Earlier this week, I attended a Risk/Loss Prevention seminar presented by CNA, an insurance carrier that provides professional liability coverage.  Honestly, I was not looking forward to attending this four-hour tutorial that I had predetermined to be a glorified Professional Responsibility class.

It was only going to reaffirm the idea that a member of the Attorney Grievance Commission was lurking behind every corner, waiting to sanction me for not promptly replying to my client’s 10th e-mail of the day.

To my surprise, the session proved to be quite insightful.  After the jump are a few tips and pieces of information that were offered to help attorneys protect themselves.

(1) If something appears to be too good to be true… it is! We’ve all received the e-mails notifying us that we won the British lottery, and by simply replying to said e-mail, with your bank account and routing number, hundreds of thousands of dollars would be immediately transferred.  A more “complex” version of this email has apparently been circulating and targeting attorneys, and it goes something like this:

An owner of a large Asian/African/European company has searched Martindale for an attorney, and based on your rating and feedback, the company wants to retain you!  Intrigued, you Google the name of the company, and it turns out to be legit, so you reply to the e-mail.  Potential owner (and professional scammer) indicates that the mere mention of your name to opposing counsel/party has resulted in a six-figure settlement offer that your “client” instantly approves.  You are advised that a “Cashier’s Check” will be sent to your office from opposing party.  Amazingly, a few days later, a Cashier’s Check arrives.  Said check is then deposited into your escrow account, and you notify your client of the good news.  Client is ecstatic, and asks you to mail its portion.  Diligently, you call the bank to confirm the deposit, and you are advised that the six-figure settlement is now showing in your “available funds.”  Reassured that you and your clients’ escrow funds are safe (and fairly certain that “available funds” meant that the check cleared), you cut the check and mail it to client.  A few days later, you receive a phone call from your bank advising you that the settlement check you deposited was fraudulent, and you have now over-drawn your escrow account, resulting in a letter and possible investigation from the Attorney Grievance Commission, as well as some infuriated clients.

While this seems far-fetched, CNA advised those in attendance that this scenario has happened a few times to prominent attorneys in Maryland.  Be aware!!

(2) Attorney-Client Privilege and social networking sites.  While many clients understand that communications with their attorneys are privileged, they may not, despite your repeated explanations, understand how easily it may be waived.  Recently, CNA advised, there have been issues with clients posting communications with their attorneys on Facebook, MySpace and Twitter.  CNA suggested including the following language in your retainer agreements or fee engagement letters:

“Attorney/Client communications are privileged, private and confidential UNLESS they are shared or otherwise disclosed.  PLEASE do not share attorney-client communication with anyone, and particularly with regard to any internet site.”

(3) #1 AGC Complaint = Lack of communication between lawyers and clients.  In the age of email, BlackBerry and abundant Wi-Fi, clients sometime have a difficult time understanding why you haven’t responded to each of their hourly emails “promptly” with ground-breaking legal advice that assures them a favorable resolution to their case.  In order to avoid a “lack of communication” complaint filed against you with AGC, it is advisable to, if nothing else, acknowledge receipt of communications, and to succinctly inform said client that a thorough response is forthcoming.  With regard to e-mail communication, the following response was suggested:

“Thank you for your email.  I would like to give this some thought, and will be back with you shortly.”

NOTE: When responding to all emails, remember that there is always a chance that it may be introduced as an Exhibit in a court proceeding.  Therefore, try to communicate with proper English, rather than Text Shorthand (i.e., “you” rather than “U”; “are” rather than “R”; “Please” rather than “plz”; etc.). Any credibility that you had may be lost if your correspondence looks unprofessional.

Overall, the most important pieces of advice shared to help lawyers to protect themselves was to familiarize yourself with the MRPC (and the commentary thereto), to act candidly, and to think rationally.

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