The ALPS In Brief Podcast

ALPS In Brief Podcast - Episode 77: 25 Holiday Risk Management Tips

In this episode of ALPS in Brief, our Risk Manager Mark Bassingthwaighte shares his 25 holiday risk tips to keep your law firm's cybersecurity happy and healthy as we roll into the new year!

Transcript: 

Hello, I'm Mark Bassingthwaighte, the risk manager here at Alps, and welcome to another episode of Alps In Brief, that podcast that comes to you from the historic Florence building in beautiful downtown Missoula, Montana. As you can tell, it's the end of the year and I'm trying to get ready and set for the holiday celebrations and whatnot, just having a little fun. 

So I thought about what to do for this month's podcast. I thought, why not share my 25 holiday risk tips as a countdown. And these are risk tips for 2023, the end of 2023, and maybe we'll do this every year. Who knows? We'll see. Let's jump right in, shall we? 

Number one, don't wait for that after Christmas sale. Make sure your firm's security software and operating systems on terms of all the devices, the servers, the computers, the laptops, everything. These updates need to be current systems need to be patched, and the reason is I just want to make sure you're properly protected during all of that online holiday shopping. 

Number two, the turkey helpline. I remember back in the day, they used to have these shows you could listen to, and my memory was it's on the radio, but you could listen to people calling in. They record some of these crazy calls to the Turkey hotline. I remember a woman very upset that her bird tasted like soap. And apparently what she had done was read in the instructions, you should clean your turkey before cooking it, then rinse it out, that kind of stuff. 

And apparently she used a lot dish washing soap and that's going to taste like soap. That's not how you clean a turkey, but I always got a kick out of that. But sometimes things don't work out quite as planned when it comes to the holiday bird, and some people really don't know what they're doing with these turkeys. And there is a turkey hotline out there to help you out, use it. 

Well, in a similar vein, if you have no idea how to properly secure your smartphones or other devices, the files that you have in cloud storage, even your home router, if you're using it for work, rest assured there's a support line for you too, and that's just called your IT support. Whoever he/she/they may be, please don't hesitate to reach out and get the help that you need. 

Number three, untangling the lights. As you search your attic or your basement, wherever you have your holiday decoration stored, remember to protect and organize your firm's virtual storage space so your digital files don't end up sort of in a similar mess. I remember year after year for a lot of years, trying to untangle all of these light strings and checking for the bulbs, etc. It's just a headache, just a headache. So, let's try not to let that happen with our client files that are virtually stored. 

Number four, make a list and check it twice. And before taking on a new matter, make certain that you and your client are in total agreement on the scope of representation, and that might even include discussing what you're not going to do. And then of course, make sure that you thoroughly document all that in writing because after all, memories really can be short. I mean, even Santa, after all, why do you think he has a list. 

Number five, up on the house top. Some of us excel at navigating a snow covered roof to hang the lights. Boy, there's some guys around here, I've seen this here, I'm thinking, these guys don't excel and you're just worried that dickens that somebody's going to take a fall. But on others, you really do need to learn that the annual trip to the ER can get expensive. 

The point of all this is no one excels at everything. Learn to say no when you really know that you should don't dabble and don't take on clients that you can't work well with. Otherwise, the control of your professional life is going to end up in someone else's hands and that someone else could easily be a problem client that just isn't worth it. 

Number six, let's talk about Santa's laptop. If you're traveling for business or a family gathering, always carry your laptop with you rather than checking it with your baggage, because sensitive information, perhaps your naughty and nice list, could end up missing. I really can share over the years when I look at some of the cyber claims that we've had, stolen laptops, lost laptops are not uncommon. So really try to stay in control of that as you travel. 

Wrapping the gifts, when it's time to wrap up a client matter, tell the client what your file retention policy is and document what they want to have happen to their file at the end of your file retention period. This is one of the most common calls that I get to this day. What do we do with these old files? Because we've never dealt with it. We've never informed clients what to do or what our policy is. And taking care of that at the time you know where your client is and you're closing a file can really solve a lot of headaches down the road. Or I should say prevent a lot of headaches down the road. 

Number eight, to Grandma's house we go. If you need to check in with the office on your way to wherever you're traveling, remember to use a VPN when traveling. This is especially important if you're going to be using open public wifi, if you're using a hotel signal or even a signal at a friend or family's home, you need to encrypt your data stream in these situations. It's just essential as I see it. 

Number nine, remember the reason for the season. Providing pro bono legal services is really a wonderful way to not only bring a little holiday cheer to someone else, but it really may just change their life. Don't minimize it. Give back. 

Number 10, hang your stockings with care. According to the most recent ABA profile of legal malpractice claims, almost 52% of reported claims in recent years were based on a substantive misstep, such as a failure to know the law or properly apply the law, and conflicts of interest. So don't dabble and don't short shrift your conflict resolution process unless of course you enjoy finding coal in your stocking. 

Number 11, no two snowflakes are alike. As with client expectations, no two clients are going to be alike either. Really take the time, learn to listen, ask the questions, try to determine each and every client's unique legal needs as well as their desired outcomes in order for you to meet their needs as best as you possibly can. 

Number 12, don't become Scrooge. If a client becomes delinquent on their account, investigate early, and either work out an alternative arrangement or get out if you can. Allowing someone's past due balance to soar when they are already unable to pay and then suing them for your fees when you're finished could result in a haunting tale of a malpractice counterclaim. Not fun, not good. 

Number 13, bells will be ringing, while a wonderful sound this time of year. Be careful not to have an alarm sound due to a shortfall in your trust account. Never allow the proceeds of a check to be dispersed prior to that check clearing. And remember, there's a difference between a bank saying, "The proceeds are available," and those funds being collected in good funds. And often that difference is five to seven business days and can even be longer in some instances. Caution is in order. 

Number 14, look out for the Grinch. Take the time to ask what can be learned from an experience with one of those problem clients, once the representation of course has ended. The failure to do so often means that another Grinch could be in your future. If you don't learn, you're likely to make the same intake mistake again. Ask the questions, look for the learning. 

Number 15, not a creature with stirring. To make certain no unwanted creatures are stirring in your office network, confirm that everyone in the office knows to never open an email or click on a link sent from an unknown source. Better yet, institute an ongoing mandatory social engineering training program that everyone must attend, everyone who works at your firm, including you. 

Number 16, let it snow. Clients will tend to more readily pay bills that are sent on a regular basis and that provide detail on each charge. Tell your story in the process of creating and presenting your bill. There is a huge difference as an example between saying, "Research five hours," and "Research case law on inviting nuisance, five hours." Let the client know the value they are getting, what they are getting, for the money that they're being charged. 

17, the ghost of files past. When it comes to computer files, delete is not always what it seems. If you don't want the recovery of deleted files rattling around late at night, you really need to electronically shred all that data by using a program that will overwrite it, thus making it unrecoverable. So before you recycle those phones or donate some laptops or whatever it might be, don't just delete files. You need to digitally erase them. 

Number 18, It's a Wonderful Life. George Bailey, if you recall, saw what his town would've been like if he were never born, such a great film. If you're a solo, however, what would happen if you were no longer around? Name a successor attorney to ensure that your clients and their matters will be properly cared for should the unexpected ever happen to you. Then sleep better knowing that you did the right thing. Succession planning folks is absolutely an essential obligation as I see it. Please take the time to do so if you already have it done so. 

Number 19, The Little Drummer Boy, just listening to some music last night. It was that time of year, once Thanksgiving rolls around, my wife has a rule, Christmas music is it until the end of Christmas. But bang that drum to get your message across. Make sure your colleagues are in step with the confidentiality rule. No files, for example, should be left accessible after hours. 

No one should use open public wifi networks or free email accounts like Gmail for professional purposes. And don't talk about client matters in public places. Sometimes maybe just a little review. Get the staff together for a 10 or 15 minute meeting over the lunch hour, have a little pizza or something. Maybe do this monthly. But just these gentle friendly reminders really can help keep the rules and our obligations fresh in our minds. That can be very, very helpful and very beneficial. 

Number 20, how about those New Year's resolutions? Enjoy the holiday party season more by learning what callback phishing is and how not to fall prey. Then relish in knowing that you now have a cybersecurity leg up on most of the other attorneys in the room. You really will. If the FBI just issued an alert talking about callback phishing, so binging it, Google it, or you might even go to a wonderful site. This is just an excellent, excellent resource. 

It is Know Be4, K-N-O-W-B-E, the number four, knowbe4.com, and look at some of their resources that are available for free. You could search callback phishing on their blog, and I assure you, you'll get some information and it's well worth knowing about. 

21, the night before CLE deadline, fulfill your CLE requirements on time. You might look with the Alps. We have a lot of CLE out there, online, on demand, and if you're not familiar with it, it's www.alpsinsurance, one word A-L-P-S, insurance, one word, .com/cle. After all, that December 31st deadline for some of us is fast approaching. 

22, setting out Santa's cookies. When do I remember those days? Our kids are all grown and adult now, and we are Brady family, but we had five kids in our blended family, and I do remember, and it was a lot of fun, setting out the cookies and doing all the things that we did. For many families, this is one of the last things done before the kids are tucked in and that little detail counts. 

Similarly, once a matter is closed. Don't overlook the last important detail of properly preparing a file for storage. Use a file closing checklist to make certain that all the closing tasks are taken care of. If you don't have a file closing checklist, I invite you to get one of ours. I have one available on our website. Again, it's alpsinsurance.com, and you can click under resources and there's a section there for sample forms, a sample checklist, and you will find a file closing checklist there. Perhaps that might be helpful to you. 

23, giving thanks. You really are being honored. Every time a client places a new matter in your capable, competent hands. Honor them back by sending a thank you note at the conclusion of every matter. Just say, "Thanks, it's been a pleasure." You may find that referral and repeat work just starts to go up and maybe even soar, because you understand and remember who has hired who. 

24. Give yourself a gift, and this is so, so important in my mind. Remember, one of the best ways to serve your clients well and truly to keep your practice thriving is to prioritize taking care of yourself. After all, gingerbread, which I love, always tastes better when life is good. Take care of yourself, and don't forget to nourish the relationships that you have with your support systems, whoever they may be. You want them around years from now as well too. So take that time.

And finally, 25, we're just looking through the years. I have been in this role of risk manager here at Alps just shy of 26 years, and I really have felt so honored and blessed to have had this opportunity. And don't misunderstand me, I'm not going anywhere. I hope to be here for a number of years yet. We'll just see. 

But it really has been just an incredible honor to serve as a risk manager, as your risk manager, to be a risk manager and a resource in the legal community at large. So with that in mind, I'd simply like to say, may your holiday season be both merry and bright and most importantly blessed. I hope you found something of value in my short, quick countdown this year and stay well. Take care of yourself. Bye-Bye. 

 

ALPS In Brief Podcast - Episode 76: Practicing Law as a Mom Shouldn’t Be an Either/Or Proposition

Mothers understand each other. In this episode of the ALPS In Brief Podcast, Attorney Abigail Benjamin talks with ALPS Account Manager Meg Ratzburg and Underwriting Manager Leah Gooley about the hardships and triumphs of being both a mother and an attorney — and how legal culture shifts like ALPS' new Parental Leave coverage help to better accommodate women who want to bring their best to both worlds (and not have to leave law practice).

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Transcript: 

Leah Gooley:

Well, hello and welcome to another episode of ALPS In Brief, the podcast that comes to you from the historic Florence Building in downtown Missoula, Montana. I'm Leah Gooley and I'm the underwriting manager here at ALPS. And I'm here with Meg.

Meg Ratzburg:

Meg Ratzburg. I'm the account manager for the states of Georgia and West Virginia for our ALPS insured.

Leah Gooley:

And Meg is here, both of us are here to introduce Abigail Benjamin. She is an experienced West Virginia attorney and one of our insureds and is here to share an amazing story with us. So with that, we'd just like to turn it over to Abigail to tell us a little bit about your experience, starting with how you began in a solo practice of law.

Abigail Benjamin:

Yeah. Oh, okay. You guys just see me. This is kind of an eclectic story, so you just let me know if I'm going too much in the weeds, but I'm almost 50. This practice has been going on for seven years and I sort of did the traditional college law school graduate at 25, found what I thought was my dream job in public interest law, and then had two kids and I ran into that barrier, I think we're going to talk to later about being a female attorney with young kids. And I want to say it wasn't just a time crunch. It was wanting to show up for my family and my kids in a way that I wasn't just exhausted and overwhelmed.

So I didn't get that support and I just chose my kids. And at age 40, I had made what I thought was a very happy life, not practicing law. I had six kids, ages 13 to 1. I was growing kale in my backyard. I was writing fiction, I was following politics and on the news, living in a corner of my home state of West Virginia, about 70 miles from DC and God bless anyone from dc but there's a lot of lawyers in DC and there's a lot of unhappy lawyers in DC.

So I was very comfortable not practicing law. And The practice came out when I was 41 on a base of a very ethereal idea and some very good, wise people giving me thoughtful advice. And so the first start was in my faith tradition, Pope Francis is our head, and he really encouraged us Catholics to lean into this idea of environmental justice. And I had been a nonprofit lawyer. I was very keen to economic issues and worries about justice with the poor, but I hadn't really, really thought about economic justice issues and how that impacts both poor Appalachians and people of color around the United States.

So I just had this thought, but again, raising kale, homeschooling six kids, I took a one-shot volunteer opportunity, limited, limited, and I volunteered at an environmental film festival called the American Conservation Film Festival. And I saw this film that just blew... It knocked my socks off. It just really opened up my eyes. It was about a water crisis event we had in West Virginia. It was the Elk River Crisis. And this was the interesting part about art and film. I definitely was somebody that was educated in the audience. I knew what my state's problems were. I read the news. But seeing this timeline, as a lawyer, I was just like, oh my gosh, this was not an inevitable catastrophe.

What happened is we have these giant chemical plants storing chemicals, very dangerous stuff, right on the waters that we all drink from. And it was two rust holes the size of quarters that dumped all that toxic stuff and one half of my state's population lost their drinking water. And it wasn't the regular boil advisory where it was an inconvenience. You put the pot on the stove for 30 minutes and you have drinking water. You could not bathe in this water, you could not wash your clothes. The smell coming out of the taps was making people sick, skin rashes. And all of the environmental protocols were followed. They called the spill line, they did this stuff, but it was these local small businesses in Charleston. It was an ice cream shop, Ellen's Ice Cream, that was making their ice cream for the day. And this terrible smell came in and they were like, "This is not good." And they called the public health coordinator. And that's what started this looking at this environmental issue.

So I was amazed at that film and the discussion around it and I was very interested as a lawyer that this catastrophe, people had known for about seven years that this firm was not following protocols. And they were calling in complaints, like nuisance and complaints about smells and spills, but they didn't file a lawsuit. I mean, it was just sort of stacking up and stacking up.

And so, as somebody who was a lawyer, I was like, "Man, I wonder if encouraging lawyers to take these small cases and looking at environmental protection, not as, I mean God bless them, Sierra Club or these kind of large swaths, but that individual boots on the ground thing." That's what really got me excited. So I called up my property law professor who I had not talked to in 10 years, at the University of Wisconsin, and he's super cool, and let me know if I'm going on too long in the weeds.

Leah Gooley:

This is amazing. [inaudible 00:06:08].

Abigail Benjamin:

He's actually South African. It's so weird. But he's South African. His name was Heinz Klug and he worked with Nelson Mandela. He helped to do the South African Constitution. And he actually ended up being my law professor now 20 years ago because his work against Apartheid was so dangerous there was a price on his head. So he had to come to America to save his life and ended up falling in love with an American girl who taught sociology law. And so he just found himself in Madison, Wisconsin and was my property law professor. So I called him and, again, just supposed to be a one-shot deal. I'm like, I have this amazing film about my home state of West Virginia, and I think it'll really jazz up the 1L's in your class, and I want to come share it.

And we had this amazing meeting of the minds, and that's what happens with business, I think, it's this synchronicity. And he was like, "Abigail, I get you." He's like, "This is just in Africa." And honestly, I was kind of offended as an American. I was like, "No, no, no, no. I know West Virginia's weird, but we're 70 miles from Washington DC. You have your problems over in Africa, but it's not that bad over here." And he's like, "This systemic problem, the way that justice can fail to get implemented on the ground, this is systemic, this is worldwide, and I think you should come."

And so again, retired lawyer for over 10 years, I had never been on an airplane. And he sent me an airplane ticket and a really nice hotel room to come to my law school to give this presentation. And I was really humbled because my friends who had stayed on that linear path, I mean they were partners at law firms in Milwaukee and Chicago. And here I was getting the red carpet rolled out to come back to my law and speak. And so the idea of my practice, it really came from my South African professor, a visiting law professor from India, and then one of the environmental law professors who just happened... They were a little younger than me, but grew up in Tennessee and really understood the thing that I was seeing.

And so that kind of weekend conversation about this idea I had for a practice, and I initially didn't think I had the resources, the time or the money to start my own practice. So I was like, I need to fundraise. I have a great idea for a practice. And the idea for the practice was not somebody that came in from the top down like Sierra Club or Natural Resources, not that they're not doing great work, but in West Virginia, there's a very much stiff resistance against outsiders telling us what to do.

Leah Gooley:

Sure, sure. Yeah, that's common, I'm sure.

Abigail Benjamin:

There's real pushback against like, "What's this Clean Water Act?" And so I thought having a native child that's in the community, that is going to rotary meetings, and I do a lot of acting, so is on community theater. And when I go and do my presentations in court, which are some environmental, but quite honestly are a lot of basic property rights, I don't get dismissed as the outsider. I'm really representing how these harms are hurting us as a community. And so I thought I had six kids, that disqualified me. I was trying to find a new grad and I was like, "Hey, I think you could do this for $60,000. I'll fundraise. I'll call my friends and we'll put this together." And God bless that person from Tennessee because he kept saying, "This sounds like a you project. I don't have a student at 25 I can just fling into this Appalachia to try to make a change. This sounds like a you project."

And I'm like, "Well," I'm like, "I'm too busy. I've got these six kids." And so just that idea of not "I can't," but shifting a question to "Could I do that?" And I'm really lucky. My husband was really supportive, my kids were supportive. I had a group of community people that I was working with on the heroin issue, because Appalachia, we got a lot of stuff wrong, but one of the things was the opiate epidemic. And they really just held my hand through that nervousness phase of I'm going to sit down and retake the bar exam in West Virginia for the first time at 41, and I'm going to show up.

And I ended up taking the bar exam in a hotel that overlooked that river, that inspired me to do the thing. And so within a couple of days after I passed the bar exam, I had an opportunity because there's not a lot of pro bono lawyers out here floating around in West Virginia. So I got a call from an environmental group to join an action against a state gas company that was doing a monopoly. They were trying to build a natural gas line over geography that we thought was unsafe.

And I just went in to do a speech in front of a group of people, and one guy just literally took off his hat and passed it around, and they threw in $800, enough money for me, because I didn't need money for me, but I had to pay the court reporter. And so we got a deposition from a really good scientist about damage to the Potomac River, which is the drinking water for not just us in West Virginia, but for all those poor people in DC.

Leah Gooley:

Talk about grassroots. That's amazing.

Meg Ratzburg:

It's like they needed you and you needed them. I love that.

Abigail Benjamin:

Thing, Well, again, I jumped into this lawsuit. I was number 17. I was the 17th lawyer in this lawsuit, the only one who was living in the area. Everybody else was down south in Charleston. And the only one representing what I feel is the people. And I was so poor I didn't have a working printer. So I went to Kinko's and they were my law office, and I would print out the 19 copies I needed and stapled it and sent it off, but it ended up working and we got an environmental concession and I got to get on TV. And so just that type of feedback, I think of having an idea, having really solid people encouraging you to go to that untraditional idea and then having that success. Anyway, that's how I got started.

Leah Gooley:

That is an amazing story.

Meg Ratzburg:

I love that.

Abigail Benjamin:

It's very weird. Yes, it's very-

Leah Gooley:

Not focused.

Meg Ratzburg:

I love it.

Leah Gooley:

The fact that you provided a local solution from a local person with community support, as Meg noted, in a non-linear [inaudible 00:13:20].

Abigail Benjamin:

And supported by that international perspective. I mean, who would've thought about that? But that's the beauty of it.

Meg Ratzburg:

It was universal, yeah.

Abigail Benjamin:

I think, lawyers, the analysis we can carry to something, we can be from very different backgrounds, but we can be working on the same solutions. And that's just so exciting to me.

Leah Gooley:

And not for a shameless plug for ALPS, but our focus is solos and small firms, and that's the value that those solo firms you can provide in that capacity with this organic idea that you put together. And that's really, we're very proud to be able to support attorneys in that position with the pieces that we have, the risk management, the affordable policies. That's really awesome to see that, especially in your local community. That's so exciting.

Abigail Benjamin:

Yeah, yeah. And I would just say the importance of my work with environmentalism is it's really important to be a solo because I would be conflicted out of all of these interesting cases if I was in a larger firm. And also just for me, personally, trying to balance having kids and having a practice, I'm the boss, so I don't need to ask permission to move back a meeting to take care of my kids. That's just built into the practice that I have. Again, we'll talk about how ALPS is really special to this story, but it's nice to have those big firm tools and expertise, but still preserving for me the passion and the interest that really drives me to be a good lawyer.

Leah Gooley:

That brought you out of retirement.

Abigail Benjamin:

Yes, yes, yes.

Leah Gooley:

Well then this feels like an excellent time to talk about your experience as a female attorney and more specifically your experience as a mom and that piece of the story.

Abigail Benjamin:

Again, I had started this dream of a practice thinking basically that my having kids was finished. And about 10 months after I had started going back all jazzed up about environmental issues, my husband decided to take a job as an academic. He's an art professor, and so it was really great for him to switch out of being a long distance commuter to DC and teach, his love, but he lost half of his income. And so suddenly this project that for me was just sort of, oh, interesting, volunteering and pro bono, I suddenly had to literally get the grocery money for the kids.

And so I transitioned. Thank goodness ALP started me on that little first flights program. And then I moved in organically. And then two weeks after I signed my commercial lease to move back to my hometown and open up a more standard solo practice, I found out that I was surprisingly pregnant with my seventh child. And it was really awesome, but it was really scary because suddenly I had this commercial lease and I had run into trouble earlier in my career balancing, I felt like, kids and law. And now suddenly I was by myself and having to do that.

And, Luke, who's awesome, but I had a high-risk medical pregnancy with him. And I ended up on bedrest in a hospital, really trying to run my law practice, brand new law practice, with a locked file cabinet in my hospital room and some phones. And I was able to do it, but I didn't have that sizable kind of war chest, that backup. Again, just like daily bills I was paying, but I didn't have enough to pay my ALPS insurance premium. And so that was so beautiful. Luke was born and he was premature, and he and I were here but still shaken up by the experience.

And I reached out to Meg and I just told her my situation and I said I was a new mom and I had this premature baby and that I wasn't going to be able to meet that deadline. And she reached back out to me and said, and this was the line that was like... She said, "I remember those days. I remember those days and I'm going to look..." And she worked out the payment plan for me. But getting that affirmation, I think, from the corporate identity of a malpractice insurance, having them have that caring central thing about caring for me as a person and willing to bet that this was just a temporary hiccup for me and I was going to be a great client moving forward. It just meant the world to me.

And I actually, I don't know if I shared this with you, Meg, but I used the confidence from our exchange to go talk to a local banker who was also a woman in my town, and I got a better line of credit. So it really affirmed to me that the practice of law was valuable for me as a young mother, and it was okay to ask for accommodation so that I could stay mentally healthy, be there for my kid, and also serve my clients. It was a fragile time for me, and I really just appreciated that vote of confidence.

Leah Gooley:

That's so awesome.

Meg Ratzburg:

I love that. That just touches my heart. Even when you sent me the email I cried through the whole office. I'm kind of a crier.

Abigail Benjamin:

So the backstory is I sent a thank you note to Meg when my little son, Luke, who was the premature baby five years ago, when he celebrated his fifth birthday, and he's super healthy and happy, and I was just like, "Thank you, because I have this healthy baby, but I also have a healthy law practice and thanks for not making me have to choose one or the other."

Meg Ratzburg:

I love that. Women and mothers understand each other and can support each other. I love that.

Leah Gooley:

Everybody take a minute. In the backdrop of law that you mentioned earlier where that can just be a conflict, trying to show up for your kids and your family in a real way as you also balance some pretty heavy expectations in the larger law firm space can be so overwhelming, especially to women who have the mantra of doing it all and some of that context that it's hard to mentally work your way through. Clearly you said, "Well, at some point I'm not going to do that. I'm going to step away." And that's not what the law profession needs.

And we see that in that women are a majority now of law school students, but after five years start to drop out of the professions for a lot of the same reasons that you've talked... So very interested to hear more about your thoughts on what some of those challenges are for women in law and where we or the law community might be able to meet some of those challenges.

Abigail Benjamin:

I'm so glad you asked that question because this was exactly my story. I had gone from a really small town in West Virginia, 5,000. I went to a women's college, Smith College out of Massachusetts, and I went to a really good public interest law group in University of Wisconsin. And I had gotten the plum job. I worked as legal service attorney. I worked with a lot of women, and everything seemed to really fall into place, from being 25 to 29 for four and a half years. But when I got pregnant with my second child, I felt exhausted.

And one of the things that makes me upset is we, as attorneys, we are expert at managing expectations and delivering conflicting things. We're experts at crisis management. I mean, at least my practice, but I think a lot of other people, it kind of feels like an ER doctor. You plan to work on one thing and a client called and they have an emergency, and so you're going to shuffle your day around. And those are exactly the skills that you need for balance in terms of having a lot of kids or just having a creative life.

I mean, I got to do Wizard of Oz this summer with my kids, and let me tell you, those two weeks that we were in tech rehearsal, not a lot of law was getting done. But those kind of shifts, that's really normal as a lawyer. And when I look back, I'm upset at myself at 30 because I felt inferior, that my child needing me or being pregnant or asking Meg for an extension because I had a premature baby and had been working for three months, that's life. And that's a healthy, well-rounded life.

And it's just amazing that right now in my stage of life, I had a mom that died of cancer after two years of treatment, and my elderly dad needs some help. And it's weird, judges and other lawyers are so much more calm about giving me elder law care, flexibility, than they were about me giving birth and having kids. And I don't know how much is my uncomfortability asking for that, but once I started as a solo, I really had this idea that my husband and my kids were my first eight clients and they got the top eight slots of my day.

But that also means I can handle about 30, so there's a whole bunch of work that I can do for the community, and occasionally somebody has a deposition or I've got a hearing, those clients bump up and they trump my five-year-old. But most of the time my family gets the top billing and I'm really comfortable handling the rest of the time. And so the issue then, honestly, right now at 50 isn't so much balancing my being a mom versus being an attorney. It's really making sure that I'm being healthy for me, because I tend not to put myself in the mix. So trying to be healthy and sustainable, keeping up my exercise program, eating right, those kinds of things, I struggle with much more than telling a client to pause for a minute while I talk to my kids.

And I would also say, when I was growing up, I thought having kids meant you had a career disruption, very small, when they were little, like zero to three. But my teenagers, I swear, need me way more than my five-year-old. And it's like the teenager is fine until my 20-year-old's in college, and then suddenly I'm at the door for work and you've got to stop and take that moment and connect with them. But that's where being a solo or a small firm is perfect because it's very, very rare that I have to be in my law office at 9:00 in the morning. I can take those moments to connect with them when they're ready. And I still feel like a great lawyer if I've spent 30 minutes with my teen and show up at 9:30 instead of 9:00, and so-

Meg Ratzburg:

You're probably a better lawyer, because you're taking care of what you need-

Abigail Benjamin:

Exactly.

Meg Ratzburg:

... so you're present for your client because your life's taken care of.

Leah Gooley:

Yeah yeah.

Meg Ratzburg:

Yeah, yeah. Exactly. Exactly.

Leah Gooley:

Abigail-

Abigail Benjamin:

So I would say... Oh, go ahead.

Leah Gooley:

Oh, just asking what advice would you give to a 25-year-old, 30-year-old attorney in that position, male or female, facing the crux of kids versus work? What advice would you give them?

Abigail Benjamin:

I would say try your best not to see it as kids versus work, but what makes you a healthy human being and how can you practice law in a way that's healthy? I made the mistake of, I had female role models when I was 25 just starting off in law, and they were awesome attorneys. Their lives with their families did not look anything like how I wanted to be. I had really amazing managing attorneys, but they either had the swap where the husband was the kind of 1950s spouse that did everything, and they were in the office for 80 to 100 hours a week, or they outsourced. The nanny came and picked the kid up in the morning at 5:00 AM and then had them until 7:00 and fed them every meal and stuff.

And not that that's bad, but the idea of a lawyer sitting in the office for 100 hours a week, and I would say 85-plus was very normal for me in an 85-person public-interest law job. I don't think that makes for healthy people. That's unsustainable, I think, when you have a tiny newborn that's waking you up. But I wasn't living a healthy life when I was newly married, but it didn't hit me as bad as when I had this little one-year-old who, even when I saw them, I was so obsessed with worrying about my cases and how tired I was from this stuff.

So male or woman, just really try to find lawyers that are healthy, that are energetic, that are doing awesome in the courtroom, but you want to, A, have time to take you out for a beer or a coffee, and then are interesting to talk to over a beer or a coffee. It's more than just can you practice law well in the courtroom? That's what I feel like. So it's finding a sustainable practice.

Leah Gooley:

That is such great advice. And so, for the current atmosphere, right in the profession, being able to talk to attorneys in general to say, be a whole person, have a well-rounded life.

Meg Ratzburg:

A whole person.

Leah Gooley:

The attorney wellness right now is a moderate crisis. People are in a tough spot. And so being able to have that message to folks is so important right now, reinforced from folks within the community, people who have made those difficult journeys. Yours is so inspiring in that way. The weaving and being able to be back into a position where you're providing value, you're providing value to your family and yourself, and you're-

Abigail Benjamin:

And everything's Meaningful. And Meg was saying the time with my kids and my teens, that's making me a better attorney because I'm a more fully engaged human. Yeah.

Leah Gooley:

Yep.

Abigail Benjamin:

Yeah.

Leah Gooley:

Beautiful. That's so great. Let's see. Those are the questions in general we had wanted to wrestle with. Is there anything else that you wanted to add just in your experience in this, again, really inspiring journey to attorneys now or just in general to the community?

Abigail Benjamin:

Well, I just want to give a shout-out. My bar association has free Zoom meeting. It's for mental wellness. It's really about health and it's run by a therapist. I was initially kind of nervous to join, but it has been amazing. And one of the nicest thing is we have a judge on there, which was kind of very nervous. You're not used to seeing the guys in the robe as you're like, "Yeah, I'm struggling with my teen today," or whatever. But it was really humanizing to see people of different ages, different backgrounds, vastly different sections of law. I mean, I think I'm a little guilty of really talking mostly to other attorneys that are in my same skillset, but it's so amazing to see people struggling with this idea of how can I practice law, do good to my clients, but also in a way that's sustainable, that's healthy for me?

And I would say 90% of all lawyers that I practice with, and COVID has really helped. I think we're pretty human. We're in a small state. I think people are pretty gracious about giving extensions or helping a client really find a good fit between... I might have somebody that has a case, but I'm not the right lawyer for them, so I'm going to reach out and find a referral to them, kind of that humanness. But I would say there is 10% that is kind of jerks and that has that sort of adverse priority relationship even when we're not in court. But this wellness group has helped me have confidence where I'm like, "Dude, you're just not on my team."

I'm going to keep my armor up in the velvet glove and the professionalism. But it's allowed me, I think, to feel more confident, again, as that human being. The other thing I would say, again, just call-out to ALPS. It's amazing as a solo to put a team together. So even though I'm alone, I have Meg and ALPS. And ALPS is great because, for me, I have ADHD, ALPS is like, "Get your records together, girl." I mean, there's these firm, always write the engagement letter, always say when you're off the case. And these kind of, it's almost like a managing attorney role, so that helps me. My interest is obviously talking to people and solving the law. It's not necessarily administration, but ALPS is that person that's helping me make sure that I hit the things I need to do to stay protected and it gives me confidence.

Leah Gooley:

Awesome to hear that.

Abigail Benjamin:

And I have a team. I have financial advisors, really helpful with therapists. I have a lot of friends that are therapists because a lot of what we're doing in law, it's very emotional. I might know what to do, but trying to handle those clients that are... I mean, they come in with property law issues and I mean, they're crying. I mean, it can be really traumatic. And so that's what I like. I might be alone, but I have a team of people that I can look to for my clients, but also I can look to for myself. And I'm always interested in learning how to do things better.

The one thing I would say for attorneys that I think I found because I took this little detour, I think it's very, very important to stay intellectually curious and not just go to CLEs, but watch PBS documentaries and go to theater plays and act. My husband and I right now, we're taking an adult tap class on Wednesday nights, and our kids are dancers and we suck. I mean, we are like [inaudible 00:32:54]. But we're out there learning the shuffle step and doing our little things. And I mean, it is so healthy. I'm almost 49, he's 51. It is so healthy to be in something that is not your skill level.

And I think attorneys, we're interested, curious bunches, and it's sad if we get burnt out or tired or always having to be the leader, the one with the answer. Again, I think mental health is important. Exercise, diet is important, but keeping that curious, playful kid, the person you were before you sat through contracts law as a 1L, keep that person alive because that's really who people respond to. And then I think they trust me in my community to have answers for complex things because they see me as a human being and I'm out in the community, so that's my-

Leah Gooley:

Awesome.

Abigail Benjamin:

[inaudible 00:33:59].

Meg Ratzburg:

Great.

Leah Gooley:

Well, to wrap things up, we have a couple of lightning round type questions, if you're game.

Abigail Benjamin:

Okay.

Leah Gooley:

Are you a dog or a cat person?

Abigail Benjamin:

Cats. I'm a cat person. Yes.

Leah Gooley:

A cat person. And what are you reading right now?

Abigail Benjamin:

Oh gosh, so much. Actually, with all my different interests, we have a family bookstore that's kind of like our family farm, but this is a West Virginia, I swear I didn't know this question was coming. This is just on my... I use books like I use law. I have my other stuff too. But Pearl S. Buck is a West Virginian who actually wrote very sympathetically about the Chinese, and The Exile is actually a portrait about her mother.

I lost my mom. My mom died after a two-year battle with cancer in January. And it's been really helpful not just to take time off my practice to go to grief group. That's good, too. But it's been really helpful for me to read a lot of books where people are reflecting about their mom. I feel a lot more connected just hearing about other people's stories.

Leah Gooley:

That's beautiful. Thank you.

Abigail Benjamin:

Thanks.

Leah Gooley:

Last question. Do you see any of your seven kids going to law school?

Abigail Benjamin:

Here's the thing. My husband is a digital artist and art professor. And so they really had no... I mean, Mom's job was boring compared to Dad's job of making animation and stuff. But my 16-year-old has just really fallen in love with history, and it was like the first time she told me she had opinions about President Andrew Jackson. I was like, "What?"

Leah Gooley:

What you doing, girl?

Abigail Benjamin:

Yeah, yeah. And her... they're all ballet dancers. It turns out that one of her good friends is really excited to become a criminal defense attorney, AKA Perry Mason. So that has been adorable. So she secretly, I think after I joke that her ballet career, either when she's 40 and she retires from ballet or she gets injured, she's in line now to take over my firm, so that was okay.

Leah Gooley:

Succession planing, starting early. Okay.

Abigail Benjamin:

[inaudible 00:36:27]. I love it.

Leah Gooley:

Well, I couldn't be more grateful for your time with us today-

Abigail Benjamin:

Oh, thank you.

Leah Gooley:

... for sharing your stories and such great advice. Wonderful to talk with you today. Just a huge thank you to you.

Meg Ratzburg:

Yeah, such a delight, Abigail.

Abigail Benjamin:

Oh, thank you.

Meg Ratzburg:

Thank you. Thank you very much. And good luck to everyone out there.

Leah Gooley:

Great, thank you. I'll just say to our listeners, just if you have any questions for ALPS, if you're insured with us, please reach out to your account manager, like Meg.

Meg Ratzburg:

West Virginia or Georgia.

Leah Gooley:

Absolutely. I'm happy to answer any questions. As Abigail had mentioned, there are some serious risk management, How to Run a Solo Practice resources on our website. It's alpsinsurance.com. There's some great blog posts, videos, articles written by our claims attorneys who are on staff to handle claims that come in from our insureds. So really great resources. If you have any questions or want to know more, please check that out at alpsinsurance.com. Thank you again from beautiful, cold Missoula, and we will see you next time.

Meg Ratzburg:

Thanks. Thanks, Abigail.

Leah Gooley:

Thanks, Abigail.

Abigail Benjamin:

Thank you, guys. Bye-bye.

Leah Gooley:

Bye.

 

ALPS In Brief - Episode 75: What is the Corporate Transparency Act

In this latest episode of ALPS In Brief, ALPS Risk Manager Mark Bassingthwaighte shares some vital information about the Corporate Transparency Act as it relates to the practice of law ... as well as some other spooky insights. 

A Brief Statement of Correction from Mark: “During this podcast I stated that under the Corporate Transparency Act, BOI reports were to be filed annually. That statement was incorrect. The correct requirement is that reporting companies have 30 days to report changes to the information in their previously filed BOI reports and must correct inaccurate information in previously filed reports within 30 days of when the reporting company becomes aware or has reason to know of the inaccuracy of information in earlier BOI reports.” 

—

Transcript: 

Mark Bassingthwaighte: 

Hello, I am Mark Bassingthwaighte, the risk manager here at ALPS. And welcome to another episode of ALPS In Brief, the podcast that comes to you from the historic Florence Building in beautiful downtown Missoula, Montana. 

I was just out in Missoula just a couple of weeks ago and visiting the home office, I had a wonderful time. And I will have to say now that winter's kind of moving in here and it's nice to be back in Florida. But it's always good to get back to the old stomping grounds, if you will. 

It's November now, and I have been trying to think about, okay, what would I like to share with all of you this month in November? And I got thinking, well, it's November and they're also... I just felt that there are two topics that I'd like to talk about, two that I think a lot of lawyers don't know that they need to know a bit more about these two topics. And so given that it's the month of November, the theme is what two things that you don't know that you need to know... get the play here? No, I'm just having a little fun. 

So anyway, let's get to it. The first, we've just had October pass, and that is Cybersecurity Awareness Month. And I'm sure some of you're probably just dog-tired of hearing about cybersecurity, and it's just one of these topics that, man. I know, I know, I really get it. But I wanted to follow up. So one of these topics is going to be sort of cybersecurity related and just explore another topic here that I just think is very, very important. And it really deals with backups in light of ransomware. And I'm sure we've heard all kinds of things about ransomware. If you follow any of these stories going on and education going on in October. 

And for those of you that don't know, maybe I should stop very quickly. Ransomware, just as a reminder, it's these rogue programs that can be downloaded unintentionally by anybody in your office, your staff, another associate, partner, anyone, just being tricked into doing something that wasn't in their best interest. Clicking on a link they shouldn't have, downloading a document or opening a document that they were tricked into opening. And it may look legit. There's some stuff here. But it also comes with this payload of malicious software. And it will encrypt all of your data, sooner or later. It can sit at times. But it will again encrypt everything and then eventually you get this little ransom note that says, if you'd like access to your data, again, you need to pay this amount in cryptocurrency by such and such a deadline. And if you don't, you're not going to get your data back. 

As an aside, I would encourage you never to pay this because even if you get the decryption key, sometimes it doesn't work. Sometimes it only decrypts part of it and you need to pay more. Sometimes you can get some of your data back and then they'll say, "Oh, by the way, we want another ransom because if you don't pay us, we still have all your data. We upload it and we're going to sell it or we're going to post it online." 

It's just a heck of a mess. Well, one of the best ways to avoid having to pay ransom if you get hit with something like this is to have a good backup. And for quite some time, I've been talking about backups and I will share what I've been saying. But there's a change, if you will, in play, in terms of recommendations, in terms of what best practices are with your backup process. So I'd like to get us there to what this new change is and just to create some awareness. 

So initially, what I've been talking about and many others that do these kinds of things that I do in terms of trying to educate on cybersecurity, we talk about a backup process. And this has been sort of state-of-the-art for a while now. It's three, two, one. And I kind of have this little spin on it. I call it three, two, one plus archive. Well, what does that mean? And it means three copies of your backup in two separate media, one of which should be offsite, preferentially in the cloud. Okay, three, two, one. As an example, you might be backing up to an external hard drive and then also having a set of backups on Google Drive or IDrive or whatever your cloud backup provider might be. So you got it. You got the three, two, one. Now, one quick side note, if you are doing something like external hard drives, once you're done with the backup, please make sure that you disconnect. You pull that USB cord out. 

Because if you leave this always connected, the ransomware, should you ever get hit, and let's knock on woodier and hope that that never happens. But I assure you there are a number of firms that have been hit over the years and it's getting worse and worse. But the ransomware is going to scan the network. And if it's sees that we have a backup drive here, it's going to encrypt the backup drive too. So it's not good. The goal is to have a good backup so that you can recover and restore data that's encrypted because IT will come in and just delete all this stuff and rebuild from the backup, and we get off to a fresh start. So that's the ultimate goal. 

Now, I sort of add this archive spin, which is okay, so I may have some... let's say I have one, two, three month backups and just sort of rotate if you will, and that frequency might work. Sometimes you want it to be a little more, sometimes it's daily, weekly, whatever your process. But you have these rotations. Well, I would suggest keeping occasionally one, if you will, pull it out of the rotation and keep it as an archive. 

So let's say you have month one, two, and three, but then periodically take one and just sit it out there and it'll eventually become 6, 9, 12 months old. And you can sort of rotate those a little bit too. Now, why do I like an idea like that? Well, some of these programs are designed very intentionally to sort of sit and they will infect backups and whatnot. Again, because they're trying to make sure you have nothing to rebuild from. So if you have some archives out there that are a little bit older, the thinking is, okay, if your current backups are all destroyed because again, are not available because it's encrypted and just useless, you may have something that's six months old, but at least you got everything, you can restore everything up to six months. You see, I'd rather lose six months worth of information than everything. So I sort of like that as an extra little sort of precaution. 

Okay, so that's the three, two, one plus archive. The new thinking is now three, two, one, one, and I'll explain that in a minute. I still might put an archive out there, but I'm going to make what the second one is sort of these archives. So let me explain. We have three backups, two media, one should be offsite, preferentially, in the cloud. The second one is what we call an immutable backup, I-M-M-U-T-A-B-L-E. Immutable backup. 

Now, what is an immutable backup? Well, it's interesting, and I'm going to have some notes here as we go through some of these things. But an immutable backup, it's basically a copy of your data that cannot be altered. It cannot be deleted or changed in any way, even by a system administrator, users, applications or systems that created the data. This is really locked down. And when you create this backup, you're going to put a clock on it, a time. And so it will remain if you will, locked for whatever time period you set. Now, can you appreciate what's happening here? So if you can't alter the data, you can't delete the data. Ransomware programs, wiper ware programs and things will be unable to affect that at all. 

So it's locked. And now you have the ability to make certain you're doing as much as you possibly can, in other words, to make sure you have a good viable backup. Now, one of the things that I like about this is, again, it could even prevent an accidental deletion by somebody doing something silly or some employee that you've had a falling out with and he or she wants to do a little damage and start delete things. It's not just ransomware, but I love this idea. So when you lock it too, we talk about it, and I just love this phrase, I guess. We talk about these backups as being worm protected now. An immutable backup is worm protected, and I just love that word. What does that mean? Well, it means... I got to look here for a second, I'm so excited. Write once, read many times, write... WORM. Write once, but you can read it as much as you want. The data is there, you just can't delete it, you can't change it, you can't encrypt it, you can't do anything with it as long as that lock is there. 

Now, eventually you want to... I would not set these locks if you go indefinitely because sooner or later, I assume you want to replace them with more current versions. And if you just keep building, so you have some cloud storage, but these backups can be fairly significant in size. And if you have these things out there year after year after year, so I would not block them up forever. I might think about six months, nine months, because that can become your archive. And so just maybe setting it maybe every year and just hold them for a year and let them sort of, once the lock expires, that clock expires, you can delete it. But I think that is an outstanding idea. I'm a big fan of immutable backups. 

Now, one thing to think about here, again, the temptation can be, well, if we take this step, we can start to relax a little more because we're always going to have a good backup. This is our guarantee, our insurance policy, if we ever get hit, we can recover. That's not necessarily the case, okay? There's no such thing as 100% guarantee. 

Just as an example, you heard me talk earlier about how ransomware can sit sometimes for extended periods of time, just infecting things. So your immutable backup, if the network has the infection already, so when you back it up, you're backing up the software that's going to encrypt everything. So there's just one example of how this isn't 100% perfect. But boy, it is as close as we can get, based on me. But in terms of what the IT world can do to try to help you recover and keep you from being taken out by some ransomware, this is as good as it gets right now. So I strongly encourage you to think about immutable backups. I will share, I have not had any real time to really dig into these programs in terms of making any type of recommendation. All I can say is these are separate providers. 

You can't just work with your regular whatever cloud backup program you typically have and say, I want to make this immutable. Now, that may change at some point, but right now, the companies that are doing this, as far as I'm aware, are all companies are specifically selling or offering this service. I would encourage you, if you want to look at this, just to speak with it because she, they will know your systems and can make some recommendations about what service or product might work best for you. But I really truly believe that immutable backups really are the way to go. And I see them, and I'll just be very honest here folks, in terms of what is happening in the world today, geopolitically, things are getting crazier and crazier. 

And there are things happening in the cyberspace. So I think the risk that we are talking about here are going to go up, and that is already supporting that. It's going up very, very rapidly. So I think this is why I want to talk about it right now. I think having some knowledge of is there something else I can yet do that really may help protect me as things just get wild here for a while that it might be worth doing? And you can't do that without knowledge. So that's number one. 

The second issue that we need to talk about is the Corporate Transparency Act. I don't know how many of you're familiar with the Act or not. And boy, this is not going to be a primer on on all the things that you need to know about the CTA. But let me just share a little bit because more of us as lawyers need to know about the CTA than realize, and I'll explain why here. But the Corporate Transparency Act was passed in 2021, and basically, it requires the disclosure of identifying information of people operating certain US-based business entities. And a key reporting requirement coming, in beginning of 2024, is unfortunately going to affect many small businesses. And it's my understanding that's somewhat unintentional, but it's where we're at. 

There's law firms, particularly the solo and small firm space are going to be caught up in this. That's just the way it is. Now, the ACT is really in response to just, a lot of things have been going on with money laundering, tax evasion, financing of terrorist organizations, et cetera. And so this act is one of the things done in response to try to cut down and get some additional information. So here's the interesting thing. Who needs to comply with this act? And it's a domestic reporting company, which is this term [inaudible 00:17:18] in the act. But basically, it's any company that is created by the filing of a document with a state Secretary of State, or similar office under the law of the state or even an Indian tribe. So it includes corporations, LLCs, LLPs, and the list goes on. 

There's some deadlines here. If the reporting company existed prior, so if you're firm, and obviously if you're in a firm now it's existed prior to 2024, you have until January 1st, 2025 to file your first... what do we call these BOIs. And it's just a beneficial ownership information report. And in terms of what's required to be reported and how you report this, it's fairly straightforward. But I first off want you to hear that a lot of you that are in the solo and small firm space are not exempt from this. The act actually has, I think 23, 20... let me look here. Yeah, 23 specific types of entities that are excluded from reporting. None of them are small law firms and other types of small businesses. Now, the one thing that could get some of you out this reporting requirement is if you happen to qualify as a large operating company. 

Now, what does that mean? You need to employ more than 20 employees who are working in the United States for more than 30 hours per week. So you have to have 20 employees that are all US-based and work 38 plus hours a week. That your office or your firm is physically here in the United States, and that you report more than five million in gross income and federal income taxes each year. So if you meet those three requirements, you're considered a large corporation. A lot of law firms aren't going to meet that. But you know what your operation looks like, so there may be a possibility of not having to comply. 

Again, the first thing I need you or want you to be aware of is that you yourself may be subject to this act. If you happen to be formed, and I've actually been talking with some lawyers who are in the process of forming law firms, and if they form their law firm after January 1st, '24, any business has just 30 days to do this report, and it'll be an annual report. So some awareness there. 

Why do I bring it up? I bring it up, one, again, so you don't naively miss an obligation to report because there can be some significant or serious consequences for not reporting. But I also want to talk to any or all of you who are out there that may have clients. You've set up some businesses or you will be setting up businesses. You need to understand the Corporate Transparency Act, who needs to report, what needs to be reported, when does the report need to be made. 

I guess if you really want to go in this direction, you certainly could... it's a new service that you could add and help all these clients that would be subject to the act to follow through on the reporting. And if you want to go there, hey, great, that's awesome. Obviously, don't dabble here, come up to speed. I'm just giving you the lightest stuff. I have not done major research onto this, and I'm still coming up to speed myself. But I've learned enough that we need to be aware. 

But I could also see similar saying, no, no, no, no, no, I don't want to be responsible for this. Because think about there's an ethics opinion the ABA put out. I think it's a Formal Opinion when a 491 came out, I believe, about two years ago. And again, it talks about that as lawyers, we cannot allow our clients to use our services in furtherance of a crime or fraud. There's some language and rules too, RPC 1.2 has some language along those lines. The opinion made it clear that we can't even turn a blind eye here. We have to have some responsibility, we have to be asking questions. 

So if you want to dig down in the CTA and then also look in terms of managing risk, I encourage you to take a look at the Formal Opinion 491, and then think about the rules. 1.1, competency. If we are going to be competent, we have to know what questions to ask to make sure that we're not helping someone launder money. 1.2 is in play. We just talked about that, we can't allow our services to be used to commit or furtherance of crime or fraud. 1.3, diligence is going to be in play. 1.4, we have an obligation to communicate. Hey, this is not okay, explain the legal ramifications of the things that you're doing, if they refuse to follow your advice and want to continue on with some type of fraud or crime, 1.16 is going to be in play, withdraw and get out. 1.13 is going to be in play in terms of just representing the entity. 8.4, misconduct is going to be in play. 

So there are a lot of rules here that we need to be aware of so that we're making informed decisions. Do we want the responsibility to assist all these clients in filing this, the BOI, the business ownership information, report? Because there's all kinds of identifying information and it needs to be accurate. Then if you are lied to or something's incorrect, that can create some exposure for you. So I would want to be a little concerned about that. I'm not saying don't do it. I'm good. Hey, if you really want to come up to speed and you feel very competent in helping all your clients do this year in and year out, God bless, go for it. If not, I would want to at least make sure that clients, particularly current clients, are made aware of the act, and then I would want to document that you are not going to take on that responsibility to help them comply with the requirements under the act. 

I would just not want to leave this sitting out there unaddressed because particularly, if we have some ongoing relationships with any of these clients, and that's fairly common, and they're harmed at some point by not filing this document, they're going to turn to you and say, "What the heck? You're the lawyer. This is your fault. I had no idea. I thought you're looking out for me and my best interest or our company's." You see where this can go. And a claim like that's going to have some legs, folks. It really could. So I strongly encourage you. Let's think about, be intentional about what we want to do. Do we want to advise, not advise, help with these forms, don't help with these forms? And then document that the client has been informed and that we either are or we are not. So those are the two things that are the November knows. 

So I hope you found something useful from today's just ramblings of a risk guy. And as always, if you have any questions or concerns about either of these topics or anything else that I might be able to assist you with, please don't hesitate to reach out. My email address is MBass@ALPSInsurance. ALPSInsurance.com. And you don't need to be an ALPS insurer to visit with me. There's no cost and visit with me. Again, I'm not a risk manager for ALPS. I'm hired by ALPS to be your risk manager. So that's it, folks. Bye-bye. Have a good one. 

 

ALPS In Brief - Episode 74: Why Cyber Liability Insurance is Essential

Hello, I'm Mark Bassingthwaighte, the risk manager here at ALPS, and welcome to another episode of ALPS In Brief, the podcast that comes to you from the historic Florence building in beautiful downtown Missoula, Montana. 

Okay, today it's just me, and we're going to talk about managing cyber crime risks and really looking at the whys behind what it does in terms of obtaining cyber liability insurance. And I really want to dig into this a little deeper. I still get a lot of questions about insurance, what it does, what it doesn't do, and is it necessary, and the list goes on and on and on. So let's hit that topic. 

Before we jump into some of the specifics of using insurance to manage your risk, I want to set the stage again, I always start my cyber programs with some information. Let's look at headlines from 2022. 

In 2022, 255 million phishing attacks occurred in just six months. Now this is a report done by SlashNext, and they analyzed billions of link based URLs, attachments, natural language messages in email, mobile, and browser channels over six months and that's what they found. And that's a 61% increase in phishing attacks compared to 2021. That's pretty significant. They also recorded a 50% increase in attacks on mobile devices. And I really ask that you pay attention and try to appreciate the significance of that. Cyber criminals really are moving their attacks to mobile and personal communication channels to reach employees. The big attacks right now are scams and credential theft. They're the top of the list or the desired outcome with these mobile attacks. And a lot of this will be a phishing and smishing, using SMS text messaging as the attack avenue for a phishing attack, if you will. Smishing is combining SMS and the word phishing, so that's how you get to that. 

The FBI has reported that cyber criminals are tampering with QR codes in an attempt to steal victim funds. A lot of people will say, "Well, I'm not going to be that exposed to this stuff, and how frequently is this all this going on?" I got to tell you, it's getting a little crazy out there. Remember QR codes, for instance during the pandemic, particularly as things started to open back up and you go out to restaurants. And instead of handing you a menu, they'd have that little QR code, that little box that has all the dots and dashes and little squares and things in it. And you would scan that and it would take you to the menu or a webpage. Well, a lot of these can be faked. People will just create a QR code sticker and put it over. 

Think at a parking lot and you go to scan something to pay your bill, your parking fee, and if you're misdirected to a site that looks like the site that you would expect to pay your parking bill for the evening, but it's not, you've just turned over your account information to somebody that doesn't have your best interest in mind. We've seen it in parking tickets, creating fake parking tickets. And again, it'll have the local parking authority logo and the little yellow envelope and they stick it on your windshield. And again, ah, good lord, I got a parking ticket. They make it very convenient to scan the code. It's not real. So we got to be careful. 

We're even seeing QR codes being sent via email pretending to be a multifactor authentication process. And the emails may even mimic corporate logos, law firm logos, it could be anything. And people are falling prey to this. So it's just another crazy unusual attack vector that a lot of folks out there really aren't aware of. 

There's also a report that 79 million malicious domains were flagged in the first half of 2022. Please understand what that means. 79 million fake websites. Banks, could be anything, anything at all. And again, they're going to look very, very similar to the real thing. That's 79 million opportunities for anyone at your firm, you or any other employee or attorney practicing at your firm. It's just an opportunity for them to do something innocently, naively, but it's just getting scammed, getting taken advantage of. 

The final thing I'll throw at you here in 2022, the A Legal Technology Survey results reported that 27% of participating law firms reported experiencing a data breach of some kind. 

So I try to share all this to get your attention, because we need to always remember that IT support isn't the last line of defense. You and whoever else has access to your office network is the last line of defense. And this has consequences, and it really does. The consequences, you really need to care because as a lawyer, you are a valuable target, particularly those of you who practice in the solo and small firm space. I know a lot of lawyers don't believe that. They just think we're not going to be on anybody's radar. It's a rural practice, as an example. Well, come on, there is no such thing as rural on the internet. 

And you're considered in the so small firm space sort of the low hanging fruit because the cyber criminals know that you don't have typically the financial wherewithal and oftentimes the deep understanding of everything that could be done. I think the financial wherewithal piece is probably the bigger piece because you just can't throw the same kind of money that a company like Microsoft does around their cloud, protecting your data there as an example. So you're sort of viewed as the low hanging fruit. 

And you really need to care because I got to tell you, it's only a matter of time. Robert Mueller, if you remember, the former director of the FBI, famously said, "There are only two types of companies, those that have been hacked and those that will be hacked." But almost actually at the time he said that, that kind of statement was out of date. It really should be something more like there are only two types of companies, those that have been hacked and those that don't know they've been hacked. I mean, I'm not trying to be melodramatic about it, I'm just sharing. It's not if, it really is when. 

Now this presentation really isn't about all the things that you can do to prevent becoming a victim. I have lots of other materials, podcasts, CLEs, webinar, all sorts of stuff that can go there. I will share that there is a checklist, a cybersecurity checklist available, if you have any interest, on our website. Just go to the homepage and under resources, scroll down a little bit, you'll see sample forms of checklist. Check there and you'll go in and there'll be another link to checklist and the cybersecurity checklist is there, and that might be useful to you. 

But I do want to discuss the risk associated with not being proactive with your cybersecurity efforts. And just as an aside, this really in terms of cybersecurity, proactive efforts, that really does need to include social engineering awareness training, even if you're just a true solo and it's you. You need to stay abreast of what's happening. So I'll just throw that out there. 

Okay. Some of the risks your firm faces by someone, anyone at your firm, not doing their part. This really is an all hands on deck kind of situation. Well, let me just read some of the things that can go wrong in terms of the types of risk. I mean, we're sort of talking about the legal and financial risks, but there's legal liability to others, employees, clients, third parties, for loss, theft, or unauthorized disclosure of personally identifiable information. And there may be legal liability for the theft of client funds. Think wire fraud or business email compromise, being tricked and scammed into sending typically larger sums of money to the wrong bank and just a cyber criminal. Legal liability for the theft or loss of third party corporate information. Being subject to regulatory action for the failure to comply with state breach notification laws. Having to cover the costs of responding to and recovering from a breach. Damage to your reputation. Loss of revenue due to a breach. These are things to take pretty seriously. I mean, this can get crazy fairly quickly. 

I would encourage you to pay attention to this. The typical costs of a network breach for small businesses is currently around 200,000. And I will share the device theft, think of smartphone, jump drives, laptops, et cetera. So device theft of these mobile types of things. Wire fraud and ransomware are really common problems we see for law firms in terms of the lawyers and the firms that we insure. 

So as an aside, and just again keep your attention in play here, there could be a coverage problem. Think about, a lot of lawyers have fallen prey to various types of financial fraud. But let's just talk about this in the context of wire fraud, being tricked into sending money to the wrong bank because a routing number has been changed and you weren't aware that that change occurred and didn't do anything to try to catch it. And the lawyers will immediately call in and say, "This is malpractice. I got to file a claim." Well, I'm not so sure that that's the case. Theft of funds is a property loss, and malpractice actually doesn't cover property losses. 

So wire fraud, theft of funds, can be in many instances an uncovered loss if the only way you're trying to ensure for that is through a malpractice policy. Read your policy. This is not unique to ALPS. These policies weren't intended or designed to cover cyber crime. Now, we'll explore that a little bit more here in a bit, but generally, I mean, that's not the purpose behind it. It's really to cover you for professional negligence in the practice of law. 

Okay. Now, let's talk about the fallout. So let's assume, I'm not going to look at this never happens, but we'll see, that there is some type of breach. And I'm not talking about wire fraud here, I'm talking about a data breach so that someone really is in the system. What does that mean? How does this play? Well, you need to understand, we're going to start, if you will, with the response and system recovery. So someone needs to come in, typically a forensic team, IT forensic team, that typically is not your IT support. These folks typically know a great deal about how to protect you, but often don't have the skillset to do the forensic piece once there is a breach. That's a different group. 

So they're going to come in and they need to understand the breach, try to figure out what happened and terminate it if it's still going on. There may be programs that have encrypted your system and as you try to clean that up may still be there and that can encrypt again. So they have to terminate, try to clean up. This team is going to try to figure out the who, the what, the when, the where, the how. Really understand. 

Well, while all this is going on, you don't have access to your network. They need to image typically the entire network. And that's something that doesn't happen... The preserving the evidence of the crime, and it helps them evaluate and understand, and that doesn't happen in half an hour. So you're not going to have access to your systems and your data while this is going on. Now, how long can that take? It depends on the type of breach and what's going on. If it's just a lost laptop that has some passwords on it, they could probably do a remote kill and try to evaluate was that laptop and any passwords used to access the network? So that may be relatively brief. But if there is a major ransomware attack, as an example, and everything's encrypted, it could be days to even several weeks. It just depends.But we need to think through that, and how would that impact your practice? Some it may not be too bad, others, it could really be a pretty devastating event. 

So once all that's done, you understand, okay, man, they're starting to build the system back. Phew, we're going to get through this. It's still not over. Every jurisdiction in the United States has their own unique breach notification law and you need to comply with these. And you need to understand too what states are in play. It's not about, well, I practice here in Florida and that's it. If in your database there's information from clients and third parties, and just the list goes on and on, of people in multiple surrounding states, you may have to comply with those state breach notification laws as well. Typically, there's some cost of notifying all the people that have been impacted by this. The cost of compliance. Do you want to pay for credit monitoring? The list just goes on and on. Reputation management, et cetera. This can get expensive. So that can be managed obviously, but I want you to hear and understand, a breach can be significant. It's not just the loss of money, whether that's a ransomware payment or wire fraud, there's lots of other things that can go on. 

And you need to think about, there's all kinds of information in your files. There's just gobs of information out there. So again, don't minimize the consequences of a data breach. 

Now the good news of course, and where I said I'd go with this was, that you can manage this risk with the purchase of a cyber liability insurance policy. And of course, I would always couple that with following through on cybersecurity best practices. You don't get a reference to a lot of things in that checklist. There are other proactive things you can do, making sure that there's robust security software running on all the mobile devices at work or anything that used for work. So work from home folks, if they're using personal devices, we need to protect these things. But let's focused on this insurance piece. 

At the outset, I do want to share that the purchase of cyber insurance, depending on how much coverage you'd like, the type of coverage you're looking for, how big your firm is, this discussion, sort of tangential discussion on security best practices, getting back to that checklist, is important because an insurer may make it a requirement that you do certain things. You may have to have multifactor authentication in play. They're just going to be looking and asking questions about, what is your security posture? What steps have you taken? What processes are in play? Do you use out-of-band communications as an example to verify the accuracy of all wiring instructions prior to wiring funds? So there are a variety of things that can be important here. 

So the accuracy of the information you provide in terms of the application going through the process is going to be very, very important. You don't mislead. Don't lie. Say, "Well, I know this is what they want to hear, this is what they want us to do, and we try, but this is our intent." If post breach an insurer learns that you in fact weren't doing all that you said you were doing on the prevention front, you may have a serious, serious coverage problem. So I do want to focus here just a side moment on these security best practices. That can be very, very significant. 

But what basically does cyber liability insurance provide? What do you get for your premium dollar? It's really looking at providing coverage for the type of losses I had talked about a bit. Commonly, you're going to see these policies cover business interruption, as an example. So that would be covering the loss of income and forensic expenses sustained during the period of restoration after the breach. Now, that coverage may be contingent upon a short waiting period. Media liability. So that's things like copyright or trademark infringement, malicious defacement of a website, and liable. 

Data recovery. So we're talking about the reasonable and necessary costs incurred in order to regain access to, replace, or restore data, or the reasonable and necessary costs incurred in order to determine that the data cannot be accessed, replaced, or restored. So I think ransomware as an example. And then sometimes you might even pay for a decryption key that don't do much, or you might've been impacted with wiperware and your data's just been erased and destroyed. So there's some costs in terms of trying to figure out, what can we get back and is it doable? 

Privacy breach response. So that's the expenses associated with complying with relevant breach notification laws. We had talked about that. Look for a policy that includes coverage for the cost of privacy counsel, forensic investigators, and notification and credit monitoring services. 

It will also provide typically, again, data and network liability. Now, these are the damages and expenses related to claims resulting from a breach of data in your control or a third party, and damages and expenses resulting from a security breach. Examples of a security breach would include unauthorized access or use of network resources, a denial-of-service attack, an insertion of malicious code, if somebody downloads something and it's maybe a key log or just tracking what's going on your network, and the transmission of malicious code from your network, so someone's using your network to harm somebody else. 

Crisis management. This is the expense associated with bringing in outside experts to investigate the incident and fix the problem. And with some policies can include the cost of a public relations consultant. 

Cyber extortion. This is the expense associated with investigations and paying for the return of or gaining back access to data. Now, one thing to be aware with cyber extortion, it is pretty common in the cyber insurance space that you need permission in advance from the insurer to make that ransom payment. It has to do with regulations that monies can't be paid to nation states. You don't want to pay the Iraqis, as an example, their military. And they're very involved in ransomware. So there's some issues there. But I'm just making you aware of that little side note, but typically money is available in terms of reimbursement. 

Fraudulent instruction. This is a loss resulting from the transfer of funds after relying in good faith on an instruction that was a misrepresentation of a material fact. Now again, coverage may be contingent upon an out-of-band communication taking place. Again, if you're not familiar, an out-of-band communication is, let's say that the wire fraud instructions come via fax. So that's the inbound communication channel. An out-of-band communication channel means we changed the communication channel for an outbound communication in an attempt to verify the accuracy of the information that was received in the inbound communication. So incoming fax, wire instructions. I pick up the phone with a previously verified number from whoever sent the fax, and I will read the information, Hey, Sue. I just want to verify, thanks for sending over the fax, got everything. Is this information correct?" 

Because these things can and have been and will continue to be intercepted and changed. So if a call comes in, it could be a deepfake audio. And I'm telling you folks, this has happened. You're not talking to who you think you're talking to so you have the information. So use a different communication channel to reach back out and confirm. That's an out-of-band communication. That's what we mean by that. 

Some other benefits from cyber liability insurance. It can cover regulatory defense and penalties. These are the expenses and penalties that an insurer is obligated to pay as a result of a regulatory proceeding that arose due to a data or security... My tongue is getting twisted today. A security breach. 

And finally, payment card liabilities. So it might be PCI fines, the payment card industry PCI fines, costs, expenses. An insurer is legally obligated to pay as a result of a data or security breach. 

So these are some of the common coverages you will typically find in a cyber liability policy. And again, that's some pretty thorough stuff and can really help you manage the risks and get through this, in again, the event that there is a significant data breach of some type. 

Now, a few things to keep in mind and just be aware of. There are going to be exclusions for war and state sponsored attacks. I would think that wouldn't be much of a surprise. But the current Russia-Ukraine war is one obvious example as to why. NotPetya, which was... It looked like ransomware. Russia released it into the wild prior to the onset of the war, but leading up to it, in an attempt to really do some serious damage in Ukraine. But it just spread and went global. And that NotPetya was what we call wiperware. It looks like ransomware, acts like ransomware, but the intent is not to hold your data ransom for some payment, the intent is to wipe your data, just get rid of everything. That's not good. And it is nasty, nasty stuff. 

Also be aware that these policies cover data. They don't cover hardware. If you have a lightning strike and your server's just toast, a cyber liability policy isn't going to respond. That would be something you'd cover under your general insurance, your business owner's policy or your commercial package, whatever that might be. 

Some common exclusions just to be aware of, breaches that occurred prior to the effective date of the policy. Now there's a growing move in this space to kind of be a little more liberal with that in terms of this insurance space because it just just very difficult to try to figure out when these things occurred. 

But if you are breached and you know it, and you come and buy a cyber liability policy, the house is already on fire, that's not going to work. You would have to have absolutely no idea that a breach occurred. Because sometimes these people can be in your system for months and sometimes even a year or more. That's just the way it is. 

Insider attacks. If somebody in your employer, another attorney in the firm, just makes bad decisions for whatever reason and does a lot of damage, again, insider attack, that's not going to be covered. 

And some policies, think about what I'm about to share here, phishing scams are often not covered or maybe subject to a sublimit. And really what that's talking about and getting to is yet again, wire fraud business email compromise. It's the loss of funds. Other examples might be someone who stripped it and buying a bunch of gift cards to pay something. Turning over credit card information. 

You might ask if there's a social engineering endorsement available that might pull some of this back in. And again, if there is coverage under the policy, typically it's a sublimit and it's not going to be as high as the general limits of the overall cyber liability coverage that you might purchase. So for example, let's say you buy $250,000 in coverage, the sublimit on these kinds of theft of funds might be just 10% of that, so 25 grand. You could also look at getting some coverage under a crime policy, and that's probably the most effective way to try to get this covered. But every carrier is going to be different. I'll come back to that here in a moment. 

Also, an attack resulting from a failure to correct a known vulnerability. So if you are continuing to use outdated systems because hey, Windows 8 still works wonderfully, even though you know that it's no longer supported and there's no security patches and up where, as a result of that, you're not keeping systems current and patched and there's a breach. If you're using unpatched systems, outdated systems, that may void coverage for anything. So you need to just be aware. 

There are different types, different ways I guess to say, to get into this. A lot of malpractice carriers have what I would say an add-on. It's sort of in part.... Maybe the best way to say is it's some type of cyber endorsement to a malpractice policy. And that's not bad, don't get me wrong. It's better than nothing. But understand these endorsements, these add-ons, often come with lower limits and less broad coverage. And part of the reason that that's the case is due to limited, and at times even no, underwriting being involved in that cyber insurance piece. You can opt in. Sometimes it just is automatically there depending on the carrier. So again, it's important to have some type of cyber coverage, but I need you to understand if you're not really reading these policies, these endorsements, and really understanding what they do and don't do, you might be running with some assumptions. I really prefer to see a freestanding cyber policy. 

And just as a aside real quick. I shared that this add-on and the automatic, if you will, endorsement is in some malpractice policies. You'll also see that at times in some business owner package policies as well. But again, the same issue is in play. It's not as austere. Just not as broad. Limits aren't going to be as high. So I would encourage you to look at standalone coverage. 

How much? Boy, that is a tough one. I would say in the solo and small firm space, I would want to at a minimum be looking at a quarter to half a million, and understanding that we're talking about the expenses and consequences of a data breach as opposed to theft of funds. I'm going to look at theft of funds perhaps at a higher amount separately, just depending on how much money you're moving through your accounts. 

And also, just as an aside, some of the cyber policies, even the standalone policies, will cover theft of your funds, but not theft of client funds. So if money is accidentally wired, firm money wired to a wrong vendor making a payment or some sort out of the operating account, okay, cyber will cover that. You wire 850,000 of client funds out, the cyber policy may not cover that at all. So you really need to ask and look into this. Because it's again another reason to look at a crime policy or a crime endorsement and see what you can do there. You may need to have several different policies in play even to get to this total that whatever you're looking at. 

If you can get to a million, even better. But again, I don't know enough about your individual practices and firms in terms of how valuable is the data. How much do we have here? That's something you're going to have to maybe talk with an underwriter or a marketing person with, business development person, with your insurer, to really gets a better ideas of what to do there. 

The final thing I want to throw at you is just know that these policies differ, at times substantially, between insurers. So it's worth at times shopping the market a little bit. Prices can be quite variable as well. A lot of the variability goes with just what coverage is being offered. If you have a policy that's going to cover your money and client money as an example, that's going to be more expensive than a policy that doesn't cover any loss of funds in terms of wire fraud and these phishing scams. So again, you have to make sure you're comparing apples to apples. 

But know that this is a very dynamic market relative to life insurance and lots of other... They've been around for decades and decades. This is new stuff. And the risks are changing almost daily. It's very difficult for an insurer to really understand what their exposure's going to look like two or three years down the road, based on what the risk analysis is today. Who knows? AI as an example. How is this going to change things? How significant will deepfakes become? They are already in play, so please... But I'm just trying to share, can you appreciate how challenging it is? An insurer has to set premium on an unknown risk. It's changing and evolving very quickly. So that's why you will experience and see great differences perhaps in coverage, differences in premium, et cetera. So it's really worth sitting down and talking with someone about how to move forward and what might be best for your situation. 

So that's really all I have on cyber liability. I hope you found something of value. And I like at times to go back and say, "What are the takeaways here?" And the biggest takeaway for me, if I'm sitting in your shoes, if you already have not done so, I strongly encourage you to consider adding cyber liability insurance to your insurance portfolio. In my mind, I just honestly have seen too much. And I truthfully can say I've been involved post breach with a number of firms in a number of different situations, and more than a few really never recovered. The financial hit was just too much, and that was that. So I want to make sure, my hope is that you hear, that there's some learning that we can obtain from the experiences of others. So I'll leave it at that. 

Again, I'm Mark Bassingthwaighte. If you ever have a need, desire, concern that you want to talk about, please don't hesitate to reach out. My email is mbass@alpsinsurance.com. You do not need to be an insured to visit with me. There's no cost. I'm hired to be a risk manager for the bar at large. I'm hired to be your risk manager. So if there's ever anything I can do on cybersecurity, explaining insurance, and a lot of lawyers have questions about legal malpractice insurance and other types of coverage, happy to talk. Ethics, malpractice avoidance, [inaudible 00:41:54], whatever, I'm here. That's it. Bye-bye all. 

ALPS In Brief - Episode 73: The Ethical Obligation of Succession Planning

Mark Bassingthwaighte: 

Hello. I'm Mark Bassingthwaighte, the risk manager here at ALPS, and welcome to ALPS In Brief, the podcast that comes to you from the historic Florence building in beautiful downtown Missoula, Montana. 

I'm delighted to have, as my guest today, Bill Harvit, and Bill is the chairman of the Succession Planning Committee at the West Virginia State Bar. And I'll tell you, as a risk guy, succession planning is a huge issue, and it seems to me, in recent years, more and more states are starting to move a little bit on this topic, and for good reason. 

Bill and I are going to have a chat about succession planning, and I thought it'd be fun to have Bill not only because of his involvement with the committee and all this going on in West Virginia, but I think, folks, it's important, too, to hear from another practitioner, from somebody that's out there. I've been in this risk management space for 25 years, and I'm sure some of you are tired of hearing just from me, and I like to have different types of thoughts. Before we jump into this, Bill, may I have you take just a moment and introduce yourself. What do listeners need to know about you? 

Bill Harvit: 

Oh, probably not a lot. No, I'm teasing. I've been practicing law for ... this is my 37th year, coming up on 37th year. I've represented both plaintiffs and defendants through the years, but principally, I've been involved in toxic torts, mass tort litigation, through the years. And, unfortunately, I had a situation, back in 2017, that thrusted me into this succession planning situation, and Mark, it's not because I didn't prepare. We thought we were prepared and we were not. It's a very important topic. I thank you and ALPS for focusing on it. And, listen, to the extent I can help anybody not go through what I went through, I'm happy to do so. 

Mark Bassingthwaighte: 

Are you able to share a little bit about what happened and what brought you into this? 

Bill Harvit: 

Sure. I had been practicing, in fact, I had a firm for 25 years, and my partner and I, as I said, did a lot of mass tort litigation. And literally, one day, I'm not kidding, in April of 2017, I knew he was having some issues, but he walked in and literally said, "I'm done," and walked out, and we had about 5,000 files that were open, again, because we did mass tort litigation. They weren't all 100% open. Some were just waiting on settlements and bankruptcy defendants and things of that nature. It took me two and a half years to wind down that firm and deal with all of the issues that, hopefully, we're not going to get to all of them, but hopefully at least touch on a number of the issues. I lived it, and I will tell you it's probably one of the most stressful times in my life. 

And, just in this same vein, that happened to me as a lawyer, but it also happened to me as a non-lawyer. When my father passed away, he and my mother operated a small women's clothing store in southern West Virginia, and not unlike a small law firm, they each had their own duties and responsibilities. And, when he passed away, of course, they had no succession plan, and I had to step into that. I've learned it both as a lawyer and as a non-lawyer. 

Mark Bassingthwaighte: 

Well, what I appreciate about this story is there's this temptation, as I see it, among the bar at large, is succession planning really is an issue that we need to focus on in terms of solo lawyers and the rest of us don't really need to worry about that. And you are so right. I've seen problems in firms of five, eight, 10 lawyers where we have these unexpected, unplanned for transitions, whether it's an untimely death or somebody just saying, "I'm done." All kinds of things can come up here that create some problems. 

I was also interested, as we were talking a little bit via email, you had mentioned that West Virginia is in the process of considering some rule changes, and specifically, as I understand it, really making it clear that the obligations to plan for one's succession, it does go beyond the solo space. Am I correct in that? 

Bill Harvit: 

Yes. Yes. And the reason, let me just cite a couple of statistics, Mark, and you probably know these, but I was a little surprised by them. But, according to the ABA profile of the legal profession in 2022, 40% of lawyers are over the age of 45 and the median age is over 46. The other interesting fact to me, from Thomson Reuters, was that 85% of lawyers are in firms of 10 or fewer and 60% are in firms of three or fewer. And what happens in those situations, I lived it, is when there's a triggering event that disrupts one of the lawyers, then it falls on the others. And I can tell you, I was unable to take new cases, I was barely able to finish the ongoing cases I had because of all the issues that I had to immediately address. 

And, listen, these are not isolated events. People think, and when they think of triggering events, they think of death or maybe disability, but triggering events can even include technological disruptions. There's a lot of talk about AI and generative AI, and there is going to be disruption in many areas of our field. There are a vast number of triggering events that can affect the operation of small firms. 

But, yes, you are correct. West Virginia is looking to expand the rule to five or fewer because, let's be honest, the economics of the practice of law often dictates, in small firms, that each lawyer practice in a separate area, and that was the case in our firm. But, if you've got one lawyer that's doing domestic relations and another that's doing personal injury, another doing bankruptcy, and then you have a lawyer that's doing something else, say, securities work, well, none of those other lawyers are going to be, I think, competent to handle those files. That's why it really does affect small law firms as well. 

Mark Bassingthwaighte: 

I love the term triggering event. I think that is an outstanding term. But you're so right, and folks, I just want to underscore coming at this from a risk perspective, again, "Well, we're a family here. We've got four or five lawyers and good staff and all, and there really isn't ..." But what does happen if we're a firm and I'm the divorce lawyer and I'm out for whatever the triggering event is and I'm out permanently, can you appreciate the challenges that this puts everybody else in? We really do, I should say I really do, and outside the group, believe this, we really do, as a profession, need to take this issue very seriously and do something. 

But, now then, the question becomes, Bill, what does that mean? Where do we start? I'm sure you get some calls and some conversations, I hear this a lot too, and is there a difference, I should say, between what a solo needs to do or what a small firm needs to do in terms of where to begin? What are your thoughts? 

Bill Harvit: 

Well, before I address that, let me tell you what happens if you don't begin the process. In West Virginia in particular, Rule 3.9, administrative rules, is going to require the Supreme Court to appoint someone. As we sit here today, we all have the privilege of making these very difficult decisions while we're in what I call business mode. While things aren't normal, nothing's normal in the practice of law, but while things are basically normal in our lives and we can devote the time to it, if we don't do that, then either we or someone else appointed is going to make those decisions when we're in what I call crisis mode. 

And, when you're in crisis mode and you're making decisions, or someone else is making decisions, about whether you need an extended reporting endorsement, for instance, and I'm not plugging ALPS here, but it's a very important issue, and we can talk about that. It's hugely important. But, if you're in crisis mode, or some third party's making that decision for you, then you're in trouble. Now's the time to seriously get started doing that, and it's not easy because this is more of a process than it is an event. And I try to break up succession planning into basically two stages, what I call short-term succession planning, where you're going to get in place the people you need, you're going to do what's necessary to protect your clients, your heirs, your staff, your co-counsel, your partners, and we can talk about that and focus on that, and I think we should immediately. 

But there's also a long-term component to this where, and again, it takes time, but where you preserve and enhance the value of your firm, which, a lot of times, is one of the most important assets a lawyer has, in order to transition that firm to new people, whether it's from retirement or whether it's because of a triggering event. We'll never get to the issues on the second part because it just takes so much more time to talk about. 

Mark Bassingthwaighte: 

Well, let's talk about these short-term, more immediate things. What comes to mind? I'm reaching out to you and saying, "Hey, there are two of us here, and we understand, but I have no clue what to do." Where do we start? 

Bill Harvit: 

Well, there's quite a bit of literature out there. In fact, I just did this, in fact, I wrote it down, I wanted to look, if you ever use Google Scholar on the peer-reviewed literature, well, I had to do this before our podcast, I entered in Google Scholar, I entered succession planning and limited it just to the last 10 years. There were 84,000 articles on succession planning. Then I thought, "Well, okay, those include just general business, so let's limit it to law practice succession planning." Well, there were 28,100 peer-reviewed articles out there. 

There's plenty of literature just that's available, but also I would encourage people to contact their bar associations. We're, I think, pretty progressive about moving this issue forward. Oregon, the Oregon State Bar has some wonderful documents online. Again, I think West Virginia has good documents. We're still working on some of ours. Virginia has some really interesting documents on how to incorporate the successor into your will, durable power of attorney, things of that nature. Really, the first step is appointing a successor, and I think you got to give that a lot of consideration. And that's going to, I think, depend upon the type of practice you have, how many partners you have, how many cases you have, and that sort of thing, because you want to appoint someone who's competent in the area of the cases that you handle. 

Mark Bassingthwaighte: 

Exactly, and that's an obligation. That's an ethical obligation. You can't just go out and find anybody. I want to underscore, folks, again, we are talking about small firms. If we could go back to I'm the divorce guy and nobody else in the firm does divorce, I know who in the area we could reach out to, and I should take on that responsibility, here are a couple of names, and perhaps I agree to do this for another colleague, another divorce attorney in another firm. It can be reciprocal in other words, but don't leave this, don't leave this. It can create all kinds of unexpected headaches. 

The other thing that I want to underscore for all of you is I've had lots of conversations over the years with particularly solo attorneys in all the consulting work that I've done, and even in a lot of the lecturing around the country, but it's awfully hard to find somebody. And let me share a couple of thoughts, because I think part of the problem is there's a misunderstanding about what the ask is. There's this fear, and I'll just make this as a solo because that's the most obvious or clear example, there's this fear, if I pass and Bill is going to be my backup, my successor, that, well, that means that Bill's going to come into my practice, take it over and run the practice, and he's already got his own full-time practice. That's not what the ask is. The ask is to administer the winding up or the transition of my practice. Sometimes this could also be solos agreeing to do this for each other. 

You have backup attorney possibilities that can come into this as well. But here's another thought. There's no rule that says I just have to find some guy like Bill to agree to do this. I've been involved in situations where four or five solo attorneys get together as a group and just say, "We'll share these responsibilities." Turned out there was a situation a number of years ago where a lawyer was a member of a five ... group of solos that agreed to be the successors and backup for each other. And one of the younger guys, was early fifties at the time, was involved in a deadly climbing accident, and the other four guys stepped in and divvied up the duties. And it was a very smooth transition, was very emotionally hard for them all, they were all great friends, but the process worked. 

I'll just share some thoughts there. Please don't hesitate to say yes, really understand what your obligations are. I want to be clear about that. Bill ... 

Bill Harvit: 

Well, let me just add something there- 

Mark Bassingthwaighte: 

Yes, please. 

Bill Harvit: 

... because when I said and mentioned finding someone competent to handle your files or to transfer your files, that's not my requirement. That's the rules of ethics requirement. If you look at Rule 1.3 under diligence, comment five, it specifically says, "In the event of death or disability, the duty of diligence may require a plan that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there's a need for immediate protective action." I'd love to take credit for it, but that's not my original thought. 

But let me talk a little bit about some of the things that a successor is going to need to do. 

Mark Bassingthwaighte: 

Okay. Please. 

Bill Harvit: 

Yeah. I have a good buddy up in the northern part of the state, he and I went to law school together, and years ago, if he would've called me and said, "Would you be my successor?," I would have, knee-jerk reaction, absolutely would've said yes. He's more than two hours away from me. I never would've given thought to some of these issues, and now that I have, it just wouldn't be reasonable for me to do it. 

The duties of a successor, number one, are to review the files as soon as possible and triage those files to determine if any clients need assistance immediately. They're going to have to notify those clients immediately because, under the rules of ethics, the client has to approve of the lawyer who's going to handle the file. Triaging those files, extremely important, and talking with the client. What if the client says, "No, no, no, I've got another lawyer that I want to handle it?" Well, that succession lawyer is going to have to prepare that file and get it to that client as soon as possible, probably going to have to notify the court if there's an ongoing matter. All of this is not going to be done in a day. It's just not going to happen. 

If there's property that the attorney has, and I'm not talking about closed files, I'm talking about open files, that needs to be returned, whether it's money, whether it's original documents, those are going to have to be returned to the clients. And then later, obviously, there's going to have to be an audit of the client trust account. You would hope your successor is going to collect any outstanding fees and expenses in cases, but they're going to have to know where to look to find that information. They're going to have to do an accounting, a final accounting, probably prepare tax documents, close bank accounts, and here's a big one. They're going to have to review your files to determine which files have to be retained, for how long they have to be retained, and in what form they need to be retained, and this is huge. And I'd like to talk more about that, but there also may be other things specific to your particular practice that a successor's going to have to do. 

Mark Bassingthwaighte: 

Okay, and thank you for sharing all that. My response, as a risk guy, folks, understand what Bill is sharing, in my mind, creates another proactive step that we need to take. Not only do you need to name a backup attorney, it really becomes, I think, a responsibility to develop some type of informational manual, some type of procedure. It's like, "Here are the passwords to get into the key systems. Here are the key systems. This is how the office works." What I would encourage you to do is ask yourself, say, "If I had to walk into my practice today not knowing ... what do I need to know?" You see what I'm trying to go? You know what your practice looks like. 

You really need to set forth just an instruction manual, for lack of a better term, on everything the next guy coming in will need to know to do the things that Bill just set forth. Absent those kinds of instructions, it can be far messier than it needs to be. I've been involved in situations where they absolutely had no idea what the passwords were to get into anything, and you're spending time and money, precious time and money. There may be a fire, in other words, in a client file, but if you can't get into this, they're trying to pay somebody to hack in and break it, see what we can do, and that's just crazy. What- 

Bill Harvit: 

Well, Mark, not to interrupt you, I'm sorry, but I have a list- 

Mark Bassingthwaighte: 

Please. 

Bill Harvit: 

... I have a half a page list here of things, but I won't read them all, but you're exactly right. If your successor doesn't know where the information is that they're going to need, then you're just slowing the process down. And let me just mention- 

Mark Bassingthwaighte: 

Please. 

Bill Harvit: 

... something about funding, because this, to me, is huge because people don't think about this, but during a transition from a triggering event or even retirement, you are going to have to have money to operate that firm. In my case, it was two and a half years, and we were fortunate enough that we had money coming in on cases that I could afford to do it the right way. But let me talk about some of those expenses if I may, because, when that triggering event happens, that office has to continue to run. Your key personnel have to continue to be paid salary and benefits, mortgage has to be paid, all of the operating expenses, who's going to pay for that? If you buy life insurance or disability insurance, most of the time, the lawyer is buying that to protect him or her and their families. They're not thinking about using those funds to transition their office. Those are huge, but let me point out some of the other expenses that I learned about. 

Our firm, as I said, was 25 years old. We had taken over from some older lawyers that had retired. As a result, we literally had thousands of files that were in paper form. And it's not because we didn't periodically review them, it's because we had files where we represented infants, we had estate files, my predecessors did a lot of estate planning, so we had to keep those files, proprietary business information that was in files where we had represented businesses. And let me mention something again, you and I haven't talked about this, I have no stock in ALPS, if there is even stock, I'd have no interest, but if you don't maintain a file that you have a potential claim on, then you're likely to run afoul of the insurance company, because if you go out or your successor destroys a file that you got a bunch of notes in that you need to defend yourself for a claim of negligence or other malpractice, you're in trouble. 

It's not only the infant files and settlement documents, estate, somebody's got to go through those files and determine what you're going to keep. Now maybe I'm talking too much, but I want to get this out. We had so much paper that I wanted to convert it to digital because I didn't want to pay to store it anywhere. The cost of converting it to digital shocked me. It was $35,000. Well, if you don't have a sinking fund or some way to pay for this, don't expect your successor to pay for it. Your heirs are going to end up paying for it. There are different mechanisms that can be utilized to set up a sinking fund or provide funding to do that. But these expenses are huge. 

And one more I'm going to mention because it was another huge one, and that was the extended reporting endorsement. And, again, I have no connection to ALPS, but because of the type of practice we had, it was important for us to purchase an extended reporting endorsement, and it was quite expensive. And the other point I'll mention about that is I think we had maybe 30 days to make that decision. Some of the policies, I've been told, you have to make the decision when you cancel the insurance. That's right. 

Mark Bassingthwaighte: 

That's right. 

Bill Harvit: 

Is your successor going to know that? These are huge issues that affect not only you, but your family and others. Anyway, I'll let you talk now. Sorry about [inaudible 00:27:13]. 

Mark Bassingthwaighte: 

Well, it underscores, and when we talk about the extended reporting endorsement, that's tails, a tail policy is what the vernacular is, but there is no such thing. It's not a policy. It's extended reporting endorsement to the final policy that's enforced. But, again, my takeaway from what you're sharing, Bill, is these expenses, instructions, letting people know about the insurance company, and timing and all these things, if you don't do this, particularly, again, in the solo space, but it's not limited to the solo space, zero planning, what ends up happening, you dump this on the lap of an unsuspecting spouse. And I have talked, more than a few times, these unsuspecting spouses that are just grieving and so angry, so angry, "How dare my spouse leave me with this mess?" And you know what they end up doing? They end up getting a truck and just throwing everything away, files, everything. 

Heaven forbid a claim comes up and there's no file and nobody thought to call the carrier and get a tail. Now what you've left your spouse may not be what you think it is or had hoped it would be if there's a viable claim here. I am not making things up. Again, I just want to underscore the importance of being proactive about succession planning. 

Now, Bill, we're coming up here on the end of what we have time for today. Is there a final comment you have before I jump with a final comment? 

Bill Harvit: 

Yeah. You mentioned the spouses, and I just want to not make it about me, but I do want people to understand, as a [inaudible 00:29:14]-year-old kid just out of college and my father passed away, here I was in crisis mode trying to deal with that store, the most stressful time in my entire life. Think about that for your spouse and your family when you're not planning for what's going here. The two important points are get started on the process now, not today, yesterday, get started on the process, and the other important piece is think about how you're going to fund it, because that's huge. 

Mark Bassingthwaighte: 

Yeah. Yeah. I absolutely agree, absolutely agree. Well, thank you. My final thought is just to say, Bill and I could sit here and chat for easily another hour, there are just so many things to talk about, but I want to underscore Bill's comment. There's a lot of resources available on the ALPS website, alpsinsurance.com. Look under resources, we have a succession planning page. Many state bars have followed suit with what Oregon did a number of years ago, and there are some guides out there that are outstanding. I think most of the guides come under this heading of succession planning, planning for your death or disability, and are available through state bar websites. 

And, if your own bar doesn't have anything available, don't hesitate to look at other bar websites. These resources are easily usable in your own jurisdiction. You may need to change some language a little bit from South Carolina to West Virginia or something like that, but that's an easy ... 

Folks, I hope you found something of value today. I do appreciate your listening. Bill, it is a pleasure to have you join me. Thank you for taking a little time out of your day. Maybe we can do this again at some point. I'd like to continue the conversation. There's so many things- 

Bill Harvit: 

Mark, I would love to, I would. It's so important, and I really appreciate ALPS focusing on this. 

Mark Bassingthwaighte: 

Well, we're trying to do what we can. After all these years, I've seen too many situations where just being a little proactive in planning could have changed some things. 

That's all we have time for today. Folks, thanks for listening. Appreciate your coming. Bye-Bye. 

 

ALPS InBrief - Episode 72: Do Legal Subscription Services Really Work?

Transcript:

Mark Bassingthwaighte:

I'm Mark Bassingthwaighte, the risk manager here at ALPS, and welcome to the latest episode of ALPS In Brief, the podcast that comes to you from the historic Florence building in beautiful downtown Missoula, Montana. Today, I thought I'd talk about subscription and legal practices. They've been around for a number of years. I would not describe them as just this massive rush of lawyers moving into this subscription practice space, but in my experience in recent years, there's been a lot more interest in it, and it seems to me there's a movement, a growing movement toward this for a variety of reasons, not the least of which is the fallout and all the experiences in terms of hybrid work and working from home and things that happened as a result of the pandemic. We're more and more open to, as lawyers, more and more open to really saying, "Can we do something different here?," because different has worked in other spaces, again, going home, and doing virtual practices for a while, and all these changes that occurred.

I also think there's a recognition that a move toward more client-centric practices is beneficial financially, and I think a good thing, and this, in terms of the subscription legal practice model, is one way that I think you can create a client-centric practice. It's certainly not the only way. I mean, even traditional practices can be far more client-centric, but I like this model surprisingly, I think some folks, I think a risk guy, or a malpractice insurer speaking to a representative, a malpractice insurer. Malpractice insurers may not like these kinds of things for a variety of reasons, and no, I've got to say, I do. I really do.

We need to understand, however, some of the risks and some of the ethical issues, which is really driving my interest in talking about this today, but let's start off by really just sort of defining what a subscription practice is, for those of you that really haven't dug into this or looked at it a whole lot. It really is what it sounds like, and so many of us in today's world are users or consumers of subscription services of a variety of types. Netflix, as an example, would be a great one. Some of these food companies, they send you all the ingredients to make your meals once a week or once a month, these subscription services. There's lots of things.

So the market's very used to this, and as it relates to law, we're really just talking about a lawyer or a firm, offering clients certain legal services on a recurring monthly fee. It's a subscription. Now, what would be included in this subscription? Well, all kinds of things. I think it's, lawyers, we can be a creative bunch, and so I can't limit it to this, but generally, you're going to see some things. There may be availability, so for whatever the subscription fee is each month.

If I'm a prospective subscriber here, I might be thinking, "Okay, you're describing I'm going to get two hours of consultation with you a month. I might get two additional hours of a document review of some sort. I might get access to online forms, access to you for some drafting.' Again, we can say a document or two and describe what that is, or a certain number of hours toward drafting." Again, we can say a document or two and describe what that is, or a certain number of hours toward drafting. You could offer, I'm sorry, prerecorded videos on relevant topics, in other words, some type of library of educational resources.

It could be articles, and just the list just goes on and on. The point is you're trying to create some type of value for the subscriber, and in terms of what it does to you, I mean, think about it. You start to have a little bit more reliability in terms of a steady income stream. I think the model is an excellent model. I also think it can work particularly well in something like the nonprofit space.

I mean, a lot of nonprofits out there that really can't afford to hire full-time, in-house council or even full-time outside counsel, and then honestly, they may not need somebody full-time, but the legal services they need can be expensive. Well, hey, if you have six, eight, 10 nonprofits all subscribing to your services, and you're creating a model to meet the needs of small nonprofits, now, here's something I think can work. So that gives you sort of a quick overview to get a sense of what subscription practices are all about. The first thing we need to kind of look at, though, or think through is just identifying, "Are there ethical issues here, particularly issues that would get in the way that would make this problematic to say the least?" Now, there certainly are some ethical issues, and we're going to discuss them here, but I don't see them as problematic in the sense of preventing anyone from moving in this direction, but what do we really need to think about?

Well, I think at the outset, if you have multiple clients, and that's the whole purpose here of subscription services, we have a potential for conflicts, and we can talk about how to deal with that, so with the conflict rules are going to be in play. We also have the fee issue. Is it going to be reasonable, and how do we determine what's reasonable? What about advanced payments? Rule 1.15 is going to be in play.

So what do we do with these funds when they come in, and how about if... How do we end this? I could, as a subscriber say... After a while, I'm kind of done. I'm just not interested anymore, and you could say, "Boy, Bassingthwaighte has been a subscriber that has just tried to take all kinds of advantage of me and is just so high-maintenance, and I'm not getting anything out of this."

You're just, "I'm costing your money than it's worth." So there may be reasons and times where you want to end a subscription. You might find that the whole model has been mispriced and you need to kind of shut this down, and rethink, and relaunch in a different type of model. So how do we conclude all of this stuff? So those are some of the ethical issues. 1.16, declining or terminating representation, 1.15, safekeeping funds, 1.5, setting fees, reasonable fees, and the conflict rules.

I think those are the biggest ones that we need to deal with, but, okay, so let's start to kind of get into this a little bit and figure out. I think it's worth starting with 1.5, and that's talk about, "How do we price?" There's not a standard formula here. I think you're going to need to look at the specific language of the rules in the jurisdiction where you are going to offer these services and are licensed to practice, and figure out what is reasonable, but I think it's very doable. You need to... I don't want to say, there's going to be a difference between, "Okay, if I am on the standard hourly billing model, I don't think pricing and thinking through is going to work in the subscription model, because why offer the subscription if your billing is going to be the same as the hourly kind of analysis?"

What you sort of have to do is sit down and figure out, "Okay, how much of my time is available?," so if I'm going to offer two hours of consultation, a couple hours of contract review, and my availability. So in other words, I may, as the subscriber, may use or not use these services that you're going to offer, but in terms of the two hours every month, I may just not need that, but I'm also, I have availability to you if I do. So you start to factor in, okay, so the value that you're offering is access to you, some limited services, and perhaps these educational things, whether it's the forms, the access to some type of documents, or some DIY kinds of things, whatever it might be, and you kind of have to look at all that and try to hit a number that works, so you're going to have work through that. Again, I can't give you a standard formula, but I think it's worth making, valuing yourself or valuing your subscription based upon access, and I would try, I think honestly, to do a little discount here. You're exchanging, if you will, the full service hourly billing kind of cost model to ongoing, consistent, regular monthly income, so it has to make financial sense to me as a subscriber. So there's just some things to think about.

I can't give you the magic number here, again, a magic formula. I've seen some situations where it might be 100, $200 a month, and in other situations I've seen lawyers charging several thousand, five, 8,000 a month for services, but what the subscribers are getting for that five to 8,000 is, really, some pretty significant work, but it's still going to be less expensive to the subscriber then, and typically, these are going to be businesses at this tier, I think in most situations, but the business is still saving money by going on this subscription practice. So you need to find that magic number that's sort of a win-win for both of you. The more interesting question is ethically the safekeeping of funds, when, in other words, if you start to get a subscriber and these monthly fees are coming in, what do you do with them? Do they need to be put in a trust account?

Can they be earned upon receipt? Can you make them non-refundable? There are a lot of ideas out there, and you certainly want to get the steady income and make it easy for you and easy for your subscribers. The problem here is the ethical rules really don't address specifically this model. The one thing, and again, you're always going to have to check your local jurisdiction in terms of the RPCs here, I would strongly advise never to use words like non-refundable in... I don't care what your model is.

To me, it's more of an issue, "Are we going to put it in trust or not?" I think I sort of like this hybrid approach. I would argue that the funds that you charge monthly are earned upon receipt because there's this retainer component to it. It's not a true retainer, because a true retainer is just a client paying you to be available, and then any work that they ask you to do, subsequent to putting you on retainer, you charge whatever your rates are, so a true retainer is solely for availability. That's kind of what we have here, but it's a hybrid thing, because in addition to getting access to you, whether I use it or not, in a lot of these situations, I'm going to have access to this library, to these other resources on day one, and so if you describe what I get as the subscriber for the subscription, in a way, clearly saying, "I get access to you, I get access to this library of resources," or whatever other perks are out there on the side, and you have access to me on day one, and you have access to library on day one, well, I would consider that earned upon receipt.

Now, there still could be some arguments that ... Ethically, some jurisdictions may not like that. Well, I see two workarounds with that. The first would be you can charge at the end of the month, so then, it's earned upon receipt because they got what they are paying for by the end of the month. They've had their month of access.

Some say, "Wow, I'm giving away a month for free." Well, yeah, I get that. You could take the payment upfront, put it in trust, and then take it out of trust at the end of each month. You might take the first payment only and keep it in trust, and then, so they pay at the start. On day one, they pay.

You just hold that in trust, and then at the end of each month, or at the first of every next month, that keeps moving into your account and you sort of just keep that first payment out there, I guess for a while, 'cause I don't want to keep the hassle of moving money twice every month, sort of maybe let something sit. Again, you'd have to check with your local ethics council in whatever jurisdiction to, again, talk through that, but I think there's a strong argument for having it earned upon receipt if it is described like this in terms of clearly identifying what you get. Okay, there are some other ethical issues that we can talk about, but before I sort of... Instead of hitting them directly, I first want to let you know that there's an interesting ethics opinion that came out of Maryland, and it happens, if you're interested in this opinion, it's docket number 2020-01, so issued in January of 2020. It's worth taking a look at, but it's the only opinion that I'm aware of that really sort of dug into subscription practices and try to address some of these issues, and I think the advice set forth in that opinion is well worth looking at.

So I'm going to share sort of the key things that clients must be made aware of, or potential subscribers must be made aware of before they sign on the dotted line, okay? I'm sharing this because I think this addresses reasonably well, the issues that arise ethically. So there are nine items that this opinion talks about. The first, the specific services to be provided in exchange for the subscription fee must be disclosed and any limitations on the client's use of these services within a particular service period, so we need to set forth that information in an agreement. The client, or potential subscriber here, I keep saying client, needs to understand the method by which a subscribing client may request such services and the timeframe within which such services are to be provided, "Is this monthly?," "Is this quarterly?," that kind of thing, okay?

The benefits of a subscription, which would reserve your availability for representation, but which would also compensate you for providing the specified services upon request and without additional charge. So really saying, "What do I get for my subscription fee?" You need to detail that. The risks associated with this form of representation. Now, and they go on and say, "It may be hard to predict all the risks associated," but you have to inform them of some minimum type of things, conflicts of interest as an example, and other legal issues may later arise, which could preclude you from rendering some or all of the services.

Conflicts, let's talk about that. You can't represent two clients that are directly adverse. An example might be you represent some corporations and you help register a trademark for one of the companies, and then later on, one of the other companies, it's a client. A subscriber asks you to register a competing mark. Well, you can't do that, okay?

So we can describe what happens here. If a conflict arises, perhaps you disclose it, you'll refer we're able, the client, the second client, to another attorney to handle certain specific matters. Depending what's going on, you may not be able to stay with the second client at all, and so you need to withdraw entirely and end that subscription. So the details, the specifics are going to matter here in terms of what's creating the conflict and how you can resolve it, but I think it is resolvable, and we can get around, if you will, the hot potato drop, where particularly, when you're having joint representation... That's where it comes up most in terms of the hot potato drop.

If you're out for one, you're out for all. Well, that doesn't necessarily have to be the case when we're talking about situations like this, because we're disclosing upfront. View it as informed consent. This is one of the ramifications. There may be situations that you can't control because clients self-subscribe, and if you identify down the road a conflict, they agree in advance that they understand you may refer or you may have to withdraw.

So I view this as informed consent, and so there are different approaches here in terms of how you describe this and what clients are going to be asked to waive, but again, practice areas, et cetera are going to dictate some of this, but I think it's doable. I really do. Some other things that the Maryland Opinion talked about, you need to describe situations in which additional charges would apply for any of the services listed and whether additional retainer agreements would be required for more extensive work. The way I see that is, and I see this as a beneficial thing to do upfront, so I'm a subscriber and I see that I get these two hours of consultations or last-minute touch base if needed, I get contract review, document review, whatever it might be, but I know that there are going to be times where I'm going to need more work, but that's not going to be enough, and so you should describe and detail, "These are the limitations. This is specifically what you get and what you don't get for the subscription price, the subscription fee."

"If you need additional services along these lines," and you're going to know what most clients are going to need, "Here is the list. If you need additional hours, if you need additional documents drafted, whatever it might be, here are the rates." I would suggest sort of offering and letting people know so they can see some of the benefits, in other words. "Here's the friend and family/subscriber discount. Our subscribers get that special price."

"If you weren't a subscriber, having this service provided by me would normally cost you this," and it's another way to demonstrate value add of the subscription. So I think there's real value in doing that to help both in the sales piece, but also in the risk management piece so that we don't get into these arguments about, "Well, I thought I'd get more ..." Let's just make it very clear so this subscriber can make an informed decision, about whether or not to even do this. Since these fees... So going back to what the Maryland bar is recommending, additional things, setting forth that since these fees will be earned, irrespective of whether the client actually requests such service, you want to advise subscribers that the plan may not work to their advantage if they do not use available services, at least on a somewhat regular basis.

Help them understand the risks, the benefits, the pros and cons, okay? Then, you should also describe the circumstances under which subscription fees will be refunded to the client, including a provision that fees would, at a minimum, be refunded if the attorney fails, if you fail to render some or all of the services requested, okay? I would couple that with notices of the clients, right to cancel the subscription at any time subject to the refund policy that you come up with, okay? So let's talk about that a little bit. You will see in some models, and I'm just making numbers up here obviously, but let's say the subscription is $100 a month.

If I sign up for a year, my subscription's going to be discounted even more and maybe it'll cost me $1,000 for the year, as opposed to $1,200, and I'm in for six months, and then I'm not using this in the way I thought, or you decide, "Bassingthwaighte's using it way, way too much," and this subscription is going to be terminated before the year's out. So you haven't earned the full year, right? I've only been in six months, so you would want to refund half because I didn't get the benefit of the full year subscription. So that's an example of why I don't like these non-refundable kinds of things because bars are very consistent on this one. If you haven't earned it, you can't keep it, and even calling it non-refundable doesn't change that.

It's just an example of just what we need to think through. Then, if you're going to deposit into your operating account, in other words, treating the subscription fee at the beginning of the month as fully earned upon payment, if that is permissible in your jurisdictions, some jurisdictions, it should be, and in others, it's not going to be because it's not going to be viewed as earned, they don't see things quite the way I and a few others do, but just disclose what's going to happen to the fund, that the fees will be deposited into your operating account upon receipt subject, of course, to a refund of the entire subscription fee if you're not available or unable to provide the specified services. I could see, "Well, what that..." Could be anything. You get infected with ransomware and you're out for a while, and you couldn't follow through on any of this stuff.

You have an unforeseen illness of some sort. I mean, life happens, in other words, and there can be times where you can't follow through, but again, you're just disclosing. You're being very direct and upfront, transparent, that's a word of the day, about the money situation here. I like that opinion because it really does give us a sense of how to navigate these waters. What it doesn't really get into a great deal, other than to say the client has a right to cancel the subscription, I think it's also worth setting forth that you can cancel the subscription.

You might talk about why, whether the difficulties with a particular client, you're changing the focus of your practice, you might even need to reevaluate the terms, but I think it's important to let people know that you also, like they, have a right to cancel. You have a right to cancel too, and let's talk about what happens there, and particularly again, with the money, and my suspicion is the same policy, refund policy, et cetera, is going to be in play regardless of who terminates, but I think it's worth addressing because it's too easy to focus on all the things that might happen with a client and taking care and making sure they're fully informed, but then not thinking about, "Well, wait. What happens if I don't like this either?," speaking on the lawyer side of this. So that's sort of the gist of subscription practices and some of the ethical concerns and how I might think through the ethical issues and resolve them. I really do find the Maryland Opinion helpful.

I just want to keep underscoring because I think it's a worthwhile process to go through in advance, to really sit down and think through these issues and write an agreement that really discloses all of these things. It helps us, as lawyers, get a handle on, really, "What are we doing? What are we offering?" I think it's also then, just going to prevent disagreements and misunderstandings, perhaps is a better word, from arising with subscribers down the road. The one other little thing we could talk about briefly, and my apologies here, I wish I could give you a black and white answer, a very clear answer, and I can't, but I can give you something to think about.

The interesting issue here is, "Is malpractice coverage going to be in play with a subscription practice?" The answer isn't as clear as I'd like it to be or I would hope it would be. I think in general, yes. When you are in an attorney-client relationship, which you would be, but let's make sure that your subscription model is structured that way, because they have time with you, availability and all that, you are going to be delivering professional services using the skillset that you have as a lawyer to these clients, and they are all clients of your practice, so the subscription practice has to be part of... Sometimes it's all, and that's okay, but more often, it tends to be part of a practice, but don't break this off into a separate company.

I mean, you can, and we could talk about that in a minute, but if you want your malpractice policy that you have with your firm, these subscribers need to be clients of the firm, and they can be subscription practice clients. So I think if we've got all that, I think we're pretty good. Here's the rub, you need to look at sort of the definition of professional services, and is offering, as an example, do-it-yourself forms, that any subscriber can just come in and pick and use on their own without any involvement, review, advice from you about, "Does this fit the need or not?," some are going to argue that's not the practice of law, that's not professional services, and policies aren't going to respond. That's more of exposure. You're sort of a publisher's exposure, something along those lines.

You're making written materials available, and that's using your own risk kind of stuff. So there's not going to be a bright line on that when, in my mind, there's a bit of a difference between offering some forms, but advising clients to meet with you for, even if it's just a 15-minute discussion, to make sure that this form accurately addresses the legal concern the client is hoping the form will resolve, take care of. So that, to me, is very much down the middle of the road of practicing law, and if it's just freestanding forms, and they may not even get access ... So I'm really trying to draw a line here that's a little clearer on explaining or demonstrating the risk, but if we have just this site, where solely forms are made available, and that's all they get for their subscription, and they can just get in and have access and you're never really involved, you could say, "Well, I could be involved, and here's the subscribers discount for legal services," but the subscription doesn't include that at all. And so as a subscriber, I start using these forms.

I never get involved with you, and I sue you, at some point, because I don't know what I'm doing with these forms and made all kinds of mistakes. That malpractice policy isn't going to come into play there. Now, you certainly can ensure for that type of risk, and it's probably easier, in a situation like this, to split things out and have sort of a separate company that is just doing this exclusive DIY model without any attorney involvement there. You can get insurance on both sides and I think be pretty good, or both pieces of that, but it's when we start to blend this in various ways, we can get a little muddy. The best I can do is to say, as you work through looking at the model, and should you want to go in this direction, reach out to your carrier and have some discussions, and look at policy language, and try to identify and work through any coverage issues that might come up.

I just hate to see you run with an assumption, that because this is done at the banner of a law firm, that coverage is automatically there. Lawyers are not insured for everything they do under the banner of a law firm. Look at exclusions and policies. Financial advice is an example, obligations that arise under contract. There's all kinds of things that can come up.

A wrongful disbursement of funds, that's a property loss, that's not a professional negligence problem. So there are all kinds of things, and this is just another example of something that isn't necessarily covered. I just don't want to see you run with an assumption. So we've been at it here far longer than I thought we would. I hope you found something of value with this podcast. As always, if you have questions, concerns on this, or any other topic, please do not hesitate to reach out.

My email address is mbass, B-A-S-S at alpsinsurance, one word,  dot com. mbass@alpsinsurance.com. Hey, folks, it's been a pleasure. Have a good one. Bye-bye.

 

ALPS In Brief - Episode 71: Meet Rio!

We have extremely exciting news for you all — Rio Peterson, who you may already know from Clio — has joined ALPS as our Bar & Affinity Partnership Strategist! Mark sits down with Rio to welcome her to ALPS and hear about her new role! 

Transcript:

Mark Bassingthwaighte:

Hello, I'm Mark Bassingthwaighte. I'm the risk manager here at ALPS, and welcome to our first video podcast recording of ALPS In Brief, the podcast that comes to you from the historic Florence building in beautiful downtown Missoula, Montana. You'll notice I'm sitting here with our guest, Rio, and more about her in a moment. Now that we're on video, a couple of things. For those of you that listen you finally get to see a little bit of what the remote office in Florida looks like. Maybe I'll have to do a little camera spin at some point. But I'm also thinking we need to maybe post some videos or a short video of the beautiful historic Florence building in downtown Missoula, Montana. People keep hearing about this.

I do have as my guest today Rio Peterson. Rio is someone I've worked with on and off through the years when she was at Clio, and she is now a very valued new member of the ALPS Corporation here. We're going to be talking a bit about that. As we were talking, Rio, I'm based in Florida, as many of you know. Rio is based in Vancouver, BC, which makes us... This is a unique podcast. We are the two employees, I think, the farthest apart. Here we are.

Rio Peterson:

I think so too.

Mark Bassingthwaighte:

Kind of an odd little thing. Really, folks, what I wanted to talk about today, I do some presentation, I've been doing it for a lot of years, on the basics of lawyers' professional liability insurance, and some programs on how to buy, really explaining what coverage does and doesn't do. Really digging into the ins and outs because so many lawyers, I think, really don't even know what their coverage is until all of a sudden a claim arises. That's the first time they pick it up and oh my gosh, oh my gosh. It's worthwhile knowing what your policy covers.

But I also talk about value adds, and when you're thinking about purchasing insurance, looking at or asking the question, what are you getting for your premium dollars? There really should be a bit more than just the peace of mind that the policy can bring. Companies are doing all kinds of things and today we are going to talk about some of the value adds that ALPS has. So before we jump into this a little bit, Rio, could you just give us a little bit of brief background, a verbal bio, and I'll share a little bit more about myself, but I'd love for you to start.

Rio Peterson:

Yes, absolutely. Thank you first of all for having me. It's very exciting to get to span the Continental Divide with you today. I came to ALPS by way of Clio, which is a Canadian-based legal practice management software tech company. I was at Clio for about five and a half years where I managed Clio's Bar Association Partnership Program. Clio and lots of other companies just like ALPS partner with bar associations across North America to really provide value to their members in the form of lots of different ways, which we'll talk about shortly. But as part of that role I did a lot of public speaking, a lot of education about best practices for running a law firm, and just kind of a lot of event attendance, different things. But ultimately it was my job to make sure that the relationships we had with these bar associations were mutually beneficial, that everybody was winning when we partnered together.

Mark Bassingthwaighte:

Folks, I don't know how often or how far we've really driven down. I'm the risk manager here at ALPS. I've been with ALPS now... It's been over 25 years and always been in the role of risk manager of some sort. What that term means or has meant over the years has changed a bit, but I have done a tremendous amount of consulting with firms of all shapes and sizes all over the country. Do a lot of content creation, a lot of CLE development and lecturing, a lot of writing, some podcasting, those kinds of things. I really view myself as a content guy and I've had a lot of fun. One of the things that we do is a major CLE tour every year in Virginia, and it's up to 14. I think the highest we got to was 18 events, three-hour events in one tour.

But the unique thing about this is I get to write movie scripts, and actually go up to the Virginia, and we hire a professional crew and actors and all this. I just never thought. I've written now I think 20 separate films and that's just been a lot of fun. I share that because again this risk side has been supporting bar associations as well. We do that in conjunction with Virginia State Bar and it's been a very, very successful program.

Okay, Rio, let's get back to you and what you're doing. If my memory serves, I love your position title. You are, and make sure I'm right on this, the bar affinity partnership strategist.

Rio Peterson:

Yes.

Mark Bassingthwaighte:

That's just awesome. It sounds very dignified and very just this special thing. Can you explain really practically, day to day, what does that mean? I guess I'd like to know two things. One, what is your interest in this, and then why is this important? What is the value add for any insured? So let's just kind of explore all this.

Rio Peterson:

Yeah, fantastic question. So it's interesting, I sort of fell face first accidentally into this role and this line of work. Something that really, really appeals to me about it is I'm very passionate about relationships, building relationships. I am also a big fan of helping people succeed. There's a lot of, I think, gaps that lawyers experience in their knowledge when they come out of law school and they're looking to run a practice. My role really allows me to be hands-on with helping to provide some guidance, and extra resources and support to help those legal professionals thrive. The way that that kind of comes about is, well, I mean, as we all know, bar associations tend to hold a level of authority and a level of guidance, and lawyers tend to look to them for those things. So it's very obviously advantageous for any partner or any company to partner with a bar association and get their stamp of approval.

That's the ideal because if the bar says you're good to go then very risk-averse lawyers are much more likely to give you a second look and give you the time of day. But it really is about a lot more than just getting that stamp of approval. I mean, that's only a small part of it. When I think about partnerships, I mean, they are just that. They have to be a mutually beneficial experience for everyone. If we were just to go to the bars and say, "Hey, just give us your stamp of approval and then you'll never hear from us again," well that's not really the greatest experience for really anybody. I mean, what is the bar getting in exchange for that stamp of approval? So my role as a strategist is to really come up with a strategy, a way, a plan to maximize those relationships in order to provide additional value to our partners that they can then pass on to their members.

So for example, with content, I mean, we're talking about content and how you provided a lot of risk management content. I mean, a lot is an understatement I feel like, but that's kind of a strategy, I guess, or a way forward that I would consider to be adding value to our partnership. A lot of bars have... They're running on a small staff. They don't have the resources to create extensive amounts of content for their users. They often don't have a staff member who specializes in something like risk management. So it's for me to identify those opportunities to then say, "Hey, my partner, I can provide you with this. I can give you these resources, I can give you this support so that we are both flourishing as part of this arrangement."

Mark Bassingthwaighte:

So what I'm hearing is is there's two pieces to this. We're looking at providing resources that are going to be beneficial to members of the bars that we partnership with, but we are also, am I hearing correctly, really trying to support the bar associations themselves so that there's a value add to the bar. I'd really be curious, what are your thoughts? I hear some discussions at times traveling around the country and just talking to lawyers in all sorts of settings. There are some that will say, "I just don't see the value of a bar association," and there's some complaints. "I'm paying the dues," and all these kinds of things. I truly would be curious, what are your thoughts? Do you see bar associations as serving a purpose? Do we really... I'm not sure how to say it. Does this make sense for a company like ALPS to do this? I don't know. What are your thoughts?

Rio Peterson:

Yeah. Oh, I love this question. I love this question because it really is, I don't know, a topic that a lot of bars and a lot of legal professionals have been wrestling with in recent years. I mean, we've seen so many changes with bars like the California Bar becoming... Is ununified the right... Deunified?

Mark Bassingthwaighte:

Yeah.

Rio Peterson:

Yeah, right?

Mark Bassingthwaighte:

Yeah, that works for me.

Rio Peterson:

You know what I'm trying to say, right? Well, we see a change in bars and really, just as you said, their role and their level of importance is being questioned. So my personal opinion is that yes, the bars are very important. They provide professional guidance. They ideally should be providing support to solo and small lawyers who are running their own law firms who are not sure what they're doing, who are trying to make a go of things. I do think they have a very important role to play, but something that I see frequently is that the way in which the bars view themselves hasn't really changed. A lot of, say, the mandatory. If you can count on members having to join, why would you change the way that you are delivering value and service to your members because they don't have a choice to be there?

So I'm not shocked that a lot of lawyers and legal professionals are questioning whether or not the bars need to be, or whether or not they should be as involved as they are. But really I do think it comes down to those bars needing to evolve with their membership, needing to connect better with members, and see really what post-COVID legal practice looks like and how they can better meet those members' needs.

Mark Bassingthwaighte:

Yeah, I absolutely agree with you. Again, in a lot of the programming that we do in terms of CLEs and really pushing some of the ethical boundaries in terms of exploring them and looking at just business models and all kinds of things, I have always been one that says it's more important than ever. And I think about even the evolution of ChatGPT and where AI is going. There's a lot of folks out there saying, "This is going to be the end of lawyers and the end of legal professionals, paralegals," and all this stuff. I'm not sure I go that far, but it is important. Where I'm going with this is that I think lawyers too have been... Lawyers at large, there are going to be exceptions to all of this, but as a profession, we tend to be slow in terms of adopting and changing business models. You keep saying, "The billable hours got to die," and it just doesn't seem to die, just as an example.

Rio Peterson:

Just slow down.

Mark Bassingthwaighte:

But we do need to continue to evolve with the changing needs of the marketplace. And I think bar associations struggle with that too, because their marketplace is the bar at large, but they have struggled with trying to reinvent themselves and trying to figure out where to go. And I hear you saying, and I really think this is... I'm 100% behind what I hear you saying is one of the things that a company like ALPS can do is be a partner in helping work that conundrum, work that problem. Let's figure out how because I think too carriers need to continue to evolve and change. How ALPS did business 25 years ago and a little longer, it's very, very different from how we do it today. Making online applications. We have this, "Give us 20 minutes, we'll give you a quote," kind of thing. That's unheard of 20 years ago in this space. It's just absolutely. So exploring the relationships and trying to figure out what we could do with bar associations is a value add to the bar and I think is a value add to us. I mean-

Rio Peterson:

Yeah. So-

Mark Bassingthwaighte:

Yeah, please.

Rio Peterson:

I hope you don't mind if I just...

Mark Bassingthwaighte:

No, no, no.

Rio Peterson:

I really do think that kind of helping bars navigate the need to update, and adjust, and change is really an excellent kind of place for ALPS and companies like us to really come into play and be a part of that. Bars, they're like snowflakes, just like legal professionals. They're all different and they all have different challenges and different changes in modernization that they need to make. The great thing about ALPS and about other companies is that we're out in the world and we get exposed to a lot of really different experiences, lots of different kind of content, just a whole galaxy of different opportunities and knowledge that we have that we can then pass on to our partners and really help them navigate these divides.

For example, with reinventing events post-COVID, I mean, we have so many partners who are struggling with this. And as a company who attends a lot of events, as a company who hosts its own events, we have a lot of knowledge and information that we can share with our partners in order to really help them reinvigorate that, and increase their engagement and bring members back into the fold.

Mark Bassingthwaighte:

One of the things, folks, that I shared earlier, I'm very excited to have Rio join ALPS. As I see it, man, when I think what Clio loss and what ALPS gained is just... This is a win, big time. There's a lot of excitement, a lot of energy. Trust me, folks, excitement, energy is just... Rio's all about that. It's just such a joy and a lot of fun. Do you have some just, how do I want to say this, kind of off the cuff, off just rapid fire even kinds of things? What ideas, what thoughts, what direction, where do you want to go with this position, let's say, in the next two to three years? Let's take, well, certain realities. There's sometimes some fiscal realities, whether they're corporate or whether they're bar side, but if you could flash this wand and make the changes, where do the bars need to go? We talk about reinventing themselves. What are your thoughts about how does this value add come back?

Rio Peterson:

Yes, yes. Well, I mean, ultimately I would love for ALPS to be kind of the authority on a lot of different topics and obviously the first choice for bars to turn to when they have questions. I think I could address this question in two different ways. First of all, for the program in terms of ALPS, right now we've got 19 partners. I would love to see all 50 states at some point. That would be my big dream. If I could just wave my wand, I would love to see that happen. I feel that there are a number of different levers that can really be used to grow the program and really increase the impact that we have through advertising. Obviously content creation and sharing is central to that. Also fiscal incentivization, financial incentivization, some kind of maybe revenue sharing. We'll see. Who knows? There's some interesting ideas we could play with, but lots of different options. Oh, I see the wheels turning.

Mark Bassingthwaighte:

Do you see tech leadership coming into play at all here? Is there a place for that?

Rio Peterson:

Oh, absolutely. I think ALPS is kind of perfectly primed to partner with tech companies. I think really in a similar way that we partner with the bars too. If you think about it, having coverage and having insurance is a central part of running a firm. But when you partner that with say legal practice management software or something that's going to help you stay on top of your communications and reduce ultimately the risk that you have for claims, that to me is like a match, just a perfect match. Then you've got this kind of unstoppable partnership of two, three, maybe even multiple companies who provide excellent content, provide kind of a holistic view of a law firm. Really, yes, I think that's a fantastic opportunity and exciting frontier I would love us to explore more.

Mark Bassingthwaighte:

Yes. You know me. I can get a little crazy and wild at times.

Rio Peterson:

Oh, me too.

Mark Bassingthwaighte:

One of the things that I've been playing around with of late. Folks, some of you, if you hear me over the years, I'm not a high risk-taker and I'm also very private. I'm not one actively involved, at least in my personal life, on all sorts of social medias. Our kids always say, "Well we have nothing to hide, Dad," and I said, "Well, it's not about hiding. When you put everything out there people can take advantage of this information." But the point of all this-

Rio Peterson:

I think we could-

Mark Bassingthwaighte:

Well, I-

Rio Peterson:

I'm sorry, go ahead.

Mark Bassingthwaighte:

I made a jump. I decided because I keep... We're State Farm people and our agent is a good guy. "Mark, you got to start using this drive safe app." And I'm thinking, I don't want them tracking me all over. I just don't think so. I finally have been convinced, so I'm playing around with this-

Rio Peterson:

Oh, you hopped on board.

Mark Bassingthwaighte:

... This drive safe and just exploring and all that. What about the equivalent of a drive safe app in the malpractice space?

Rio Peterson:

Oh, yes.

Mark Bassingthwaighte:

Wouldn't that be interesting?

Rio Peterson:

Yes.

Mark Bassingthwaighte:

Could you tie that in with the bars? I don't know, but I just thought... I'm sitting here going like, okay, my head just starts popping. I get all these crazy ideas, but why not?

Rio Peterson:

Yes. And I find that idea really, really interesting because I think it also ties in really well to working with tech companies as well, being more of an integration partner as opposed to just an affinity partnership. Then that's also an incredible value add to provide to bar associations. Kind of back to our point about where I see the program going and with bars, I think the really the biggest thing that the bars need to hop on board with is opening their minds to the ideas of those types of possibilities. Thinking completely outside the box, what is something different and new that we haven't even thought of? Really also starting to see vendors, to see companies as a resource for that type of thinking and for those types of ideas. Not to toot our own horn, but we've got some great ideas as you just mentioned.

Mark Bassingthwaighte:

We do like to think around here, and it's one of the things I really love about ALPS, just as an aside. I don't stay at a company for 25-plus years just because. There's a lot of good things going on in this company, but one of the things that I really like is there's strong encouragement to think "outside of the box". But it's for real. We're not checking off a box. Let's everybody think outside the box and now we'll go back and do exactly what every other-

Rio Peterson:

And then we're done and we don't have to do anything.

Mark Bassingthwaighte:

No, no. You're not going to stay relevant in the market. Change is... So what we're talking about and hoping and trying to help bars do, we also live by the mantra. We really do. We're-

Rio Peterson:

Yes. And I-

Mark Bassingthwaighte:

Yes, please go ahead.

Rio Peterson:

Oh, sorry. I was just going to say along those lines, I mean, I was at Clio for five and a half years and it was a really incredible experience, but I considered very, very deeply about joining ALPS. It was a decision I took very seriously, and that was something that was really, really appealing to me, is this embracing moving forward. And not just change for the sake of change, but intentional, encouraging people to think bigger and think about how we can implement those ideas and actually moving forward with them. That was just a really big draw and selling point to me. That's been my experience thus far in my two months at ALPS. That's absolutely been the experience.

Mark Bassingthwaighte:

Very good. I want to share just a little bit about myself and start to wrap here, but then I want to come back to you because I think you're going to be good with this. Folks, one of the things I want to share, and I need to be better about getting this message out. You have heard me say for a long time that I am a risk manager here at ALPS, and I really want to let you... What does that mean? I am not a traditional, if you will, CRO, chief risk officer. I am not hired to manage the risk of this corporation. I am hired to be your risk manager. I am hired to be a risk manager, if you will, for the bar at large. You do not need to be on the opposite shore to visit with me. You can reach out anytime via email or our phone.

There's no cost involved. If you have a question or concern on ethics, risk management, practice management, cybersecurity, on and on, I will do the best I can to help. If I don't have the answer on the top of my head I will try to do what I can to get it for you. So that said, let me just share what our phone number is. It's (800) 367-2577. You can just call in and ask to speak to that risk guy because Bassingthwaighte can be a hard name to remember, but Mark. B16 is another good one. You may also reach out to me at mbass@ALPSinsurance.com. Feel free anytime.

Now to kind of tie this back to what we've been talking about here, again, folks, Rio is just a rockstar in my head. This is such a good point of evolution, continuing evolution for the corporation, for ALPS and where we're going to go. When she says, "I'd like to see 50 bars," I don't know if we get the 50, but I'm not going to bet against her. But I would invite you, and Rio, I think you're going to be open to this, if any of you folks... We are talking about value adds and I agree with Rio. I think bar associations still can be very, very relevant, and I think serve a great purpose, but do need, and some struggle with this more than others, but [inaudible 00:27:13] how do they remain relevant? What does that mean? What is the value add?

We are in a position where we can help. Let us help you. If you have some thoughts or ideas, "I would love to see ALPS do this with our local bar," how can we help? I invite you and encourage you to reach out to Rio, and Rio if you would share your... I assume you're good with this. If you would share your email address as well, and any closing thoughts that you have, and then we'll wrap.

Rio Peterson:

Yes. Yes. So to your point, it is literally my job to help our partners be successful, and by extension their members and legal professionals be successful. This is something that I have quite a bit of experience in, and frankly, I just really love helping people succeed and helping organizations succeed. So yes, please reach out. Absolutely. I've got lots of great ideas. We have a fantastic team here that is just ready and willing to offer any support that we can. So please email me at rpeterson@ALPSinsurance.com. Yes, I would love to hear from you. I am more than happy to answer questions. You want us to come out, want Mark to do a fantastic CLE. They are incredibly interesting and hilariously well done.

Mark Bassingthwaighte:

Well, thank you.

Rio Peterson:

Yes, so if you're looking for speaker, sponsorships, anything please reach out. Yeah. Happy to help.

Mark Bassingthwaighte:

Well, Rio, it's been a pleasure as always.

Rio Peterson:

As always.

Mark Bassingthwaighte:

And we're going to be seeing each other multiple times on Teams and all the other things we do. But I look forward, we're going to be getting together on the road here in a, I don't know, another six, eight weeks. But I look forward to seeing you in Virginia. Actually, we may be in Denver. I'm going to see you in Denver next week.

Rio Peterson:

Oh, oh yes. That's right, that's right.

Mark Bassingthwaighte:

There we go, so.

Rio Peterson:

We'll see each other in Denver.

Mark Bassingthwaighte:

Sounds good. All right. It's been a pleasure.

Rio Peterson:

All right.

Mark Bassingthwaighte:

Thanks all.

Rio Peterson:

Thank you so much, Mark.

Mark Bassingthwaighte:

We'll see you later. Bye-bye.

Rio Peterson:

Bye everyone.

ALPS In Brief - Episode 70: Don’t Let These Coverage Concerns Surprise You

Ready to grow or start a law practice? Let's cover a few common situations where a lack of insurance coverage will come into play. 

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Transcript:

Hello. I'm Mark Bassingthwaighte, the risk manager here at Alps. Welcome to another episode of Alps In Brief, the podcast that comes to you from the historic Florence Building in beautiful downtown Missoula, Montana. Today, it's just me. We're going to talk about concerns with growing a practice, developing a practice, and looking at four situations where lawyers are again, just taking steps to build or grow a practice. Sometimes they're not always thinking through the ramifications of decisions being made. I'm not here to try to convince you not to do any of these things. Some are far more common than one or two of the other things. I'm all in on trying to grow and develop a practice, building just from the very beginning. There are all kinds of situations where we want to perhaps make some changes. I want to again, explore the ramifications.

What we're going to talk about are contract lawyers. We're going to talk about ancillary services. We're going to talk about what I call the licensed rental problem. Then an interesting thing that I've seen a little bit more of, of late is creating different names for a firm. We'll get into that at the end. Let's jump right in. Contract lawyering has been around for quite a while. Again, it can be very, very appropriate, it can be very beneficial, can be a great way to start some things, at least to bring some money in. There are some things that you need to be aware of if you're ever thinking about becoming a contract lawyer.

I want to talk about three specific situations. The first is going to be, and I think this is relatively common, you're going to be engaged full-time by one firm and held out to the general public as being exclusively associated with this firm. You're a full-time contract lawyer. I want you to think about coverage, because if you want to be insured, you need to be added to the policy of this firm. Sometimes the firm will refuse to do so, or for some crazy reason, is unable to do so, and then they turn around and say, "Well, we expect you to purchase your own policy." Does that solve the problem of coverage? It actually doesn't. We need to understand how coverage works. Basically, you are not insured for everything you do as a lawyer under a malpractice policy.

When we talk about attorney-client relationships and just professional services, let's narrow this a little bit here. Coverage is predicated upon you being in an attorney-client relationship providing the legal services, professional services to a client of the named insured and the name insured is going to be the firm. If you go out and buy your own policy, the name insured is you, assuming you're a solo here, or the name of your solo firm. When you're in a full-time contract situation, you're never providing legal services for your clients. You're always providing legal services for clients of this firm. It's a false sense of comfort. They think, "You don't know. You don't care." You don't have coverage in most instances. There may be some exceptions, but you really need to look at the language of your policy, make sure you understand just what's covered and what's not covered.

Purchasing coverage here isn't going to, in most situations, give you any coverage. Again, I would personally only step into this situation if I know I'm going to be added to their policy and I'm just going to share, this is me, I'm a risk guy. While trust is a good thing when it comes to this, I would want the firm to provide documentation that I've actually been added to their policy. Suffice it to say that I've seen a couple of situations over the year of they say one thing, but what actually happened was something entirely different. I'll leave it to that. A second thing you'll see sometimes is, and this is relatively common in the contract lawyering space, is the contract lawyer will be temporarily engaged by one and sometimes two or three firms, but never held out by any of these firms as being associated with the firms.

The general public just simply isn't aware of your presence. Now, again, if you want coverage for this, the firm or firms should you reach out to their carrier and provide notice, take care of any premium that may be due and you're all good. Sometimes again, they'll say they're unable or unwilling and suggest you get your own coverage just as in the other situation when you are held up full time and all of that. If you get your own coverage, you're not going to be covered if any of these clients sue you. I've also shared that these clients really don't know you're there. The exposure would come, well, does this firm sue you? If we have pretty good documentation that this firm has retained you, you have an engagement letter with them to provide legal services to them, et cetera, et cetera. We can document, this is a client of yours. Your coverage, your policy should be in play for when the firm sues you.

Because that's the only person, the only entity that really knows you're involved. That said, here's an interesting question, is coverage really necessary in this situation? Now, again, I am not advising, I am not recommending, you got to make your own judgment calls on this one. Here's something to think about. Again, assuming there's zero client contact of any kind with clients of the firm or firms you're working as a contract lawyer with. Clients are never made aware of your involvement on any matter. The firm or firms accept full accountability and responsibility for your work product and all of this is commonplace in this type of business relationship. The risk of having to deal with a malpractice claim is really going to be extremely low, even from the firm. Instead of assuming they're just going to fire you if it turns out you don't know what you're doing.

I'll let you make your own judgment call on that, but it's some food for thought. The final situation I'll talk about with contract lawyers is you're engaged part-time by a firm and held out to the general public is being associated with that firm. While also trying to establish or you're still involved in running your own practice and you're doing this for a little extra revenue, whatever might be going on here. How does this play? Well, in this situation you're going to be working for two firms. The firm you're contracting with and your own solo practice. Thinking about again, coverage only covers you for work done an attorney-client relationship on behalf of a client and the named insured. There's two firms, so you really need to be on two policies. The firm policy or your contract lawyer with, because again, you're being held out as associated, the public is aware. Then your own policy for work you do on behalf of your own clients. Now, we're good to go.

Except sometimes again, the firm your contract with refuses or is unable to add you to their policy. What do we do here? Well here, there's an interesting, if you will, work around. You might consider working with this firm not in a contract relationship but in a co-counsel relationship. Now, you need to do this in accordance with the rules of professional conduct. We have to make sure the clients are aware of the fee split and documentation to retaining two discrete firms. I document for the client roles and responsibilities of yourself and your co-counsel who's doing what. That can work. We have documentation here now that all of the work you're doing is done on behalf of clients of your firm. That can work in some situations. I can't speak for what these other firms are going to do, how much work, but that can be very beneficial.

My one caution is prior to stepping into a co-counsel relationship, because in essence, you're going to be creating a partnership, if you will, for every joint matter that you're working on. I want to make sure that if this firm, particularly if they are in the lead, if you will, during the majority of the work, I want to make sure they're insured for their own missteps. Because if they happen to be bare and there's a malpractice misstep that they've even made, you're going to be brought in because you've created this partnership in this matter and your policy is in play. If there's a loss, you're the one that might take the financial hits, so to speak, and have to deal with the fact of it, that there's a claim and deal with surcharges and all that. Well, they just say, thank you very much for the coverage and go on. This really does happen.

It's not extraordinarily common, but I've seen this very situation multiple times in my 25 years with Alps. I would want to document before I enter any kind of co-counsel relationship that the firm I'm about to co-counsel with has an adequate level of coverage for the matters that we're taking on jointly. How about we talk about ancillary services now? I get innovation, I get how markets change and what consumers want and that drives a lot of this, and I'm good with that. Hey, reinventing ourselves is how you stay in business over the long term. If you can't grow and change with the needs and the wants and the desires of the market, that's going to be a problem. There are some issues, and again, we're going to talk a bit about this and primarily it's about coverage. Ancillary service says is one thing lawyers will turn to in terms of trying to reinvent themselves.

Let me give you some examples. Often, it's about wanting to offer both legal and non-legal services under the banner of your law firm or under the banner of the practice. I will see things like a practice that does regulatory compliance and consulting in the cybersecurity sector. You might see this in employment law, in consulting or investigation services as the ancillary piece. Business formation and consulting in the business sector. You might see lawyers and non-lawyers setting up several businesses. The plan is to offer legal services and investment advice, perhaps insurance sales all under the banner of a common trade name. All of these things that I'm talking about are real examples that I've seen or been involved in over the years. It might be a lawyer planning to team up with a local CPA to offer legal and non-legal services under one roof.

It could be as simple as deciding to offer, do it yourself legal forms from your law firm's website. Perhaps under a subscription practice model, which makes it even more interesting. There's lots of ideas, but what's the problem? Remember, I shared at the beginning just because you have a professional liability policy, a lawyer's professional liability policy, that doesn't mean you're covered for anything and everything that you do in the role of a lawyer. Malpractice policies cover you for allegations of negligence in the performance of professional services. Now, policies are going to differ. It's worth looking at the policy that you have, what is covered under the definition of professional services? Often, it's rather broad. Mediator, arbitrator, executive, conservative, guardian, trustee. I mean there's all kinds of things. As an example, many of these policies also, because you got to look at exclusions, aren't going to cover you for financial advice given.

Even though you're in an attorney-client relationship, you give financial advice to your client. That's not covered. Consulting is not a professional service that falls under this definition of professional services if you're limited to consulting only. Sometimes you're in the role of a lawyer in these settings. Sometimes you're in the role of consultant and sometimes you're in the role of both. If you're just in the role of consultant, there is no attorney-client relationship, the policies aren't going to respond. Can you start to appreciate, we need to think through some of the coverage concerns. Now, the question that I'll get, "Well, Mark, so what do I do? How do I move forward? What are my options?" This gets a little difficult folks, and I'll be honest with you. If you ever want to call in chat, doesn't cost anything. Call in chat, I'm happy to try to issue spot and try to work through.

The best answer I can give you is it depends, and the specifics of what you're looking at or trying to do will dictate. If we take some simple kinds of things, the lawyer/consultant, let's use the cybersecurity space example. We have legal and non-legal services, but they're going to be offered for the purpose of this example under the banner of one and entity. It's the same desk, that kind of thing. A lot of malpractice insurers are not going to be comfortable with this and may just be unwilling to write. You may be able to go out and get a general errors and omissions policy that would cover both professional roles. Now, when it comes to the legal professional liability, this general policy solution is not going to offer as in-depth coverage, if you will, that you might see from a standalone professional liability policy exclusive to lawyers. That can work.

Other times you might want to say, well, let's break this out and have separate websites for the professional services and for the consulting, for the lawyer hat and the consulting hat, for the lawyer hat and the financial services hat, whatever it might be, separate business cards. Put esquire on your business cards. For the non-lawyer stuff, separate phone numbers. It's even easier if you have separate locations and sometimes, you'll see that. If you start to create some distance between these two roles and make it clear to clients, if you have joint clients in this situation, I've got my lawyer hat on, but I have a separate contract with you for these non-legal services. You may need to remind them now and again if there's some confusion, and I would tend to document some of this. You can get your legal practice insured then through a standalone lawyers' professional liability policy.

Then you can get a separate E&O policy for the non-lawyer stuff that you're doing. There's some general things there to think about. My big message here again is, as you look at models, start to think through, how's this going to play both ethically? I'm not doing a whole lot of ethics here today on this, but this particular topic in particular in terms of ancillary services, but I would definitely look into that. Coverage can also drive. Is this going to be viable, is this a model, is this going to work? Let's jump now to licensed rental. You'll see this more in the solo and small firm space. How I start to get clued in? Somebody calls in, "I got this great offer and I'm going to make lots of money. This is an opportunity and I just want to run by and make sure I'm not missing anything." Typically, it's an opportunity to affiliate with an out-of-state law firm and sometimes even an out-of-state or in-state non-lawyer owned company.

Both are wanting to direct matters to the lawyers they're contracting with as a way to offer services, legal services in jurisdictions where the lawyers aren't licensed to practice or again, the unauthorized practice law because they're non-lawyers wanting to do this, but they want to create this affiliation. It may be structured as contract lawyers, it may be structured as counsel. You're going to be promised some portion of any earned fee coupled with an understanding that the amount of work you're going to do is minimal. Now, these should be warning signs. I'm going to make money for very little work, it's out of state. Start to think through the rules here on this one. Practice areas that you often see. This will be debt settlement, mortgage, foreclosures, estate planning, traffic violations, criminal expungements. Those are common areas. I'll leave it at that.

Let's talk about some of the obvious things. Here, we can talk a little bit about ethics. If it's a non-lawyer owned company, if you sign on and participate here, there's a strong possibility you may be assisting a lay entity in the unauthorized practice of law. I have seen lawyers sanctioned for this to include loss of license. If it's an out-of-state law firm, that may still be a problem, because they're not licensed in your state. That's why they want you. Here's the problem. You're going to be contractually required to, in essence, essentially relinquish control of all matters to the out-of-state firm. They're not going to turn these clients over to you. At times, they're not even doing the work. They're assigning it to non-lawyer assistants, they're not properly supervised. All they want is some local lawyer to sign off and just say, "Oh, this looks good."

I start to think about assisting non-lawyers to non-authorized practice law. It also, many of these models, for lack of a better word, are marketing one size fits all solutions to their legal problems. Again, they just want your blessing. If you get involved here and well, how do I want to say this? They don't want you to get involved and talk to the client about various legal options. Really look at the true needs of the client. They just want you to market and sign off on this. Again, one size fits all solution. This is going to be a violation. Professional independence of a lawyer. You are not allowed to have any. You're agreeing to this. There's all kinds of issues that can come up in improper fee splits. Again, preventing clients from having a chance to meaningfully consult with their local lawyer. Unreasonable limitations on scope and it just goes on and on.

I would really, really caution you about this particular model. Now, let's get back to, again what we've been talking about with all of these situations, I have yet, well, actually I'm going to back off on that. I used to say I have yet to hear of a situation where the out-of-state firm or non-lawyer owned company provided malpractice insurance for the local lawyers. I will share that's still very, very common. I have now come across two situations where they in fact do. The only reason I will share that is I'm not here to bash the licensed rental. Well, I am bashing the licensed rental model. There have been situations where a company really is done by lawyers. The model is set up in compliance with the ethical rules and they're really looking to expand and create a more nationwide or regional presence using local lawyers.

The local lawyers are allowed to be involved. The fee split model is a bit different. They are advising the clients, and it can be done in a very professional and responsible way. I'm going to tell you that is very much an exception to the norm. I'm trying to really clue you in to what the unethical ones start to look like. Again, they don't offer insurance and they are going to require every local lawyer who signs on that you have documentation of your own malpractice. Again, it's to try to make you believe that they're being very responsible and they're hoping you assume, well, that means because they're asking, and these guys know what they're doing, they're a bigger company. They know your policy is going to protect you. It's not. They don't care about you. They really don't.

They have no intention of letting you get involved with their clients. Meaning, make them your clients. They're going to place severe limitations on what you can and can't do. You're simply being asked to sign off on work done by others. Let's get back to coverage. Are you in an attorney-client relationship delivering legal services on behalf of your own clients? The answer is no. You are not. You're simply renting your license to somebody else. Not a good idea. It can be very, very problematic. You're not covered for any of that. A little heads-up. A little heads-up there. The final one that I'm going to talk about is I sat out here about multiple firm names and stuff. This has been interesting. I've come across this once or twice and I don't know, the last five, eight years, something like that. I got what was going on, made a lot of sense to me.

Now it seems like this is going more into the solo small firm space. Whether it's a trend, I think it's way too early to tell, but here's the gist of it. A lawyer or a small firm wants to grow and develop and create a market presence as specializing. We know what we're doing in divorce law, we know what we're doing in criminal defense or whatever it might be. We're the go-to lawyers. We want to create a business name and sometimes lawyers are starting to even create separate entities for the various practice using my name, Bassingthwaighte Bankruptcy Law LLC, or Bassingthwaighte Divorce Law LLC. I'll create these entities and I want to market myself as, I'm the go-to guy. Again, I may even have separate accounts, in terms of trust accounts, bank accounts. To me, I started sitting and my head hurts about how complicated this can be. I understand why lawyers want to do this, and I am absolutely not adverse to it.

I just encourage you to think through, creating multiple entities that are just you. Even if it's you, an associate and two staff, but it's the same desk, the same address, the same phone number, everything the same. Then trying to get four policies for each of these things, you're going to have exclusions, anti-stacking language. It just becomes a headache. One to ensure, and the more complicated you make this, the more complicated or difficult it's going to be to find somebody willing to ensure all these entities. Think about the administrative headache of all of this. I sit here, I'm just not seeing the benefits of it. They're alternatives. You could do a DBA. I try to get one policy and put the DBAs as additional insureds. You might be able to get one policy with all the entities and put the entities on as additional insureds, because there's only going to be one named insured.

It's going to be cheaper to ensure one firm with some additional insured names as opposed to four policies on four firms. You're going to be spending all kinds of money that you don't, and it's just a mess. A little caution there. I'll tell you, in my mind, it's even easier. I'm not even going to mess with DBAs. Well, I mean you could. I sit and say, let's just have one firm and I'm going to call my firm the Bassingthwaighte Law firm. Run with me on my crazy mind and how I look at this. Bassingthwaighte Law is going to be the mothership, if you will, and that is going to be the named insured. Now, I'm going to create some websites and it might be Bassingthwaighte Bankruptcy or I might not even put bankruptcy, or I'm sorry, Bassingthwaighte there. I might have some little fancy marketing name for divorce and for bankruptcy, these different areas that I want to look like an expert on.

I have these separate websites and separate marketing, but these are just names for marketing. I'm trying to build a feeder network. On each of the sites they'll say, "This is a service of Bassingthwaighte Law. This is a service." You'll see that on the divorce page. You'll see that on the bankruptcy page. You can call it whatever you want. In other words, there is no entity. It's a marketing campaign. Then anytime a client comes in from the bankruptcy website, the divorce website or even Bassingthwaighte Law website, all contracts are signed with Bassingthwaighte Law because that's the named insured. We all are employed. If I have other staff, associates, whatever it might be, we're all under this banner of Bassingthwaighte Law. That's the mothership. Everybody, I'm very open about this. It's just using it as a marketing tool. I think that can really make life a lot simpler.

I want to shut down the Bassingthwaighte, or I'm sorry, the bankruptcy practice at some point, all I got to do is turn off the website. I don't have to wind-ups this separate entity because I don't want to do bankruptcy work anymore. You see? I'm thinking long term here too. I'm trying to wrap up here now. In terms of takeaways, there really are ways and things that you can do. There are pros and cons to all this stuff. Obviously, the licensed rental model I got a little issue with. There are some situations out there that can work that are ethically sound. We need to look, we need to do some investigation on all this to understand the ramifications. The time to do it is before you've committed and set up the four law firms and go, "Oh my gosh. Now I'm trying to cover this. I didn't realize I was creating such a headache. Maybe I should've called you guys sooner." Real conversation as an aside, just happened. There it is. I hope you found something of value with today's little pontification on growing and building practices.

I'm all in, I'm all for. There's lots of things that can be done. Obviously, there's all kinds of marketing things and all sorts of ways to build a practice. I did want to share a couple of things where lawyers get trapped and they get too far down the road and haven't thought through. I'm just trying to get you ahead of the curve. I have zero issues doing, heck, you want to go with contract lawyering? Hey, God bless, I hope it works out. That's really exciting. You want to go down the ancillary road? God bless. Subscription, which we really didn't get into, but the ancillary model overlaps there a bit. God bless. I'm all in. Just think through the ramifications. That's it. Please, don't hesitate to reach out if you have questions or concerns about the things that we've just talked about and want to discuss further. It doesn't cost anything to chat with me or send an email. My email is mbass@alpsinsurance.com. I'm happy to do anything I can. Hey, good talking to you. Stay safe out there. We'll talk to you later. Bye-bye.

 

ALPS In Brief - Episode 69: Let it Go

We all carry baggage in our personal and professional lives as lawyers. If the baggage isn't addressed, we get depressed. In this episode, Mark offers some wisdom, tactics, and examples of how to let it go.

 

Transcript:

Hello, I'm Mark Bassingthwaighte, the Risk Manager here at ALPS, and welcome to another episode of ALPS In Brief, the podcast that comes to you from the historic Florence building in beautiful downtown Missoula, Montana. I had some things happen this week that got me thinking, and so I want to tell some stories and share some insights or just responses, I guess, to things that have been going on. I want to start out with a story that goes back a few years. Sometime ago my wife and I attended a weekend family get-together out in California, beautiful home that could put up a whole bunch of us, and then some others stayed in nearby hotels, but it was a lot of fun. It really was a lot of fun.

One evening, the extended family was all gathered around a huge table and the other people outside in hot tub and people on the beach, walking, things, but there was a nice group around this big table, and one of the young grandchildren there was quite a fan of Frozen, and she just was so proud of herself. We all got to talking and she had memorized the song, and I'm sure many of you are aware of the song or have heard of it, called Let It Go. She wanted to sing for all of us, and everybody's all excited. She climbs up and is standing on the sort of the center of this table, and she just starts belting out, Let It Go. She gets through the first verse and we're all just hooting and hollering kind of, "This is great," and she just says, "Well, stop, stop, stop. I'm not done yet," and she just launches into the next verse, and we're all kind of looking around and she just keeps going.

She's going to sing the whole darn song. I see near the end, it becomes abundantly clear there are more than a few people that are very impatient, ready for this to be over, "Oh my gosh, it's almost painful," and I'm thinking to myself and sort of smiling. I see people really aren't listening to what she's saying. I think there's some wisdom here. Let it go. It's a little girl, enjoying, trying to entertain and just so proud of herself.

We all can certainly get through a few more minutes of listening to her sing and just have a nice, wonderful evening in spite of that. So that was just a fun memory, but it's relevant to some other things that have happened and get just things I've been thinking about. I also recently listened to a presentation on forgiveness, and I must say it was one of the more, powerful is the word that comes to mind, but it just, a presentation that really struck home for me in a variety of ways. One of the things that I very much appreciated and thought was just, "Well done." The presenter was talking about that people are at times wronged by others. People are sometimes betrayed by others, hurt by others, and he wanted to sort of give a visual to this in terms of how this impacts us individually when we hold on to these types of feelings, feelings of betrayal, hurt, all of that, and so he had two people come up.

He put them together, handcuffed them together, and he says, "You know, so you have a bad relationship. One person will be the person that was perhaps betrayed in the relationship and the other person, handcuffed is, together here, is the person who betrayed the first person." So you say, "Okay, I'm going to exit the relationship and move on, get a divorce," whatever it might be, but as the person walks away from the relationship, they're still handcuffed together. Now, obviously, the person that truly betrayed doesn't come along everything, but the baggage, if you will, is still there. There's still this attachment because there's been no forgiveness.

You might be in a situation, perhaps an associate has a problem with a partner and has been wronged or is constantly hurt and belittled. There's just a very unhealthy relationship, and an associate just, "I've had enough. I'm quitting. I'm out of here," and you go and you start another job at another firm, and you're all excited, but there's some behaviors with a new partner that remind you of things your partner has done, and you start to immediately have all of this, sort of baggage can back up, because the handcuffs are still there. We're still bound. You want to release those handcuffs.

You want to take them off, and that can be done through forgiveness. Now, I can appreciate that some might say, "Well, that forgiveness doesn't always work for me as a term." Let it go. Just let it go. We need to move past these kinds of things.

Why do I want to raise this and talk about this? Well, for one, it's a wellness issue for me. We do need to learn how to deal with problems that come up in life with situations where we've been wronged. These can be obviously personal relationships, and let's talk about that for a second. Well, what does it matter if ...

What's this got to do with risk management in the practice of law? Come on, guys, think about it. If something is way out of whack and not right in your personal life, unless you are extraordinarily good at walling all of that off, it's going to impact all the other aspects of your life, and I don't think anybody is truly really good at walling things off. That's why some people drink. That's why some people abuse prescription medications.

We can get depressed. If we don't deal with the baggage in our personal lives, and obviously in our professional lives as well as lawyers, we're going to have wellness issues because we are unwell. The baggage has not been addressed, right? So I see this. Let's start to wrap our heads around this a little bit.

It's, what types of relationships ... So again, it can be a spouse, a betrayal, somebody has an affair. It could be things aren't working well with a child. All kinds of things are being said. It's just very, very nasty.

It can be a partner. It can be a client, opposing counsel, a judge. We can't help but be in relationship with others because we are human, and then when we're working and providing professional services and working as a lawyer, there's going to be all kinds of relationships that we're involved in. So I really want to share, if you find yourself focusing, holding on to the consequences of problematic relationships, I strongly encourage you to look at the possibility of forgiving as a way to move on. At times, you will find some people say, "Well, I don't want to let this go. I've been wronged," and if there's all sorts of things that can go on here, we can kind of hang on to it.

Honestly, I think at times it's almost, we want to be a victim, and we sit and say, "You carry this," and you sit and say, "Well, put it this way. Do you honestly think day in and day out, year after year, the person who wronged you, for lack of a better description, is spending all their time thinking about you? Come on. They're not." It's you that is hanging onto all of this, and why in the world would you give someone else that kind of power to impact your life? Oh, my gosh, that's crazy.

So I encourage you to think about taking off those handcuffs, okay? Again, the failure to do so can lead to depression, addiction, or any alcoholism. I mean, the list just goes on and on and on here. So there's this wellness piece. Let me also share, for those of you that have listened to some of my other podcasts, it's been, oh boy, year and a quarter now, maybe a little more, coming up in a year and a half, that we have moved to Florida, and love it down here.

Really, really do. Well, last night I was out playing tennis and driving home, and it was a very busy six-lane road, three in each direction, that is sort of a center thoroughfare to get back to the house from the tennis facility, and it was at a dead standstill. Long story short, the entire road in both directions was closed, ended up being closed for hours due to a very, very serious crash. Two helicopters actually had to come in and land and for a life flight. I mean, this really was not good, and I'm sitting here thinking to, and I would just say, this has been my experience and a lot of others that moved down here, could talk about, "Boy, there's some crazy drivers here in Florida," and there really are.

You see a lot of road rage. It's another example of ... Why do people experience road rage? I think of a lot of it, it comes on very fast, "I've been wronged, and I got to get even, and that son of a gun cut me off," and we just get ... Life is too short.

I saw the helicopters go up, and by the time ... You just kind of have to work your way through. It took me two and a half hours to go less than a mile to get to where the accident was still being investigated and whatnot, and they, just so much traffic and they're trying to get around. It's a long story. I won't bug you with all that, but at one entire car, the entire roof was cut off with tools.

I mean, they had to remove the entire roof of the car to get three victims out of the car. It was that bad. One, I've since learned, has died overnight. Life is too short. It's hard at times.

I will readily admit that, boy, I can at times, when somebody cuts me off and I'm in a hurry or whatever it is, you just want to tailgate or do, just play games, but I also don't want to be the guy that's dead because of it, so I'm learning, and I've been doing this for a while down here, learning to let it go, learning to make a different decision, and I think that's a very, very positive thing. Now, we could also take this a little bit further and talk about civility in the practice of law. I've talked about this, written about it off and on over the years, and for me, it's a tough topic to talk about. You could sit here and say, "Was there this ethical duty? Do we all have to be civil?," and honestly, I think the answer to that is no.

It's certainly something that we should all strive to be and to do, or to practice. It can be very, very difficult, but again, I start to think, "I had an interesting call actually just today," where a lawyer who has done a lot of guardian ad litem work and was involved in a divorce situation and representing a child here, and had to make a very difficult decision. "Where does this child go in terms of mom or dad?," and a good decision was made. I accept that at face value, but what happened here is the parent that ended up not getting the child is an extraordinarily aggressive and apparently has a lot of time on his hands person, and is really just doing everything in his power to destroy the professional reputation of this particular lawyer, a lot of online negative reviews, making all kinds of things up, but unfortunately, too very well-spoken, and there's just a lot of stuff, and this is hurting. This is hurting, okay?

I understand that. Talking to the lawyer, the lawyer just absolutely wants to defend herself. This is not right, and she's right. It is not right, but as we talk, one of the things ... They're all the confidentiality rules, and I get, "Are we in an attorney-client relationship here?," and that's a conversation for another day, but I sit and I look at this and I say, "You know, there are some things that you can do here," but one of my cautions to you is to not engage, to not be pulled into this, to not allow someone else to have this kind of power over you.

You are not going to win in a public battle. All you're going to do is elevate and create a much larger viewing audience, if you will, of this public debate. You need to take a higher road. Now, there's certainly things you can do, reputation management services, just as an example, but I would not get into the battle. Let it go, forgive.

I honestly believe that that mindset, that change in mindset in and of itself will enable a perspective, a different perspective that will allow different types of responses, more effective types of responses to come into play, or, if nothing else, to at least come into your vision. You can think about that. Be civil, because other people are going to judge, are going to make their own conclusions, prospective clients, based on how you respond to this. They're looking to say, "This lawyer can't take a little heat. Oh my gosh, I don't want to hire her."

As you can see, we have to look at the bigger picture. Think about situations where depositions, opposing counsel, for lack of a better description, is using all kinds of vulgarities and insulting you, and going on and on. It can be tempting to go into this road rage kind of thing, if you will, as an analogy, but if it happens over and over again, or a particular judge just doesn't work, after a while, it can really start to eat at you and really get kind of rough. It's tempting to either just feel sorry about yourself and go into this sort of victimization kind of mindset and just, "What do I do about it? I don't know. This is just too much," et cetera, and we run, but again, you're going to take the baggage with you.

You're going to take the baggage. Another option is, and you'll see this at times, and how do I put this nicely, the decision is made to get into a pointless dispute. It's just, "Well, if you're going to swear at me, I'm going to swear at you," and we get into that contest. You know where I'm going with that one, but what are clients thinking? How is anyone in terms of their matter? How does that help?

It doesn't. It just elevates. It deteriorates. It does all kinds of things to relationships, and most importantly, to you. Learn to forgive. Learn to let it go.

Be a professional. I truly believe deep in my heart that these kinds of choices are extraordinarily powerful choices, and I believe that because it's something I have tried to practice and learn, and have been working on, oh my gosh, for years and years. I mean, decades. Am I perfect at it? Absolutely not.

I don't know that anybody ever will be, but I do believe in the value of it. The older I get, I don't want to keep pressure, if you will, stress on my heart. I have a healthy heart, I go play tennis, I ride bike, I'd eat, ride, and do things, but stress isn't good, and we live in a 55 plus community down here, honestly. Absolutely love it. Best decision we have ever made.

Lots of friends. Just, it's been a good decision, but I also see there is a, what I would call a minority group here, and I suspect this is not unique to communities of sort of more retirement communities, as you're going to see it a bit more, of people that are constantly under high stress, refuse, or perhaps are incapable. I think that's by choice, but over time, maybe it gets to be a habit of letting things go. These folks are some of the most miserable, unhealthy people I've seen, and it's crazy. So I'm going to sort of close and just say, I don't want that for me and I don't want that for you.

Life is too short. Learn to forgive. Learn as this wonderful, sweet, young, little girl, standing on a table, sang and belted out so beautifully. Learn to let it go. You'll be better for it, and so will the relationships you have, both professionally and personally. So that's it for me.

I hope you found something of value in today's episode. Stay safe out there, folks, and if you have any questions, concerns on this topic or any other topic, please don't hesitate to reach out anytime. I'm not a risk manager for ALPS. I am your Risk Manager. I'm hired by ALPS to manage the risk of our profession at large.

It doesn't cost a dime to talk with me, so feel free. My email address is mbass@alpsinsurance.com

That is all. Bye bye.

ALPS In Brief - Episode 68: The Unnecessary Burdens of Growing Up in the Witness Protection Program

Jackee Taylor was put into the Federal Witness Protection program as a 7-year-old after her father, Clarence Crouch, a convicted killer and infamous member of the Hells Angels, turned and became a government informant. Mark interviews Jackee about the realities and consequences the children of WITSEC face and what we can learn from them. 

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Transcript:

 

Mark Bassingthwaighte:

Hello, I'm Mark Bassingthwaighte. I'm the risk manager here at ALPS. And welcome to the latest episode of ALPS In Brief, the podcast that comes to you from the historic Florence building in beautiful downtown Missoula, Montana. And boy, do I have an interesting guest today that I just, the more I learn and get to visit with her, it's just, wow. My guest today is Jackee Taylor, and where I first heard about Jackee and learned a bit about her story is from a very, very interesting podcast and Jackie Time, it's C 30. What's the platform?

Jackee Taylor:

C 13.

Mark Bassingthwaighte:

C 13. Thank you. Yes. C 13. But the podcast series, and it's about the 10 episodes, roughly what, nine, 10 hours, I guess, called relative unknown. We're not going to sit here and talk about everything that's in this podcast, but I will tell you folks, it is worth a listen. So if you have some time and you're driving to the office or taking a plane somewhere just out for a run, I strongly encourage you to take a listen to this. So Jackie, welcome. It's such a pleasure.

Jackee Taylor:

Thank you.

Mark Bassingthwaighte:

Could you take just a couple of minutes and share for our audience a little bit about you? What is important from your perspective that you think these folks would want to know?

Jackee Taylor:

Basically, my name, I'm Jackie Taylor. I was put into the Federal Witness Protection Program at seven years old in 1982. My father was a Hell's Angel, and he turned on the club and he turned informant and helped them prosecute a few individuals that were guilty of some crimes back in the seventies and eighties. Now I am basically an advocate of grown children of witness protection that are struggling with their identification issues, mental health, things like that. In a nutshell, I can't... Because my documentation has never been rectified from the US Marshals, I cannot leave the country. I cannot buy a house. I cannot go to college. There's a lot of things that I cannot do. However, I am okay, I will be okay. I've been okay for almost 50 years, but these things still are not right. I am not the only person that is struggling with identification issues that is an adult that was put on witness protection as a kid. I am not the only person. I've had a lot of people reach out to me now, and now I'm advocating for them as well.

Mark Bassingthwaighte:

I think that's awesome.

Jackee Taylor:

Thank you.

Mark Bassingthwaighte:

It is an overwhelming task, I imagine. You're fighting a system, but somebody needs to do it.

Jackee Taylor:

I am. Thank you.

Mark Bassingthwaighte:

Taking the mantle on is God bless. Good for you.

Jackee Taylor:

Thank you.

Mark Bassingthwaighte:

Let's back up on this story. So you're in this Witness protection program, and I don't want to spoil too much of... But you don't have a relationship with your father.

Jackee Taylor:

Correct.

Mark Bassingthwaighte:

I don't want to tell the whole story about your father, again, I just want them to listen to the podcast.

Jackee Taylor:

You have to listen to the podcast.

Mark Bassingthwaighte:

It really is worth it, folks. But you are obviously gone public. You were no... You've outed yourself, if you will.

Jackee Taylor:

Yes.

Mark Bassingthwaighte:

And am I remembering correctly, this occurred around the age of 19?

Jackee Taylor:

No, actually it occurred in 2008 and 2009 is when-

Mark Bassingthwaighte:

Oh,.

Jackee Taylor:

The first article went out. Yes.

Mark Bassingthwaighte:

What brought you to that point?

Jackee Taylor:

I've struggled with issues with my identification actually, since I was a little girl getting... My mom couldn't get us into softball. She had to beg and plead. I tried to get a marriage license back in '96 and I was denied because I don't have a birth certificate. Getting into college was a struggle, thank God I knew somebody on the admissions board that I babysat for, and the Patriot Act wasn't in effect yet because that was in '95. So I've struggled with things over the years, but I was at a place where I was okay. And then my children's healthcare got canceled. They were on Medicaid.

Mark Bassingthwaighte:

Yeah.

Jackee Taylor:

My children's healthcare got canceled because I could not produce a birth certificate that the marshals would... I was never given a birth certificate, so I don't have one. There's not a way that they could get me one. The judge refused to sign off on my family getting individual birth certificates.

Mark Bassingthwaighte:

So it-

Jackee Taylor:

It started affecting my children.

Mark Bassingthwaighte:

Okay. And so it's a point of just saying I've had enough.

Jackee Taylor:

Absolutely.

Mark Bassingthwaighte:

The inefficiencies, all the things in terms of the federal marshals and-

Jackee Taylor:

Trying to call and, okay, call this number. We call this number, okay, write a letter to this. Make sure that you send it certified or registered mail. It has to be signed for that so that you can prove that it got there. I can't tell you how many letters I sent. Can't tell you how many calls I've made. And there's just been no help. Nobody seems to care. So when these people, and it's me, my sister, and my brother, we've all had these issues. But then when it starts affecting our children, and now I have other people reaching out to me because I just went public. Hey, I'm having the same issues too. Of course, I have to vet these people out and make sure that they're legit. So I make them tell me what transpired, what city was it out of, and then I verify, okay, this did happen. So tell me your story. So these other people are reaching out and they're having these problems too. So I'm not the only person, my family's not the only people out there that are struggling.

Mark Bassingthwaighte:

And just to make sure everyone in the listening audience here is fully aware of where these struggles come from. I understand, folks, when you entered witness protection, Jackie Taylor was not born Jackie Taylor. That's her name after going into witness protection and all the family, I think brothers, you have a brother, sister.

Jackee Taylor:

I have a brother and a sister.

Mark Bassingthwaighte:

Mother and everybody's name was changed. And no one is given sort of solid, consistent identification things that all of us take for granted. It's got the original birth certificate, we've got the social security card, the passport, and all the spellings that you were sharing in a present presentation here that, I think you said a Wisconsin-

Jackee Taylor:

Wisconsin social security number.

Mark Bassingthwaighte:

It's just-

Jackee Taylor:

Yeah, on my passport, it states I was born in Cleveland, so that red flags certain, if I want to go get a home loan, that's a red flag. Well, why do you have a Wisconsin Social security number? But it says you're... I'm throwing flags. And that's not a good thing.

Mark Bassingthwaighte:

I can't imagine.

Jackee Taylor:

I've been stopped at TSA, and how do you explain this stuff? I got pulled over once and they couldn't find me in their system at all. I was arrested a couple of times. I know I'm in the system, but they couldn't find me. And they asked me who I really was. So that's happened to a couple of other folks that I've talked to as well. Right now, I no longer exist. This is something I didn't talk about. I no longer exist with the Social Security Department. Oh, wow. I just recently found that out.

Mark Bassingthwaighte:

Oh my gosh.

Jackee Taylor:

So now what?

Mark Bassingthwaighte:

Yeah.

Jackee Taylor:

I mean, there's certain things. Am I going to die? No. Does my life suck? No. Because I make sure that it doesn't, even with all of these roadblocks, but does it impede my civil rights? I've worked since 1989 when I was 14 years old. I've paid my taxes. I've worked for 35 years now. I've paid my taxes.

Mark Bassingthwaighte:

Yeah. And you deserve this.

Jackee Taylor:

I deserve my-

Mark Bassingthwaighte:

Oh, absolutely.

Jackee Taylor:

Basic rights as an American citizen.

Mark Bassingthwaighte:

Yeah.

Jackee Taylor:

That's all we're asking for.

Mark Bassingthwaighte:

Yeah. My mind, boy, that's not a lot to ask for.

Jackee Taylor:

It really isn't.

Mark Bassingthwaighte:

It's something you guys are all owed and deserve.

Jackee Taylor:

Entitled to. And especially that we were-

Mark Bassingthwaighte:

Yes. I honestly, I agree with-

Jackee Taylor:

Yeah, we were born into this. We didn't ask for it, nor did we even ask to be born, period. But we were. We were put into witness protection as children. And that's just to make it clear, that's the only people I'm really advocating for. Were grown children of WITSEC. If you're an adult and you're put into WITSEC, you made your bed, you can lie in it. Do I think that they need to be looked after too, just like my father needed to be looked after? Yes.

Mark Bassingthwaighte:

But when you made this decision so out of frustration and your initial step was...

Jackee Taylor:

Call the newspaper.

Mark Bassingthwaighte:

Call the newspaper, because you were not getting any responses anywhere else. And so that really goes public. And there's been a lot of traction since that time in terms of your story, not the least of which is against this podcast, but there's lots of other things that have happened and are in the works even now. But when you reached that point, was there... It's just frustration alone and you just got to do something? Or was that balance of I would think just even some concerns about coming out of witness protection, except just safety and things. Did that factor-

Jackee Taylor:

I didn't feel in danger back then.

Mark Bassingthwaighte:

Okay.

Jackee Taylor:

No. I had ran into some Hell's Angels back in, I believe it was '94 or '95, and I was told that I was not in danger. It was just a random event, random occurrence that we ended up at the same social gathering. And I was told that I was not in danger. So was I nervous about the Hell's Angels fight? No. I wasn't worried for my security and my safety. But where you said, was it out of pure frustration? It was out of pure frustration. Absolute. I spent that entire day when I got the letter from the state of Montana saying that they were canceling my kids' Medicaid.

I spent all day on the phone talking, calling different congressmen, calling different senators, calling different people, politicians in the city of Billings. And the buck was passed, the buck was passed, the buck was passed. John Tester's office is the only office I ever had any luck with, and I thank you for that, John Tester. We need to get back in touch. But nobody else wanted to do anything. And our current governor at the time couldn't do anything. I was just passing the buck. So right out of frustration that night, I called the Gazette.

Mark Bassingthwaighte:

So this is happening. It's been a little, what, 14 years? 12, 14 years since initially. It's one thing again, to make this decision out of anger, out of frustration, and gosh darn it, you're going to do something about it. You haven't run out of steam.

Jackee Taylor:

No.

Mark Bassingthwaighte:

What is driving you?

Jackee Taylor:

Every couple of months I get a new person or a case that reaches out to me that's struggling. Just a few weeks, well, a couple months ago, I had somebody reach out, a brother and sister that were put... I call them the kids because they're 26, and almost 30. They're not kids, but they were born children into witness protection. They're currently being threatened with, if you don't follow the rules, if you talk out of... If you tell anybody, if you gripe about the program, we're going to deport you back to your country and you will be killed. So that's not a way that it needs to be handled.

Mark Bassingthwaighte:

Well, that's not right.

Jackee Taylor:

It's not right. I'm worried about these kids. Like I said, am I going to die because I don't have a birth certificate? I don't have my passport current? No.

Mark Bassingthwaighte:

But these kids could.

Jackee Taylor:

These kids are afraid of their shadows. I just got a text from the sister today saying, "I have never felt safe in my life." That brings me to tears a little bit because nobody should feel like that.

Mark Bassingthwaighte:

Yeah, I can't imagine.

Jackee Taylor:

And she's just a kid. And she was born into this because of what her parents did before she was born and afters. And none of those children do. None of us deserve to be swept under the rug and be told that we need to behave and obey or we're going to be killed. Who can speak for this girl now? Because she's afraid of the marshals. I'm not. But I'm not going away. Do I want to work with the marshals now? Yes. I would like to figure out something that we can do together. I have answers. I have solutions. I genuinely care about these people in witness protection. And I cannot say the same for the marshals. And nobody deserves to feel like that. And are we a limited few? Yes. There's only about 10,000 children on WITSEC or grown children like myself. But that's 10,000 people in the United States that are being swept under the rug and have to live a secret scary life where we don't have normal rights as anybody else. Just because we were born to our parents.

Mark Bassingthwaighte:

I don't need to take anything away, I think. Is there an element here of healing or making peace with all the crazy things that have happened in your life? Is it trying to add a purpose?

Jackee Taylor:

No. No. I would say this is just more of a mission that I'm the only one who can conquer.

Mark Bassingthwaighte:

You can do it. Yeah.

Jackee Taylor:

I had a health scare last month and my kidneys started not functioning properly because of my antidepressant. You know what happens. So you got to switch it around. But I had a very dark couple of days thinking, oh my God, I'm going to die. Oh my God. What if this happens? I got to write out my will. Oh my God. Who are going to... There's nobody else. There's nobody out there that can help these WITSEC kids. What about the WITSEC kids? Oh my God, if I die, who's going to take care of... There's nobody. So I wouldn't call it a burden at all, but I'd like to get on with my fricking life someday. And I can't, until this is all rectified and they start listening, and I'm not going away. I'm using every platform I possibly can. Every person that's willing to, thank you, interview me for their podcast.

Thank you very much, that this is helping.

Mark Bassingthwaighte:

Yeah.

Jackee Taylor:

Because we're spreading awareness.

Mark Bassingthwaighte:

Absolutely.

Jackee Taylor:

People had no idea about how we live as people in witness protection. You do not get a new house, you do not get a new car, you do not get a briefcase full of money. You don't even get proper identification. If you listen to the podcast, you'll find out where we are actually put in Billings, Montana. And it was the most nasty hotel that you can possibly imagine. And I always say, I'm no princess. I'll stay at a second rate motel to save money, but I would not stay, I wouldn't put my worst enemy in the hotel that they put us in. It was horrible. And we didn't deserve that. Maybe my father did, but my mother and my brother and sister didn't deserve that.

Mark Bassingthwaighte:

Yeah. Well you're the-

Jackee Taylor:

We're second class citizens.

Mark Bassingthwaighte:

But also just victims that I'm not sure what the right... You're innocent victims, if that makes any sense.

Jackee Taylor:

Collateral damage.

Mark Bassingthwaighte:

Yes. Maybe that's such a shame. May I share, and if there are a lot of lawyers that listened to this, obviously, if anyone had some thoughts or just wanted to become involved, may they reach out to you? I should meet-

Jackee Taylor:

Absolutely, yes.

Mark Bassingthwaighte:

If you would like to share some contact information or how they can reach, please feel free. If you want to have them contact us and pass something along, whatever's best for you.

Jackee Taylor:

I mean, anybody can reach me at any time. I'm Jackie Taylor, J-A-C-K-E-E. Taylor. My podcast is Relative Unknown. I have an email, jthood74@hotmail.com. But yeah, I actually need to know what to do with these two kids. I didn't get into it too much, but there's a lot of other people on my agenda that I'm trying to get help for. But these two kids stand out to me because they were issued two year work visa.

Mark Bassingthwaighte:

The clock's ticking.

Jackee Taylor:

The clock's ticking on this. And they're constantly being threatened today. Today she was receiving texts from the Marshalls. Well, things are changing with your two year work visas. And that's what she said. She's never felt safe a day in her life. But I need to know, what can we do for these kids? How do we get them their citizenship? Can we claim political asylum? These are the two that I'm focusing on right now. If anybody's out listening that is interested in getting involved or thinks that they might have an answer to my solution or a solution to my problem, or maybe just a suggestion, please reach out to me. Anything. I answer, everybody, I look at every email, I look at every message on Instagram, Facebook, it doesn't matter who it is, I answer everybody. But I really appreciate this opportunity to talk and tell my story.

Mark Bassingthwaighte:

Well, and you're welcome.

Jackee Taylor:

Our story.

Mark Bassingthwaighte:

Folks, this is a very sort of different focus for the podcast. And we'd like to shake things up around here and go in different directions, but I encourage you to listen to the podcast. It is just an interesting, crazy story. But I also think at times, I can't go out, at least I feel and and I think a lot of us feel this. We can't go out and necessarily change the world. This is one crazy messed up world right now. We've got the war in Ukraine and at times, these kinds of things seem so overwhelming. And the temptation is just to spur our head a bit, get comfortable, and just move along. I like, and what I've tried to do in my own life personally, I may not be able to change the world, but I can change a little piece of it.

Jackee Taylor:

Yes. That's exactly how I feel.

Mark Bassingthwaighte:

The small steps. And I just wanted to share, and I think it's an important... I never knew any of this. I always, I know that Hollywood-

Jackee Taylor:

Oh, those lucky guys got a new house.

Oh they're on WITSEC? Those lucky guys. No.

Mark Bassingthwaighte:

[inaudible 00:19:59]. And yeah, that's just not reality. So if any of you out there care and have the time, or some expertise or some insights in how...

Jackee Taylor:

Or if you're bored at three o'clock in the morning,

Mark Bassingthwaighte:

There you go.

Jackee Taylor:

Here's a good subject. Dig into this a little bit.

Mark Bassingthwaighte:

Yeah. So it's an opportunity to make the world a little bit better, to make a difference in small ways in terms of what you may be able to contribute. But the outcome here can be life changing literally, when we talk about these two kids. So folks, I hope you found something of value and I appreciate your listening in. Again, I encourage you Relative Unknown. I've just enjoyed it. I've been sharing it with friends and family and we're all having just like, wow. Wake up moments. But all right, I'll let you get back to the office. Get back to your day. Have a good one. Thank you. And oh yes, Washington, Jackee. Thank you.

Jackee Taylor:

Oh yes.

Mark Bassingthwaighte:

No, thank you for having me.

Jackee Taylor:

You are most welcome.

Mark Bassingthwaighte:

And thank you Paul Zuckerman. I love you.

Jackee Taylor:

Bye-Bye all.