LPL/Legal Malpractice Claims & Litigation

Thursday, May 31 to Friday, June 01, 2012

Flatotel, New York, NY

9:45 Main Conference Registration and Coffee Served

10:05 Co-Chairs’ Welcoming Remarks

Dennis R. McCoy
Partner
Hiscock & Barclay, LLP

Jay S. Rothman
General Counsel
Marshall, Dennehey, Warner, Coleman & Goggin

10:10 In-House Think Tank: The Changing Relationship Between Insurance Companies and Their Outside Counsel, and How Outside Litigators Can Manage Expectations and Adapt Their Strategies in Response

Scott Barabash
Claim Manager – Professional Program Claims
Zurich American Insurance Company

Gary Schmidt
Vice President – Financial Services & MPL Claims
Aspen Specialty Insurance Company

Charles A. Lynch
Senior Claims Analyst, Professional E&O Claims
Allied World National Assurance Company

John C. Minett
SVP and Counsel- Professional Liability Claims Manager
Endurance Services Ltd.

Susan Kilano
Vice President
Ahern Insurance Brokerage

Susan Dufresne
VP and Underwriter, Professional Lines
Aspen Speciality Insurance Company

Moderator:

Jay S. Rothman
General Counsel
Marshall, Dennehey, Warner, Coleman & Goggin

• Working with outside counsel - Communication between outside counsel and the
insurance carrier’s representative

- Breakdown of the “gentleman’s agreement”
- Achieving efficient and cost effective coordination of responsibilities
- Setting realistic expectations

• Tips for outside counsel in managing and meeting client expectations

- Case strategy, case assessment and resolution planning
- The “tripartite” relationship: challenges of managing litigation and working with insurer appointed counsel

• Preventing fee disputes

- Establishing fee formula even in an ongoing relationship
- Tensions between insured, carrier and appointed counsel
An insured’s demand for a “scorched earth” defense
A carrier’s fi duciary obligation to its insured
Appointed counsel’s responsibility to maintain judgment and independence in the defense of the client

11:20 Control of Client Materials and Information:
Limiting Exposure to Emergent Cyber Liability Involving Client Data, Cloud Computing and Social Media

Kim G. Quarles
Senior Vice President, Law Firm Industry Leader
Willis Group

Brian J. Dusek
Partner
McCullough, Campbell & Lane LLP

Barry Temkin
Partner
Mound Cotton Wollan & Greengrass
Adjunct Professor, Fordham University School of Law

Margaret A. Reetz
Partner
Kerns Frost & Pearlman, LLC

Moderator:

Carl E. Metzger
Partner
Goodwin Procter, LLP

Managing Client Data and Maintaining Attorney-Client Privilege in the Age of Electronic Communication
• Determining who has control of client materials

- Ensuring sensitive information is secure
- Managing client documents when attorneys leave or join
- Ensuring retention policies are followed

• Electronic communications with client
- Law firm server security
- Networks owned by client’s employer
- Discoverable communications

• Enterprise control of firm-used mobile devices, laptops and USB storage devices
• ABA proposed rules and state ethics opinions on confidentiality and E-matters Cloud Computing

• Network security and privacy

- Who controls the server?
- Protection of law fi rm databases
- Preservation of confi dential material
- Leased and temporary electronic equipment
- Chain of custody and authentication

• Loss prevention policies and backing up data
• Document retention policies for data in “the cloud”
- Law lagging behind practice; differing standards
Social Media Liability
• Understanding the risks associated with recruiting clients using social media
• Social media as a more open means of communication

- Controlling discussion of client matters and confidential information
- Ensuring new associates and younger attorneys understand the risks
- Putting a policy in place

• Discoverability of social media communications
• Lawyer monitoring of juror social media; juror surveillance
• Precautions to prevent unilateral confidential information from prospective clients
Virtual Law Practice and Multijurisdictional Practice

• Can lawyers practice “virtually” in jurisdictions in which they are not admitted?
• The effect of multijurisdictional practice under revised ABA Model Rule 5.5
• Lawyers complying with non-US regulations when dealing with foreign clients

12:30 Networking Luncheon for Speakers and Delegates

1:35 Insurance Marketplace Update: Trends in Claims, Coverage and Underwriting in the LPL Market

David Finz
Senior Vice President, FINPRO Claims Advocacy
Marsh USA

Scott Ammer
Vice President
ECC Insurance Brokers, Inc.

Kimberly Noble
Senior Vice President, Lawyers’ and Real Estate
Professional Liability
OneBeacon Professional Insurance

Stephen S. van Wert
Program Manager, LawyerGuard
Willis Group

Moderator:

John D. Bouchard
President
Polestar Executive Management
(A division of Brown & Brown Insurance)

Emerging Claims, New Products and Potential Causes of Action

• What to expect moving forward
• Evaluating new products coming to the market
• Areas where attorneys and law firms are hesitant to spend money on new policy additions, and why
• Employed Lawyers Coverage

- Extent and limitations of coverage
- Interface with D&O liability coverage
- Integrating coverage with LPL coverage of outside counsel Recent Trends in Underwriting

• Risk management policies underwriters look for at large firms

- Ensuring confidentiality among partners
- Managing claims and assessing risks when an attorney or group of attorneys leaves the firm

• Red flags for heightened risk of LPL claims

- Remaining competitive without being exposed to excess risk

• Challenging areas, including IP, real estate and securities
• Special considerations for international firms

- What insurance and retention policies control?

• Under what circumstances is the London Market competitive, and are there any coverage grants or restrictions unique to London?
• Market Trends

- Recent pricing trends for LPL Insurance and Predictions
- Factors behind changes in pricing Self-Insured Retentions
• Range for small, midsize and large firms
• Factors besides size of firm:

- Practice and location; lost history
- Areas of concentration and/or specialization

• How high does SIR need to be before a major effect on premium?


2:50 Defending Allegations Related to Ponzi Schemes,FDIC Bank Failure Claims, FDCPA Debt Collection Claims and Beyond

Shauna Reeder
Assistant Vice President
CNA Insurance

Brian Braden
Vice President
Crum & Forster

Richard A. Simpson
Partner
Wiley Rein LLP

Brett A. Scher
Partner
Kaufman Dolowich Voluck & Gonzo LLP

• Defending against LPL claims relating to Ponzi and other fraudulent schemes

- Determining which parties have standing to bring claims
- In paridelicto: status and effectiveness of this defense

• FDIC bank failure claims

- “Professional Liability Program”
The results of investigations of failed banks and
auditors, accountants and lawyers involved
Effect on larger law firms

- Status of malpractice suits based on the FDIC

• Debt collection claims based on FDCPA violations

- Erosion of protection for lawyers in this area
- Establishing a defense
- Protection for debt collection firms
Computerized collection tracking system Ensuring collection letters don’t overshadow or contradict required validation notice
• Non-mortgage related securities claims

- Claims arising from flaws in security agreements
- Claims related to negligently prepared securities offerings

3:50 Afternoon Refreshment Break

4:00 Defending and Managing Increased LPL Claims Arising Out of Real Estate Transactions

Gawain Charlton-Perrin
Risk Control Consulting Director
CNA Lawyer’s Professional Liability

Jett Hanna
Senior Vice President
Texas Lawyers’ Insurance Exchange

Mark K. Anesh
Partner
Lewis Brisbois Bisgaard & Smith LLP

• Potential liability involved in failed property dealings
- Attorneys being held liable for bad business deals

• Specifi c issues for attorneys handling mortgage foreclosures
- Foreclosure rescue scams

• Claims related to mortgage backed securities transactions
• Claims trends relating to law fi rm real estate practices
- Title claims
Title searches
Title transfer
Failure to secure title
- Real estate closings
- Promissory notes for the repayment of loans

• Ensuring proper recording
• Conflict of interest issues in real estate transactions
• Risk management techniques for managing the risk

5:00 Advising Clients in Bankruptcy Matters and Defending Claims by Bankruptcy Trustees and Receivers Against Firms for Contributing to Underlying Business Failures

Diana C. Manning
Shareholder
Bressler, Amery & Ross, P.C.

James R. Kahn
Partner
Margolis Edelstein

Kevin S. Rosen
Partner
Gibson, Dunn & Crutcher LLP

• Potential liability issues when advising clients in bankruptcy matters
- Issues to keep in mind when advising large companies

• Defending against malpractice suits brought by bankruptcy
trustees and receivers
- Who owns the malpractice suit and who has standing
to bring claims
- What impact will the bankruptcy have on the LPL case?
- Defense strategies (procedural and substantive”)
- Accounting for investor and other related claims
- The effect of fi ling of plan of confirmation on LPL claim

• The impact on attorney client privilege when the lawsuit is
brought by a bankruptcy trustee or receiver
- Who holds the privilege when a bankruptcy trustee or
receiver brings a suit against outside counsel
• Settlement of a bankruptcy claim
- Does this bar or limit a subsequent malpractice claim?
- Does this bar or limit claims by investors and other third
parties?
- Releases; how recovery is distributed
6:00 Conference Adjourns


7:30 Continental Breakfast

8:00 View from the Bench: An Unparalleled Opportunity to Hear How Judges Interpret Arguments in the LPL/Legal Malpractice Context

The Honorable Timothy C. Batten, Sr.
District Court Judge
United States District Court, Northern District of Georgia

The Honorable Jeanne E. Scott
District Court Judge (retired)
United States District Court, Central District of Illinois

The Honorable Daniel E. Knowles, III
Magistrate Judge
United States District Court, Eastern District of Louisiana

The Honorable Juan Ramirez, Jr.
Appellate Court Judge
Florida Third District Court of Appeal

The Honorable Robert B. Freedman
Superior Court Judge
Alameda County Superior Court

The Honorable Sandra Mazer Moss
Coordinating Judge
Philadelphia Court of Common Pleas

The Honorable Anthony J. Mohr
Superior Court Judge
Los Angeles County Superior Court

Moderator:

A. Michael Furman
Partner
Furman Kornfeld & Brennan LLP

9:30 Morning Coffee Break

9:45 Communication Methods that Minimize the Risk of Malpractice Claims: Effective Engagement, Disengagement & Fee Procedures and How to Work Through Existing, Emergent or Potential Conflicts of Interest

Elizabeth Whitney
Loss Prevention Consultant
Swiss Re Corporate Solutions

Steven Carpenter
Claims Attorney
Oregon State Bar Professional Liability Fund

Douglas L. Hendricks
Partner
Morrison & Foerster LLP

Dennis R. McCoy
Partner
Hiscock & Barclay, LLP

Moderator:

Joseph A. Starr
Partner
Starr, Butler, Alexopoulos & Stoner, PLLC

• Recognizing and avoiding potential confl icts before they arise
- Utilizing proper intake and evaluation procedures and
methods for recruiting new clients
- Being up front with a client or potential client
- Attorney involvement in a business transaction with a client
• Instituting client intake and termination procedures to
minimize the risk of malpractice claims
- Establishing representation and fees
- Best practices for drafting engagement and disengagement
letters
- Post-termination conduct to avoid
- The distinction between former clients and current clients
• Limiting confl ict waiver
- Monitoring and limiting the practice of clients routinely
waiving confl icts
- The use of a “no confl ict” agreement in place of a waiver
• Ensuring proper waiver
- In writing
- Complete and advised
- Providing adequate disclosures

11:00 View from the Plaintiff ’s Bar: Adapting Your Claims and Litigation Strategies to New and Innovative Theories Being Brought by Your Adversaries

Amianna Stovall
Partner
Constantine Cannon LLP

Andrew Lavoott Bluestone
Member
Bluestone Law Firm

Jefferey O. Katz
Partner
Spellmire Law Firm LLC

Chaim J. Woolf
Partner
Law Offices of Chaim J. Woolf

• Emerging theories of liability
- Recent trends in legal malpractice claims
- Common confl icts of interest that lead to malpractice claims
- Engagement and retainer agreements and duties to prospective clients
- Non-client claims
- Professional responsibility issues related to modern technology

• Claims other than legal malpractice, including Defamation, Negligent Misrepresentation and Breach of Fiduciary Duty
• Who makes a viable plaintiff and defendant
• The case within a case in the context of a transactional legal malpractice action
• The use of expert witnesses at trial
• How plaintiff attorneys gauge a defense attorney’s intention in settlement
• Alternative remedies to LPL suits

12:00 Proven Tactics for Successfully Responding to Claims by Non-Clients

Anthony P. Colavita
Partner
L’Abbate, Balkan, Colavita & Contini, LLP

Joseph S. Berman
Partner
Looney & Grossman LLP

• Assessing and defending against “aiding and abetting breach of fiduciary duty” claims
- Claims brought by a client’s fiduciaries
- Claims brought by non-client benefi ciaries and other third parties
- Likelihood that claims will be upheld, and how to defend against them
- “Aiding and abetting” liability in the securities litigation area

• Counterclaims
- By defendants against the client and the attorney
- By clients in response to a suit to recover legal fees
- Insurance coverage for “aiding and abetting” claims

• Malicious prosecution claims
- The rise of Anti-SLAPP statutes
- New case law in this area
- Immunity defense and litigation privileges

12:45 Understanding the Interplay of Ethics Complaints and LPL Claims: Protecting Against Damage from Companion Ethics Cases

Lisa L. Shrewsberry
Partner
Traub Lieberman Straus & Shrewsberry LLP

David L. Brandon
Partner
Morris Polich & Purdy LLP

Jonathan A. Kocienda
Principal
Danaher Lagnese, PC

• The relationship between an ethics complaint and a legal malpractice claim
- Fiduciary breach as an increasing impetus for a legal malpractice claim
• The impact of a companion ethics case on a legal malpractice claim
- Disclosure of documents
- Admissibility of evidence from a companion ethics case in a malpractice case
- Ethics case as an information source for a complaining party
- Settlement issues
• Use of ethics opinions and rules in the litigation of legal malpractice claims

1:45 Conference Ends – Lunch for Focus Session B Attendees

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Location:
Flatotel
New York, NY