Not all fraudsters are strangers. Even partners, associates, law clerks or other employees may turn to fraud because of financial pressures from a divorce, failed business venture, or other personal crisis. Its usually the last person you'd expect, and often one of your most long-standing and trusted employees.

Here are the red flags:

• Someone never takes vacation or sick leave, works overly long hours, or refuses to delegate work.
• A firm member undergoes a sudden change in lifestyle or change in temperament.
• The firm receives mail for a corporation for which no client file is opened or billed, or minute books are kept in the lawyer’s office instead of with the corporate law clerk.
• Unusual patterns such as a sudden increase in payments to a person or credit card company or government, or complaints about slow payment from suppliers or clients, or an increase in written-off work in progress (WIP).

For more information, and directions on what to do if you have a suspected or real fraud, see “Fraud on the Inside: What to do when partners, associates or staff commit fraud” in the Winter 2008/2009 issue of LAWPRO Magazine at www.lawpro.ca/magazine

At the end of each year we at practicePRO take a look at what articles, checklists, tips, and other resources had the most downloads. As always, the list contains many resources that remain popular year after year, though there are some items that stand out.

• The Sample Budget Spreadsheet, a supplement to our Managing the Finances of Your Practice page is the first resource to be downloaded over 10,000 times in a year.
• The revised of the LAWPRO Fraud Fact sheet had 3,500 downlaods. We saw an explosion of online fraud attempts against lawyers in 2011, and the Fact Sheet contains all the red flags to watch for to avoid being a dupe.
• Justice Carole Curtis wrote one of our more consistently popular papers on Dealing with Difficult Clients. This year she has a new entry on the list: Dealing with Difficult Judges.
• LAWPRO's Domenic Bellaccico's phone lit up with calls when he first wrote an article on Administrative Dismissals in 2009. In 2011 he wrote an equally popular follow-up: Administrative Dismissals, Part 2.
• As Twitter has grown in popularity among lawyers, we felt it was time put out some Essential Do's and Dont's for Twitter users. This article had about 2,000 downloads.

The full list of the top downloads can be viewed here, as well as the Top 40 lists from previous years. Have a look to see what other lawyers are reading!

At the end of each year we at practicePRO take a look at what articles, checklists, tips, and other resources had the most downloads. As always, the list contains many resources that remain popular year after year, though there are some items that stand out.

• The Sample Budget Spreadsheet, a supplement to our Managing the Finances of Your Practice page is the first resource to be downloaded over 10,000 times in a year.
• The revised of the LAWPRO Fraud Fact sheet had 3,500 downlaods. We saw an explosion of online fraud attempts against lawyers in 2011, and the Fact Sheet contains all the red flags to watch for to avoid being a dupe.
• Justice Carole Curtis wrote one of our more consistently popular papers on Dealing with Difficult Clients. This year she has a new entry on the list: Dealing with Difficult Judges.
• LAWPRO's Domenic Bellaccico's phone lit up with calls when he first wrote an article of Administrative Dismissals in 2009. In 2011 he wrote an equally popular follow-up: Administrative Dismissals, Part 2.
• As Twitter has grown in popularity among lawyers, we felt it was time put out some Essential Do's and Dont's for Twitter users. This article had about 2,000 downloads.

The full list of the top downloads can be viewed here, as well as the Top 40 lists from previous years. Have a look to see what other lawyers are reading!

Corporate/commercial law accounts for the third highest number of legal malpractice claims in Ontario, after real estate and civil litigation. An article in the January edition of the LAWPRO Webzine examines the causes of these claims in detail, and tells lawyers what they can do to reduce their exposure to claim in this area of law. This post reproduces the portion of that article that dealt with communications-related claims – the biggest cause of claims in the corporate-commercial area.

Over the last ten years, corporate/commercial-related claims (including bankruptcy, tax, and securities-related claims) averaged 14 per cent of LAWPRO’s claims count (279 claims per year), and 23 per cent of our claims costs ($14.9 million per year). While there has been some fluctuation, the number of claims in this area has remained consistent over this time period, while the cost of resolving claims in this area has increased. On average, resolving a corporate/commercial claim cost LAWPRO $53,340 over that period.

As the the above chart shows, the main cause of claims against corporate/commercial lawyers is a breakdown in communications. The relative proportion of corporate/commercial claims and the types of errors that occur in other Canadian and U.S. jurisdictions mirror the claims experience in Ontario.

Communications errors fall into three general categories:

• A failure to inform the client or obtain the client’s consent;
• A failure to follow a client’s instructions; and
• Poor communication with the client.

A review of common fact scenarios for each type of error will give you a better understanding of why these errors happen and the steps you can take to avoid a communications-related claim.

Failure to inform client or get consent

The most common type of communications error on corporate/commercial files – 28 per cent of communications-related claims – involves a failure to obtain the client’s consent or to inform the client. Examples of this type of error include:

• Failing to explain to a client the consequences of a personal guarantee in a commercial lease, mortgage or other transaction involving security. Failing to make it clear that the client is personally responsible for the borrower’s debt.
• Failing to specify the limits of the retainer in writing. Failing to specify in writing which services the lawyer will perform and which things the client will do. For example, if you are involved in a transaction that includes the dissolution of a corporation, ensure that the client is aware of – and agrees to undertake – any final-year filings outstanding after the termination of your retainer.
• Failing to state in writing that a client has not provided sufficient information to complete the retainer on an incorporation and organization of a corporation. Do not allow the client to develop the mistaken impression that the incorporation is proceeding when it is stalled.
  Failing to set out in an accompanying letter the limited purpose of a draft document, together with instructions that it is only to be used for the specified purpose and may not be suitable for other purposes.
• Failing to clearly and unambiguously inform a client in writing that you are declining to act on a particular matter, either because of a conflict of interest or because you don’t practise in that area.
• Failing to recommend that the client retain another lawyer to handle that matter. For example, if tax considerations might influence the choice between two different courses of action, but you don’t have enough tax expertise to take these considerations into account, document your recommendation that the client obtain tax advice. If the client wants you to take a course of action without the recommended tax advice, document that instruction.
• Failing to clearly and unambiguously inform a client in writing that you are terminating the retainer and failing to recommend that the client find another lawyer. Failing to clearly and unambiguously spell out any tasks you will not be completing and that the client needs to do or retain another lawyer to do.
• Failing to inform a franchisor client about the disclosure requirements under the Arthur Wishart Act and the severe consequences of inadequate disclosure.
• Failing to inform a franchisee client about the disclosure requirements and rescission remedies under the Arthur Wishart Act.

Failure to follow client’s instructions

A “failure to follow client instructions” is the second most common communications related error and accounts for 35 per cent of communications-related claims. It really amounts to nothing more than a simple failure to follow a client’s specific instructions.

The most frequent scenarios for this error include:

• Failing to file the requisite notice of change form to remove the old officers and directors when a company is sold. (Failure to do so could, for example, leave the former directors on the hook for tax or other liability.)
• Failing to ensure that all the clauses in a commercial offer to lease are carried over to and appear in the final form of commercial lease.
• Performing additional services for the client that the client did not specifically ask you to do but doing so carelessly, for example, making unsuccessful or incomplete attempts to terminate existing tenancies on behalf of a vendor or purchaser in connection with a commercial lease transaction.

Poor communication with client

Poor communication with the client is the third most common communications-related error and causes 24 per cent of this type of error. Common scenarios for this error include:

• Failing to ensure that the client understands what you are telling him/her and that you understand what he/she is telling you, particularly if there is a language barrier.
• Failing to ensure that the client understands clearly what you will be doing as the lawyer and what the client is responsible for doing.
• Failing to establish clearly who your client is, e.g., where two or more family members have an interest in the transaction.
• Making assumptions about a long-standing corporate client’s intentions and instructions without confirming these in writing. A long-standing relationship is no substitute for clear communication.
• Failing to document in writing that a client instructed you to take a different course of action in a corporate transaction from the one you recommended.
• Failing to include restrictions on the use and applicability of your advice in an opinion letter, including details of any qualifications or limits to the opinion.
• Also, a failure to document the assumptions upon which your advice in the opinion letter is based.

AVOIDING COMMUNICATIONS ERRORS

As a means of avoiding communications-related claim, the value of carefully documenting instructions, advice, and steps completed cannot be overstated. While the failure to have written confirmation of instructions and advice is not negligence in and of itself, such written communication can be extremely helpful in defending you in the unhappy event that a claim is made against you (or you are the target of a law society complaint or you are defending your account before an assessment officer).

Why is having something in writing so helpful? Because more often than not, this type of claim involves the lawyer recalling that one thing was said or done, or not said or not done, and a disappointed or upset client who alleges something different. These claims are very hard for LAWPRO to defend successfully, because they tend to come down to a question of credibility. Judges tend to prefer the client’s evidence, as the client usually has a much better recollection of what transpired and what was said.

Remember, most clients are involved in relatively few corporate/commercial transactions in their lifetimes, and they are more likely to remember specific details about what happened. By contrast, lawyers who have handled hundreds of corporate/commercial matters often have little or no specific recollection about what happened on a specific transaction, especially one in the distant past.

Unfortunately, we frequently find inadequate documentation in the lawyer’s file to back up the lawyer’s version of what occurred. We frequently see files with no notes or correspondence documenting what was said and done, and on occasion, even files with no reporting letters whatsoever.

Communications-related errors are among the easiest to prevent. You can significantly reduce your claims exposure by documenting your work. Confirm the information that your client provided to you, your advice to the client, the client’s instructions to you, and what steps were taken on those instructions. Document the time spent reviewing the file and note what issues were discussed with the client. This documentation can take the form of notes to the file, marginal notes on draft documents, comments in interim or final reporting letters, or even in an email message. Admittedly, you can’t document everything on every file, but taking the time to document unusual things or issues that seemed to concern the client can be very helpful in the event of a claim, especially if you have a difficult or demanding client.

Some corporate-commercial lawyers do not track or docket the time they spend on files. This is a shame, as there are two benefits of doing so. First, by tracking lawyer and staff time, you can determine the actual amount of time you are spending on each file – a critical piece of information for determining the profitability of the transactions you complete. Secondly, even taking just a few seconds to make detailed dockets can be a lifesaver in the event of a claim. “Conference with client re need for more information to complete incorporation and organization of Acme Widgets” is much better than just
“Conference with client re Acme Widgets incorporation”; “Conference with client re consequences of signing personal guarantee in Smith Co. financing” is much better than just “Conference with client re Smith Co. financing.” Weeks, months or even years after a deal is completed, detailed dockets such as these can serve to confirm that particular issues were discussed with the client.

YOUR MARCHING ORDERS
You can't totally eliminate the risk of a malpractice claim. However, you can substantially reduce your risk of a claim by improving your lawyer/client communications and documenting your work.

For details on the other types of claims in the corporate/commecial area, you can read the rest of the LAWPRO Webzine article here.

Today AvoidAClaim posted about three new fraud scams that lawyers alerted us to. All were similar to other scams we have seen in the past.

• A commercial debt collection scam by Grenham Donal Falley
• A breach of contract scam by Chan Li
• A collaborative family law agreement scam by Michelle Eley

This goes to show that the frausters are always at work coming up with new names, new email addresses, and new variations of the same scam to keep ahead of our efforts to publicize the information. See our Fraud Fact sheet for all the information you'll need to help spot the red flags of scams like these.

Over the last four days there has been a massive spike in bad cheque frauds targeting lawyers in across Canada (BC, Ontario and Quebec), the U.S. (NC, NY) and several other countries around the world (including Australia, Fiji, Italy, Scotland, Sweden, Turkey and the U.K.).

Almost 300 lawyers notified us that they received an initial contact message on one of these frauds. As LAWPRO would receive reports on a fraction of the attempted frauds, it would appear that thousands of lawyers have been targeted over the last four days. Several thousand lawyers have visited the AvoidAClaim blog for more information on these frauds.

Roughly half the frauds reported to us were from someone purporting to be Nan Zhang of NPI Lease Company Limited seeking help on a breach of lease matter.

About one third were from someone purporting to be Kiyoshi Yukio of NPI Lease Company Limited seeking help on a breach of lease matter.

We have several reports of someone purporting to be Jane Zhu of China Harbour Engineering Company Limited seeking help on a breach of lease matter.

This was the first time we have seen this lease scam and all three of the above names are new to us as well. In this bad cheque fraud the ‘customer’ accused of breaching the lease agreement will quickly send a (counterfeit) cheque for damages to the lawyers office, and the lawyer will be asked to wire the funds (minus fees and costs) to an offshore account. Click on the above links for more details on these scams. These email messages on them were more convincing than some of the ones we have seen in the past as they are personally addressed to the lawyers they were sent to (not BCC messages sent to large numbers of people).

Over the last four days we also received several reports of attempted frauds using names and scams we have seen many times before including:

• Zaira Hoshiko re collecting a spousal support payment from her ex-husband Allen Hoshiko further to a Collaborative Law Agreement.
• Brianna Shunshi re collecting a spousal support payment from her ex-husband Bill Shunshi further to a Collaborative Law Agreement.

If you have been targeted by these or similar frauds, please forward any of the emails and supporting documents that you have received to fraudinfo@lawpro.ca.

If you’re a first-time smartphone shopper or a current smartphone shopper approaching an upgrade, you may be curious about the mobile platforms that are available. Everyone knows about the iPhone and iPad, and everyone knows about “Droids” (Android is the platform, Droid is one specific brand on Verizon). Often overlooked is the newcomer, Windows Phone. (Interesting that BlackBerry didn’t make the list, but that is a topic for another day…)

So how do these three mobile operating systems stack up?

This article from Geek.com, Android vs. iOS vs. Windows Phone 7: A mobile showdown, looks at these three platforms in various categories so you can better understand the differences between them. If you are in the market for a new smartphone, this article is a must read.

[This is the text (updated for SLAW) of a Fraud Alert that LAWPRO sent to Ontario Lawyers December 15, 2011.]

LAWPRO continues to see high numbers of bad cheque frauds targeting lawyers across Canada and the U.S., as well as several other countries around the world. On a monthly basis, 250-300 lawyers advise us that have been targeted by bad cheque frauds. We are seeing the same types of scams over and over again, and on a weekly basis we are seeing two or three new fraudster client names. And these frauds are becoming more sophisticated. Very experienced lawyers have been successfully duped. One of the most convincing frauds we have seen, an IP licence dispute scam involving a client named Dan Nagasakii from CCP Group International, has been reported to us several times over the last few weeks.

Be extra vigilant as we approach the Christmas and New Years holidays! From past experience, we know that fraudsters are more active just before long weekends and holidays.

Bad cheque frauds continue to be the most common type of attempted fraud we are seeing. These otherwise legitimate-looking legal matters create circumstances to dupe a lawyer into quickly disbursing funds on a bad cheque or bank draft that was deposited into a trust account. The fraudster gets real money and the lawyer is left with a trust account shortfall. Common scenarios include the payment of spousal support arrears, business debt collections, and personal injury settlements. The amounts involved on these frauds are typically around $250,000, but can range much lower or higher than this figure.

This AvoidAClaim blog post lists the common red flags of an email fraud scam.

To help lawyers identify fraudulent matters, LAWPRO is posting information on individual confirmed frauds on the AvoidAClaim.com blog. Click the Confirmed Frauds button to see a full list of the names of confirmed fraudsters. For each confirmed fraud there are individual postings that allow you to see the actual back and forth communications between lawyers and fraudsters. You’ll also find images of the fake supporting documentation the fraudsters are supplying, including identification, bad cheques and bank drafts.

You can help us help other lawyers avoid being duped by forwarding copies of the emails and supporting documents that you receive on any fraud attempt to fraudinfo@lawpro.ca.

Keep your guard up

Some of the fraud attempts are very obvious: Poor spelling, bad grammar and/or completely untenable fact circumstances (e.g., multi-million dollar lottery wins or inheritances) should sound alarm bells.

However, some frauds are extremely sophisticated and look like completely legitimate legal matters. Both new and very experienced lawyers have been temporarily fooled into working through file opening and initial stages of the matter before they recognized or determined they were the target of a fraud. Unfortunately, some lawyers are being duped by these frauds and they are finding themselves dealing with significant trust account shortfalls. Don’t be complacent and don't think you wouldn't be fooled by one of these frauds. The fraudsters go to great lengths to create scenarios that otherwise appear to be legitimate legal matters. Recently we have seen several matters that originated with phone calls, direct and personalized emails or through firm website intake forms. The fraudsters are prepared to engage in extensive and ongoing communications over weeks and even months, usually by email, but also by phone, and on occasion, even in person. Here is an example of communications that went back and forth over several weeks. They will provide information, names and addresses that are tied to your local area.

How to handle a real or suspected fraud

If you have been targeted by any of these frauds, please forward any of the emails and supporting documents that you have received to fraudinfo@lawpro.ca.

If you suspect you are acting on a matter that might be a fraud and you are an Ontario lawyer, call LAWPRO at 1-800-410-1013 (416-598-5899). We will talk you through the common fraud scenarios we are seeing and help you spot red flags that may indicate you are being duped. This will help you ask appropriate questions of your client to determine if the matter is legitimate or not. If the matter you are acting on turns out to be a fraud and there is a potential claim, we will work with you to prevent the fraud and minimize potential claims costs. If you have been successfully duped, please immediately notify LAWPRO as there may be a claim against you.

If you suspect you are acting on a matter that might be a fraud and you are not an Ontario lawyer, call your insurer, Law Society for direction on how to handle the matter.

For more immediate updates on fraud and claims prevention, subscribe to the email or RSS feed updates from LAWPRO’s AvoidAClaim blog.

Fraud Fact SheetMore fraud prevention information and resources are available on the practicePRO Fraud page, including the Fraud Fact Sheet, a handy reference for lawyers and law firm staff that describes the common frauds and the red flags that can help identify them.

I suspect a few of you will be wondering the malls over the next few weeks looking for a gift for the special lawyer in your life. To save you from buying yet another bad tie (it’s the thought that counts!), here are four great online gift guides that should help you find a gift that will be welcomed and used by your favourite someone.

My good friend Reid Trautz just released his 7th Annual Holiday Gift Guide for Lawyers. Reid works on this all year and he always has some interesting suggestions. This morning, AttorneyAtWork released a slightly tweaked version of Reid’s guide featuring suggestions from some other Practice Management Advisors (including me).

On the Lifehacker site, you can find a great collection of gifts in the Show Your Coworkers You Care with These Awesome Under-$20 Gifts post. Look on the right-hand nav bar for other recent Lifehacker posts listing collections of gifts.

The Lifehacker post featured a great gadget I really want – and haven’t seen anywhere else – the TiltPod. The Tiltpod is a fantastic way to set-up a point-and-shoot camera or miniature camcorder to record a shot on any surface. The Tiltpod is a small disk (looks to be slightly larger than a toonie) that can easily be carried in a spare pocket in your backpack, camera bag or even on a keychain. When you're ready to use it, just screw the rounded magnetic screw into the base of the camera. The rounded head of the screw sits in a little round hole on the disk. This lets you tilt and aim the camera just where you want. Sweet! No more looking for little stones or twigs to balance or angle your camera. A really useful gift for just $15.

The New York Times has a huge Holiday Gift Guide that features gifts in numerous different categories. You will find something to your liking here.

And lastly, if you need help sorting out what electronics you should hit your local newstand to pick up a copy of the December 2011 issue of Consumer Reports magazine (Some online info is public and some is for subscribers only). All sorts of features and rating information on tablet computers, e-book readers, smartphones, TVs, laptops and desktops, cameras and camcorders, printers, Blu-ray players, headphones and home-theater systems. They give you repair histories and even tell you where to shop as they rate various walk-in retailers and online stores.

Happy shopping everyone!

Serving as a director of a charitable or not-for-profit corporation can be a rewarding but potentially risky experience. A director can be held personally liable for his or her own actions or failures to act, as well as jointly and severally liable with the other members of the board of directors. Directors with specialized knowledge and expertise, such as lawyers, are held to a higher standard of care. Ontario lawyers should note that LAWPRO’s standard professional liability insurance policy provides coverage only for the “professional services” that a lawyer provides as a lawyer. It does not provide coverage for liability arising as a result of a lawyer’s actions as a director. If you are from another jurisdiction, check and see what is covered under your malpractice policy.

Accordingly, here are some questions you should ask yourself before serving as a director on the board of a charity or not-for-profit organization.

1. How well do I know this organization? Does it engage in activities that have an especially high risk of attracting legal liability?
2. What are my motivations for joining this board – business, personal, community service, etc.?
3. Will I be able to devote my time and energy to ensure that I fully meet my obligations in this role?
4. Do I understand the risks and responsibilities that come with directorship? Am I aware of the statutory and common law liabilities that I may be exposed to?
5. Does my firm have a policy regarding its lawyers serving on the boards of charities and not-for-profits?
6. Is the charity or not-for-profit organization a client of my firm? If so, does my firm have a policy regarding its lawyers serving on the boards of charities and not-for-profits that are clients of the firm?
7. Will the charity or not-for-profit organization agree to indemnify me for liability arising out of my role as director?
8. Does the charity or not-for-profit organization maintain directors and officers (D&O) insurance to protect me from personal liability arising out of my role as director?
9. If so, what are the details of this D&O insurance? What policy terms, conditions and exclusions are likely to apply? What are the limits of liability per claim and in the aggregate?
10. Is there an outside director liability (ODL) insurance policy in place that may respond to claims against me arising out of my directorship? If not, should I purchase such insurance, whether from the Canadian Bar Insurance Association (CBIA) or through my insurance broker?
11. Is there any other insurance in place or optional coverage that may be purchased that may cover my activities as director? Have I consulted my insurance broker? (Note: LAWPRO’s optional excess insurance policy does not provide incidental D&O coverage, but some excess professional liability insurance policies may do so. If so, does that coverage “drop down” to afford primary protection?)

Carefully review the above checklist if you are considering sitting on a non-profit board. This will allow you to make an informed decision about whether the benefits outweigh the risks.

An electronic version of this checklist is available at http://www.practicepro.ca/practice/pdf/Nonprofit_board_risk_management_checklist.pdf

This 2005 legislation was enacted to improve accessibility for persons with disabilities. Customer Service Standards adopted under the Act are effective on January 1, 2012 for providers of goods and services, including law firms. The Law Society has created a guide which is meant to assist legal service providers in developing the resources to comply with the Standards. The guide and suggestions for compliance with the Standards can be downloaded from the Law Society website and found in Appendix 1. This is an obligation imposed by the Province that must be observed to respect those with disabilities and avoid unfortunate consequences.

The Pennsylvania Bar Association’s Committee On Legal Ethics And Professional Responsibility has just released Formal Opinion 2011-200, Ethical Obligations For Attorneys Using Cloud Computing/Software As A Service While Fulfilling The Duties Of Confidentiality And Preservation Of Client Property

As the PA Bar keeps its Ethics Opinions behind a member wall, I’ve attached a copy of it to this post. One of the Committee members has told me I am free to distribute it.

This Opinion indicates that lawyers may ethically allow client confidential material to be stored in “the cloud” provided the lawyer takes reasonable care to assure that (1) all such materials remain confidential, and (2) reasonable safeguards are employed to ensure that the data is protected from breaches, data loss and other risks.

Clearly, a lot of time and thought was put into the drafting of this Opinion. There is good background information on the issues and concerns that come up when client information in stored the cloud and when web-based mail services are used. There is also a summary listing of the ethics opinions in this issue from the ABA and other states and entities.

This Opinion considers both the practical and technology-related issues that are raised when lawyers use cloud-based services. While this Opinion is specific to PA Bar Rules of Professional Conduct, lawyers in other jurisdictions will find the information on what care and steps would be considered “reasonable” helpful in directing their own actions. It is nice to see there is a strong emphasis on lawyers being ultimately responsible for making informed decisions about the benefits and risks of placing client data in the cloud. The storing of client data can be outsourced, but the responsibility for making sure it is safe and secure remains with the lawyer.

We all like to avoid thinking about bad things like earthquakes, tornadoes and other natural disasters. We also tend to avoid thinking about other things that might impact on our personal and professional lives. However, major and minor disasters abound, are a fact of life, and will occur whether we like it or not, due to natural causes or by human error or malicious actions.

And while major natural disasters are typically the ones that get the most attention and headlines, even minor disasters – a burst pipe in the server room or the sudden and unexpected departure of a law partner or key law firm staff member – can cause significant harm to a law firm. Fortunately, with some planning and preparation, the potential harms that disasters can cause can be mitigated, and even avoided, in many cases.

The ABA Committee on Disaster Response & Preparedness just released Surviving a Disaster: A Lawyer's Guide to Disaster Planning. It is a detailed 44 page step by step guide on disaster planning for law firms. It will assist law firms in creating and implementing a business continuity plan. It introduces you to the key components of a continuity plan that will make sure the critical business functions of your firm can continue in the event of a major disaster or minor unexpected practice interruption. The Guide has a number of checklists that reviews the factors to be considered and the steps to be taken in both preparing a plan and responding to a disaster.

You can find additional disaster planning resources are at www.americanbar.org/disaster.

This article originally appeared in the Fall 2011 issue of LAWPRO Magazine. All issues of the magazine can be found at www.lawpro.ca/magazinearchives.

Technology is becoming an ever greater part of our lives, both personally and professionally. On a daily basis most of us use a cellphone or smartphone, a desktop computer and the Internet. Many of us will have an iPad or other tablet device and be posting updates on Facebook, Twitter or other social media tools.

Clients expect their lawyers to be technology literate – and there are always new and improved ways for communicating with clients. Here are some newer tools that you can consider using to better serve and communicate with your clients.

1. Help clients find your office

   How often do you find yourself giving new clients directions to your office? Google Maps offers a great tool for creating a map that will show clients the location of your office. Go to maps.google.com and type your office address into the search box. Click on the link icon (look for an icon with three chain links at the top right corner of your screen). This will open a pop-up that will give you a URL link you can use to access that same map. Send that link to new clients via email and they can see the map. The pop-up also gives you the HTML code you can use to include the map on your website. Take it a step further by creating customized maps to show clients directions to other places that might be helpful for them (for example, the local court house).

2. Electronic intake forms

   In many areas of practice, collecting background information is the main purpose of an initial meeting with a client. Wouldn’t this be easier if the client came to your office with a standard intake form already completed?

   Adobe Acrobat (the Standard and Pro versions) makes this possible by giving you the ability to create an electronic PDF client intake form which you can email to your client. The client can print it to fill out a paper version or better still, can complete it onscreen and send it back to you electronically. The client just needs the free Adobe reader software.

   And don’t limit yourself to the intake process – consider converting other paper forms you have in your office. Acrobat has a form conversion tool that does a fantastic job of converting paper forms into electronic ones.

3. Virtual meetings

   Virtual meeting tools let you collaborate across the web in ways that are just as effective as face-to-face meetings, while helping you significantly reduce time and travel costs.

   These tools let you show the contents of your computer screen to multiple people via the Internet. You can create a document much more quickly when everyone can simultaneously view and comment on the draft as it evolves. In a single phone call you can draft and finalize a document that normally might take many emails and redrafts over days or weeks to create. These tools are easy to use and you can set up a virtual meeting on an ad hoc basis in the middle of a conference call in a matter of minutes.

   GoToMeeting (www.gotomeeting.com), WebEx (www.webex.com) and Acrobat Connect (www.adobe.com/products/adobeconnect.html) are the most widely used virtual meeting tools. Pricing for the basic versions of these products is around $50 per month. Some of them have trial or limited use versions that you can use for free. If you avoid just one in-person meeting a month, you are more than paying for them. I have GoToMeeting installed on my laptop, and it allows me to host a virtual meeting from anywhere I have an Internet connection.

4. Free long distance

   Voice-over-IP or “VoIP” phone systems can save on long distance charges, but they are expensive to buy and set up. However, if you have a high-speed Internet connection and your computer has a soundcard and microphone, you can try VoIP for free with Skype (www.skype.com) or Google Talk (www.google.com/talk).
   You can use these tools to communicate with audio and video over the Internet. While not suitable for every area of practice (and you will on occasion experience poor voice or video quality and dropped calls), some lawyers are using Skype or Google Talk to avoid long-distance charges – both improving the bottom line for their office and making clients happy about avoiding long-distance charges for calls to their lawyer. While some social media tools offer similar functionality, it is probably safer not to use them for the sake of protecting client confidentiality.

5. Find time for a meeting

   Trying to schedule a meeting with multiple people via email is inefficient and annoying – few things are better at filling your inbox with totally unnecessary messages. Next time you need to find the best time slot for a meeting, consider using online tools such as GatherGrid (www.gathergrid.com), WhenIsGood (www.whenisgood.net) or Doodle (www.doodle.com).

   These tools vary slightly in how they present the options for the timing of a meeting (i.e., giving you full days of available time vs. offering specific time options), but they all work in more or less the same way. Go to one
   of these sites and create a meeting event. Then indicate potential times and dates for the meeting and provide the email address of each person who needs to come. Finally, initiate an email that goes out with a link that will give all invitees a calendar showing them the possibilities. Once invitees indicate whether they are available or not, the meeting organizer can go to the calendar to easily see the best time for the meeting. Some of these tools also let you send a meeting invitation that will automatically put an entry into an Outlook or other electronic calendar.

   Use one of these tools next time you need to schedule a meeting: your client will really appreciate how quickly and easily you can tie down the date and time for that meeting.

6. I’m thinking of you

   Marketing experts tell us we need to do things to stay top of mind with clients. The free Google Alerts service can help you do this. It allows you to monitor the web for interesting new content and it will send you an email listing of relevant Google results (news, website content, etc.) based on your choice of query or topic.

   Some handy uses of Google Alerts include:

   • being notified when your name or your firm name appears in the news or on the web;
   • being notified when your client’s name appears in the news or on the web;
   • monitoring a developing news story; and
   • keeping current on a competitor or industry.

   To create an alert, go to the Google Alerts page (www.google.com/alerts) and enter a text string that contains the name of the person or topic that you want to monitor (for example, your name, your firm name, a client’s name or industry). Google Alerts will send you an email alert listing Google news or web search results based on the terms that you specified. You can configure it to deliver the alerts to you instantly, daily or weekly. On the news side, it searches several thousand news sources that the Google News page indexes. On the web search side, it searches all the web pages that the Google search engine indexes.

   When you get an alert about something that would interest one of your clients, take a minute to send them a quick email with a link to the news item or webpage.

As the other articles in this issue highlight, regular communication with your clients is a cornerstone of a solid lawyer-client relationship. Consider how you can use the tools listed above to better serve and
communicate with your clients.

Fellow Ontario lawyer and blogger Antonin Pribetic tweeted the following earlier this evening:

An RT taxonomy: RT+ (agree), RT- (disagree) RT= (indifferent), RT? (confusing), RT± (undecided), RT☀ (interesting), RT! (check this out!)

I really liked the concept and retweeted it. In a Reply to me, Antonin asked me if a RT without comment was a tacit endorsement. In a reply to him, I agreed that this was the case, and I asked if the taxonomy he proposed was his. Antonin indicated that @Charonqc had proposed RT+ and RT- at some point in the past and that he had added to the list. A quick Google search failed to turn up something similar.

Most Twitter users will appreciate that trying to say things in just 140 characters can be a challenge. Using one extra character (or perhaps a few characters) to add some universally recognized comments or context to a RT would be very helpful. Some comments on how I compose tweets will explain why.

Most of the time, I try to tweet or RT things that I think my followers will find helpful or interesting. The best endorsement a tweet or RT can get is a RT by one of your followers. On the less interesting side, I do occasionally tweet personal comments or pictures that rarely get retweeted (but they do get occasionally DMs). In either case, helping people filter content by giving them a bit more context would be great.

In terms of length, I prefer to have tweets that are about 100 characters long (or shorter if the message is all there in fewer words). This means anyone retweeting my tweets will not have to make any edits after their name is added and it makes sure my original message gets through without changes. I generally avoid tweets that are longer than 140 characters because I think many people don't see/read them as many of the Twitter apps don't display all the text in a longer message. Anything that keeps tweets shorter would be helpful.

I do add comments to RTs, usually to strongly endorse the content. Most frequently I will say “A must read” or “Great content” or something similar. I think this is important as it helps my followers filter things and will let them zero in on the high value content. I usually put my comments after the comment and URL that were in the original tweet. Having enough space to make a comment if frequently a challenge. Again, having a way to say things by adding an extra character or two would be great.

Now, some comments on Antonin’s proposed taxonomy. I really like the agree, disagree, interesting and confusing suggestions. They are simple and obvious. They would be helpful for me, and I think they would be helpful for my followers.

I’m not sure I’m keen on the indifferent option as I’m really not sure I want to bother my followers with something I’m indifferent about. Perhaps there would be things I feel indifferent about but that I might still think my followers might otherwise find helpful or interesting, but I can’t think of any at this late hour.

I don’t mind the undecided (Is undecided that different from indifferent?) suggestion, although I’m suspicious that special characters might not be available (i.e., on the keyboards) or display properly on all computer and smartphone platforms.

Am thinking that check this out is not all that different than interesting. As such, I’m wondering if having RT! indicate that something is “must read” would be more helpful.

I find that I sometimes have to edit the original tweet for length (because it is too long as a RT with my Twitter handle added) or for content (because the wording poorly describes the content in the link or I want to put a bit of a different spin on the tweet and still acknowledge the original tweet and tweeter). To do this I suggest we add RT~ to this taxonomy.

Perhaps adding a few similar charaters could indicate the degree of the comment. For example, RT++ means really agree, RT– means really disagree.

I do occasionally add emoticons to my tweets, again, usually after the original content with or with additional comments of my own. To more effectively communicate feeling or emotions about the tweet perhaps we could also use some of the common emoticons in conjunction with the RT to impart other statements or emotions. For example, RT:) for a happy tweet, RT:( for a sad tweet, and so on.

Thus, as a proposed taxonomy, we now have:

RT+ (agree),
RT- (disagree)
RT=(indifferent)
RT? (confusing)
RT± (undecided)
RT* (interesting)
RT! (a must read)
RT~ (original tweet was edited)
RT:) (a happy tweet)
RT:( (a sad tweet)

Please share your thoughts, comments and suggestions on the above.

Loads of lawyers and law firms are posting content in various forms all over the Web. Firm websites, LinkedIn or Facebook updates, tweets, blog posts and comments, and so on. That is great, but it only gets you partway down the path to greater visibility on the Internet.

At the most basic level, the cornerstone to making yourself more visible is good content and linking. Do you know why linking is so important? Do you understand the ranking factors Google and other search engines use to determine what content appears at the top of search results? Are your links trusted and diverse? Do you know how to create a good link and what to do about a bad one?

If you are serious about making yourself more visible on the Web, you should know the answers to all these questions. You can find these answers in Link Building – The Essentials. This post on the distilled blog gives you a ton of great advice for free. People are paying SEO experts for the same information!

A hat tip to my friend Fred Faulkner IV for sharing this great link with me via Google+.

Followers of the AvoidAClaim blog will know that fraud attempts against lawyers show no sign of slowing down. Almost daily we see new names and new email addresses being used. Unfortunately, there doesn't seem to be much that can be done to track down the actual perpetrators who are often overseas and using free email services.

However, the free email services will shut down addresses being used for illegitimate activities. Gmail, Yahoo, and Hotmail all have pages where you can submit an email address used in a fraud attempt. Yes, the fraudsters can quickly generate a new one, but shutting down an address will help stop any fraud attempts already in progress and force them to start from scratch.

The email services will usually ask that you submit the "header" of the email. This is the information (normally hidden) that shows all the various IP addresses and servers that the email bounced around on its way from the overseas fraudster to your inbox. It's relatively simple to display header information, and instructions for various email services are provided here.

Here are the pages to report the fraudsters, based on what email company they used:

• Gmail
• Yahoo
• Hotmail

We often get asked "What can I do to help shut these fraudsters down?" This is a simple but effect way to strike a blow against them.

Klout’s recent tweaking of it influence scoring algorithm has a lot of people questioning the value of the various online tools that measure influence – especially those that saw their Klout score plummet. Mine actually went up :-)

What do these scores really measure? Do they really mean anything? How do you really measure your online influence?

Listen to this impromptu audio recording by Robert Scoble for his views on the value of online influence ranking tools, and the factors you should consider in accessing your online reach, influence the value of the content your post through social media channels. Hint: it’s all about the content and your participation!!!

I think this is also a great demo of the marketing potential of sending audio out to people via the web (in this case with SoundCLoud’s Flipzu tool).

Beware of “rumor about you” DM that is Twitter account hijack exploit

Earlier this afternoon I received the following message from a lawyer I know: “There is a rumor/blog going around about you http://tdotco/abcdefg might want to read it” (TLD is t.co and other part of the URL is s1bYMHV).

If you click on this link and successfully load this site, it sends this message to all your followers. It is currently circulating among Canadian lawyers. Beware and don’t get fooled.

Fraud attempts against lawyers can involve a great deal of counterfeit documentation, starting with the initial client ID (passports, licenses), various agreements, loan documents and bank statements, and ending with the cheque that finally arrives at the lawyer's office. When we add posts about a fraud to the AvoidAClaim blog, we also provide images of these fake documents that lawyers have provided to us.

On a new page on the AvoidAClaim blog we have post a large selection of the fake passports, licenses, documentation and cheques in one place. The page is called "Huge collection of fake IDs, documents and cheques given to lawyers")to give an idea of the abundance and quality of the forged documents being used to try to ensare lawyers and make scams seem credible. Displaying the images in this way also reveals that many of the forged IDs are identical, and multiple fake personas can be made from a single stolen passport:

We have numerous examples of:

Passports;

Driver's licenses;

Assorted documentation;

And cheques.

We often get asked “how could anyone fall for these scams?” This page demonstrates just how sophisticated the fraud attempts can be. Visit this "Huge collection of fake IDs, documents and cheques given to lawyers") to see for yourself.

Cross posted at AvoidAClaim

The following article by Nora Rock appears in the Fall 2011 issue of LAWPRO Magazine.

At LAWPRO, we’ve seen a growing proportion of incivility allegations cropping up in claims. For example, lawyers may find themselves personally liable to pay a party’s costs under Rule 57.07 (Rules of Civil Procedure) where the court has found that the lawyer’s actions contributed to running up the bill.

Incivility can also lead to other consequences. The client’s case may be prejudiced because the lawyer is unfavourably viewed by a jury; or a prospect of settlement may evaporate in the face of a lawyer’s rigid posturing. Finally, a court may make an order designed to rectify an abuse of process: For example, an order terminating discoveries, or dismissing motions deemed excessive. It’s not difficult to understand that these consequences of uncivil behaviour often culminate in a claim against the lawyer.

Here are some consequences of incivility that LAWPRO has noted:

Self-represented lawyer must still behave like a lawyer

While representing himself in a defamation action against a publisher, a lawyer made “intemperate” statements about the defendant organization in his pleadings, including accusing it of “evil profiling.” In correspondence with the defendant’s counsel, he accused them of sharp practice, and suggested that they were personally motivated to ruin or embarrass him. The court found that the lawyer’s statements violated Rule 6.03 of the Rules of Professional Conduct, and ran contrary to Principle 27 of the Principles of Civility published by The Advocates’ Society, which provide that a lawyer should not:
“…attribute bad motives or improper conduct to opposing Counsel, except when relevant to the issues of the case and well-founded.”

In dismissing the litigation due to the plaintiff’s non-compliance with certain court orders, the court ordered that the plaintiff pay costs on a substantial indemnity scale, but only for the motion in which the inappropriate comments were made. The lawyer protested that he was appearing not as counsel, but as a self-represented litigant, and so should not be subject to punitive cost awards designed to curb lawyer misbehaviour. The court disagreed, holding that “…a lawyer who is representing himself is still acting as a lawyer (as well as a litigant) and is bound by the rules that apply to lawyers.”

Civility to clients is at least as important as civility to members of the justice system

In another case, the discipline committee of the Law Society of Upper Canada considered seven separate allegations of professional misconduct made against a lawyer.

Three of the five allegations related to the lawyer’s relationship with clients. The first two centered on the tone of a letter sent to the client in an attempt to collect fees. In the letter, the lawyer made a racist remark about the client and threatened criminal proceedings if the client failed to pay the lawyer’s bill.

The final allegation described the lawyer’s refusal, after being removed as the solicitor of record, to transfer the client’s file to the successor lawyer. The Law Society found that all of these actions constituted professional misconduct. In addition to the penalty imposed by the Law Society, a successful claim was made against the lawyer’s malpractice insurance.

In our experience, incivility to clients is an important trigger for claims. Even though the claim may ultimately be framed in negligence, it is not uncommon for the claim to be filed in reaction to an incident of incivility. As noted by Mark Lerner, establishing a relationship of mutual respect and trust at the outset of the lawyer-client
relationship can prevent much misery further down the road.

Rule 57.07 intended not to punish, but to compensate

An important message about the purpose of Rule 57.07 (costs against a lawyer) was reinforced in the judge’s reasons in a case that ended up in an insurance claim.

In this case, the court found that while the lawyer’s deportment was quite civil (with one minor exception), the lawyer was ill-prepared for the litigation. His weak grasp of evidence law and the Rules of Civil Procedure led to considerable time and effort spent by opposing counsel to address matters (for example, the testimony of “experts” that the court ultimately refused to qualify as experts) that never amounted to anything. In characterizing the lawyer’s case as “a moving target,” the court found that the lawyer’s lack of preparation increased the costs for the other side, justifying a Rule 57.07 order. The court made it clear that, as established in Walsh v.1124660 Ontario Ltd. ( [2007] O.J. No. 639, Lane J.), Rule 57.07 is designed not to discipline lawyers, but to compensate aggrieved parties for wasted costs.

Whether or not it flows from incivility, fighting a Rule 57.07 order often means the lawyer must make an insurance claim to cover not only the costs ordered in the litigation, but also the lawyer’s own defence costs.

The bottom line here: Being professional means not only being civil, but also being prepared – a duty lawyers owe not only to their clients, but also to opponents and to the court.

The Fall 20011 issue of LAWPRO Magazine features an article called Let's Get Talking, in which LAWPRO canvassed a number of people inside and outside the legal profession on the topic of client engagement and communication. What we learned is that there is often a problem with the way lawyers communicate with their clients. Communication is integral to the client experience, and a bad customer experience often defaults into an allegation of communication failure (the source of almost half of LAWPRO claims costs).

The end of the article features a summary of tips from the experts we spoke to on how they make communication work better for them:

• Give your clients some homework: Give them a checklist of things they will need to do and should want to do to help keep the case moving forward.
• Give them a “manual”: This doesn’t have to be as thick as a car manual, but it could offer basic information about the type of law you will be helping them with, a breakdown of the processes involved and, when possible, timelines or estimated timelines.
• Treat each client as if she is your only client and your business depends on her: This doesn’t mean worshipping the ground she walks on. It means turning off your phone, not checking your email and putting all your attention on the file before you – not the file sitting on your desk upstairs.
• Remember the little details:Take a minute to familiarize yourself with the file or documents before you meet with the client. Try to remember some more personal details about the client as well – his family details, hobbies, or job. Try connecting on a personal level.
• Practice the art of (partial) silence: When a client first comes in to discuss a matter, let the client do the talking, at least at first. Ask appropriate questions to get to the heart of the matter.What exactly does the client need you to do and why?
• Don’t assume the client understands:When you are explaining something, ask the client if she understands what you are talking about. Take it a step further and have her explain it back to you.
• Be up-front about costs: To the best of your ability, lay out how the client will be charged. Is he going to be charged a flat rate? Will you charge by the hour? Do follow-up phone calls “count” towards that hour? How much is the retainer and how will it be replenished? Be open.
• Find out the best way to communicate with the client:Rather than force the client to call you on your schedule, find out if email is a better way of keeping in touch with the client.
• Spell out your return correspondence policy: Let clients know you will always get back to them in a certain time frame, even if it is just to say – “a tad busy now, but will get back to you tomorrow.”
• Provide regular updates: Keep the client informed with what is going on in his file. This is especially important when the file has a long shelf life and there may be long periods of inactivity.
• Acknowledge when you receive new information from the client: Your client needs to know you have that new document in your system and it hasn’t been lost in the mail.

The following article by Tim Lemieux is from the latest Fall 2011 issue of LAWPRO Magazine. It looks at communications-related claims at LAWPRO in different areas of law and asks claims counsel how these mistakes can be prevented.

No matter what the area of practice, the number one source of claims at LAWPRO is a breakdown in communication between the lawyer and client. And those numbers are increasing.

Between 2005 and 2010, more than 4,200 communications claims — an average of 711 a year – have been reported to LAWPRO. The total cost of these claims to date is about $150 million – and likely to rise as more recent years’ claims are resolved.

During that same period, the percentage of claims resulting from communication issues has also increased – to 35 per cent in 2010 from 32 per cent in 2005. More concerning is the increase in costs – to 45 per cent of all claims costs in 2010 from 32 per cent in 2005.

What’s ironic about this discussion is that communications claims are potentially easy to prevent. This is a risk management message that we have consistently sent to lawyers through past issues of LAWPRO Magazine, our Managing booklets and at every presentation on claims prevention.

And still the numbers creep up.

So rather that simply repeat the message that “lawyers need to communicate better”, we thought we’d take a different approach and look at how communications claims can arise in particular areas of law.

We asked LAWPRO claims counsel with expertise in the various areas of law to provide insights into the communications mistakes they see in their daily handling of claims files. We hope this approach makes the advice more relevant to makes it easier for you to implement risk management steps in your own practice.

Real estate

Real estate claims make up the largest share of communications claims. Busy, high-volume practices often lead to situations where the lawyer is not taking the time to communicate with the clients properly. Mitchell Goldberg, unit director and counsel and Nadia Dalimonte, claims counsel, both in our Specialty Claims Department, provide some examples of the kinds of claims they see in this area of practice.

Meet the client – yourself – and ask questions

The common thread running through the examples that follow is that many real estate lawyers say they are too busy to communicate directly with clients: They rely on clerks, so the lawyers themselves become removed from the process. “It is always preferable for the lawyer to meet with the clients and review the important documentation in the file with the clients at that time. In the event of a claim,” says Dalimonte, “it’s not usually a strong defence for the lawyer to say to us ‘well, the clerk met with the client.’”

Some lawyers, she adds, take the position that their job is to carry out only the title conveyancing, when what they should have done is take the time to speak to the client to ensure they’ve gathered all the relevant information.

For example, although only one person may come to the lawyer’s office, there could be a joint tenancy on a matrimonial home. LAWPRO has seen a number of claims where the lawyer did not get the consent of the spouse to change the ownership status or encumber the property with a mortgage. Take the time to discuss important information such as the client’s marital status to determine whether the consent of a spouse – or other joint tenant — needs to be obtained, or whether the spouse needs to be sent for independent legal advice (depending on the nature of the transaction).

Another source of claims involves situations in which parents get involved in their children’s real estate dealings – such as the transfer of a parental property to a son or daughter, or the purchase of a home by the child with the parents guaranteeing the mortgage or taking title with the child and actually beoming mortgagors. The parents often later claim the lawyer did not properly communicate the potential consequences to them (e.g. if the children did not keep up the mortgage payments, the lender could come after them) or failed to send them for ILA.

There may be issues of capacity or language barriers preventing the clients from fully understanding the proceedings. Until you sit down and talk to the clients, these kinds of complicating factors might not be apparent.

Use title insurance wisely

Lawyers using title insurance also need to take the time to communicate directly with clients. Often the lawyer fails to ask clients about possible future uses of the property that the client might have in mind, and as a result fails to get a title insurance endorsement that would protect the clients (e.g. they planned to build a pool, but later discovered a subdivision agreement prevents it) .Similarly, lawyers sometimes fail to discuss whether a client wants a survey or a particular search done.

“They just assume title insurance takes care of issues that could arise, so that the lawyer has no documentation in the file to demonstrate that the lawyer discussed what the client did or didn’t want” says Mitch. Failure to have that conversation may constitute negligence, and also may violate the commentary to the Rules of Professional Conduct that addresses informing clients about options to assure title.

Remember the lender client

Lawyers also need to remember that lending institutions are also their clients: We’ve seen claims in which lawyers have failed to communicate material information to the lender client so the lender can make an informed decision on whether to advance mortgage funds. Such details could include the correct purchase price, current ownership, or whether the purchaser is going to reside in the property.

Litigation

Jennifer Ip, unit director and counsel (Primary Professional Liability Claims Department) and Yvonne Diedrick, claims counsel (PPL) provide some insights into how breakdowns in communication with the client can derail litigation or leave the client dissatisfied with the outcome.

Put it in writing

One of the biggest issues in the litigation claims LAWPRO sees is a failure on the part of the lawyer to properly document instructions. Clients may later say they asked the lawyer to do X and it wasn’t done; or the lawyer may have done Y and the client claims he didn’t authorize this course of action. If there is no documentation of the lawyer client/conversations, the claim then turns on credibility, and the experience has been that courts are more likely to believe the client’s recollections (the case is top of mind for the client, but only one of several for the lawyer).

The same failure to document discussions can be seen when advising clients on the terms of settlements and what the client can expect. Clients can be left thinking they will receive more monies out of the settlement than they in fact get. “They may try to claim they were not aware that a portion of the award would flow back to the lawyer in fees” says Ip.

When it comes to motor vehicle cases, some lawyers will handle only the tort action or only the accident benefits claim, not both, but they fail to put this limited retainer into writing. The client then comes back and says the lawyer failed to follow instructions – but by then the limitation period has expired – and now the lawyer faces the prospect of a claim. Even if you have put the limited retainer into writing, make sure the client understands what this means.

Many communication errors result in accusations of an improvident settlement. For instance, an insurer may offer to settle for a lower amount than is really justified by the facts of the case and the lawyer is obliged to present this offer to the client. The client may want to settle, but if the lawyer doesn’t recommend the settlement, this advice should be clearly documented and communicated. Otherwise the client may come back later, perhaps when the money runs out, and accuse the lawyer of not properly explaining the situation and or not making clear that the settlement may have been greater if the matter had been pursued further.

Take the time to explain – and document

During a trial, things can happen quickly. LAWPRO has seen claims in which an offer was communicated verbally mid-trial. The lawyer then quickly explains (or says she explained) the offer to the client. The client rejects the offer and the lawyer’s recommendation to accept it, and goes on to lose the case. The client then sues the lawyer saying “had I properly understood the offer, I would have accepted it.”

On the flip side, it may be the client who chooses to accept an offer to settle for a lower amount – despite the lawyer’s advice to the contrary. No matter how rushed you are or how convincing (and happy) your client appears, take the time to make notes of your conversations with the client and make sure your client fully understands the implications of the decision he or she is making..

Similarly, lawyers should communicate (and document that they have done so) the prospects of winning or losing a case. This is especially so in cases where the client insists on pursuing the case “on principle.” When the client loses, it’s suddenly no longer about the principle. “If the lawyer is of the opinion that the client has a weak case, the client needs to be told so and instructions to proceed to trial, despite the lawyer’s recommendation not to proceed, should be written down,” says Ip.

Communicate clearly – face-to-face if possible

As in all areas of law, lawyers are using email to communicate – resulting in increased misunderstandings. Clients or lawyers read things into emails that aren’t there, miss the meaning of what was said, or read between the lines and make assumptions, says Diedrick. “You can’t replace face to face communication. If geographic distance makes that difficult, pick up the telephone and later document the call in a follow-up letter or email.”

This is particularly important in litigation matters, which can go on for long periods of time and involve strong emotions. There isn’t necessarily the same tradition of a pivotal lawyer-client meeting as often occurs before the closing of a transaction in other areas of the law. Consider when in a long piece of litigation you should be sure to meet with the client, and more, document your discussions.

Corporate law

Anna Reggio, Claims Counsel (PPL), says corporate communication claims often arise from confusion over the breadth of the insured's retainer and who is representing the interest of whom in an environment of fast-paced, and sometimes large dollar, transactions where the niceties of communicating may get overlooked.

Know who your client is – and communicate this clearly

A question which frequently arises is the question of who the lawyer is acting for and whether it is the corporation or one or more of the shareholders. The interest of the corporate entity may be different from that of one or more of the shareholders and therefore, the corporate entity should be separately represented.

Certainly, in any given proposed transaction or agreement, each shareholder's interest may vary from one or more of the other shareholders. Therefore, in fact, the corporate entity and each of the shareholders should really be represented by their own lawyer.

Often, in closely held corporations, the lawyer will meet with all of the directors, officers and shareholders to discuss the terms of a transaction to be entered into by the corporation or the terms of a transaction or agreement amongst the shareholders. A shareholders' agreement, for example, is one of the more common agreements under discussion.

In many cases, the parties are of the view that it is not financially expedient for the corporate entity and each of the shareholders to be separately represented. In other cases, the transaction may be clipping along and the parties are too focused on their negotiations to care about the lawyer's oral caution that they should obtain independent legal advice or independent representation.

Later, a disgruntled party may allege that he or she relied upon the lawyer and may accuse the lawyer of having been in a conflict of interest, preferring the interest of one party over another (particularly where the lawyer has represented the other party or parties in the past) or of failing to consider and advise that party of the implications arising from the particular transaction or agreement. The lawyer may well respond by saying that he or she was not acting for the complaining party, but rather, acting for the corporate entity or, possibly, for another shareholder but if this was never clearly communicated, in writing, the lawyer is faced with a credibility dispute.

The lawyer should write to all principals to clarify and confirm who he or she is acting for. The lawyer should confirm that the other parties will not be provided with any advice and that they should not be relying on the lawyer for that purpose.

Further, the lawyer should tell the other parties or entities to retain independent counsel or obtain independent legal advice, preferably as evidenced by way of a Certificate of ILA, depending upon the circumstances. Otherwise, the lawyer must obtain a signed, written acknowledgement of this advice together with a waiver of independent counsel or ILA.

“There is no shortcut for this,” says Reggio. “The lawyer needs to get written, signed acknowledgements to protect him or herself.” (If the lawyer chooses to proceed to act for more than one party, the lawyer faces the inherent risks of failing to meet the onerous burden of providing the best possible advice to all of the clients in the circumstances. Also, depending on the deductible chosen, the lawyer may also face the obligation of a double deductible under the LAWPRO policy if he or she is subsequently sued, even if a written acknowledgement and waiver was obtained.)

Be clear about the services you are providing

Lawyers should also communicate clearly and in writing to confirm that they are not providing business advice and they are not reviewing financial statements or providing any tax advice, where applicable. Lawyers should specifically advise the client in writing to get advice from tax specialists, accountants or other experts where necessary and applicable.

Family law

Yvonne Bernstein, litigation director and counsel (PPL) with extensive experience in family law claims, talks about the potential for misunderstandings and communication breakdowns in family law.

Using email means you need to be clearer and work harder at good communication
The increased use of emails to replace face-to-face meetings has significant implications in family law where emotions (and tensions) often are high; clients can be difficult, emotional and prone to misunderstanding (and for these reasons some lawyers find the lack of face to face contact a good thing).

While no doubt email is a faster form of communication, the in-person conversation provides visual cues and the discussion is more interactive. The lawyer can judge reactions, and make sure everyone understands. Email promotes a more stilted, incomplete communication, says Bernstein.

In a recent claim a client was informed by email about what was being negotiated and agreed to the settlement; but the client had not been given enough information on a certain part of the settlement. He later sued the lawyer on the grounds that if he’d known how valuable this concession was, he never would have agreed. “The client could have asked,” says Bernstein, “but the on the other hand the lawyer should have been clearer.”

Take the time to explain implications of legal processes
Clients often don’t understand that a settlement is a final settlement. They may have thought maybe they could settle today and re-open the agreement later.

Misunderstandings such as this can stem from the fact that lawyers operate within a framework where certain concepts or rules are understood: “We all know that when you sign a release, that’s it,” says Bernstein. “Lawyers don’t always appreciate that clients don’t have that same frame of reference.” When a claim arises, it is then found that there is no letter from the lawyer to the client confirming the things they discussed, such as the fact that the settlement was final.

With limited retainers and possible unbundling of legal services, there will be more challenges for lawyers to communicate as clearly as possible about what they are retained to do and not retained to do, as well as the potential consequences of what they’re not being retained to do.

“There will be more of a burden on lawyers to hone their communication skills if they want to accept limited scope retainers and hope to get out of that process unscathed,” says Bernstein. This risk is not confined to family law, but family law has a high proportion of litigants who are self-represented and only want to retain a lawyer to do X, but not Y and Z.

Another way in which clients feel they can save money is by negotiating with the other side themselves. At the same time, the lawyers for each side are in communication as well. In situations like this things can get overlooked, or a lawyer can be left out of the loop.

Wills and estates

Cynthia Martin, unit director and counsel (PPL), Deborah Petch, claims counsel (PPL), and Pauline Sheps, claims counsel specialist (PPL) review the kinds of communication errors we see in wills, estates and trusts practice.

Ask questions – many questions

The biggest communication issues take place at the time the will is being drafted. The claim may result from drafting errors, but often it was poor communication that led to the drafting error.

Too many lawyers, says Martin, are not truly listening to the client’s instructions and not probing and questioning the client to uncover facts that may cause problems later.

“It’s not so much the client not providing the information as the lawyers failing to communicate what the lawyers need to know,” says Martin. “For instance, the client says: ‘I want to leave everything to my son.’ Fine, but does she have any other children? What did the prior will say?”

Are the beneficiaries identified correctly? (e.g., there is more than one St John’s Church in the city.) Did the lawyer ask about gift-overs in the event that a beneficiary is not alive at the time the testator dies? When the will drafting is complete lawyers should do a reporting letter to the client so that there will not be confusion in the future about why changes were made, beneficiaries added or removed, and so forth.

LAWPRO has seen in an increase in claims resulting from lawyers failing to ask about client assets when drafting wills. Too many lawyers don’t ask the simple question: “What assets to do you have?” (Given how many people in Ontario now come from other jurisdictions, lawyers should be asking about assets on a worldwide basis.)

It’s equally important to discuss how these assets will be distributed. This issue often arises in the case of second marriages. The clients want to leave everything to their respective children, but often what happens goes something like this: after the husband dies, the wife says that she didn’t understand that the assets would go to his children and not her; or conversely , all the assets are in joint names and – despite the will – at the end nothing is left to go to the children.

“Ask what the assets are, and ask how they are registered,” says Sheps. “Some lawyers tell us they don’t ask ‘because the client will have different assets when they die.’ That’s not a good enough reason not to ask.”

Get clarification given complexity of family structures and dynamics

Lawyers are increasingly likely to be dealing with a variety of family structures other than the traditional nuclear family. When the client uses words such as “married” or “my daughter,” those words may not necessarily mean what the lawyer thinks. The marriage could be common-law, and the daughter could be a step-daughter. To be absolutely sure of the nature of the relationships, ask questions and get clarification.

Talk to your client to understand family dynamics. You may discover information that could improve the advice you provide the client. If you know, for example, that two siblings don’t get along, it may not be wise to appoint them as joint powers of attorney or estate trustees.

“A dysfunctional family can lead to a dysfunctional estate,” says Sheps, who also recommends not agreeing to be an attorney or trustee if you know the family is fighting. “If they are unsatisfied with the management of the estate, they will all blame you”.

State who is doing what

Miscommunications regarding pensions often result in claims. The client may have made designations on their pension, life insurance, RRSP, etc., but a will can revoke those designations. There is often not enough discussion with clients about these designations, and what effect a will can have on them. The clients themselves may not be certain how the designations are arranged, and it may not be clear who was supposed to find out (client or lawyer) and what the consequences are for not making certain.

When dealing with powers of attorney, it is important to communicate to the attorney what his roles and obligations are. Template letters and a checklist are very good tools for this. This protects the lawyer from future accusations that “the lawyer didn’t tell me I couldn’t spend the money this way.”

The administration of an estate also requires clear communication: Keep records of who is responsible for what, in terms of what the lawyer is doing and what trustee is doing. If roles are divided, the work and responsibilities should be spelled out.

“If the lawyer is taking on work normally done by the estate trustee, there has to be a letter setting out clearly who is doing what,” says Petch, who recommends communicating with your trustee client what you’ll charge in legal fees for this work.

“We get a lot of complaints about the mishmash of the lawyer’s fees and executor’s fees. This is particularly true where the lawyer is a co-trustee.”

The following article appeared in the new Fall 2011 issue of LAWPRO Magazine.

Don’t be a dupe: That’s the advice from those who were fooled.

In the months of July and August alone, hundreds of lawyers (from across Canada, the U.S., and even elsewhere in the world) have provided LAWPRO with emails seeking to retain them on bad cheque frauds. The most common scenarios are loan or debt collections and spousal support payments. (If you get obviously fraudulent emails, please forward them to fraudinfo@lawpro.ca) Dozens of Ontario lawyers have called looking for help in determining whether a matter they were handling was a legitimate one. In many cases we have recognized the name of the fraudster, the scenario and/or the text of the email. And where we don’t recognize the fraud, the members of the LAWPRO fraud team can use the collective experience of having seen many frauds to determine if a matter may be fraudulent. On a few occasions, we have seen matters that were highly suspicious, but still may have been legitimate retainers.

Clearly Ontario lawyers are more aware that they are the targets of fraud, and they are becoming more adept at recognizing frauds. That is good. But we see some complacency, too. We frequently hear comments such as“l would never be fooled,” or “How would anyone fall for one of these frauds?”

But some are falling for these frauds, acting through at least the initial stages of collecting information, sending a demand letter and communicating with the debtor – who just happens to call up wanting to pay immediately after getting the demand letter. And there are some lawyers who go all the way and are successfully duped into disbursing funds from their trust accounts. This happens more often at solo and small firms, but the biggest firms are not immune either.

One lawyer said to us: “I was suspicious at the start, but the client called several times, provided me with an Ontario driver’s license as ID and a bunch of documentation. He led me along and I got fooled. I feel stupid that I fell for it.”

Some of those who were duped were saved when the teller or the bank detected that the cheque was counterfeit. But don’t rely exclusively on the banks to protect you: They get fooled too. These counterfeits are really good. They will be in colour, on decent paper, and have holographs and watermarks.

In one recent case, a lawyer faxed to the bank a copy of a cheque drawn on the account of a major Canadian retailer. The bank replied that the signatures on the cheque matched what was on file and that the cheque looked good. The lawyer was told “out of an over abundance of caution you may want to contact the company to verify that the cheque is good.” The lawyer did so and it was confirmed that the cheque was bad. The fraud was one we had reported on the AvoidAClaim blog (avoidaclaim.com).

Frauds getting ever better

The fraudsters are changing it up to make fraudulent matters appear more legitimate.

We are seeing more phone calls or personalized emails as the initial contact (not generic BCC blasts to many people). We are also seeing new fake client names more frequently. In the sidebar to the right we list the new and most common names we’ve seen at LAWPRO in the last two months. But just because a name does not appear on this list does not mean you can stop worrying. New names are being used by fraudsters daily.

While in the past the fraudsters would sign retainer agreements and promise retainer cheques, they are now providing actual retainer cheques (which are fake of course),typically on a U.S. account. Banks will accept these for deposit, but will put a hold on them. Of course, a payment on the debt collection matter magically shows up from the debtor a day or two later, before the bogus retainer cheque bounces.

What to do if you are suspicious

If you have even the slightest suspicion that the matter you are handling isn’t legitimate, ask questions and dig deeper, especially if the facts don’t add up or are inconsistent. Click on the confirmed frauds button at the AvoidAClaim.com blog to see a full listing of confirmed frauds. (avoidaclaim.com/?pageid=1479). Search the client’s name on Google. Cross-check names, addresses and phone numbers.

If you still aren’t sure, Ontario lawyers should call LAWPRO for some direction. We will walk you through the common fraud scenarios we are seeing and help you spot red flags that may indicate you are being duped. This will help you ask appropriate questions of your client to determine if the matter is legitimate or not. If the matter you are acting on turns out to be a fraud and there is a potential fraud if possible, and minimize potential claims costs. If you have been successfully duped, please immediately notify LAWPRO as there maybe a claim against you.

For more immediate updates on fraud and claims prevention, subscribe to the email or RSS feed updates from LAWPRO’s AvoidAClaim blog.

Fraud Fact Sheet

More fraud prevention information and resources are available on the practicePRO Fraud page (www.practicepro.ca/fraud),including the Fraud Fact Sheet, a handy reference for lawyers and law firm staff that describes the common frauds and the red flags that can help identify them.

Ultimately, if you are not completely sure a matter is legitimate, terminate the retainer. Don’t be sucked in by your emotions or a strong desire to help. Don’t let the lure of a generous fee cause you to ignore your concerns as to the legitimacy of a matter. If t looks too easy or sounds too good to be true, it probably is.

The Office of the Privacy Commissioner of Canada has announced the release of a handbook called PIPEDA and Your Practice — A Privacy Handbook for Lawyers.

According to the release, the handbook "describes best practices in managing the collection, use and disclosure of personal information, responding to requests for access to personal information, and the potential application of PIPEDA. The Handbook covers practical privacy issues that arise in the course of managing a law firm and conducting litigation".

TitlePLUS's Ray Leclair has provided prospective condo buyers with a checklist of things they should know about before deciding to purchase. This list was made available to the public in several real estate publications.

1. Status Certificate: This document should be a condition in any agreement to purchase. It includes important information such as monthly expenses, pending legal actions and other matters, including how much the condo has in reserve funds, which could affect future fees. It also includes the documents governing the condominium: the declaration, by-laws and rules & regulations. These documents govern many aspects of condo life. You should become familiar with them, as they may affect your lifestyle. Can you have pets? When can you use the swimming pool? Can you wash your car in the garage or barbecue on the balcony? Discuss your concerns with your real estate lawyer and ask for advice.
2. Special issues for new developments: For those who purchase pre-construction or in a new building, there is a whole other set of variables. When will the amenities be ready? Will there be phasing? This could mean additional buildings on the same site, and more people using the facilities. What are your interim occupancy rights until the condo is registered? Knowing this can avoid complications when selling or renting your unit.
3. Property rights: As the condo owner, you own the interior space of the dwelling unit inside the condominium. However, the building walls, surrounding land, fences and facilities are usually owned in common with other owners in the complex. Your real estate lawyer can explain what property rights you will have when it comes to your parking space, locker and balcony/patio.
4. Condominium governance: It's typical for a board of directors made up of elected condo unit owners to oversee the workings of the condominium. This governing body has a great deal of influence over how the building is run. If possible, learn as much as you can about the board, including how you can get involved in decisions that will affect your lifestyle and property value.

A useful resource for people interested in buying a home is the TitlePLUS Real Simple Real Estate Guide, available for free at www.titleplus.ca. This guide provides important information on the role of a real estate lawyer and also offers useful calculators, a glossary of terms and a locate-a-lawyer tool.

Cross posted on AvoidAClaim.com

At practicePRO we've seen a huge increase in the amount of fraud attempts against lawyers involving bad cheques. Mainly these are done by email (though sometimes its a phone call, letter, or even a visit in person) and no doubt all lawyers reading this will be familiar by now with the scenarios: an attempt to collect on a collaborative family law settlement, a commercial debt owing, or an employee injury settlement. The aim is always the same: to get a lawyer to run a counterfeit cheque through their trust account.

It sometimes seems like a hopeless task to put a stop to these, as the perpetrators are difficult to track and law enforcement's time and resources are too limited to do much about it. So it was nice to see this article from the Washington Post about the arrest of a Nigerian man in connection with one of these scams.

The South Carolina Bar Association just released an Ethics Advisory Opinion on the use of Groupon by SC lawyers.This interesting opinion dealt with the question of whether it is ethical for SC lawyers to use Groupon. The answer: Yes, but proceed with caution. Read SC Ethics Advisory Opinion 11-05 here.

On occasion, lawyers have engaged in activities that have made them front-page news, subject to embarrassment and possibly lawsuits or discipline complaints. Not only can this kind of attention be bad for a lawyer’s reputation, it can also damage or even destroy client relationships.

That’s reason enough to be aware of and avoid activities that could lead to these types of outcomes. But there is another – equally if not more compelling – reason to avoid them: In some instances, it may be the law firm, not LAWPRO (or your own malpractice carrier if you are outside Ontario), that foots the bill when these activities lead to problems.

The comments in this article are specific to the LAWPRO policy as it applies to Ontario lawyers. However, the concerns hightlighted are relevant to all lawyers, although non-Ontario lawyers will want to review the provisions of their malpractice policies to understand the coverage implicaitons in their respective jurisdicitons.

Remember that the LAWPRO policy provides coverage that is tailored to your role as a lawyer. The policy affords protection against claims for damages arising out of a claim, provided liability is the result of an error, omission or negligent act in the performance or failure to perform “professional services” for others.

What will or will not be covered can be very fact-specific; but generally you will be insured for the work you do with your lawyer hat on, and not insured for activities where no solicitor/client relationship exists and no legal advice or service is provided.

This article highlights some of the dangerous activities that can lead to problems that will likely not be covered under the LAWPRO policy.

Don’t infringe copyrights or trademarks
The very foundation of the web is the ability to easily and broadly share information with others. When lawyers or law firms are posting information online they will sometimes include trademarks or information upon which others hold the copyright. With “cut and paste” it is easy and tempting to use large amounts of information from another source in a newsletter or in content for the web. Remember there are few, if any, scenarios where it can be argued that the use of trademarks or copyrighted information without permission was in some way professional services for a client. So, be especially careful to avoid the use of trademarked or copyrighted information unless you have consent, as this may result in expensive claims that are not covered by professional liability insurance.

Be careful what you say about others
The web’s informality makes it easy for the unwary to fall into saying something inappropriate about someone. Aggressive or nasty comments made in an unguarded moment or in the heat of a contentious matter can well result in a defamation claim. Making a nasty comment to the media, online or elsewhere, in the course of providing professional services for a client isn’t worth it. The circumstances in which the comments were made can determine whether the LAWPRO policy coverage is triggered as well as whether the policy exclusion addressing defamation of character applies. That exclusion is worded as follows:

LAWPRO policy excerpt
Part III Exclusions
The policy does not apply:
(e) “…to any CLAIM in any way relating to or arising out of INJURY to any person, or to mental anguish, shock, humiliation or sickness, disease or death of any person, or destruction or loss of any tangible property, including the loss of use thereof, unless as a direct consequence of the performance of PROFESSIONAL SERVICES;”

The word “INJURY” is defined in Part V: Definitions as follows:
“INJURY means bodily injury, false arrest, wrongful detention or imprisonment, libel, slander, defamation of character, invasion or violation of privacy, assault, battery, sexual misconduct, harassment, discrimination or wrongful dismissal.”

Often, no coverage is available for defamatory comments made about a non-client. If you want it, some protection for defamation type claims may be available through other forms of insurance offered by commercial markets. Consider speaking with your insurance broker about this.

Be wary of what others say in replies to your social media conversations and in comments on your blog
The defamatory comments of third-parties can also expose a lawyer to defamation law suits. Comments on blogs and social media tools allow total strangers to take part in very public conversations. Although a real benefit for sharing information, these conversations can have very negative consequences when someone posts something inaccurate or unpleasant – both of which can be judged in the biased eye of the beholder. Carefully monitor (and consider moderating) the comments posted to your personal or firm blog and the replies to any conversations you have using social media tools. You want to avoid being sued due to (allegedly) defamatory comments that appear in conjunction with you or your firm.

Avoid the unauthorized practice of law (UPL)
Lawyers need to appreciate that any content they post on the Internet can easily be accessed from anywhere in the world. Ontario lawyers practising law in other jurisdictions by providing legal services on the Internet should respect and uphold the law of the other jurisdiction, and not engage in the unauthorized practice of law. Clearly indicating the jurisdiction(s) in which you are licensed to practise in your online content and posts will help potential clients understand where you can and cannot practise. You want to avoid a negligence suit in a jurisdiction outside of Canada involving non-Canadian law.

Avoid online dangers
Social media sites and other online tools offer lawyers all sorts of interesting new ways to interact with people in both personal and work spheres. There are, however, some risks associated with using them. Some of these risks are obvious, some are not, and many won’t be covered by the LAWPRO policy. The “Social Media Pitfalls to Avoid” article in the December 2009 issue of LAWPRO Magazine highlights the risks – and how to avoid them. You might want to review that article if you have not already done so.

This article originally appeared in the September 2010 edition of LAWPRO Magazine. It is available in the magazine archives.

The July 9 issue of the Canada Gazette was published and it includes the second set of proposed regulations under Canada's anti-spam legislation (CASL). These are the Governor in Council regulations from Industry Canada, not to be confused with the CRTC regulations that were pre-published last week for consultation.

You can read the pre-publication in the Gazette here:

The consultation period for these proposed regulations is 60 days.

This article by Jennifer Ip, Senior Claims Counsel at LAWPRO, follows up on Monday's post on E&O coverage issues when dealing with foreign law, and appeared in the same December 2010 issue of LAWPRO Magazine.

When you shop for a contractor for a home renovation, you are often reminded about the need to ensure your contractor has third party liability insurance and workers’ compensation insurance – just in case.

Do you ask that same question when you shop for a lawyer outside of Ontario (or whatever is your home jurisdiction)? Do you remember to ask if the foreign lawyer carries professional liability insurance? And do you know what his/her coverage is? Imagine this. A 40-year-old client’s husband dies in a plane crash in the United States, the result of alleged negligence by air traffic controllers who fail to identify a storm and instruct the pilot to fly into an extreme thunderstorm. All on board are killed. The client is left a widow with two young children.

Because the widow resides in Ontario, she comes to you – an Ontario lawyer – for help. You find out that liability is not an issue as another individual in the United States successfully filed a claim through the Federal Aviation Administration (FAA) for negligence against the air traffic controllers. Clearly the case needs to be commenced in Michigan; but because you are not licensed to practise in Michigan, you cannot act for your client as it would be a breach of the Rules of Professional Conduct. As well you would not have E&O coverage under your LAWPRO policy, pursuant to the territoriality exclusion.

Recognizing the importance of proportionality and professionalism by taking into consideration the complexity of the matter and significant damages claim (about $7 million), this case would justify that you assist the client as legal advisor. Your client instructs you to find the best possible Michigan lawyer to carry out the litigation on her behalf; you are to assist her in liaising with that lawyer. A thorough search leads you to a lawyer who will take the case on a contingency arrangement, with you and the lawyer taking a share of the proceeds of any settlement or judgment.

Initially things move smoothly – until the day the lawyer informs you the limitation period was missed to file a notice to the FAA regarding the claim against it. Your client’s lawsuit is now one in negligence against the lawyer in Michigan for missing the limitation period – but discover his errors and omission insurance only provides coverage with diminishing insurance limits of $250,000 – nowhere close to covering your client’s $7 million claim.

A claim for negligent referral
While the concept of negligent referral has received minimal consideration in Canada, the topic has been widely discussed in the United States and recognized as an issue by the courts in the United States. Generally, the U.S. courts have been reluctant to impose liability on a referring counsel for the negligence of a recipient lawyer if the referring counsel has taken minimal care in his/her selection. There are policy reasons for this. We live in a world of legal complexity, and it is ethically responsible (and a lawyers’ obligation under our Rules of Professional Conduct) for a lawyer to seek out specialists and refer clients to
the appropriate counsel, particularly in a foreign jurisdiction.

However, the factors examined in the discussion of whether a referring lawyer should be found responsible for the negligence of the recipient lawyer include the following:

• the due diligence of the referring lawyer in selecting the recipient lawyer including investigating the background of the receiving lawyer;
• the fee arrangement, if any, in place for the referring lawyer;
• whether the referring lawyer maintained a joint responsibility with the recipient lawyer such that the referring lawyer was in a “general counsel” or supervisory role;
• whether an indemnity agreement was in place; and
• whether there were any conflicts of interest arising because of some relationship between the referring lawyer with the recipient lawyer.

While the courts in the United States generally swing in favor of the referring lawyer, referring lawyers are not immune to the claims made against them for negligent referral and at least one court, in Florida, has imposed liability on a referring lawyer.

One factor that can tip the scales against a referring lawyer is whether the innocent lay victim will be compensated for the damages to which he or she is entitled. In other words, did the recipient lawyer have professional liability insurance to cover the damages sustained by the client?

This consideration is especially important to practising lawyers in jurisdictions such as Ontario that have a mandatory error and omission insurance program with minimum limits. Many countries require practising lawyers to carry E&O insurance, but the limits vary from one jurisdiction to the next. In the United States, only Oregon has a mandatory errors and omissions program. Some jurisdictions in the United States may have a mandatory requirement to be insured if lawyers work in a large corporation. It’s therefore important for Ontario lawyers to ask if lawyers in foreign jurisdictions have professional liability insurance with sufficient coverage for their client’s case.

A referring lawyer may not be able to avoid a claim simply because he does have insurance coverage and the recipient lawyer does not or has only limited insurance coverage. If you’re in a situation where you are selecting counsel in a foreign jurisdiction – do your due diligence: Evaluate the foreign lawyer’s credentials
diligently. And make sure the recipient lawyer carries up-to-date errors and omissions insurance with limits sufficient for the client’s case.

When it comes to purchasing things, I research things to death. One of my favourite resources is Consumer Reports magazine. It provides independent information, advice and reviews on just about any and every product or service you can purchase (televisions, cameras, cell phones, small and large appliances, cars, food products, hotels etc.).

The articles review the features you should know about in so far as selecting between different models and they have helpful charts that rate and compare the top-rated options. They provide information on pricing and other tips to save money. There is also great reliability and repair info from readership surveys. There is a separate section that has Canadian-specific information for the pricing.

For today only, you can see the entire Consumer Reports magazine archive for free (with a registration).

I think Consumer Resource is a great resource. Take the opportunity to check it out today, especially if you are looking for information on a upcoming purchase.

Lawyers and their clients are more mobile than ever before. With the Internet, easy international travel and a global economy, relationships and business transactions – and legal matters and disputes – frequently cross international borders. Handling matters that involve foreign law can increase the risk that you will face a malpractice claim, and can have important malpractice insurance implications that you should keep in mind.

This article highlights activities and situations involving dealings with foreign lawyers and foreign law that can lead to situations that will likely not be covered under your E&O policy.

E&O issues
Remember that the LAWPRO policy provides Ontario lawyers protection for claims that are the result of your error, omission or negligent act in the performance or failure to perform “professional services” for others involving the practice of the law of Canada, its provinces and territories. What will, or will not, be covered can be very fact-specific, but you should expect that you are not covered for work involving non-Canadian law. Lawyers outside Ontario should check with their own insurer. Moreoever, in our experience, claims involving foreign law tend to be very expensive and are frequently for amounts in excess of the LAWPRO program limits. These claims also often involve some type of joint venture arrangements that are sophisticated frauds or are intended to dupe the lawyer and/or client.

In addition to raising insurance issues, giving advice with respect to foreign law in a jurisdiction where you are not admitted could expose you to an unauthorized practice of law prosecution, even assuming you have sufficient knowledge of the foreign law in question.

Don’t overlook or take shortcuts on basic file-opening procedures when handling matters involving foreign law, even where the client also directly retains foreign counsel. Client ID and conflicts checks are necessary to ensure you identify any issues they raise with respect to clients involved with other matters at your firm.

As much as you may want to help a client, don’t be tempted to give even the most basic advice with respect to foreign law, even if you know for certain that the information is correct. Just telling a client about a foreign law deadline or commenting on a few words in an agreement governed by foreign law fully exposes you to a claim.

And, don’t give foreign advice and try to pretend you are not doing so. LAWPRO sees this scenario when lawyers write long opinion or reporting letters providing information and advice on foreign law, but also include a disclaimer with respect that information and advice at the end of the letter. Of course, the disclaimer states that the information in the letter is not to be relied on and that the client should get a foreign lawyer. Despite the disclaimer, you are potentially in trouble if a client relies on the information in the letter.

Tricky scenarios
There are some common scenarios where foreign law issues can sneak up on you. For example: What country does that tiny little governing-law clause at the end of the contract specify – Canada or another country?

Consider as well if there are local law requirements that might frustrate what you are trying to accomplish. This can arise if you are drafting a will gifting real property located in another country. A will that is otherwise valid under Ontario law, may not be valid and cause the gift to fail under the law of the country where the property is located due to non-compliance with local execution or attestation requirements. There can also be local requirements involving taxes, bookkeeping or records when there are transfers of money, securities or real property.

You will likely be dealing with a foreign counsel if your client needs assistance on a matter in a foreign jurisdiction where you are not admitted and insured. LAWPRO strongly advises you to consider having the client retain the foreign counsel directly. This will give the client a direct relationship with foreign counsel, rather than a relationship that flows through you. Although not a guarantee, this can help insulate you from a malpractice claim by your client for the work done by the foreign counsel.

Clearly document the advice given to your client with respect to the requirement for advice from a foreign law qualified counsel. Ideally, your retainer should also explicitly provide that your advice will solely be respect to the laws of Canada.

Beware of the potential for a “right-hand left-hand” disconnect when dealing with foreign counsel. This can easily happen where there are language barriers or time pressures due to a pending closing date on very complex corporate transactions in which the client has local and foreign entities involving multiple lawyers in different countries. LAWPRO sees claims in these situations when changes in plans or revisions to draft documents are not communicated to all who need to see them.

Malpractice coverage: Is there any?
When dealing with foreign law and lawyers, ask your clients if they expect a certain minimum level of malpractice coverage. Client expectations and requirements can vary. Also ask if the foreign counsel has legal professional liability insurance. Don’t assume this is the case! In most jurisdictions lawyers are not required to have malpractice insurance, and even if they do, the coverage can be substantially less than LAWPRO ’s standard coverage or $1 million per claim, $2 million in the aggregate.

Ask foreign counsel how much coverage they have. What is covered and what is excluded? Are there limits in the policy or by agreement with the client? Although Ontario law forbids any agreements between lawyer and client that would limit a lawyer’s liability, such limitations are common practice in some other jurisdictions. Get a copy of the foreign lawyer’s professional liability policy and review it to determine if there are other provisions that cause concern. Consider as well the obligation to maintain insurance in case a claim arises many years after the work was done.

If you are dealing with a situation where there is foreign malpractice insurance, ask yourself these additional questions:

• What are the foreign malpractice insurance requirements?
• Does the foreign jurisdiction have minimum requirements? Minimum limits? Required coverage through the local Law Society or Bar?
• And if your firm has coverage for foreign legal work in place, are foreign carriers allowed to provide any or all of the insurance that you require?
• If coverage is required, what levels of insurance are available in the foreign jurisdiction?
  Consider how to structure your insurance coverage to avoid any gaps.

Other considerations involving foreign jurisdictions
And while not directly insurance-related, consider the other often complex requirements that can come into play if you are working on matters in a foreign jurisdiction, and in particular if you are physically doing work there.

These can include:

• finances, banking and retainer arrangements and records
• entity structure
• professional regulation and licensing
• corporate and business regulation
• criminal and civil regulation
• taxation
• immigration and employment regulation
• insurance
• client expectations and needs
• national culture.

For a much more detailed outline of issues to consider, see the ethical requirements document for “registered foreign lawyers” or RFS’s that the Solicitor Regulation Authority in the United Kingdom has published.

Handling legal matters that touch on foreign law and issues are becoming more commonplace for many lawyers. Exciting and rewarding as these matters may be, they need to be handed with caution and care, as coverage for these types of matters generally will not fall within the scope of LAWPRO coverage. Recognizing this, lawyers are well advised to structure their retainers to ensure the client understands that the Ontario (or elsewhere) based lawyer will only handle that part of the matter that is the practice of Canadian law, and that the client may need to retain other counsel for work involving the law of non-Canadian jurisdictions.

If one of your lawyers is properly admitted in a foreign jurisdiction and doing work involving the laws of that jurisdiction, arrange your own coverage for that work, as it will not be covered under the LAWPRO policy.

This article originally appeared in LAWPRO Magazine “File Retention,” December 2010 (Vol. 98 no. 4). It is available at www.lawpro.ca/magazinearchives

The Canadian Blog Directory, by Mark Evans and Seth Singer, aims to create a directory of the thousands of Canadian blogs out there. Each blog is reviewed and has to meet a quality test, and the directory can be searched by name or subject. Since its launch, the project has added about 300 blogs.

Be sure to submit your own blog to make it that much easier for Canadians to find you.

practicePRO has worked hard over the years to make lawyers aware of the wealth of practice management and claims prevention information available on the practicePRO site. Those efforts have resulted in practicepro.ca becoming a regular destination for many lawyers, particularly solo and small firm lawyers who may not have access to all the resources of a larger firm.

Lately there is one segment of lawyers that LAWPRO and practicePRO have made an extra effort to reach out to: new lawyers and those about to be called to the bar. Its been our experience that when lawyers were students, they really didn't have the time or inclination to give much thought to the 'real world' aspects of practicing law such as operating a firm, client service and malpractice claims; just dealing with the workload of law school was enough!

At the same time, lawyers venturing out into practice for the first time are most in need of practical help: creating a business plan, budgeting, retainers and other documents, client relations advice, marketing help and fraud prevention, etc. So LAWPRO has just launched The New Lawyer Resources page (www.practicepro.ca/newlawyers) . Its goal is introducing newly minted lawyers to the practicePRO resources available to them.

This page links to existing practicePRO material that we think will be of interest to new and younger lawyers. We are working on additional resources that are targeted specifically at new lawyers. So if you know of any students or freshly minted lawyers, be sure to send them the link practicepro.ca/newlawyers.

In Webb v. Birkett, 2011 ABCA 13, the Alberta Court of Appeal held that the defendant solicitor Birkett was negligent in representing the plaintiff Webb in a collaborative family law settlement.

The Alberta Court of Appeal held that CFL practitioners must meet the same standard of care required of other family law practitioners — including taking appropriate steps to get the financial information needed to properly advise the client. A lawyer must obtain sufficient reliable information to be able to ascertain what the client would likely receive, or be required to pay, for spousal support, child support and matrimonial property division should the matter be resolved at trial, and so advise the client. A lawyer should tell a client who takes the position that he or she wants to settle without having received full information from the other side that they may therefore be accepting less, or paying more, than what would be required according to law, and provide to that client an assessment of the impact f the risk, including estimates of the value of what might be lost, or paid above what was necessary, to the extent possible, on the basis of the information then available. A prudent solicitor would put this advice in writing.

While it comes from the Alberta court of appeal, the comments on the required standard of care in the CFL setting make this decision worthwhile reading for collaborative family law lawyers in other Canadian jurisdictions. The decision also dealt with limitation periods and proving damages (despite the lawyer’s negligence, the court took a very tough stance on proving damages and held none were proven in this case).

From a CBC story

A website that lets people check whether their email addresses, usernames and passwords have been stolen in a cyberattack and posted online has been launched by an Australian who is a former IT security consultant.

This new website, shouldichangemypassword.com, allows concerned internet users to enter an email address and see whether it appears in stolen information posted online by groups such as Lulz Security. If an email is listed in the database of stolen data, the site will list what information among your email, username and password have been compromised, how many times it has been compromised, and the most recent incident. It will also recommend that the user change all his or her passwords.

The person behind the site says he plans to keep updating the site whenever a new password database is made public "in perpetuity." Will be interesting to see how long it really lasts – and of course, an all clear doesn't necessarily mean an all clear, but nice to be able to crosscheck if you ID appeared online.

This article by Carole Cochrane originally appeared in the Winter 2006 issue of LAWPRO Magazine. The advice given is just as relevant today.

Why do we all shudder on learning that our client’s adversary is self-represented on a litigation file? So often we fail to appreciate opposing counsel – until we hear those dreaded words from our client: “You know, the other side won’t be getting a lawyer.” It is only then that we realize and appreciate the benefit of there being opposing counsel on a file.

On a litigation file, opposing counsel can serve a number of important functions that can make our own role so much easier. Without opposing counsel there is no one on the other side to:

• give good, solid advice as to what the law is and how it is or can be applied;
• recognize the critical importance of full, complete and timely disclosure;
• encourage a negotiated resolution;
• draft concise and legible pleadings, briefs and affidavits;
• screen, or serve as gatekeeper, to the irrelevancies and non-legal issues;
• facilitate compliance with Rule-directed or court-ordered obligations, such as the timely completion of an accurate affidavit of documents, the fulfillment of the requirements for mandatory mediation under Rule 24.1 of the Rules of Civil Procedure, the delivery of an updated financial statement or the prompt consideration of a draft order provided for approval;
• conduct a trial, properly focused on the issues at hand; and
• discourage protracted proceedings, mindful of the everincreasing costs of contested litigation.

In earlier literature on this topic, a distinction has been drawn between self-represented litigants and unrepresented litigants. The latter would like to be represented by counsel but are unable to qualify for representation under the Ontario Legal Aid Plan, and do not have the financial resources to retain counsel for what may prove to be a protracted proceeding.

Conversely, self-represented litigants feel that they are capable of representing themselves, and do not feel the need to pay someone else to do what they believe they can do themselves. (After all, if you’ve watched enough reruns of “L.A. Law” or “Street Legal,” have high-speed internet and a library card, that is enough, isn’t it?)

Whatever the reason or cause may be for the self-representation, it becomes your reality to address. Below you will find some general pointers as to how to best deal with the situation of an unrepresented or self-represented litigant (referred to collectivelyas “SRL”) on the other side of your file.

CLEARLY SPELL OUT AT THE OUTSET OF YOUR DEALINGS THAT YOU WILL NOT GIVE ADVICE TO THE SRL.Your first letter to the SRL must clearly indicate that you represent the adverse party and that you cannot, and will not, provide any advice to the SRL.

There is a very fine line between offering information and giving advice. Although it may be tempting to explain to a SRL what a document means or why something should be done a certain way, don’t go there! Encourage the SRL to obtain independent legal advice. Offer the SRL the telephone number for the Lawyer Referral Service, or if the matter is a family law proceeding, suggest the SRL attend at the Family Law Information Centre. When you’re asked questions, refer back to that initial letter of introduction and remind the SRL that he/she will have to obtain advice from someone other than you.

ONLY ALLOW COMMUNICATIONS BETWEEN YOURSELF AND THE SRL TO BE IN WRITING.

Write to the SRL as soon as you are retained to indicate that you will be limiting your communications with him/her to writing. There will be no meetings; there will be no verbal negotiations; there will be no telephone calls. Although this may sound overly restrictive, it is the only way to avoid misunderstandings. All of your dealings with the SRL should be recorded in writing, either through your written communications or by your discussions being on record in the courtroom.

When you are writing to the SRL, use plain, simple language. This does not mean to insult the SRL’s intelligence or to be condescending; simply avoid the “notwithstanding”’ or “govern yourself accordingly” ’ terminology that come too easily to us as lawyers.

If written communication is electronic, ensure that copies are printed and maintained on your file.

Always make sure that you respond promptly to communication you receive; if you cannot respond within a reasonable period of time, send a short note off to the SRL to acknowledge receipt of his/her correspondence and to advise that a considered response will follow shortly.

If communication cannot be in writing, limit your non-recorded dealings with the SRL, and if possible, have another person join you as witness, such as a junior or articling student. Follow up any oral communications with a letter of confirmation.

NEVER TREAT THE SRL WITH ANYTHING LESS THAN THE UTMOST OF RESPECT.

Ensure that your tone is consistently professional and respectful. Our Rules of Professional Conduct direct us to treat unrepresented litigants with respect, in the same way you would treat another lawyer. I suggest that you take that even one step further, as you can rest assured that one or more of your letters will find their way to a judge as an exhibit to an affidavit, in a settlement conference brief, in a document brief at trial, or better yet, as the attachment to a complaint directed to the Law Society! With that foresight, be sure your written communications are written and edited in such a way that they cannot be interpreted as overreaching,
misleading, disrespectful, unreasonable or coercive.

Although you may be empathetic to the SRL’s plight, (particularly those who are “unrepresented” versus those who are self-represented by choice), remain professional and respectful at all times. One thing I have tried to do to maintain that professional distance is to not address the SRL on a first name basis, but rather to refer to him/her at all times as Ms. X or Mr. Y.

TAKE CHARGE OF THE FACT FINDING AND DOCUMENTARY DISCLOSURE THAT IS REQUIRED ON THE FILE.
The SRL may not know what information is required to allow the equalization issue to be resolved for instance, or may not be aware of what should be included in an affidavit of documents. Compile and organize early on all of the necessary corroborating documents that are required to allow you to outline in writing to the SRL what he or she must produce.

REMIND YOUR CLIENT THAT HAVING A SRL ON THE OTHER SIDE OFTEN DRIVES UP THE COSTS.

Negotiations with a SRL may not be helpful or results-oriented. Disclosure from a SRL may not be forthcoming. Your time may have to be spent reading numerous e-mails or letters, or you may be facing more case conferences or motions than if counsel were involved. You may have to recommend that court proceedings be initiated sooner than would otherwise have been the case in order to obtain some Rule-directed time lines, some judicial directives and/or genuine case management.

OPEN YOUR EYES TO THE WARNING SIGNS THAT YOUR OWN OR YOUR CLIENT’S SECURITY MAY BE AT RISK.
Is the SRL’s attitude towards you shifting (becoming suddenly charming or hostile)? Are the SRL’s letters to you or to your client becoming blatantly or subtly threatening? Arrange for Court security to be available at any time you will be required to be with the SRL in that setting, and arrange to stay at the court house until the SRL is well on his/her way after the proceedings have concluded.

LIMIT THE SRL’S PERCEIVED POWER OVER THE PROCESS.

Insist that the rules be followed – the Rules of Civil Procedure or the Family Law Rules with respect to pleadings, disclosure and time lines, for instance, as well as the rules of evidence.

Let the SRL know of your intention to seek an order of costs at each stage of the proceeding; if you successfully obtain such an order, pursue its enforcement. Limit the SRL from taking any fresh steps until such interim determinations are honoured [Rule 60.12 of the Rules of Civil Procedure; Rule 14(23) of the Family Law Rules].

Do not hesitate to rely on the provisions in the Rules that prevent a SRL from engaging in abusive or vexatious proceedings. Rule 37.16 of the Rules of Civil Procedure and Rule 14(21) of the Family Law Rules give the court the authority to limit a litigant’s ability to bring further motions without leave being obtained in advance.

It is one thing for a presiding justice to de-mystify the court process to a SRL; it is not appropriate for the judge to overaccommodate to the prejudice of your client. In the courtroom, object where necessary if that line is crossed, and stress as strongly and respectfully as possible that the SRL is required to follow the rules, just like anyone else appearing in that courtroom.

C – O – N – T – R – O – L

If you combine the first letter of each of the “tips” outlined above, you’ll see that what they spell: CONTROL. And it is just that, control, that you want to maintain when you deal with a self-represented litigant. Only through demonstrating the necessary degree of control will you keep your frustrations at a manageable level, minimize the risks to your client (in both time and costs) and reduce your own exposure to liability.

CBC is reporting that Facebook was hacked again. While it doesn’t look like huge numbers of accounts were compromised, it is worth changing your password to protect yourself.

And regardless of whether your account was compromised or not, changing your passwords regularly is one of the best things you can do to protect your online identities and accounts. You can learn about other password best practices in this article from Law Practice magazine.

Loads of people writing, speaking, blogging and consulting on search engine optimization or SEO. Some of them even have good advice, but often in snippets. They just don't give the big picture on all the things that go into SEO.

Thanks to Bob Ambrogi who tweeted about the Periodic Table of SEO Ranking Factors. As a one-time student of chemistry, I think using a periodic table layout is a brilliant way of grouping very different but related things in a logical way. And don’t be scared off if the last time you saw a periodic table was when you ran screaming from your grade 12 chemistry lab.

Of the hundreds articles and blog posts I have read on SEO, this is by far the best. The SEO periodic table gives you a great overview of factors that go into on the page and off the page SEO. The 25 pages of supplemental text – The Periodic Table of SEO Ranking Factors, The Complete Guide – gives you a systematic overview of all of the things that go into SEO. It is written in language that is easy to understand.

The Complete Guide has 10 parts:

1. Overview
2. Content
3. HTML
4. Architecture
5. Links
6. Social
7. Trust
8. Personalization
9. Violations
10. Blocking

My only complaint: I wish there was an easier way to get a single printout of the ten parts of the Complete Guide. You have to link to each of the separate sections. Make sure you see them all.

Read it. Study it. Bookmark it. Favorite it. Tweet it. It is a great guide to greater visibility on the web and in social media. Thanks to the people at search engine land for this great resource.

Significant numbers of law firm partners are nearing retirement age. Many firms are facing the daunting question of how to smoothly transition their clients and practices to the next generation – and most firms have taken few if any steps to tackle the thorny issues this transition can raise.

Look to the May/June 2011 issue of Law Practice Magazine if you need help with building a succession plan for your firm. It has several articles that will help you with transitioning clients, practices and leadership.

Marcia Pennington Shannon’s A Short Course in Succession Planning article gives you a snapshot of fundamental steps and issues to consider in charting out a practice's transition process.

Steven T. Taylor wrote profiles of three firms that tackled various succession planning issues:

• Moving Young Lawyers into the Leadership Pipeline
• Dealing with "What-If" Scenarios and an overhaul of the firm's associate-heavy structure.
• Implementing the Management Succession Plan step-by-step over several years.

If you are a firm leader the Five Questions to Ask About Your Firm Succession Readiness article by Tom Grella will give you a roadmap to lead your firm through the execution of a succession plan.

There is a great article on the Financial Aspects of Succession Planning by Stephen Mabey and Karen MacKay.

Lastly for anyone considering closing a solo practice, there is the Solo Lawyers Exit To-Do List article by Sheila Blackford and Peter Roberts, along with an actual checklist you can adapt and use.

Don’t underestimate the time and effort that it will take to properly plan and execute a succession plan at your firm. It is never to early to start. It can take 3-5 years or more. The articles in this issue of Law Practice will start you on this process.

If you have not had a chance to attend ABA TECHSHOW, now is your opportunity to sample the quality of the educational sessions. The ABA Law Practice Management Section, producer of the annual technology conference has, for the first time, released most of the slide presentations from the sessions at ABA TECHSHOW 2011. Take a look at the range of topics covered each year so you better understant why over a 1,700 lawyers, IT staff, paralegals, legal assistants, and product vendors attend this 3-day conference in Chicago.

The educational sessions are just one part of TECHSHOW; the networking, vendor expo, and one-on-one interaction with many of the top law practice technology experts in the country make it a truly valuable experience.

Take a taste now, but be sure to attend the entire conference March 29-31, 2012 in Chicago!

The Ontario E-Discovery Implementation Committee (EIC) released in February revised versions of all of its e-discovery and e-trial model documents and guidance materials. Links to all of these documents are provided below.

Annotations are included throughout the EIC’s model documents and the EIC’s other e-discovery guidance documents. Many of the annotations refer to The Sedona Canada Principles Addressing Electronic Discovery (the “Sedona Canada Principles”). The Sedona Canada Principles are a set of national guidelines for e-discovery in Canada, which reflect both existing legal principles and a set of identified best practices. The Sedona Canada Principles are intended to be compatible with the discovery rules in all Canadian jurisdictions. Effective January 1, 2010, civil litigants in Ontario are required, pursuant to Rule 29.1 of the Rules of Civil Procedure, to consult and have regard to the Sedona Canada Principles in preparing a discovery plan for an action. A copy of the Sedona Canada Principles may be downloaded from www.thesedonaconference.org, where they are found under the list of publications for Working Group 7.

The EIC’s documents have been prepared and made available to the public by the EIC for informational purposes. They are not provided as legal or technical advice and should not be relied upon as such.

The documents fall into five broad categories:

Preservation Letters

• Preservation Letter (To be Sent to Defendant or Proposed Defendant)
• Preservation Letter (To be Sent to Opposing Counsel)

Discovery plans and discovery agreements

• Discovery Agreement
• Preservation Agreement
• Checklist for Preparing a Discovery Plan
• Discovery Plan (Long Form)
• Discovery Plan (Short Form)
• Letter Confirming Discovery Agreement*

Guidance documents on how to carry out e-discovery and minimize costs

• Memorandum to Corporate Client Regarding Documentary Discovery
• Memorandum to Individual Client Regarding Documentary Discovery
• Annotated E-Discovery Checklist (with suggestions on how to minimize e-discovery costs)
• 10 Guiding Principles to Minimize E-Discovery Costs

Note: See also Model Document #9 (above), which is a Checklist for Preparing a Discovery Plan.

Materials for use by the court

• Preservation Order
• Proportionality Chart (Document Production)

E-trials

• E-Trial Checklist
• What is an Electronic Trial?

Providing Your Comments
The EIC always appreciates comments on its materials. The Committee will review all comments received and consider appropriate revisions. Comments may be submitted to the Chair of the EIC, David Outerbridge, at:
Email: douterbridge@torys.com
Fax: 416.865.7380
79 Wellington Street West
Suite 3000
Toronto, ON M5K 1N2

In an April 18, 2011 post on the Minnesota State Bar Association’s Practice Blawg, it was announced that the MSBA trust accounting guides are now available to non-MSBA members. In the past these guides were behind a members-only wall.

These guides help lawyers work with trust accounts in the several commercially available mainstream accounting programs. There are 5 guides including:

• Keeping Client Trust Accounts with GnuCash 2.2.4
• Keeping Records for Client Trust Accounts Using Microsoft Office Accounting 2006 or 2007
• Using QuickBooks 6.0 for Lawyers’ Trust Accounting
• Trust Accounting with QuickBooks 2005 Professional
• Keeping Clients’ Trust Accounts with QuickBooks 2010 Professional

If you want one of these guides follow this link and complete a form, which requires an email and your name. The guide you request will be emailed to you.

I note that I make this post with some hesitations. I always strongly recommend lawyers use accounting software that is specifically designed for law firms for the simple reason that these products have build-in functionality for dealing with trust accounts. There are some great mainstream accounting software products, but you have to do some workarounds to deal with trust accounts. You can avoid this extra work – and the mistakes that are more likely to happen – by working with software that is specifically designed for a law office setting.

That being said, I know some lawyers end up using mainstream accounting products, (often to save money or to use the products that the firm accountant has requested – nice to help them out but not if it causes you to not meet your record keeping obligations with respect to trust accounts). If you are using one of the above mainstream products, these guides are a great resource to help you properly deal with trust accounts.

Yesterday the Law Society of British Columbia posted the below warning on its website.

From a California lawyer, we have also received a copy of a message that purports to come from lawyer named Marcus Davis at this firm. The initial contact message the California lawyer received is reproduced below.

Attention real estate practitioners:
Fake law firm website used in new variation of bad cheque scam

Wagner Elliot LLP is not a real law firm, but in yet another twist on the bad cheque scam, a sophisticated fraudulent website (www.wagnerelliot.com) is used to fool you into believing that it is. The scamsters hope to trick you into paying out on a phony trust cheque, certified cheque or bank draft.

Although Wagner Elliott LLP is used as the bogus site in this scam, the details — including the fake law firm used — may vary. Here's generally how the scam works:

• You are contacted by a new client who claims to live in another country (e.g. Japan) and wants you to act on a conveyance.
• The client has used a BC realtor to make an offer to purchase with subjects on a residential property in BC.
• The realtor sends you the signed contract of purchase and sale.
• The client tells you that they will have their Wagner Elliot LLP lawyer, based in Toronto, send you the funds.
• You receive a well made but phony instrument for deposit into your trust account.
• Soon after you deposit the funds into trust, the client contacts you to say that they aren't removing the subjects and to please return the funds.
• If you write a trust cheque before learning that the instrument was bad, you've been scammed.

This isn't the first phony law firm that we've seen in attempts to scam lawyers and it won't be the last. Here are some steps that you can take to help protect yourself:

• If you are contacted by a new client who tells you that Wagner Elliot LLP will send you funds on their behalf, assume it's likely a scam. Appreciate that while the initial contact in any scam is often by email, it sometimes occurs by telephone or in person.
• Scamsters may use other phony law firm websites or develop new ones. Make sure that a firm and the lawyer sending you funds are real by checking with independent sources such as the law society in the lawyer's jurisdiction, and then comparing the information provided to see if it matches with that provided by the firm.
• Use the Internet and other resources to cross-check names, addresses and telephone numbers to see if they correspond. For example, you can use reverse directories to see if the number provided to you corresponds to the name and address and to find out if the number is a cell phone or land line. Some information is free and more detailed information can be obtained for a very small fee.
• Abide by the client identification and verification rules (Rules 3-91 to 3-102). For a "financial transaction" (as defined), a lawyer must take reasonable steps to verify the client's identity in person (no matter where the client claims to live). It's not sufficient for the client to send you a fax or email scan of what the client claims is their passport, driver's license, Nexus card or other identification. See the Client Identification and Verification Procedure Checklist precedents for how to verify identity using a guarantor (client in Canada) or an agent (client outside Canada).
• We have a number of long weekends coming up and also summer holidays. Fraudsters like to prey on law firms when they think they may be short-staffed or rushed for time and not as careful. Be extra vigilant at these times.

Scams, including bad cheque scams, are ubiquitous. Make sure that you and your staff are familiar with the common scams that target lawyers. For more tips and information, read the materials in Fraud Alerts on the Law Society website.

If you suspect that a new client may be a scamster and you would like confidential ethical advice, you are welcome to contact Barbara Buchanan, Practice Advisor, at bbuchanan@lsbc.org or 604.697.5816 or any member of the Practice Advice Department.

Reproduced here is the email message a California lawyer received from the purported Marcus Elliot at fake firm Wagner Elliot:

—–Original Message—–
From: marcus.davis
To: lawyer name
Sent: Thu, Apr 14, 2011 5:54 pm
Subject: Marcus Davis found you on Avvo and is interested in your legal
services

Find a Lawyer
| Find a Doctor | Avvo.com

Dear Michael,
Marcus Davis viewed your profile on Avvo and sent you the inquiry below. To respond, please reply to this e-mail. (Note that while most inquiries are genuine, some may not be. Avvo does not review these contact emails, so please use your best judgement in responding.) Our client, a real estate investor from Japan is interest in investing on real estate in your area and want to retain your service Asap. My client request to retain your office to represent his interest with regards to the acquisition of properties in your area.

First retainer will be for Capital Investment for the purpose of
acquiring properties e.g. Office Buildings, Apartment Buildings, Homes
etc

If your are interested contact us immediately

Marcus Davis
4645 Jane Street
Toronto, Ontario M3N 2K9
Telephone: 416-820-8457
Email: marcus.davis@wagnerelliot.com
Web: http://wagnerelliot.com
Marcus Davis' contact information:
email: marcus.davis@wagnerelliot.com (preferred)
Mark this contact as spam What's Avvo? Avvo is the only free website helping consumers make better medical and legal decisions by providing more information and better guidance than they've ever had access to before. Avvo offers ratings and profiles for over 90% of doctors and lawyers in the U.S., as well as patient and client reviews, peer endorsements, and disciplinary records. To learn more, visit www.avvo.com You are receiving this mail from an Avvo customer. If you do not want to receive customer contact e-mails in the future, you may remove yourself from this feature by clicking here. Opting out of receiving customer contacts will not remove your Avvo profile. It simply removes the ability for customers to contact you via email.
Research: Health Issues |
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Please note: this message was sent from an address that cannot
accept incoming e-mail. If you would like to contact us about
this message or anything else simply fill out our customer care form.
To learn how we protect your personal information, please see our
Privacy Policy Avvo, Inc. – 1218 Third Avenue,
Suite 300, Seattle, WA 98101

If you have been targeted by this fraud, please forward any of the emails you have received to fraudinfo@lawpro.ca.

For more immediate updates on fraud and claims prevention, subscribe to the email or RSS feed updates from LAWPRO’s AvoidAClaim blog.

If you are a LAWPRO insured, please call LAWPRO at 1-800-410-1013 (416-598-5899) if you suspect you are acting on a matter that appears like it might be a fraud. We will talk you through the common fraud scenarios we are seeing and help you spot red flags that may indicate you are being duped. This will help you ask appropriate questions of your client to determine if the matter is legitimate or not. In the event the matter you are acting is a fraud and there is a potential claim, we will work with you to prevent the fraud and minimize potential claims costs.

If you are a LAWPRO insured and have been successfully duped, please immediately notify LAWPRO as there may be a claim against you. Instructions on how to report a claim are here.

Further fraud prevention information and resources are available on the practicePRO Fraud page (www.practicepro.ca/fraud), including the Fraud Fact Sheet, a handy reference for lawyers and law firm staff that describes the common frauds and the red flags that can help identify them.

Cross posted at Avioid a Claim

The latest edition of LAWPRO's webzine has a number of articles specifically for litigators. One of them is an excellent paper from Justice Carole Curtis called Dealing with Difficult Judges.

Litigators of all stripes will find helpful reminders and suggestions on such topics as knowing your judge, planning strategy in advance, avoiding 'head butting', and protecting the record, your client and your reputation.

Justice Curtis alse describes the categories of difficult judges, and attempts to answer the question of the frustrated litigator: what does the judge want?

I'm just back from a great ABA TECHSHOW in Chicago last week. I learned lots about legal technology and enjoyed the company of fellow technology enthusiasts. Wish you all were there, but as I know many SLAW readers were not, in lieu I offer a great collection of articles from the just released 2011 Techshow Tips issue of Law Practice magazine:

• Tablet Users Face Off: iPad versus Slate Shootout
• A Day in the Life of an iPad Lawyer
• A Look Inside the New Mac Apps Store
• Must-Have iPhone Apps
• 10 Tips for Getting Started with Open Source Software
• Google Apps: Hot Tips for Putting Google Tools to Work in Your Practice

The Wonders of Windows 7: Is It Time to Upgrade?

• Six Things to Do with Microsoft OneNote
• Harnessing the Power of Mind Mapping
• Flying Safely in the Cloud
• STOP, THIEF! How to Safeguard Against-and Respond to-the Loss of a Laptop
• Essential Dos and Don'ts for Twitter Users
• How Smartphones Threaten Business Security: Coming to Grips with the Facts
• Supervising Your Team Electronically: E-mail Dos and Don'ts
• Thinking About Social Media in Your Firm

On April 19 the new BlackBerry PlayBook will hit the shelves at 20,000 stores and couriers will be busy delivering the pre-orders. Thanks to my old technology friend John Olah (He had a great contact at RIM!), I had the opportunity to spend some time with a pre-release version of the PlayBook at ABA TECHSHOW this week. I was generally impressed with this device, but have some hesitations as well.

The PlayBook felt very solid in my hand. It is 1cm thick and the rubberized back and sides let you keep a good grip on it. I always feel I am going to drop my iPad2 because it is so thin and the aluminum back is slippery. The PlayBook weighs slightly less than a pound and is also much easier to hold in one hand.

With a 7 inch screen it is smaller and more portable than its larger iPad brethren. As an aging person with failing eyesight I do appreciate larger screens more often than I did in the past, but I really liked the portability the smaller size of the PlayBook gives you. I think this is a plus for the PlayBook as portability is important to a lot of people. Unfortunately, the PlayBook won’t fit into the breast pocket of a suit jacket (It is about 1cm too wide – a design flaw?) and it is a shade too big for a belt clip. It would fit into the hip pocket in a jacket or trench coat or a smaller purse.

The 1024×600 WSVGA capacitive LCD touch screen gives you video that is truly stunning – it had incredibly bright and sharp colours on quick moving scenes. The HDMI video output was equally impressive on a 48 inch SMART Board. You will be able to use a stylus on the screen and Bluetooth keyboards can be used with it as well.

The PlayBook has rear and front facing cameras which are, respectively, 5 and 3 megapixels. Both cameras can also record full 1080p video footage.

The PlayBook runs on an entirely new OS specifically designed for this device called the Blackberry Tablet OS. This new OS was based on the QNX operating system (a recent RIM purchase) and it will eventually be used on all BlackBerry devices. The PlayBook has a 1GHz dual-core processor and 1Gig of RAM. It was really fast and you can do true multitasking on it. I had 8 or 9 different applications running (including OS intensive web and media apps) and was able to switch between them easily and virtually instantly.

In many ways the screen interface of the PlayBook looks similar to that of the BlackBerry Torch. I found navigating the screen was easy and reasonably intuitive. It automatically orients to portrait or landscape as change the orientation of the device. Many of the icons are identical and most BlackBerry users would recognize most of them. You can slide groups of icons up and down and to the left and right, much as you do on an iPhone or iPad.

A single tap on an icon opens an application up. Open applications fill the entire screen. When they are in full screen mode, a downwards swipe across the top edge of the screen displays a dropdown box that contains menu items for that application – the menu items are not otherwise visible. I think this is a really great GUI feature as it makes maximum use of the limited available screen real estate. You can tell I am not a fan of the Microsoft ribbon. I hate wasted space on a screen.

A vertical swipe up across the bottom of edge of the PlayBook screen minimizes an open application. It only took about 10 minutes or so to get used to the new swiping motions. After minimizing an open application, you see a horizontal line of screenshots from all open applications. You can scroll these screenshots to the left or right and a single tap opens up the selected app. Switching between apps was very fast. Great to have true multitasking on this device.

I did visit the PlayBook App World but found only a few dozens apps there. I am told that as of April 19 there will be a few thousand apps available. Not an impressive number relative to what is available for other smart phones and tablets. However, I also understand that the PlayBook will run Android apps – good news as this means there are more than 150,000 other apps currently available for the PlayBook. Hopefully it won’t be too long before we see more apps that will use the full capabilities of the new Blackberry Tablet OS.

I understand battery life is 8-10 hours. The PlayBook has a whole array of sensors for mapping and gaming including GPS, Accelerometer, Gyroscope and a Digital Compass.

Unlike the iPad, the PlayBook will display Flash. While we could argue for at least an hour our whether Flash has a future – there are currently huge numbers of Flash-based sites that won’t be going anywhere soon and this gives the PlayBook one important and significant ability the iPad doesn’t have.

One last thing to comment on – and this one has me scratching my head a bit. To access your BlackBerry email, contacts and calendar you must pair the PlayBook with your BlackBerry. When the devices are in close proximity to each other they will securely connect with BlackBerry Bridge – a newly developed connection that has extra security to allow a secure pipe between the two devices.

When the devices are paired, you will be able to view emails, attachments, contacts and calendar entries from the BlackBerry on the PlayBook. The data for all this information will not reside on the PlayBook. Rather, it will be delivered to the PlayBook as emails are opened etc. When the two devices are separated from immediate proximity to each other, all information delivered to the PlayBook will be automatically wiped. Other things on the PlayBook will operate when it is not paired with a BlackBerry – you just won't be able to access your BlackBerry email, contacts and calendar. There is a third-party app in development that will allow data to remain on the PlayBook. You could access web-based email and info via WiFi.

While the security of the BlackBerry is great – and one of the main reasons many law firms use BlackBerries and not iPhones and iPads – I’m not sure having two devices makes sense for most of us. Admittedly, different people will have different needs and desires and the “ultimate everything device” will vary in size and abilities based on personal preferences. I suppose having one data plan is better than two (although with the multi-media abilities of the PlayBook I suspect anyone using one will see their data usage go way up). No doubt, the extra security the PlayBook has will mean that many law firms that have avoided iPhones and iPads will consider using PlayBooks.

I really like my BlackBerry Torch because I find the touch-screen capability lets me review and delete emails more quickly and it makes it easier to browse websites (And look for a Bold with a touchscreen in the not to distant future). Because I can do more with my Torch, I find I am leaving my laptop behind more often than I did in the past. I am assuming the larger PlayBook screen will let me leave my laptop behind on even more occasions.

However, I’m not sure I really want to drag two devices. No doubt RIM could make a PlayBook just as secure as a BlackBerry. Playbooks that include 4G are coming later this year and these could operate as a phone. And while most of us probably don’t want to hold a PlayBook to our head to make a call, it seems to me that a wired or wireless ear-bud and mic would work fine here. Perhaps they haven’t had enough time to sort these features and some of these things will happen down the road.

The PlayBooks coming out next week are Wi-Fi only and come as an entry level 16GB model costing $499, or more expensive 32GB or 64GB versions priced at $599 and $699. Those prices match the comparable iPad 2 models.

I will be getting a PlayBook on April 19 and will provide an update of my experience with it in a few weeks.

LAWPRO has seen a significant increase in bad cheque frauds targeting lawyers all over North American over the last two months, and over the last week several new names are being used on the ongoing collaborative agreement frauds. We are also seeing more activity in the last few weeks on frauds involving a real estate purchase deposit and a settlement of an employment related personal injury claim. Over the last few months several hundred lawyers from across North American have reported to us that they received various versions of these messages attempting these frauds. See below for more details on each of these frauds. The reports to us are the tip of the iceberg – clearly thousands of lawyers are being targeted – and some have been successfully duped.

These frauds look like legitimate legal matters and are intended to cause you to disburse funds on a bad cheque, bank draft or US cashier’s cheque deposited in your trust account. These fraudsters will actively respond to communications (by email and even phone), sign retainer agreements (but not pay retainers as promised), provide identity documents and other supporting documentation and information, including copies of the collaborative agreement, a divorce judgement or decree, a payment agreement and ultimately a fake cheque or bank draft. The counterfeit documents are very good – on occasion they have fooled bank staff. For a more detailed description on how these bad cheque scams work see this earlier AvoidAClaim post.

New round of collaborative family law agreement frauds

The initial contact emails on this fraud states that a spousal support payment is owed further to a collaborative law agreement signed by husband and wife. This has been an ongoing and widely attempted fraud and there is a new round of this fraud using new client names. Over the last week lawyers from all over North America (and in particular Ontario, Massachusetts, Ohio, Michigan, Texas, Florida and California) have advised that they have received an initial contact email message setting up a collaborative agreement scam where the fraudsters are using four names we have not seen before: Gloria Lee, Dennis Luo Nicholas, Anita Bell and Adrian Benavides. Click on the links to see more specific details about each of these frauds.

The initial contact and subsequent email messages and supporting documents and information on these frauds are identical to those used in previous and ongoing collaborate agreement frauds we have seen by purported clients Kathy Cheung, Peggy Higashi, Beverly Kawashima, Jennifer Wong and Zaira Hoshiko and Rita Takahashi or Rika Takahashi. Click on the links to see more specific details and sample email correspondence for each of these frauds. Over the last several weeks we have seen a large increase in fraud attempts using the previously used names, in particular Zaira Hoshiko and Rika Takahashi.

Real estate bad cheque scam by Shiukmoda Joji

Late in February a real estate lawyer reported to LAWPRO an attempted fraud that came to him through a real estate agent he frequently works with involving an individual purporting to be Shiukmoda Joji. More than 60 other lawyers and real estate agents from all over North America have since reported to us that they were contacted by the purported Joji. It appears very large numbers of lawyers and real estate agents are being targeted by this fraud. Clearly real estate agents are being approached to give credibility to the deal when it is referred to a lawyer (and to do the deals in states where lawyers do not do real estate transactions).

This fraud appears to be a bad cheque deposit or payment scam. In this type of scam the fraudster pretends interest in a property and sends a certified cheque or bank draft as a deposit or full payment that will be deposited in the lawyer’s trust account. Soon after, some reason will be given for backing out of the deal and the fraudster will ask for the deposit or payment back, minus whatever legal fees and penalties the lawyer holds back. Of course, the original cheque was fraudulent, so any amount the lawyer sends to the fraudster will cause a shortfall in the trust account. See this AvoidAClaim post for more details on this fraud.

Employee injury settlement fraud by Karen Clark, Michael Park or Gary Triestman

Over the last several months we have seen this fraud a few times, and several times in the last week. It is a simple bad cheque fraud that involves the supposed payment of a settlement due to an injury at work from an employer to employee. Versions have come from people purporting to be Karen L. Clark (or Karen Clark), Gary Triestman and Michael Park. See this AvoidACaim post for more details on this fraud.

Keep your guard up and don’t get scammed!

If you have been targeted by this fraud, please forward any of the emails you have received to fraudinfo@lawpro.ca.

If you are a LAWPRO insured, please call LAWPRO at 1-800-410-1013 (416-598-5899) if you suspect you are acting on a matter that appears like it might be a fraud. We will talk you through the common fraud scenarios we are seeing and help you spot red flags that may indicate you are being duped. This will help you ask appropriate questions of your client to determine if the matter is legitimate or not. In the event the matter you are acting is a fraud and there is a potential claim, we will work with you to prevent the fraud and minimize potential claims costs.

If you are an Ontario lawyer that has been successfully duped, please immediately notify LAWPRO as there may be a claim against you. Instructions on how to report a claim are here.

Further fraud prevention information and resources are available on the practicePRO Fraud page (www.practicepro.ca/fraud), including the Fraud Fact Sheet, a handy reference for lawyers and law firm staff that describes the common frauds and the red flags that can help identify them.

For more immediate updates on fraud and claims prevention, subscribe to the email or RSS feed updates from LAWPRO’s AvoidAClaim blog.

Cross posted on Avoid A Claim

On occasion, a party will intentionally contact or attempt to meet with one or more lawyers for the sole purpose of creating a conflict that will prevent the lawyer(s) from acting for another party on a pending matter.

Despite the bad intentions of the individual making these contacts, the lawyer(s) contacted may not be able to act for the other party, especially if confidential information was disclosed.

This behaviour occurs quite frequently in the family law area and in specialized areas of the law where there are a limited number of experts. In smaller communities this can be very frustrating as such behaviour can make it difficult or even impossible for someone to retain a local lawyer. And when a client is looking for a lawyer with specialized expertise, choices may be limited. In both cases it means that a lawyer or firm must turn away a matter that they could otherwise have handled.

To prevent these tactical conflicts from occurring, law firms should have clear and established procedures to screen all incoming calls and inquiries for potential conflicts. Staff and lawyers should be on the lookout for these types of calls, especially on family law matters. They should be trained to collect enough information to evaluate potential conflicts, while at the same time being sensitive not to ask for or collect confidential information. An intake conflicts screening form can help ensure that the appropriate information is collected to identify possible conflicts.

The Conflicts of Interest Toolkit created by the CBA Conflicts of Interest Task Torce has a model conflicts screening form in PDF and Word formats.

When it appears that a caller may be trying to create a tactical conflict, this should be carefully confirmed and if so, a non-engagement letter should be sent to the caller. See the CBA Toolkit for a precedent.

On your firm’s general voicemail greeting and, if appropriate, on individual lawyers’ voicemail greetings, consider including a warning for callers not to leave confidential information. And on your firm’s website, include statements that warn site visitors that unsolicited information or materials sent to the firm or left on voicemail will not be guaranteed confidentiality, and that access to or use of the site or firm voicemail does not create a solicitor-client relationship.