Monday, October 10, 2016

Top Law Firm Risk Issues of 2016 (and Beyond)

Thanks to Chuck Lundberg for getting in touch following the OCG/Terms of Business interview we published last week. It's always nice to make new connections out there.

A legal ethics and malpractice expert, Chuck served for twelve years on the Minnesota Lawyers Board, including six years as board chair. He retired last year after 35 years of practice with Bassford Remele, and now advises attorneys and law firms through Lundberg Legal Ethics.

He has writes regularly for the Minnesota Lawyer, most recently publishing a timely update: "Quandaries and Quagmires: The hottest law firm exposure issues" --
  • "This, then, is a snapshot — as of September 2016 — of the hottest legal ethics and risk issues right now, gleaned from very recent and reputable sources. This list was compiled from a review of topics addressed (and to be addressed) at a number of recent (and future) national conferences on legal ethics and malpractice (where firm counsel from across the country gather to learn about the newest law firm exposure areas); from recent postings on national ethics list servs and blogs; and from the advance sheets of specialized reporters and press that track current developments in the law of lawyering."
  • "#1 Cyberliability / data breach: The received wisdom is crystal clear: All law firms should now be thinking in terms of when they will have to deal with a data breach emergency, not if they will. The April 2016 Panama Papers disaster is a great horror story to keep firm management up at night — 2.6 terabytes of extremely confidential law firm client information, all posted on the internet."
  • "#2 Client-imposed retainer provisions: This one is primarily a big-firm problem, at least for now. It comes up like this: Large corporate client, with a lot of excellent billable work, wants to retain you, but there’s a catch: The client wants your retainer agreement to incorporate some special new provisions, such as sweeping definitions of client identity to include numerous corporate affiliates uninvolved in the matter; redefining conflicts of interest more broadly than the ethics rules, including positional conflicts of interest; and provisions claiming client ownership and copyright protection for the firm’s work product, indemnification provisions, authority to conduct internal audits, and security requirements. Most recently, some clients have even sought to require advance waivers of any law firm privilege."
Other quandaries he flagged include risks tied to: Lawyer mobility, In-firm ethics training, Joint representation conflicts, #social media ethics and In-firm privilege issues.

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