Project Management for Lawyers 2015 The Ethics of Legal Project Management January 22, 2015 4:15 Session
PANELISTS Robert L. Denby Senior Vice President - Loss Prevention Aileen Leventon President and Founder David A. Rueff, Jr. Shareholder and Legal Project Management Officer 2
Agenda 1.Introductions 2.Evolution of malpractice claims 3. Malpractice and ethics rules and overlaps 4. How LPM helps lawyers avoid malpractice and complements ethical obligations 5. Relevant LPM tools: Scoping the Work 6.Q&A 3
Evolution of malpractice claims 4
Overview of ALAS Services The ALAS Perspective 220+ firms 58,000+ lawyers 35 years experience 13,000+ claims 5
Where Do ALAS Claims Come From? Frequency Other 18% Litigation 39% Transactional* 43% * Includes corporate, securities, banking, tax/erisa, and real estate Data as of 11/30/2013 6
Common Themes Mistakes Conflicts of Interest Unworthy Clients Problematic Lawyer Behavior 7
Mistakes Are On the Rise 8
2013: Top 99 Claims by Type of Problem 80 70 60 50 40 69 Claims of which 30 20 10 0 32 Claims of which 21 Claims 19 Claims 12 Major Claims 4 Major Claims 3 Major Claims 6 Major Claims Mistakes Conflicts of Interest Problematic Lawyers Unworthy Clients Blue column represents claims that received $500k or more in reserves during fiscal 2013. Major claims were claims to which we posted $5M or more during fiscal 2013. We included claims in multiple categories if more than one type of act drove the loss (e.g., a claim involving a mistake and a conflict). 9
Mistakes Come in Many Flavors 10
Recent Lawyer Mistakes Filing UCC papers in wrong state Missing statutes of limitations Dawdling with amended pleadings Drafting documents that don t achieve goals Shooting from the hip Offering advice outside of expertise 11
Underlying Causes of Mistakes Pace 24/7 accessibility Cost pressures Reduced staffing Technology Increased specialization Lack of personal interactions 12
Distinction between malpractice and ethics rules and overlaps 13
ABA Model Rules Rule Title Project Component CLIENT-LAWYER RELATIONSHIP 1.0 "Confirmed in writing" Communication 1.0 "Informed consent" Communication 1.0 "Writing" or "written" Communication 1.1 Competence Quality 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer Scope 1.3 Diligence Quality 1.4 Communication Communication 1.5 Fees Budgeting, Scope, Communication 1.6 Confidentiality of Information Communication LAW FIRMS and ASSOCIATIONS 5.1 Responsibilities of Partners, Managers, And Supervisory Lawyers Communication 5.3 Responsibilities Regarding Nonlawyer Assistance Communication INFORMATION ABOUT LEGAL SERVICES 7.1 Communications Concerning a Lawyer's Services Communication 7.4 Communication of Fields of Practice and Specialization Project Management generally 14
ABA Model Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities. (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. 15
ABA Model Rule 1.0 (e): Informed Consent (e) "Informed consent" denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. 16
ABA Model Rule 1.0 (b) and (n) Confirmed in writing (b) "Confirmed in writing," when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the definition of "informed consent." If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. Writing or written (n) "Writing" or "written" denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording, and electronic communications. A "signed" writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing. 17
ABA Model Rule 1.4: Communication (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 18
ABA Model Rule 1.5 : Fees / Budgeting (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.. 19
ABA Model Rule 1.5: Fees and Budgeting (Detail) (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. 20
ABA Model Rule 1.5: Fees / Budgeting (Detail continued) (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. 21
How LPM helps lawyers avoid malpractice and complements ethical obligations 22
ABA Model Rules LPM component Rule Title Project Component CLIENT-LAWYER RELATIONSHIP 1.0 "Confirmed in writing" Communication 1.0 "Informed consent" Communication 1.0 "Writing" or "written" Communication 1.1 Competence Quality 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer Scope 1.3 Diligence Quality 1.4 Communication Communication 1.5 Fees Budgeting, Scope, Communication 1.6 Confidentiality of Information Communication LAW FIRMS and ASSOCIATIONS 5.1 Responsibilities of Partners, Managers, And Supervisory Lawyers Communication 5.3 Responsibilities Regarding Nonlawyer Assistance Communication INFORMATION ABOUT LEGAL SERVICES 7.1 Communications Concerning a Lawyer's Services Communication 7.4 Communication of Fields of Practice and Specialization Project Management generally 23
Relevant LPM Tools: Scoping the Work 24
Clarification of assumptions / risks Identification of Assumptions Factual Assumptions: regarding the facts of the matter which if proved untrue could result in expansion of the scope and additional tasks to be performed Procedural or Strategic Assumptions: regarding the opposing parties litigation or negotiation tactics which are factored into the tasks to be performed and the time estimates provided Risk Registers Factors that may be encountered and how they can be minimized. The objective is to provide a description of the risk, quantify it (in terms of probability) and identify actions that can be taken to minimize the risk 25
Stakeholder identification and defining requirements Identification of Stakeholders All Stakeholders should be identified to confirm that the scope includes all client objectives. This information is captured and shared with the team and should also include: o Inside Counsel o Business Department Representatives o Third Parties o Vendors o Opposing Parties o Opposing Counsel 26
Communication plans Clarification of communication requirements before work begins Reporting requirements Scheduled meetings versus hap hazard conferences Publication of billing guidelines Clarification of reporting timelines and methods (30 days or less) Secure access to Project Plan, Schedule, Budget, Team Calendars and Matter Status Calendars capture major milestones or deadlines in the case Case Notes allow team members to summarize progress and to avoid duplication of work which can result from starts and stops in the engagement. 27
Reliable estimates and budgets to support fee proposals Development of a budget for the current matter or group of matters Set constraints (not an AFA, but reasonable estimates for the engagement) Evaluate historical information for more reliable estimates; Integration of all costs related to a matter (local counsel, expenses); and Phase / Task codes meet E- Billing requirements. Budget to actual reconciliation o Identifies original budget allocations by phase, task, timekeeper o Real time comparison by daily time entry 28
Questions 29
Thank You! Robert L. Denby Senior Vice President - Loss Prevention ALAS (312) 697-6900 RLDenby@alas.com Aileen Leventon President and Founder QLex Consulting Inc. (917) 860-7043 aileen@qlexconsulting.com David A. Rueff, Jr. Shareholder and Legal Project Management Officer Baker Donelson (601) 351-2469 drueff@bakerdonelson.com 30