Category Archives: Malpractice

Sexual Harassment Awareness and Prevention for Lawyers

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There are various reasons to prevent sexual harassment in the legal workplace. It’s not just the right thing to do – sexual harassment is unethical and illegal. With a little knowledge you can avoid costly and damaging lawsuits and financial cost to your firm and yourself. Further, promoting a healthy legal workplace that is free of discrimination maintains good workplace morale and enhances your law firm’s reputation.

Being aware and preventing sexual harassment in the legal workplace can help you to avoid discipline and to keep your job.

To learn more about creating a legal and healthy work environment please join attorney Alisa Shorago as she provides a practical and lively discussion on sexual harassment awareness and prevention for attorneys. Mrs. Shorago will discuss reasons to prevent sexual harassment, define sexual harassment under the law, identify examples of sexual harassment, discuss some of the ethical rules regarding sexual conduct/relationships, discuss ways of preventing harassment in the legal workplace including anti-harassment policies and help to determine the boundaries of appropriate behavior. To access the course click here: Sexual Harassment Awareness and Prevention for Lawyers.

Further topics addressed in this CLE course include:

  • State & federal harassment laws
  • The definition of workplace harassment
  • Theories of harassment
  • Attorneys behaving badly
  • Organizational liability
  • Prompt & effective action
  • Remedies, specific rules for attorneys
  • Sexual relations with clients
  • Governing behavior in the legal system
  • How to prevent & deal with harassment
  • Key aspects of an anti-harassment policy
  • “Staying in the Green”
  • Appropriate workplace behavior and further guidelines

Alisa Shorago is an accomplished trainer, providing seminars in legal writing, business writing, workplace professionalism and sexual harassment prevention. She has also practiced law for over 15 years with a focus on litigation and has clerked for state appellate and federal trial courts. In addition, she is a legal writing columnist for the San Diego County Bar Association, as well as a past board member of California Women Lawyers, Lawyers Club of San Diego and the San Diego chapter of the American Society for Training and Development.

This CLE course on the legal and tax implications of cause marketing is currently accredited in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA) — Elimination of Bias credit
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Jersey (NJ)
  • New York (NY)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in California and around the country.  This course on Sexual Discrimination qualifies for Elimination of Bias credit in California.  For more information about CLE in California please click the following link: CA CLE.

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Reducing the Risk and Cost of Cross-border and Multi-lingual eDiscovery Cases

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Recent court decisions imposing sanctions and holding both in-house and outside counsel responsible for poor electronic discovery practices make it clear that all attorneys need to understand the basics of electronic discovery – or at least know when and how to engage colleagues, litigation support teams and service providers who are experts in the field.  Complicating this challenge is the fact that many businesses have an international presence and have offices and employees scattered across the globe.  With the increasing global reach of both business and economic activity, the incidence of cross-border and multi-language litigation is rapidly increasing.  And countries in Europe, Asia and elsewhere around the world have much more strict data privacy laws than the United States that affect how electronic information can be discovered.

Agenda for Course

  • Cross-Border Legal Considerations
  • International Collection Strategies
  • Using technology to lower cost & risk of foreign language review

This CLE course presented by Jeff Jacobs, Associate General Counsel for DTI, will address how to resolve some of the principle discovery challenges involved in cross-border and multi-language litigation.  The main topics discussed by Mr. Jacobs include dealing with non-U.S data privacy laws & regulations, cross-border legal considerations, international collection strategies, using technology to lower the cost & risk of foreign language review and resolving cultural & foreign language issues that may arise in the course of conducting cross-border discovery.  To access the course please click here: Reducing the Risk and Cost of Cross-border and Multi-lingual eDiscovery Cases.

Mr. Jacobs also addresses:

  • Discovery versus privacy around the world
  • Global approaches to personal privacy
  • EU data privacy developments
  • The Sedona framework
  • Jurisdiction
  • Blocking statutes
  • International data privacy laws
  • EU members state penalties
  • Hague evidence collection
  • Resolving international disputes
  • Collecting international information
  • Language identification
  • Special handling for Asian, European and Arabic languages
  • Review strategies
  • The form of production

Jeff Jacobs is the General Counsel and Senior Consultant for Document Technologies, Inc. (DTI).  For the past five years he has advised clients on litigation readiness, email & records retention and the planning & execution of electronic discovery matters.  Prior to joining DTI, Jeff spent seven years as an Associate Litigation Counsel at MCI/WorldCom, where he managed the electronic discovery associated with the government investigations of the WorldCom accounting fraud, related securities class actions and other litigation and the acquisition of MCI by Verizon.  He also served as counsel to the company’s Records and Information Management group and managed the subpoena compliance unit.  Before MCI, he was a Special Counsel in the litigation group of Sullivan & Cromwell’s Washington, DC office.  Jeff is a graduate of Williams College and the University of Chicago Law School and was in the first class of candidates to qualify as a certified electronic discovery specialist by the Association of Electronic Discovery Specialists (ACEDS).

This CLE course on reducing the risk and cost of cross-border and multi-lingual eDiscovery cases is currently accredited in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Jersey (NJ)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in California and around the country.  For more information about CLE in California please click the following link: CA CLE.

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Reducing E-Discovery Costs and Risks Through Litigation Readiness

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The Federal Rules of Civil Procedure (FRCP) require that companies must be prepared to discuss the location and accessibility of potentially relevant electronically stored information (ESI) shortly after the litigation begins.  The federal (and many state) discovery rules and recent case law require the quick and effective imposition of a litigation hold on critical ESI before the lawsuit even begins.[1]  This presents numerous challenges for large companies that are generating voluminous amounts of electronic documents and emails.  Litigation has also become increasingly expensive and is only increasing in the areas of intellectual property, products liability, employment, securities and mergers & acquisitions.

  • How can you mitigate and reduce eDiscovery risks?
  • What is the best way to manage and reduce eDiscovery costs?
  • How do you leverage existing and implement new technologies to achieve discovery objectives?

In this CLE course DTI Associate General Counsel Jeff Jacobs will answer the questions above and provides points on how to reduce discovery costs and risks through litigation readiness.  The main topics addressed by Mr. Jacobs include case law & rule evolution, proactively addressing the eDiscovery challenge, records retention & policy review, eDiscovery process development, litigation holds and risk & cost mitigation.  To access the course please click here: Reducing E-Discovery Costs and Risks Through Litigation Readiness.

Additional topics addressed include:

  • Why eDiscovery matters
  • Discovery sanctions
  • Judicial intolerance for poor eDiscovery
  • Critical sanction cases
  • The EDRM (Electronic Discovery Reference Model)
  • Finding the relevant information
  • ESI assessment
  • Saving costs through effective retention & disposition
  • What judges want related to eDiscovery
  • The development of an effective litigation discovery response plan
  • The creation of a targeted data map

Jeff Jacobs is the General Counsel and Senior Consultant for DTI. For the past five years he has advised clients on litigation readiness, email & records retention and the planning & execution of electronic discovery matters.  Prior to joining DTI, Jeff spent seven years as an Associate Litigation Counsel at MCI/WorldCom, where he managed the electronic discovery associated with the government investigations of the WorldCom accounting fraud, related securities class actions and other litigation and the acquisition of MCI by Verizon.  He also served as counsel to the company’s Records and Information Management group and managed the subpoena compliance unit.  Before MCI, he was a Special Counsel in the litigation group of Sullivan & Cromwell’s Washington, DC office.  Jeff is a graduate of Williams College and the University of Chicago Law School and was in the first class of candidates to qualify as a certified electronic discovery specialist by the Association of Electronic Discovery Specialists (ACEDS).

This CLE course on reducing eDiscovery costs and risks through litigation readiness is currently accredited in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Jersey (NJ)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in New York and around the country.  For more information about CLE in New York please click the following link: NY CLE.

[1] Litigation holds must be imposed once a triggering event occurs and litigation is reasonably foreseeable.

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The Neuroscience of Addiction: Attorney as Patient

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Historically, addiction has been attributed to a lack of self-control or will power.  However, science has proven that this is not the case.  Many individuals, with the self-control and will power to complete law school, run a successful company or become a professional athlete succumb to the ills of addiction.  And lawyers are no strangers to addiction – substance abuse and addiction rates inside the legal profession are twice as high as the general population.  The legal profession is full of conflict and is very stressful and lawyers learn to develop a tough exterior and repress weakness to deal with this conflict and stress.

“Giving up smoking is easy. I’ve done it hundreds of times.”

In this highly informative course on the neuroscience of substance abuse and addiction Dr. Lavid defines addiction, discusses the link between genetics, addiction & the brain, and addresses treatment options with a focus on the attorney.  To access the course please click here: The Neuroscience of Addiction: Attorney as Patient.  The course qualifies for substance abuse or legal ethics credit in many states.

Dr. Lavid also touches on a number of additional topics including:

  • The DSM-5 definition of addiction
  • The clinical course of addiction
  • Genetic vulnerability
  • The inherent addiction of substance abuse
  • Alcohol
  • Cocaine
  • Heroin
  • Brain function in addiction
  • The nucleas accumbens
  • Medical treatment
  • Medicines that target addiction including bupropion & naltrexone
  • Why attorneys are especially at risk
  • Lawyers & stress
  • Medical evaluation
  • Intervention
  • Treatment
  • The Lawyer Assistance Program (LAP)
  • The Other Bar
  • The Alternative Discipline Program (ADP)
  • Statistics on the LAP

Dr. Nathan E. Lavid practices clinical and forensic psychiatry in Long Beach, California, where he operates his own private practice.  Dr. Lavid’s practice is dedicated to providing care for patients and forensic clients that incorporate the latest findings from neuroscience research.  Dr. Lavid is also accepted as an expert by numerous state and federal courts around the country. He engages a variety of civil, criminal, family and probate law matters including addiction, child and adolescent/custody, competency to stand trial and for decision-making, civil commitment, diminished intent, fitness for duty, harassment, immigration, insanity, placement, psychiatric and psychological autopsy, psychiatric disability/damages, psychiatric evaluation for treatment, psychopharmacology, and restoration of competency & sanity.

This CLE course on the neuroscience of addiction is currently accredited in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Jersey (NJ)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in New Jersey and around the country.  For more information about CLE in New Jersey please click the following link: NJ CLE.

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CLE Course: Basics of Conflicts of Interest

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Penalties for conflict of interest violations are severe and range from disqualification to disgorgement of fees.  However, despite the fundamental nature of conflicts and waivers, they still continue to plague many attorneys and continue to be a source of ethical and malpractice liability.  And conflicts of interest have only become a greater concern as increasingly more attorneys are changing firms and the corporate ‘client’ becomes harder to identify.

The ethical issues that are most fundamental to many attorneys in their practices involve conflicts of interest.

If you need to brush up on the fundamentals of conflicts of interest then join attorney Robert Kehr as he provides an overview of the main concepts of avoiding actual and potential conflicts in your practice.  The main areas addressed include the source of ethical conflict rules, ethical resources, the purpose of the Rules of Professional Conduct, the definition of a conflict of interest, the duties that a lawyer owes to the client, the basic conflicts rule, specific conflicts and giving the client informed consent of the conflict.  To access the course click here: Conflicts of Interest: The Basics.

Further issues addressed include:

  • The ABA Model Rules
  • Ethics opinions
  • Disqualification
  • Disciplinary proceedings
  • Fiduciary duties
  • Standards of civil conduct
  • Potential conflicts
  • Actual conflicts
  • The four major duties that a lawyer owes to a client
  • Model Rule 1.7(a)(1)
  • Examples of conflicts
  • Common examples of direct adversity
  • Model Rule 1.7(a)(2) & material limitation
  • The comments to the conflict rules
  • Competence
  • Full & unbiased disclosure
  • Confidentiality
  • Undivided loyalty to the client
  • Full disclosure to the client
  • Joint representation of clients
  • The importance of conflict letters
  • Revoking consent

Robert L. Kehr is a principal with Kehr, Schiff & Crane, LLP, in Los Angeles, where his practice includes business and real estate transactions and expert testimony on legal ethics.  He is a former chair and continuing member of the Los Angeles County Bar Association Committee on Professional Responsibility and Ethics and the current chair of the State Bar of California Committee on Professional Responsibility and Conduct.

This CLE course on conflicts of interest is currently accredited in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Jersey (NJ)
  • New York (NY)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in New York and around the country.  For more information about CLE in New York please click the following link: NY CLE.

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How to Avoid Legal Malpractice Claims

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Over the last few decades, the incidence of legal malpractice claims has greatly increased as more clients have begun to sue their attorneys for substandard work.  There are many reasons to explain the increased number of legal malpractice claims, and the recent downturn in the economy has only generated more malpractice claims.  In order to avoid these lawsuits, attorneys must be extremely cognizant of their ethical duties to their clients and also the major sources of client discontent that lead to the greatest amount of legal malpractice claims.

“Pay attention to the details because they separate mediocrity from excellence” – Mark Wilson

To learn how you can provide excellent service to your clients and avoid legal malpractice claims, please join attorney Mark Wilson for a look at the areas that lead to malpractice liability.  Establishing a good rapport with the client, paying attention to your ethical duties and providing excellent legal service to your client can help you to avoid major pitfalls and malpractice lawsuits.  The main issues discussed include recent malpractice trends, how best to proceed if you decide to accept the case, the importance of using fee agreements, early preparation, giving the client guidance, intelligent time keeping, learning your craft and client trust accounts.  To access the course, please click here: How to Avoid Legal Malpractice Claims.

Further topics addressed in this CLE course include:

  • The reputation of attorneys
  • Malpractice statistics
  • The downturn in the economy & the increased incidence of malpractice claims
  • Deciding whether to accept the assignment
  • Avoiding difficult clients
  • Appearance & reality
  • Documenting the attorney-client relationship
  • Avoiding conflicts of interest
  • Conflict waiver letters
  • The retainer agreement
  • Corresponding frequently with clients
  • Jury instructions
  • Why information is not enough
  • Block billing
  • “No charge”
  • Proper staffing
  • Timekeepers
  • Competence
  • Workload
  • Client trust accounts
  • Attention to detail

A seasoned trial attorney and skilled negotiator, Mark B. Wilson has won nearly every case he has tried or arbitrated and has lost only one jury trial in which the appellate court reversed the judgment in his client’s favor.  He tries cases in both federal and state courts in a variety of practice areas, including copyright infringement, construction defects, covenants not to compete, breach of contract, attorney malpractice, unlawful detainer and personal injury.  He and his partner Gerald Klein have recovered nearly $100 million in plaintiffs’ cases and have won defense verdicts in “bet the company” cases where millions of dollars were on the table.  For eight consecutive years he has been acknowledged as a Southern California Super Lawyer in the areas of business litigation, construction litigation and intellectual property litigation. He is also recognized as one of the top trial attorneys in Orange County by OC Register Metro magazine and Mr. Wilson has also achieved an “AV” rating from Martindale-Hubbell.  A frequent lecturer to bar organizations on modern trial techniques, he has also authored several articles on trial practice.

This CLE course on handling media attention is currently accredited in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Jersey (NJ)
  • New York (NY)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in Illinois and around the country.  For more information about CLE in Illinois  please click the following link: Illinois CLE.

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CLE Course: Client Intake, Damages & Expert Witnesses – Do You Want to Take This PI Case?

Dan GilleonWhen you are contemplating whether to take that next case remember the quote below.  This quote is from a seasoned attorney who has learned his lesson the hard way – not to take every case that walks through the door.  How many times have you started a case and then once you get deeper into it you think to yourself, “why did I take this case in the first place?”  Doing your homework on the plaintiff and fully evaluating numerous aspects of the case can save you a lot of time, money and headache … and maybe even a malpractice lawsuit.  Before you even take the client you must consider everything from the potential client’s appearance and likability to potential damages and expert witnesses that will be needed for the case.

“The best case is the one I did not take.”

Luckily, you don’t have to make those rookie mistakes because Dan Gilleon is here to help you decide if you really want to take that next personal injury case.  Dan graciously shares his years of experience and wisdom in a recently added CLE course entitled – Client Intake, Damages & Expert Witnesses: Do You Want to Take This PI Case?.  In this in-depth course, Dan offers numerous practical points for you to consider before taking your next personal injury case.  This CLE course from Attorney Credits focuses on principle issues to consider at client intake, evaluating damages and the experts you will need for the liability & damages phase of trial.

Further topics discussed in this personal injury CLE course include:

  • Evaluating a potential plaintiff
  • Language skills
  • Appearance
  • Age of the plaintiff
  • Occupation
  • Criminal history
  • Willingness to go to trial
  • Liability
  • Statutes of limitation
  • Recorded statements to the insurance company
  • Timing of the accident
  • Property damage claims
  • Police reports
  • Witnesses
  • Motor vehicle accidents
  • Competing lawsuits
  • Premises liability cases
  • The use of video
  • Underinsured/uninsured motorist claims
  • Treating doctors, insurance coverage
  • Photographs of the vehicle & accident scene
  • Medical treatment
  • Specialists
  • Lost work
  • Bankruptcy
  • Dog bites
  • Dan also discusses the following types of experts:
  • Certified safety experts
  • Human factors experts
  • Biomechanical experts
  • Mechanical engineers
  • Fire/explosion experts
  • Medical doctors
  • The treating doctors
  • Vocational rehabilitationists
  • Life care planners
  • Economic experts

When considering whether to take your next personal injury case its important to remember, “it’s never about the money, until it’s about the money.” Dan Gilleon is a senior partner and founder of the personal injury San Diego law firm of Mitchell & Gilleon.  He is a an experienced Plaintiff’s Civil Trial Attorney who recently acted as co-counsel for Brian Giles, former San Diego Padres player, who was sued by Cheri Olvera for palimony and domestic violence in a highly publicized case.  He has obtained significant verdicts in the areas of hate crimes, wrongful termination, sexual harassment and personal injury.  A recipient of the “Outstanding Trial Lawyer Award” given to him by peer attorneys, his extensive trial experience has led to several significant verdicts.

This CLE course on the evaluating personal injury cases is currently accredited in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • Delaware (DE)
  • District of Columbia (DC)
  • Georgia (GA)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Jersey (NJ)
  • New York (NY)
  • Pennsylvania (PA)
  • South Dakota (SD)

This course is available for attorneys in Illinois and around the country.  For more information about continuing legal education (CLE) in Illinois, please click the following link: Illinois CLE.

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CLE Course: Ten Social Media Myths for Attorneys

Social media has changed society and along with it the practice of law.  Those attorneys who previously adopted the “Ostrich” approach – burying their heads in the sand and hoping it would all go away – must pull their head out and learn to adapt to our new Web 2.0 world.

It is now apparent that social media is not a fad – it is a paradigm shift.  Like email, Twitter and Facebook are here to stay … and that’s just the beginning.  There are currently over 400 social media websites and the list continues to grow every month.

Web 2.0 World

Social media is not just for teenagers and college kids anymore, companies and professionals now utilize social media for many business purposes.  Attorneys must be cognizant of social media and the legal issues that it presents in order to avoid legal liability and ethical violations in their own practice, and to fully counsel the clients they represent.

If you need help understanding the complex intersection of social media and the law, we have just added an excellent CLE course entitled Ten Social Media Myths for Attorneys.  In this extremely current and informative CLE course, Deborah Gonzalez of Law2sm provides an extremely comprehensive overview of the legal issues created by social media.  This course delves beyond merely introductory social media concepts and goes in-depth into complex legal social media issues so that attorneys are better able to counsel their clients.  The main areas addressed by Ms. Gonzalez include what is social media, ten principal social media myths for attorneys and resources for attorneys.

Further topics discussed include:

  • The many forms of social media
  • The new digital world
  • Why attorneys & professionals use social media
  • The principles of social media
  • Ethical rules that apply to social media use by attorneys
  • Disclaimers
  • Trademark protection
  • The FTC & false credentials
  • Astroturfing
  • Twitter-jacking
  • Cyber-stalking
  • Privacy
  • Employment law issues
  • The criminal system & the right to a fair trial
  • Digital legacy
  • Digital assets
  • State & federal laws impacting social media

Deborah Gonzalez is an attorney whose legal practice focuses on art, music, entertainment, digital, social media and online law.  She is licensed to practice in both New York and Georgia, and her clients include museums, galleries, artists & art professionals, animators, filmmakers, musicians & music professionals, authors, and various other creative professionals.  Ms. Gonzalez is the legal advisor to the Georgia Music Industry Association and currently serves on the board of Women in Film & Television Atlanta.  She is also a member of the Georgia Entertainment Association, Georgia Production Partnership, Women in Animation, and the Entertainment Law sections of the Georgia and New York Sate Bar Associations.  She speaks at various industry conferences around the world – such as SEIGE CON and SIAF – on legal issues and concerns for artists of all genres.

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Avoiding Ethical Violations & Legal Malpractice Claims

Legal Malpractice – two words attorneys never want to hear in their legal career … unless they are taking a CLE course with Attorney Credits.  There are many avenues that can lead to a malpractice claim, from conflicts of interest to improperly calendaring important dates.  However, many of these ethical traps can easily be avoided with a little knowledge and diligence.

We have just added an excellent resource for attorneys entitled Avoiding Ethical Violations & Legal Malpractice Claims: An Expert’s Perspective. Prominent Legal Malpractice attorney James E. King provides a comprehensive discussion of the common ethical pitfalls that  lead to ethical violations from the state bar and legal malpractice claims from your clients.

The main topics discussed include:

  • The Golden Rules
  • The attorney client relationship
  • Avoiding legal malpractice during the representation
  • Avoiding legal malpractice once the attorney client relationship has terminated

In addition to the main topics Mr. King also discusses a number of other pertinent ethical considerations. Further points addressed include communicating with clients, procrastination, keeping current on fees, substance abuse, representing multiple clients, potential conflicts, clarifying & limiting the scope of the attorney client relationship, the retention agreement, clients who habitually change attorneys, suing for legal fees, withdrawal, handling matters promptly, staying current on the law, the “rescue attorney,’ mistakes, keeping a clear record and client papers.

The course is currently offered in the following states and qualifies for 3 credits hours of Legal Ethics:

James E. King is the Founder of the King Law Corporation in San Diego.  Mr. King specializes in attorney fee disputes, legal ethics, and advises corporate counsel and law firms on litigation costs.  Mr. King has testified as an expert witness on numerous attorney-client fee disputes and has skillfully represented prominent clients such as Prince Fahd Aziz of Saudi Arabia and Heisman Trophy winner Rashaan Salaam.  Mr. King serves as a Special Master for the State Bar of California and is Vice-Chair of the Fee Arbitration Committee for the San Diego County Bar Association.  Jim also lectures and publishes works on attorney fee ethics and other related topics.

No Such Thing as a Non-Refundable Retainer?

By Jason Castillo, Director of Legal Education

The Iowa Supreme Court recently suspended a retired Iowa attorney for 30 days after ruling that a fee agreement with a criminal defendant was unethical.  According to the opinion, “the amount of the fee charged and collected by Vilmont for performing the limited and insignificant services in representing his client was, without question, unreasonable.”  The court then stated that a reasonable fee would have been about $600 under the circumstances of the case.  To read the opinion, click here.

The charges arose from attorney Bill Vilmont’s representation of a client on a state charge of enticement of a minor.  According to the Iowa Supreme Court opinion, the agreement provided for charges of $225 an hour, with a minimum fee of $2,500 to be paid with a retainer.  The $2,500 retainer was placed in a trust.

When the state charges were dropped in leiu of federal charges, the client dropped Vilmont and retained a different attorney to represent him in federal court, according to court documents.  Five days after the state charge was dismissed, Vilmont withdrew the $2,500 from the trust account without notifying his former client, according to the opinion.  Vilmont then ignored several requests to return the retainer.

Vilmont provided an accounting to the Iowa Supreme Court Disciplinary Board showing that he worked 3.7 hours on the client’s case – including one hour to provide the accounting.  The court, however, ruled that the minimum fee contract was “clearly unethical” and that Vilmont had failed to provide a timely accounting.

After scanning some of the comments on the ABA website, it’s clear that a number of attorneys did not agree with the Iowa Supreme Court ruling.  However, in the words of attorney fee expert James King, there is no such thing as a non-refundable retainer.  All unearned fees must be returned to the client.[1]  Under California Rule 3-700(D)(2), unless the attorney and client have contracted for a “true retainer,” the attorney must refund any portion of an advance fee that the attorney has not yet earned.[2]

And an examination of authority reveals that only “true retainers” are nonrefundable – and these are extremely rare.  When a client discharges an attorney, the Rules of Professional Conduct require the attorney to “[p]romptly refund any part of a fee paid in advance that has not been earned.”[3]  In California and other states there are also Ethics Opinions that address the subject.

What are your thoughts?

For more information, we have a few resources available for you:


[1] Baranowski v. State Bar (1979) 24 Cal.3d 153.

[2] The California Rules also state that a refund is unnecessary if the money is “a true retainer fee … paid solely for the purpose of ensuring the availability of the member for the matter” (see Rule 3-700(D)(2).  However, in the words of the California Supreme Court, true retainers are very rare these days.

[3] See California Ethics Opinion 01-02 which speculates that there are probably only a handful of situations in which a client would want to pay a true retainer.