Wednesday, August 19, 2015

Risk Experts Share Expert Risk Advice

BNA published a wonderful summary of the recent Association of Professional Responsibility Lawyers (APRL) meeting: "Ethics Counsels Divulge Risk Management Tips." It's worth reading in its entirety, but here are some highlights --
On Conflicts:
  • "Many issues stem from risks and conflicts that come into the firm from potential clients, from lateral hires and from lawyers moving to another state while staying with the firm, they explained."
  • "As for exercising care in choosing whom to represent, panelist Eliza M. Rodrigues said in her firm the client intake process includes not only a report prepared by a conflicts analyst but also an analysis of the risks presented by the client. Rodrigues is associate general counsel and ethics counsel at Sedgwick LLP in San Francisco."
  • "Rodrigues said her firm's risk management committee, which she chairs, seeks out as much information as possible about potential clients, including credit checks and Internet searches. Because the committee includes partners from a number of different practice areas, she said, 'there's always someone with the right expertise.'"
On Engagement Letters:
  • "Mokriski [professional responsibility counsel at Proskauer Rose LLP] asked Rodrigues 'who is more difficult' in getting an engagement letter prepared and signed in a new representation—the clients or the firm lawyers?"
  • "Rodrigues said Sedgwick requires an engagement letter as part of its new business intake procedure unless an exemption is issued. Some partners, she said, have demurred on the ground that clients either do not want to sign an engagement letter or object to signing a new one for each new matter. 'There's pushback, because lawyers want to start doing work and billing,' she said."
  • "To address those issues, Rodrigues said she finds herself increasingly negotiating engagement terms directly with a member of the client's office of general counsel and has found it “very helpful” for her firm lawyers to tell clients that someone from the firm's general counsel office will be contacting them. 'We can talk at the same level' and work out whether terms such as an indemnification clause are needed in the engagement agreement, Rodrigues said."
  • She said firm lawyers are more 'difficult' with respect to engagement letters than firm clients, who she's found 'are willing to communicate and negotiate with you.'"
On Risk Roles:
  • "The panelists agreed that lawyers serving as their firms' ethics counsel should have the title to buttress their authority “and also so people will know who to go to,” Rodrigues added."
  • "Mokriski said a year into his duties he suggested to his firm's management that he should be given the title “Professional Responsibility Counsel.” Proskauer not only agreed but “apparently got some credit from our insurance carrier for it,” he said."
  • "Serving as firm ethics counsel, Mokriski said, requires the lawyer to know the rules, the underlying jurisprudence and case law developments, and also have “an eye for the unintuitive. Some rules seem a little strange.”"

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