Some Needed Insurance in the Law Office

Posted on November 11, 2015 03:51 by Steve Crislip

We often joke that we lawyers knew more black letter law upon graduation from law school, or at the Bar Exam, than at any other time in our careers.  It is always that pesky change that affects what we know.  The statutory and the common law and the rules all change almost daily.  Maybe that is where the phrase “practicing law” came from because you have to constantly practice dealing with changes in order to survive as a lawyer.  In 1967 U.K. Prime Minister Harold Wilson said:  “He who rejects change is the architect of decay.”

In this changing environment, we all learned the basics of risk arising from the practice of law and most offices have comprehensive general liability policies for our offices and equipment and Lawyers’ Professional Liability (“LPL”) for negligence, errors or omissions with regard to client work.  While LPL is not required, most prudent lawyers do not want to risk their personal assets for such expected risk exposure.

Think now of the changes in your practice in just the most recent years.  Electronics have replaced the traditional pen and paper approach.  These changes then placed great emphasis on the protection of health and other private records that are now being used in electronic form.  You and your clients are now exposed to large costs and penalties if some of these records got loose in the process.  Well, the fact of the matter is that information in that form does get loose, probably far more so than when it was locked in your office in a file folder in a drawer. 

Let’s just look at this month’s news feed:

  • Office of Personnel Management said hackers stole 5.6 million fingerprints it had on file.  (All across the federal agencies)
  • Hackers stole federal personnel data on 21.5 million people including their social security numbers.
  • Excellus Blue Cross Blue Shield had 7 million files breached and its subsidiary Lifetime Healthcare Cos. had about 3.5 million exposed with all their personal and medical data.
  • 15 million T-Mobile customer records (including encrypted information) were stolen via Experian’s site.
  • 6400 American Bankers Association e-mails and passwords stolen and posted online.
  • Sony, Target, Anthem and Home Depot as just a few of the Fortune 500 to be breached in the past year.

So, if happened on this scale recently, it is likely that someone wanting something from your files has already done so, or will.   A law firm would be a great place to get sensitive and valuable proprietary materials, and a lot easier to hack than those listed above.  That just deals with the people trying to get in and obtain the information.  Add to that the inadvertent lost laptop with lots of medical data, etc., and you have plenty of risk and exposure from these changes in the practice.

So how well are you protected for this change and this new and unexpected risk?  You might have coverage if a client sues you, but then only for covered items and after your deductible under your LPL policy.  But the real cost of these types of breaches or data losses comes earlier from the immediate things not covered like:

  • Computer experts to discover all details and rebuild the hack;
  • Public relations costs;
  • Loss of reputation and business income losses;
  • Damages to injured parties, not necessarily your clients;
  • Notification costs;
  • Government investigations;
  • Employee claims.

The insurance industry responded quickly and began selling stand-alone cyber insurance policies.  Yet, it seems that few firms have such policies despite these being available from many sources with various types of protection at business acceptable cost.   Debra Cassens Weiss, reporting for the ABA Journal, noted a 2015 survey of 880 lawyers which had only 11 percent (of those responding) with cyber liability policies in place.  Significant numbers of those in this Bloomberg BNA’s Big Law Business survey did report that their firms had experienced computer viruses or hacking incidents.  Contrast all this with 80% of surveyed General Counsel of companies saying cyber security is their number one concern in 2015.  There is a human factors element involved with the law firms here also.  Lawyers do not want to reveal that their esteemed firm has been breached, and many also just do not know that they have been breached.

Dan Bressler in a recent Law Firm Risk Blog noted data from Mandiant which finds that 80 of the 100 biggest law firms in the U.S. have been hacked since 2011.  That being said, I believe the smaller your practice the easier it will be to be breached.

It does not appear this risk is a “Y2K” kind of issue that might not happen.  Just think of what you might need if all your files were breached.  Identifying who, what, when and where could cost a bunch.  How to fix it and how to notify all who had records with you would be a problem.  It would therefore appear reasonable to have such cyber insurance coverage and team up with experts to (1) help prevent the loss and (2) have all these resources on call if a firm laptop, for example, with class action medical files just disappears and the health care penalties have kicked in.

This blog was originally posted November 4 on Lawyering for Lawyers. Click here to read the original entry. 

Bookmark and Share

Categories: Insurance Law

Actions: E-mail | Comments


Employers frequently utilize tests and other assessments to determine which job applicants are best suited for a position. However, employers must ensure such assessments are race and gender neutral and do not unknowingly screen out protected classes or else risk liability. A test can be biased, even if it appears neutral on its face, by the statistical effect it has on the applicants considered for the job and ultimately hired.

The problem recently came to light by the Equal Employment Opportunity Commission (EEOC) which began taking steps to eliminate systemic bias from occurring in the recruitment, screening, and hiring of employees. According to the EEOC, despite progress, employment discrimination is widespread in the United States and can arise knowingly, and unknowingly, in screening assessments of potential employees.

One of the most recent cases involves the superstore chain Target, which last month settled a complaint filed against it by the EEOC alleging gender and race bias in hiring for $2.8 million. The settlement amount is considered high for a suit of its kind and will be divided among approximately 3,000 employees in accordance with the damages incurred by each.

According to the EEOC, for the past decade, Target had been utilizing hiring assessments for upper-level positions that were not sufficiently related to the job for which the test applied, in violation of Title VII of the Civil Rights Act of 1964. The EEOC agreed that, on their face, the tests were neutral. However, it contended that in practice the tests prevented certain races and genders from receiving jobs, and, in particular, that it screened out blacks, Asians, and women. In addition to the assessments, Target required a pre-employment psychological exam in violation of the Americans with Disabilities Act (ADA). Under the ADA, employers are not permitted to submit applicants to medical exams prior to receiving job offers.

In response to the charges, Target has agreed to monitor the hiring of its employees in a more careful manner as well as utilize expert consultants to train its employees on the proper administration of assessments and maintain better records.

Despite the large settlement, Target is not admitting any wrongdoing. “The EEOC has concluded that only a small fraction of the assessments administered during the relevant time period could have been problematic,” Target spokeswoman Molly Synder stated. “We continue to firmly believe that no improper behavior occurred regarding these assessments.”

This case should raise a red flag to employers who utilize tests and other assessments to screen job applicants. It is important that such tests do not disproportionately affect protected classes. Whether a test does have a biased effect on applicants can only be determined by employment statistics. However, careful review of screening tests prior to their use should be conducted to eliminate any potential for bias. Furthermore, Target’s improper utilization of pre-job offer psychological exams demonstrates a clear lack of legal leadership in the hiring process. Experienced legal counsel, were it utilized, could have prevented such an ADA claim by ensuring Target’s practices conformed to federal and state laws.


This blog was posted to Jampol Zimet LLP blog on September 29. Click here to read the original entry. 

Bookmark and Share


Actions: E-mail | Comments


A Year Since Tincher

Posted on October 19, 2015 02:51 by Arun J. Kottha

About a year ago, the Supreme Court of Pennsylvania issued its opinion in Tincher v. Omega Flex, a landmark case in which the Court refused to adopt the Third Restatement of Tort for product liability law.  Where have we been since then?  Tincher is obviously cited for the proposition that the Supreme Court of Pennsylvania failed to adopt the Third Restatement for product liability cases - which the Federal Courts of Pennsylvania (wrongly) predicted it would do.  See e.g. McKenzie v. Dematic Corp., No. 3:12-250, 2015 WL 3866633 (W.D. Penn. 2015).  Post-Tincher decisions have also discussed the role of the jury.  For example, the court in McDaniel v. Kidde Residential and Fire & Commercial decided not to weigh evidence of product performance because it was the jury who must evaluate design defect theories if reasonable minds could differ as to whether the product was in a defective condition. McDaniel v. Kidde Residential and Fire & Commercial, W.D. Penn Case Nos. 2:12-cv-1439, 2:12-cv-1473, 2015 WL 1326332.  

Courts are still sorting through the policy implications of Tincher. One MDL court applied the Tincher doctrine to liability to the “bare metal” defense. Schwartz v. Abex Corp., MDL No. 875, 2015 WL 3387824 at *19 (E.D. Penn. 2015) (holding that a product manufacturer has a duty under Pennsylvania law to warn about the asbestos-related hazards of component parts it neither manufactured nor supplied only where the manufacturer knew that its product would be used in connection with a particular hazardous asbestos-containing component). Other courts are unwilling to read Tincher’s “tea leaves” too expansively regarding the scope of strict product liability without explicit language from the Supreme Court of Pennsylvania.  In re Zimmer Nexgen Knee Implant Products Liability Litigation, MDL No. 2272, 2015 WL 3669933 at *35 (N.D. Il. 2015).  

What has been your experience in Pennsylvania at the trial level since Tincher?  Has Tincher been used in other jurisdictions to advance (or detract) from the progress of product liability law?     


Bookmark and Share

Categories: Product Liability

Actions: E-mail | Comments


Avoid Ageism in Promotional Practices

Posted on October 16, 2015 07:46 by Brenda Bannon

The Ninth Circuit recently reversed a summary judgment order issued in favor of the employer where during a promotional process, management had stated a preference to hire “younger, less experienced agents.” France v. Johnson, Dep’t of Homeland Security, __ F.3d __, 2015 WL 4604730 (9th Cir. 2015).

Fifty-four year old France applied for a new pilot program of operations agents that would receive a higher pay grade than the administrative agents. Four operations positions were created as a result of the pilot program and twenty-four eligible candidates applied. The applicants' ages ranged from 38 to 54 years.

The selection process consisted of ranking the applicants by their scores from a standardized agency test. Assistant Chief Patrol Agent (“ACPA”) Gilbert then invited twelve candidates for interviews in Washington, D.C. The panel of interviewers consisted of Chief Patrol Agent Gilbert and two other ACPAs. After the interviews, the panel selected six top-ranked candidates. Gilbert recommended four of the six to Chief Border Patrol Agent, who in turn recommended the same four candidates to the decision-maker -- the Deputy Commissioner.

France was the oldest agent to apply for the new program, and was rejected in favor of the four selected applicants who were 44, 45, 47, and 48 years old. France claimed that ACPA Gilbert had repeatedly approached him about taking retirement prior to this application process. Another agent testified that Gilbert had stated his preference to promote “young dynamic agents” to staff the new operations program.

Under the Age Discrimination in Employment Act (ADEA), this evidence alone was sufficient to overcome summary judgment and establish a prima facie case of discrimination for trial. The ADEA makes it unlawful for an employer to discriminate “because of [an] individual's age.” In reversing the district court’s order, the Ninth Circuit emphasized as follows:

When a plaintiff opposing summary judgment presents direct evidence of a discriminatory motive, we do not assess the direct evidence in the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

The court then underscored its view that the above-described evidence provided both direct evidence and circumstantial evidence of discriminatory intent such that the traditional burden-shifting analysis was conducted.

The court concluded that France had established that he was (1) at least forty years old, (2) qualified for the position for which an application was submitted, (3) denied the position, and (4) the promotion was given to a substantially younger person. In so doing, the court adopted the Seven Circuit’s test for “substantially younger person:”

The Seventh Circuit has held that an age difference of less than ten years creates a rebuttable presumption that the age difference is insubstantial. Hartley v. Wisc. Bell, 124 F.3d 887, 893 (7th Cir.1997).

According to the Ninth Circuit, France’s evidence rebutted this presumption and demonstrated a prima facie case that his age was a significant factor in the promotional process. In response to France’s evidence, the agency provided legitimate nondiscriminatory reasons for not promoting France that were related to his qualifications to lead. Overall, the court concluded that the evidence presented by France was sufficient to demonstrate an issue regarding whether the agency’s reasons were pretext for discrimination such that a trial on the merits was required.

The court found significant that ACPA Gilbert created the new program for operations agents, had expressed a desire to promote young agents, was involved in the promotional process, had recommend the four finalists to the Chief, and had approached France about retiring. Such evidence was sufficient to demonstrate a genuine issue of material fact as to whether the agency’s stated nondiscriminatory rationale was pretext for discrimination. Even though Gilbert was not the final decision-maker, his alleged discriminatory motive was enough to defeat the agency’s motion for summary judgment.

Employers are reminded to keep discussions of an employee’s age out of the workplace. In promotional situations, the France case serves as a reminder that the comments of employees involved in the process – especially influential management employees – can create ADEA liability for the employer. The France court emphasized in its analysis that a case will likely head for a trial on the merits if there is either direct or circumstantial evidence that an applicant’s age was a significant factor to the employer during the promotional process. Even an age differential of less than ten years can provide probative evidence to establish a prima facie case of discrimination.

Bookmark and Share

Categories: Employment/Labor Law

Actions: E-mail | Comments


Over thirty-five years after Congress passed the Pregnancy Discrimination Act to amend Title VII of the Civil Rights Act, the United States Supreme Court decided that Employers must provide a light duty position to a pregnant worker as a medical accommodation if restricted by her doctor, and similar light duty positions are afforded to other non-pregnant employees with similar limitations on their ability or inability to work.1 The Court explained that the Pregnancy Discrimination Act is clear that Title VII's prohibition against sex discrimination applies to discrimination “based on pregnancy.” It also says that employers must treat “women affected by pregnancy ... the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k). The Court decided the question of how this second provision applies in the context of an employer's policy that accommodates many, but not all, workers with nonpregnancy-related disabilities. Prior to the Young decision, courts frequently refused Title VII challenges to light duty policies that only applied to occupationally injured workers. A healthy pregnancy was not treated as a disability. 

Young involved a part-time UPS driver whose doctor provided her with a twenty-pound lifting restriction in the first several months of her pregnancy, and a ten-pound lifting restriction thereafter. Young’s job required her to be able to lift up to seventy pounds.  After her employer told her she could not work while under the lifting restriction, Young took a leave from work and eventually lost her medical coverage. She filed a Title VII and ADA lawsuit alleging that UPS discriminated against her due to sex and disability. Young pled a “disparate treatment” discrimination claim.  

UPS had bargained a union contract that provided for temporary light duty positions in the following three circumstances: 1) occupational injury; 2) ADA qualifying disability; and 3) temporary loss of DOT certification.  UPS argued that this light duty allocation was gender neutral and contractually binding.   

The federal district court granted UPS’ motion for summary judgment and the Fourth Circuit Court of Appeals affirmed.  The appellate court reasoned that the employer’s light duty allocation policy was gender-blind.  Because Young’s pregnancy was neither an occupational injury nor a disability, and it did not provide a legal obstacle such as a licensing issue to continue working, she was not comparable to the other workers who were provided temporary light duty positions. “Such a policy is at least facially a ‘neutral and legitimate business practice,’ and not evidence of UPS's discriminatory animus toward pregnant workers.2  The Fourth Circuit refused to treat temporary conditions caused by pregnancy more favorably for purposes of construing the PDA or providing claimed workplace benefits. 

The U.S. Supreme Court granted certiorari and reversed the Fourth Circuit.  The Court reasoned that although an employer may defend against such a claim by showing it had non-discriminatory reasons for treating pregnancy-related infirmities and other work-limiting conditions differently, a plaintiff can overcome that showing with evidence that the “employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden.” Such evidence may defeat summary judgment and send the case for trial.3 In reviewing Young’s evidence and arguments, the Court applied the familiar McDonnell Douglas burden-shifting framework.  In doing so, the Court focused on accommodations provided to other employees who were similar in their ability or inability to work. 

In concluding its decision, the Court posed the following question: “why, when the employer accommodated so many, could it not accommodate pregnant women as well?”  The Court did not decide that UPS had intentionally discriminated against Young, but instead left a final determination of that question for the Fourth Circuit to make on remand, in light of the Court’s interpretation of the Pregnancy Discrimination Act. 

In light of the Supreme Court’s analysis in Young, employers should review their light duty or temporary alternative work policies. If a light duty policy provides disparate treatment to pregnant employees, it should be revised.  If an employer has available light duty positions, it may be prudent to make them available for both work-injured and non-work-injured temporarily disabled employees.  Accommodations provided to employees with injury-related lifting restrictions who are similarly situated in their ability or inability to work should correspondingly be provided to workers with pregnancy-related lifting restrictions who are similarly situated in their ability or inability to work.  Consulting with the employer’s attorney when these questions arise is recommended.


Bookmark and Share

Categories: Employment/Labor Law

Actions: E-mail | Comments


By judgment of October 6, 2015, the European Court of Justice declared the Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/46 on the adequacy of the protection provided by the safe harbor privacy principles and related frequently asked questions issued by the US Department of Commerce invalid. In that Decision, the European Commission had held that the U.S. ensures an adequate level of protection of personal data transferred to the U.S. under the ‘safe harbor’ scheme. As a consequence, many U.S. companies doing business in the EU had relied on the safe harbor principles when transferring personal data from the EU to the U.S. 

The judgment was issued in preliminary ruling proceedings and concerned the transfer of personal data of Mr. Schrems, a Facebook user residing in Austria, by Facebook’s Irish subsidiary to servers located in the United States. Mr. Schrems had argued that in the light of the revelations made in 2013 by Edward Snowden, the law and practice of the U.S. do not provide sufficient protection against surveillance by the public authorities of the data transferred to the U.S. The Court held that Commission Decision 2000/520/EC fails to comply with the requirements laid down in Article 25 (6) of Directive 95/46 in that it merely examined the safe harbor scheme but did not take into consideration that the scheme is applicable solely to the United States undertakings which adhere to it but not to United States public authorities. Public Authorities in the U.S. may thus interfere with the fundamental rights of persons, because national security, public interest and law enforcement requirements of the U.S. prevail over the safe harbor scheme. 

Due to the invalidity of Commission Decision 2000/520/EC, transfer of personal data from the EU to the U.S. can no longer be based on the safe harbor privacy principles. Companies that have so far relied on the safe harbor principles will have to react so as to ensure compliance in the future. The alternative routes had so far been the use of the EU Model Clauses pursuant to Commission Decision of 5 February 2010 or the implementation of Binding Corporate Rules (BCR) approved by the competent data protection authority. However, it remains to be seen if and to what extent the ECJ judgment of October 6, 2015 also has an impact on these alternative routes, because neither the EU Model Clauses nor BCR protect against surveillance by public authorities in the U.S. or other non-EU countries. It also remains to be seen how European data protection authorities react to the judgment. 

See press release by the European Court of Justice and full text of the judgment. 

Bookmark and Share


Actions: E-mail | Comments


Court Issues New Decision

Vermont’s Lawsuit against Alleged Patent Troll Can Stay in Vermont State Court

Case Not About Federal Patent Rights and Does Not Belong In Federal Court

A federal appeals court has just affirmed Vermont federal Judge Sessions’ second decision to “remand” the case against MPHJ – the alleged “patent troll” – back to Vermont state court.

Procedural History Of The Case:

Vermont Attorney General William Sorrell originally filed this lawsuit against alleged “patent troll” MPHJ Technology Investments, LLC in Vermont state court claiming that MPHJ’s bad faith sending of numerous patent infringement letters to Vermont businesses and non-profit organizations violated Vermont consumer protection law. (The AG’s Complaint was not based on Vermont’s new Bad Faith Assertions of Patent Infringement Act (i.e., the “anti-patent troll” law), as that law had not yet been passed when the AG filed his Complaint).  MPHJ “removed” the case to federal court arguing that the case was really about its federal patent rights and therefore belonged in the federal court system.  The AG moved to “remand” the case back to state court and federal Judge Sessions did so, agreeing with the AG that the case was not fundamentally about MPHJ’s patent rights but rather about its behavior within Vermont.  MPHJ appealed that remand decision, and lost.  The federal appeals court agreed with the AG and with Judge Sessions that the case did not implicate patent law.  Therefore, the case was back in state court as originally filed.  The AG then amended its Complaint against MPHJ.  Thereupon MPHJ again removed the case to federal court.  MPHJ argued that the AG’s amendment invoked the new anti-troll law (even though the amended Complaint made no mention of the law), and that that law is unconstitutional, and therefore provided a basis for removing the case to federal court.  The AG responded by again moving to remand the case, stating emphatically that the amended Complaint did not implicate the anti-troll law and that the AG was not suing MPHJ under that law, but only under pre-existing Vermont consumer protection law.  Again Judge Sessions remanded, agreeing with the AG that the amended Complaint did not invoke the anti-troll law.  Again MPHJ appealed that remand order.  And, again, the same federal appeals court has now shot down MPHJ’s (second) appeal – agreeing with the AG and with Judge Sessions that the AG’s case against MPHJ is not based on the anti-troll law and has nothing to do with federal patent rights.

But What About Vermont’s Anti-Troll Law?

What is interesting about this decision – and about this entire case – is that it is about the legality or illegality of a patent-holders alleged trolling activities, but it is NOT about Vermont’s new anti-troll law. MPHJ’s second attempted “removal” of this case to federal court was an attempt to make this case about the constitutionality of the anti-troll law.  But that attempt did not work. This decision does not decide whether Vt.’s anti-troll law is or is not constitutional, nor whether it does or does not interfere with a party’s patent rights. The whole point of this jurisdictional decision is that that issue was not before the court, because, in turn, the AG is not suing under that law. Thus, this particular case will not involve, and will not test, Vermont’s first-in-the-nation state anti-troll statute.

So one might well ask: why is Vermont’s Attorney General so determined not to use the anti-troll law against an alleged patent troll?  Wouldn’t a state attorney general want to use his latest and greatest weapon to go after an alleged patent troll, and rise up, so to speak, against a challenge to the constitutionality of that law?  I assume the answer is, essentially, because the conduct by MPHJ that the AG is suing over in this case took place before the anti-troll law went into effect, and the lawsuit was filed before the law went into effect. Trying to apply that law retroactively against MPHJ might be problematic.  If MPHJ were to be found liable under the new anti-troll law, it could argue on appeal that that law shouldn’t have been applied to them in the first place because it wasn’t in effect at the time of their activities.

So What Now?

So what now?  After two years of procedural and jurisdictional battles that had nothing to do (at least in the view of the AG and the federal courts) with the merits of the consumer protection case, will the case now proceed in state court to litigation on the merits? 

Bookmark and Share


Actions: E-mail | Comments


Email and Loss Prevention for Lawyers

Posted on October 1, 2015 04:23 by Steve Crislip

I bet some of you remember practicing law.  Now we seem just to constantly respond to dings from emails, no matter where we are, or what else we might be doing.  It is a classic example of change with a tech innovation that has caused all things large or small to be immediate.  I suspect one of those electronic responses of yours will cause you a claim someday.

The site WordRake says a majority of emails are handled within 6 seconds of email arrival and then it takes about 64 seconds to return what you were doing.  Between your haste to reply; your interrupted thinking; your failure to limit your reply to the right people; and auto correct, something bad is bound to happen.

I do not want to be known as the Master of the Obvious with these Loss Prevention posts.  Email is fully a required part of the modern practice of law, but you must slow down and be careful.  Stop and smell the electrons.  I fear I sound like I am telling people to stop texting and just drive.

However, the typical down-and-dirty quick e-mail response makes for bad communications, but a really great trial exhibit.  Emails often appear to mean something other than what the writer intended.  Likewise, nice people become A-1 jerks in their emails when they would not be like that to your face.  People tend to lie 50 percent more when negotiating by email, says WordRake. Now even a term called “e-venting” is used to describe the terrible rants people put in emails and on social media sites.

Where are you going with this, you say?  I once got a tour of the NASA facility outside of Houston. The adjacent gift shop sold tee shirts that said:  “It Is Not Rocket Science – Wait, Yes It Is.”  None of which I write involves such science.  But if it were that easy and that plain to all people, why do we have such colossal failures with this media form then?  In the legal world, such miscues are often called claims.

Recently the Sixth Circuit of the U .S. Court of Appeals ruled that a “butt-dial” on a cell phone, entirely accidental from a person’s vacation in Italy, was admissible.  One of the judges likened the events to leaving your drapes wide open and then expecting no one to peer into your house.  So, if you are expected to secure your phone by locking it, setting up a passcode, or using an App to prevent such breaches of confidential information, you can bet your purposeful and intentional email will just be a nice large exhibit in any claim against you.

ABA Formal Opinion 11-459 (2011) stated that a lawyer must warn the client about the risks of using electronic communications in cases where third parties may gain access.  Moving forward, an April 2015 Texas Bar opinion concluded that while a lawyer may generally communicate confidential information by email, some circumstances require the duty to disclose to the client and to consider whether to use encrypted email or another form of communication.  Such circumstances could be:

• Communicating “highly sensitive or confidential” matters;

• Sending to a shared email account;

• Sending to an account where others may have the password;

• Sending to a public or borrowed computer or on an unsecured network.

So, in addition to secure transmissions, have you waived the attorney-client privilege in your send list?  Have you inadvertently waived the privacy laws such as HIPAA/HiTech with your emails including protected information?

I would not want to rely upon the standard email disclaimer at the end for a defense, and I bet none of us have such for the texts you send anyway.  So, should you just stay in bed and reduce most risks, or take “reasonable steps” to preserve your client confidentiality?  May I suggest the instruction we all got when we started school: “Stop, Look, and Listen.”  Many of the common misfires can be fixed by a standard routine practice of scanning the “to” and “cc” list and re-reading the text of the message always.  Slow down enough to be able to testify that you always follow these reasonable steps with all electronic communications.

This blog was originally posted on Lawyering for Lawyers on October 1. Click here to read the original entry. 

Bookmark and Share


Actions: E-mail | Comments


Some Lawyers Got Sued Last Year

Posted on September 10, 2015 03:00 by Steve Crislip

There is no surprise in that statement other than the lawyers at Dentons got out ahead of me this year reporting on the annual survey of trailing 2014 claims submitted by insurance advisor Ames & Gough.  As the early TV Los Angeles police character used to say on Dragnet:  “All we want are the facts, ma’am.”  They are what they are, and it is not good news for lawyers.  Consistent with other surveys, the frequency of lawyer claims is about the same, but they are more costly.

The practice area of Trust and Estate Law topped the list for the largest source of claims.  There are a lot of legal areas within that practice field and often the potential for client bickering and dissatisfaction occurs there, even over the dearly departed.  For some years, real estate practices were the largest source of claims, but many more claims by trust and estate clients, and even in some areas non-client beneficiaries, have spiked it to the top. Real estate dropped to fourth after corporate business/securities, and business transactional claims.

As I have reported in the past, those pesky conflicts of interest claims show up as claims year after year.  While many come from current or past client issues, claims from lateral lawyer hiring continue to rise.  Like those presented by conflicts, many claims come from totally preventable areas such as mistakes of all types.  When we have areas where we can control the potential for loss we should, but yet these types of claims soldier on each year.

For some years I have advocated that firms can reduce their exposure with a regular program of loss prevention.  When it is always stressed as important in a firm, the mistakes, conflicts and other such preventable claims drop.  In addition, good and regular communications help prevent claims.  Surprises for clients often lead to unhappy clients and even claims.  Good case evaluations and assessments with a discussion of the attendant risks help clients make proper business decisions.  Budgeting and reserve settings are part of business organizations with regard to litigation these days.  They are important to be timely and quickly updated when things change.  Unhappy clients also happen around larger than budgeted bills, some even leading to fee disputes.  So, when costs are going up, you best be communicating all to the client.  A review of disciplinary complaints filed last year in just one surveyed state showed the biggest complaint area was the “Failure to Communicate”, followed by “Lack of Diligence”.  That makes a case for communication.

There are many common sense and logical ways to prevent claims.  Good procedures and good communication are at the heart of any program.  Yet busy lawyers still misstep year after year.  I submit that you can make money for your firm by having someone therein designated as the quality control lawyer.  Pilots immediately read back the controller’s flight information for a reason. — The loss from a failure to communicate properly could be their own.

This blog was originally posted to Lawyering for Lawyers on September 1. Click here to read the original entry. 


Bookmark and Share


Actions: E-mail | Comments


The Centers for Medicare and Medicaid Services (CMS) recently made several announcements regarding Medicare, Medicaid, and SCHIP Extension Act (MMSEA) Section 111 reporting for Non-Group Health Plans (NGHPs).


CMS announced it would be hosting a Section 111 NGHP Policy and Technical Support Town Hall Teleconference from 1:00 p.m. to 2:00 p.m. EDT on July 28, 2015. CMS-hosted Section 111 NGHP Town Hall Teleconferences begin with announcements from CMS representatives followed by an open question and answer session. The call-in number for the teleconference is 1.800.603.1774, and the passcode is “Section 111.” CMS recommends that individuals interested in attending begin calling in 20 minutes before the start of the call due to the large number of participants.


CMS also announced the release of an updated version of the MMSEA Section 111 NGHP User Guide. The updated user guide is version 4.7. Version 4.7 incorporates the following changes from prior Section 111 NGHP Alerts:

-The web address or URL for accessing the Section 111 Coordination of Benefits Secure Website (COBSW) and submitting Section 111 reporting information has been changed to

- CMS had previously provided a workaround that allowed Responsible Reporting Entities (RREs) to submit Recovery Agent or Third-Party Administrator (TPA) information on Tax Identification Number (TIN) Reference Files. CMS has eliminated this workaround and provided a permanent fix. The permanent fix allows Recovery Agent or TPA name and contact information to be submitted on TIN Reference Files in dedicated fields designated as “Recovery Agent” fields (fields 16–22). Submission of Recovery Agent information is optional. If Recovery Agent information is submitted in the Recovery Agent fields, copies of all correspondence regarding recovery claims will be sent to both the RRE and the designated Recovery Agent. These fields should only be used for agents who handle recovery claims. These fields should not be used for Section 111 reporting agents, unless the same agent handles Section 111 reporting and recovery claims. If Recovery Agent information is submitted in fields 6–11 of the TIN Reference File, only the Recovery Agent will receive correspondence regarding recovery claims.

-To prevent false positives when querying with partial Social Security Numbers (SSNs), all four of the additional matching criteria (first initial of the first name, first six letters of the last name, date of birth and gender) will need to match a Medicare beneficiary’s information. When querying with full SSNs or Medicare Health Insurance Claim Numbers (HICNs), only three of the four additional matching criteria need to match. CMS encourages RREs to submit full SSNs or HICNs whenever possible to ensure an accurate match is identified.

-The naming convention used for the Claim Response, TIN Response and Query Response Files was changed in order to ensure file names are always unique. Specifically, the values of the time node were changed.

For additional information regarding any of these changes, a full copy of the MMSEA Section 111 NGHP User Guide is available at


Finally, on July 18, 2015, CMS issued a Section 111 NGHP Alert reminding Section 111 RREs and their reporting agents of the mandatory transition from ICD-9 to ICD-10 codes for all claims with a CMS Date of Incident on or after October 1, 2015. Additional information regarding the transition to ICD-10 codes is available in the MMSEA Section 111 NGHP User Guide, Chapter IV, Technical Information, Section 6.2.5.

Bookmark and Share


Actions: E-mail | Comments


Submit Blog

If you wish to submit a blog posting for DRI Today, send an email to with "Blog Post" in the subject line. Please include article title and any tags you would like to use for the post.

Search Blog

Recent Posts




Staff Login