal malpractice, and maybe
calendaring and mistakes are human          even extend that a little bit. It’s not
errors. So embrace the technology.          just missed deadlines, but I would say
Let it help you avoid those human           scheduling in general — and a few of         Joseph C. Scott is a licensed Cali-
errors. There are several companies         you may relate to this, but you have to
that do a great job of this that have       also schedule enough time to do work,        fornia attorney with over 20 years
been in business several years, so they     and a lot of what the newer software         experience working in the legal
know typically where the mistakes are       can do is let you set up time limits for     vertical. He is the Vice President
made, and they build in safety nets to      dealing with the work that you’re do-
help prevent them. Early on I was told                                                   and General Manager of Com-
                                            ing. And the ABA stats talk more about
when I got married that the best way        specific administrative errors, but          puLaw, the nation’s leading pro-
to ensure you’ll never forget your wed-     sometimes the qualitative problems           vider of rules-based calendaring
ding anniversary is to forget it once. I    that come up are, “ I had to draft that      software. Scott also oversaw the
think that’s the same with calendaring      motion with only a couple of hours,
mistake. But why wait until you make                                                     successful   launch   of   Compu-
                                            and I really needed five days.” And so
a mistake when the typical mistakes         that’s a different way in which technol-     Law’s wholly-owned subsidiary,
can be avoided by a good calendaring        ogy could help you a lot. I want to do a     Deadlines On Demand, in 2004.
system. One of the biggest malpractice      couple of shout-outs to some other ad-
claims we’ve seen in the calendaring                                                     DOD is a Web-based version of
                                            ministrative things that are absolutely
area involves fraud. The biggest one I      critical. First is documenting who your      CompuLaw that leverages Com-
know of was a 35 million dollar mal-        client is and who they are not. It’s im-     puLaw’s expertise and resources
practice verdict, very large national       portant to have some sort of engage-         in a pay-as-you-go format. Scott
law firm that was handling all the cal-     ment document every time you work
endaring themselves and didn’t think                                                     is a recognized industry expert on
                                            with a client, and it’s simply because,
they needed the technology to help,         otherwise, it’s going to be your word        the implementation of innovative
and they made a little mistake that         against the clients as to what you were      technologies to the business and
cost them big damages. it was trying        supposed to do. A lot of times lawyers
to cover up that mistake that resulted                                                   practice of law. Scott has been a
                                            lose those kind of straight-up argu-
in the huge punitive damages, which         ments against their clients. I have seen     keynote speaker at legal confer-
their insurance carrier wasn’t going        some of the best lawyers in the state,       ences across the country. He has
to cover because of the fraud side. I       who knew their subject matter forward        authored numerous articles on
am sure there’s isn’t any software that     and backward, were very good with
helps you on the fraud side, but if you                                                  the application of technology for
                                            clients. They got on the witness stand
don’t make the mistake to begin with        and the cross-examination started, and       attorneys and law firms, illustrat-
then there is no temptation to cover        they try to think ahead of the plain-        ing how software and Internet-
it up.                                      tiff ’s lawyer and start to look evasive.    based solutions can dramatically
HERRING: At the ABA Ethics 20/20            That’s happened to some of the nicest
                                                                                         strengthen both a firm’s business
Commission meeting last April, the          lawyers I know. The point is that the
head of US Public Policy for Google         better you document the relationship         operations while addressing how
talked about the accelerating rate of       with the client and your advice, the         to deploy and effectively utilize
technological change. He said that          less likely a client will make or suc-       emerging technologies to achieve
after cars were invented, it took 55        ceed in a malpractice claim. In a lot of
years before 25 percent of the popula-      cases documenting who is not the cli-        a more powerful, productive and
tion used them. For TVs, it was only        ent is critical. If you have people hang-    successful law firm operation.

November 15, 2010                                                                                                          11
                                                 Special Advertising Supplement
  LegaL MaLpractice
ing around that are not clients, but           definition section. Gentlemen, what’s go-    or any legal matter, get in writing that
they’re part of the situation, you may         ing on here? What do lawyers need to         you’re not accepting representation in
need to give them a letter that says spe-      know about these proposals? The bar will     the case. If it’s litigation, at least give
cifically that they are not involved. If       likely hold a referendum, Chuck, what,       them some information if there’s a po-
you’re dealing with an entity and the          end of the year, early next year?            tentially meritorious claim, statute of
entity is your client, a corporation or        HERRING: The current expectation             limitation and notice of claim require-
a partnership, it’s impossible to talk to      is that the referendum will be late this     ments, at a minimum, give them the
a corporation. I don’t mean that in a          year or early next year. Every Texas law-    generic information. If you can be even
negative sense, but you have to talk to        yer needs to read these proposals. They      specific, I’d recommend that you do
an individual, and that individual may         run some 156 pages, some 63,000              that. With regard to computers, at least
think that they are the client. And in         words. You can read them in just a few       with regard to small firms, commuters
some situations that can lead to some          short, or very long, hours. But they’re      are great. We all use them, but, as we
very severe conflicts of interest. There       important. If adopted, these new rules       know, computers can crash and infor-
is so much we could go into on what            will affect in important ways how we         mation can disappear into cyberspace.
law firms need to do on the websites,          Texas lawyers conduct client intake,         So, with regard to the critical and im-
unsolicited e-mail, a number of things                                                      portant deadlines and that sort of
                                               how we charge clients and document
of that nature. And certainly having a                                                      thing, calendaring, I don’t know about
                                               fees, how we conduct conflict searches,
good client intake system where you                                                         you big firm lawyers, but in our small
                                               prepare conflict-consent forms, and on
are looking for the types of clients                                                        firm, we do have a backup manual sys-
                                               and on. Particularly look at the new
that you want to have. Making sure                                                          tem so that, if your computers crash,
                                               rule containing definitions, Rule 1.00,
that you have clients who pay your                                                          you don’t lose everything. I’m finding
                                               and the conflicts rules, Rules 1.06
fees is critical. I want to tell you I am                                                   conflict of interest and supervision of
                                               through 1.09.
not saying don’t take pro bono cases.                                                       attorneys in large or small firms. Like
Chuck would shoot me if I did, and             KEITH: Look also to the excessive fee
                                                                                            emergency medicine patients, surgical
so would the state bar. But I am saying        rule, because the focus is changing from
                                                                                            patients and critically ill patients in the
you should make sure that you don’t            its very technical language from the
                                                                                            medical profession, a reasonably pru-
take an unintentional pro bono case.           current emphasis on what a competent
                                                                                            dent doctor is constantly assessing the
Really watch those fees. Get out of any        lawyer would consider to be reasonable
                                                                                            condition of the patient and reformu-
situation where you’re not being paid,         and prudent — I’m paraphrasing —
                                                                                            lating the care and treatment. Lawyers
because people are going to look for           toward the ABA and the national rule,
                                                                                            have a similar situation, particularly in
reasons why they don’t have to pay             which is the focus on what reasonable
                                                                                            litigation where the facts and the law
you. One of the most obvious is legal          and prudent attorneys consider to be a
                                                                                            may be changing on a periodic basis,
malpractice.                                   reasonable fee. There’s still an up-in-
                                                                                            and you should have policies and pro-
                                               the-air issue on whether unreasonable
HERRING: Let me underscore the                                                              cedures, if not in writing, practices in
                                               expenses. I don’t think that’s covered in
points that Darrell and Jett made                                                           your firm to impress the need on the
                                               the new rule.
about the importance of identifying                                                         trial lawyers in the firm to constantly
who is and who is not the client, and          HERRING: The proposed Rule 1.04              assess, based on new facts, new law,
about having a clear scope of engage-          doesn’t contain an express limit on the      new circumstances, to identify any
ment, describing what you are going to         expenses a lawyer may charge a client.       conflicts of interest and, if they’re
do. So often in legal malpractice cases,       Public interest groups have criticized       identified, act on them. And then, in
I see arguments about who was and              that omission.                               supervising attorneys, have adequate
who was not a client. If a lawyer leads        KEITH: But I think keep an eye on            supervision. Don’t just turn them loose
someone to believe that the lawyer is          that, and also be mindful we addressed       or talk to them once a quarter or a
protecting that person’s interest, the         that in the attorney fee contracts and       couple of times a year. Due to confi-
lawyer usually has a duty to warn the          letter fee agreements that you try to        dentiality settlements, I’m prohibited
person that the lawyer is not represent-       address reasonable and necessary ex-         from talking about some specific cases,
ing the person. We see that a lot with         penses as well as the fees. Very briefly I   but you’d be surprised at the number
spouses, and often in probate settings         want to address practice management.         of outstanding law firms, on both sides
in which the parents and children may          On the intake, I’d just like to echo         of the docket, that get in trouble be-
sit through estate planning sessions.          what Chuck said. Process the claims,         cause well-intentioned associates aren’t
Be careful and be clear.                       claim or defense or matter. You may          adequately supervised often enough by
ANDROVETT: You mentioned the                   have to customize, but have a standard       their supervising attorney who would
proposed amendments to the disciplinary        nonengagement letter or decline let-         know better and would spot the prob-
rules. There is a lot of red ink where there   ter if you’re not going to represent the     lem before it became a mistake that
are additions. In fact, there’s a whole new    client. Whether it’s a claim, litigation     turned into legal malpractice.

12                                                                                                              November 15, 2010
                                               Special Advertising Supplement
                                                                                         LegaL MaLpractice
SCOTT: If I could add a note on the          ing the rules seems so simple. My wife
supervision issues. Again, for those of      likes to say us lawyers, although we’re
you who aren’t familiar with the cur-        often wrong, we’re never in doubt, and
rent software out there, a good calen-       I can give you hundreds of malprac-
daring system can help with the peer         tice examples where the attorney was
review process as well. You can put in-      absolutely positive he knew the rule,
formation on several people’s calendars      he knew the deadline, he knew how
to remind them, and it won’t go away         to count, and yet they were wrong.
until somebody says affirmatively says       It is not an area where somebody is
yes, we’ve taken care of that particular     just guessing. They’re confident, but
step. And as I am sure you know, on          they had it wrong. The rule may have
the practice management side, almost         changed. That jurisdiction is a little
everything that happens at a law firm,       different; they account for holidays
somebody has put something on a cal-         differently usually just simple things.
endar somewhere, so a good software          And, oftentimes, it is delegated to one
system can capture that and remind           of their staff who hasn’t been trained.      Mike Androvett is in business
the people that need to be reminded,         So even if the attorneys know about          to make sure that his lawyer cli-
adding deadlines that need to be re-         the rules and what to do if that dead-       ents get positive news coverage
membered We all know we’re supposed          line fell in on Caesar Chavez day but        and their law firms are marketed
to back up our computers But I don’t         he hasn’t trained everyone on the staff.     effectively through advertising
always remember to do it myself, but         So, again, good software is designed to      and public relations. Androvett
we have an automated system that au-         be a good safety net for all the terrible    is the founder of Androvett Legal
tomatically does that for all your dead-     mistakes that people make and gives          Media & Marketing, the largest
lines and dates. So those are some of        you reminders and warnings to prevent        public relations and advertising
the things that technology can really        them. It can even ask “are you sure you      firm in the Southwest exclusively
help out with that are the normal hu-        want to do that.”                            devoted to lawyers and the legal
man error issues and processing issues.                                                   profession. Established in 1995,
                                             KEITH: Yeah. I’d like to add one other       Androvett Legal Media serves the
ANDROVETT: Just a quick follow-up.           very important practice, the documen-        specialized needs of law firms in
Is there a cultural element to this? No      tation, and that goes to documenta-          communications with outside au-
lawyer or firm starts out on an unethi-      tion of the file. There is an adage in       diences, including news media
cal path or a path that leads to a legal     medicine that, if it ain’t charted in the    coverage, brochures and Web
malpractice claim. When you come into a      medical record, it didn’t happen, and        sites, and sophisticated advertis-
firm, do you see some firms are just more    that will carry over and does carry over     ing of all kinds. Androvett’s firm
attuned to what might be considered best     in the law. I guarantee you that I’m al-     assists lawyers in virtually all areas
practices, and others you wind up doing      ways able to find reputable outstanding      of practice while observing the
more things for like injecting this calen-   lawyers who serve as expert witnesses        highest ethical standards. Lawyers
dar program it becomes a little bit of a     who will testify that it’s a standard of     and their clients who receive me-
cultural change in the firm?                 reasonable prudent attorney care under       dia training from Androvett Legal
SCOTT: Absolutely. Having a risk ad-         given circumstances that the handling        Media are much better prepared
verse culture in a firm is critical. Typi-   of the case claim or matter should be        to deal with reporters and TV
cally we get contacted after there’s been    documented adequately. That doesn’t          camera crews. And, as a former
a mistake and their insurance carrier        mean that the reasonably prudent             chairman of the State Bar of Texas
insists they do something new or dif-        lawyer has to write down everything.         Advertising Review Committee,
ferent to prevent these mistakes in the      It means that, if it’s important, if it’s    his expertise and experience is
future. Or they know that they made          significant, it should be documented.        essential to firms seeking to com-
a mistake or they got close to making        You know, a memo, a note, better still,      ply with the state rules govern-
a mistake that did not result in a mal-      a letter to the client or to the appro-      ing lawyer advertising. Androvett
practice claim but they get nervous and      priate person, because, when you’re          and his team take the mystery out
so they want to impose a new structure.      defending yourself in a legal malprac-       of public relations and advertis-
In the calendaring area, we strongly         tice case, your documentation, just          ing by recognizing law firms’ true
recommend automated rules based and          like your medical malpractice cases,         goals and providing the know-
centralized calendar from a practice         if you’re right, you’re in the right, and    how to make them happen. He
management standpoint. Those are the         if you’ve done a good job and you’ve         can be reached at 214-559-4630
keys we think can prevent most of these      acted reasonably, the documentation          or
issues. Because calendaring and know-        will save your life, because juries will

November 15, 2010                                                                                                              13
                                               Special Advertising Supplement
  LegaL MaLpractice
place great weight on the physical           makers, 1.08(d) on arbitration and on        come-determinative, secret conversa-
evidence of your contemporaneously           settling professional misconduct claims.     tions with agency decision-makers just
documented information, including            Can you talk a little bit about what         before filing permit applications —
letters to clients. I can’t emphasize that   those particular provisions would mean       such as for coal plants. However, some
enough. When I see a medical malprac-        for lawyers in Texas?                        administrative law practitioners think
tice case with poor charting, my heart                                                    that the ethics opinion is too restric-
                                             HERRING: I’ve spoken on several
soars. And I feel the same with legal                                                     tive. So that rule has generated consid-
                                             panels concerning the proposed rule
malpractice cases. When I see sloppy                                                      erable debate.
                                             amendments. The sex-with-clients rule
and poor charting, then, it’s an open                                                     ANDROVETT: Will these proposed
                                             always seems to draw comments, some-
field day. And if you haven’t charted it,                                                 rules have any impact once you get into
                                             times heated comments. Some lawyers
you haven’t documented it and the cli-                                                    a courtroom?
                                             think it’s none of the Bar’s business to
ent has a good memory, then the jury
                                             regulate their personal conduct, that        KEITH: Yes, I think they will, be-
possibly might give greater weight to
                                             it’s an invasion of privacy, and that the    cause although the law in Texas is that
the client, and the client, sometimes
                                             rule will attract malicious grievances       although the rules themselves at least
they keep real good notes too and their
                                             from opposing parties in divorce cases.      — I think this is still the law, Chuck.
notes will trump your memory.
                                             Other lawyers think that not having a        The rules themselves don’t create a pri-
HERRING: And of course we lawyers            rule — when doctors and even massage         vate cause of action, and there’s been
shouldn’t forget our obligation to train     therapists have a rule — makes our           controversy, but it certainly can form
the nonlawyers who work for us. Rule         profession look very bad. Some think         the basis of an expert witness’s opin-
5.03 requires us to make “reasonable         the particular rule that has been pro-       ion as to whether or not the attorney
efforts” to ensure that our staff acts in    posed is so full of loopholes that it’s      has engaged in intentional or unin-
ways that are compatible with our pro-       worse than no rule, it’s a charade. Oth-     tentional professional misconduct or
fessional obligations. Most nonlawyers       ers think it’s a starting point. There are   malpractice. For example, since I’ve
don’t know about how our confiden-           many issues and lots of comments. The        been designated the resident expert
tiality rule works, or our conflict of       rule as currently proposed by the Su-        on sexual relation with clients, Chuck
interest rules. So we have to instruct       preme Court prohibits exchanging fees        has already spelled out insightful com-
them. Another problem I see is client        for sex — but, oddly, it doesn’t men-        ments, so rather than belabor those
files. I’m surprised how often I en-         tion expenses. And Rule 1.04 doesn’t         points, I would just say that, in a mal-
counter a client whose lawyer refuses to     limit expenses. So that almost sounds        practice setting, if the rule is enacted,
release the file, apparently not under-      as if a lawyer could charge huge ex-         then that will give an added basis for
standing that the client owns the file.      penses, then get lots of free sex in ex-     an attorney expert witness, as well as
That can create claims for conversion        change. That just sounds crazy. The Bar      any mental health expert witnesses
and breach of fiduciary duty. But apart      Board subcommittee has recommend-            on a legal malpractice case against an
from the rules, we have to be alert to       ed changing that. The Rule 1.08(g)           attorney having sex with the client,
the human side. I saw a case recently        (1) and (3) issue that’s been raised is      because, as you all know, in the case
in which a law firm’s senior partner         this: May a lawyer and client privately      involving ministers, preachers who get
had developed a mental problem. His          settle a matter in a way that prevents       involved with their parishioners, usu-
colleagues had known him as superbly         discipline? Most states prohibit that as     ally there’s testimony from a mental
competent. They weren’t watching for         a matter of public policy. The idea is       health expert about trust transference.
his problem to develop. They didn’t ex-      that discipline is to protect the pub-       In the world of psychology where the
pect it. It went on too long unnoticed       lic, not just the particular client. Some    client, there’s a trust transference even
and it created serious complications for     think the rule is unclear on that point.     more so because of the sexual relation-
the firm. We have more elderly lawyers       Here’s the ex parte issue: The current       ship, and dental health care providers
practicing law now, and that trend is        rule, Rule 3.05, as construed by the         and legal experts, the plaintiff ’s expert
supposed to increase dramatically in         Texas Supreme Court’s Professional           will be able to bring to bear in the case
the future. That may raise other issues      Ethics Committee, prohibits a lobby-         will most likely be able to testify that
our profession needs to be sensitive to.     ist/administrative-lawyer from hav-          the attorney lost his or her objectivity
It’s been called the Senior Tsunami.         ing an ex parte communication with a         in engaging in an affair or longstand-
ANDROVETT: I want to cover quickly           state agency decision-maker before, for      ing relationship with the client. And
a couple of the particularly controver-      example, a permit application is filed.      so, you know, as a malpractice lawyer,
sial proposed rule changes. These are the    The proposed amendment would lift            my view is that, obviously, on an ethi-
ones that have gotten more coverage in       that restriction. For obvious reasons,       cal charge, it makes it very complex or
the legal practice. Section 1.13, has to     public interest groups strongly oppose       even convoluted, but in the malprac-
do with sex with clients, and 3.05 on ex     that change. They are concerned that         tice setting to protect yourself from
parte contracts with state agency decision   lobbyists will have important, out-          malpractice for the lawyer to do so,

14                                                                                                           November 15, 2010
                                               Special Advertising Supplement
                                                                                         LegaL MaLpractice
it’s very simple. If the lawyer and the      zard, a professor from Yale and one of      all the information that you will need
client become romantically or sexu-          the main contributors to the original       at If I can also add,
ally involved at that point, because of      ABA model rules. I went to the trial.       embrace all of the technology that you
these problems and the danger of los-        I thought he did better than the local      can. It can help you in all of the ar-
ing objectivity and so forth, the lawyer     expert for the plaintiff ’s lawyer. After   eas that we have been discussing today.
should just terminate the lawyer-client      the jury came back against us for 2 mil-    Bring in some experts and consultants,
relationship and have that client get        lion dollars, we asked the jury, “What      bring in some trainers. Most of our cli-
another lawyer, and if they are truly in     did you think of our expert?” And           ents probably use 20 percent of what is
love or want to maintain their personal      they said, “Well, when we heard how         available to them. Embrace it. Use the
relationship, it seems to me that’s the      much he had been paid, we didn’t pay        rest of it. It will really help you. My
simplest. At least that’s my advice for      any attention to what he had to say.”       email address is
now.                                         You don’t know what’s necessarily go-       if you have any questions of me.
                                             ing to grab the jury’s attention. I’m not   ANDROVETT: And, Jett, if the lawyers
HANNA: I think that Darrell touches
                                             saying that was a bad call, necessarily,    want to know more about the Texas Law-
on a key larger point about the disci-
                                             on their part. Perhaps they were right      yer Insurance Exchange?
plinary rules, and that is there’s often     and this other guy is the real expert.
a tendency for lawyers to look at the        But there are so many things that can       HANNA: Feel free to contact us
disciplinary rules and think, “If I fol-     come up. In this same case, the plain-      through our website,, or
low these and I follow these to the let-     tiff ’s lawyer, who drove me nuts, kept     at 1-800-252-9332. My e-mail address
ter, I’m going to be fine,” and that’s not   saying a lawyer is supposed to be like      is I’ll be happy to
necessarily true in a legal malpractice      your “best friend.” That was his way of     talk to anybody on the malpractice is-
situation. There are a number of rea-        explaining all the law of breach of fi-     sues.
sons for that. One is that it’s not gen-     duciary duty and all the complications.
erally understood that a jury is going       Even if we could get a motion in limine
to determine the standard of care when       against using that phrase, plaintiff ’s          For more information on
it’s all said and done. Standard of care     lawyers would have come up with the
is a jury issue, and they’re going to do     Bible verses or the London city code               upcoming events and
that based on expert testimony. And it’s     or something else. So it’s important to
not somebody who has been approved           understand what happens at trial and            sponsorship opportunities,
by the bar by a vote as being the expert     how the jury will assess the standard
in the area. It is another lawyer who        of care.                                          contact Cathy Collins at
can have a perspective that maybe most
of the bar doesn’t agree with. So, when
                                             HERRING: We frequently see the                  800-456-5484, ext. 715.
                                             rules used in fiduciary duty cases. For
you have that kind of situation where
                                             instance, in a very thorough opinion in
a jury is determining the standard of
                                             Sealed Party [v. Sealed Party, 2006 WL
care, you’ve got to look at the rules in
                                             1207732 (S.D. Tex. 2006)], Federal
a much different way. Another area to
                                             Judge Nancy Atlas discussed the rela-
be careful about relying on the disci-
                                             tionship between the disciplinary rules
plinary rules to keep you out of mal-
                                             and fiduciary duty. She said that the
practice trouble is on whether certain
                                             rules “significantly inform” the analysis
things should be in writing or not or
                                             of the scope of an attorney’s fiduciary
what should be in the writings. When         duties. That’s a good summary. Con-
you take those too literally and go that’s   sequently, we often see the rules used
all I’ve got to do, I think you’re facing    in fiduciary duty cases. But we also
a lot of potential problems. You’ve got      see them fought over in professional
to think about writings as potential         negligence — traditional malpractice
evidence that can prove did you really       — cases. Often defendants try to keep
lay out for the client the things that       them out of evidence, but often the
might go wrong or that might be an           rules come into evidence one way or
issue down the road. Chuck talked ear-       the other.
lier in the program about citing Bible
verses and ancient city of London stat-      ANDROVETT: Joe, if someone wants
utes, and I just want to relay one situ-     to know more about copy law, calendar-
ation that happened to me early in my        ing and software, how can they go about
career. We had one of the best expert        finding that information?
witnesses in the country, Geoffrey Haz-      SCOTT: The CompuLaw website has

November 15, 2010                                                                                                            15
         How will you make
        your Mark?
                                                                                  Full Ser
                                                                       News Release                  Ad
                                                                                          s•S               rtis
                                                                                                  trat           in g
                                                                     ea  tive Develop                  eg
                                                            Ad Cr                         men             ic
                                                                • Professional Photo                  An          nn

                                                        hures                               gra           no

                                                  Broc                                            ph         un

                                                                 TV Advertising • Invi               y


                                                         dio &                               tat
                                                                                                 ion P


                                                   • Ra


                                                                         liance • Air

                                                             d Comp                                  s

                                     Re p

                                                      xas A

                                                                                            rt D

                                               of Te


                                         Bar                     ns • Media Buying              io



                                Sta                    amp


                                               Ad C


                                                                       ring • Mark            P

                                       ds •


                                  oar                  edia


                             illb              s•M

                                                                       lations • N

                           B                                        Re

                                                             blic                   e

                                  mp                    • Pu                  Invme



                                           vert                                      nt •


                                      Ad                  ive

                               vice                  reat
                                                                                          et M

                                                                                          gs •

                                                                                           e rs

                                              Ad C

                         Ser                                   Adverti
                   Full              ng •                Print
                                                                                                t • Announc



                                                   hy •

                                                                                                   Email A
                        ia T                    p

                                           gra                   t•
                                                                                                    net Ad
                                                                                                     g • Graph

                      d                 to                 men
                                                                                                     s • Str

                 Me              Pho                  ac e

                           nal                  & Pl
                                                                                                        ebsite Creative

                                                                                                         t Advertising
                                          ing              aign
                                                                                                           ment • Litiga


              Pro                   Buy              amp

                                                                                                            ategic Planning

                                                                                                             vertising • Logos

                               dia           Ad C

                                                                                                                 ic D

                Cr            An      Litigation PR


                   ea             nou                          •

          Ne                                                ds


                                                  ent Car
                                                                                        sin s •

             ws           eD

                Re              eve
                                                                                     rti ma

          Sta       lea               lopm
                                                                                                                           tion PR

                         ses                   ent • Logos •

                                                                                                                             • Ad C

                                                                                   ve ra

                                • Fu
         Bro Bar o                   ll Serv                      g

                        f Te                   ice Advertisin          rt
                                                                                                                                 • Logo


               ure            xas                                  rpo Ad
         Ad         s•              Ad Co
                                                mpliance      • Ai


            Ca           Prof

                mp              essio
                     a ig               nal Photography •

                          ns •                                          nt

            Rad                   M ed

                io &                      ia Buying & Place
                        TV A

                                                                                                                                               p hy

              Ad C              dve                  P

                      reat           rtisi




               Full Se             De           •


                         rvic                     In



                               eA           l
                   PR               dv op





                            mp          er

                                  aig ti
                                                                                                                                                                   m g






 The ONLY Advertising and Public Relations firm in Texas
working exclusively with Law Firms and Legal Professionals.

                                                      DALLAS                           HOUSTON

To top