The ALPS In Brief Podcast

Episode 12: The Introverted Lawyer

Professor Heidi K.  Brown is a former construction litigator, author and self-described introvert. Mark was able to connect with Heidi, who is based in Brooklyn, New York where she is the Director of the legal writing program at Brooklyn Law School, to discuss the differences between introverts and extroverts in the legal context. Heidi’s recent book, The Introverted Lawyer: A Seven Step Journey Toward Authentically Empowered Advocacy, helps the introverted lawyer to best harness their personality and flourish in the legal field without conforming to the stereotypical lawyer as extrovert. Professor Brown will be presenting a CLE webinar entitled The Introverted Lawyer: Authentically Empowered Advocacy, in our New Lawyer Webinar series on May 9, 2018. Register now.

ALPS In Brief, The ALPS Risk Management Podcast, is hosted by ALPS Risk Manager, Mark Bassingthwaighte.

Transcript

MARK:

Hello, welcome to another episode of ALPS In Brief, the ALPS Risk Management podcast. We're coming to you from the ALPS home office in the historic Florence Building in beautiful downtown Mozilla, Montana. I'm Mark Bassingthwaighte, the ALPS Risk Manager, and I have the pleasure today of sitting down with Heidi K. Brown, a noted author. We're going to be talking about her book here in just a few minutes and also Professor at Brooklyn Law School. Welcome to the podcast Heidi and if I could have you briefly introduce yourself, tell us a little bit about yourself and we'll get started on a conversation.

HEIDI:

Thank you so much for having me. Yes, I went to law school at the University of Virginia. I grew up in Virginia. Then I went into construction litigation right out of law school, actually both my summers in law school I worked for a construction litigation firm, a boutique litigation firm and ended up doing that for the bulk of my litigation career and about 15 years into my litigation career I transitioned into teaching legal writing. I've been doing that for about eight years now at three different schools. Most recently joined Brooklyn Law School as the Director of the Legal Writing Program, here in Brooklyn, New York. I love to write and my latest project as you mentioned is this booked called the Introverted Lawyer.

MARK:

As an aside, I just finished it. I thought it was a very well done book. I also found it interesting in firms of your history. Being an introvert and having this career in construction litigation, I just thought, "Wow, okay, that had to be a challenge." Let's start off just talking about some basics for out listener. Can you describe some of the key difference between introverts and extroverts in terms of the context of the legal profession?

HEIDI:

Sure, yes. Until I started really studying this in the legal context, I did what most people do and I sort of lumped those labels of quiet individuals together, introverts, shyness, social anxiety. But they're actually very different concepts and different categories of personality traits and preferences. So, first I can sort of distinguish between introversion and extroversion, if that would help, and then distinguish among introversion, shyness and social anxiety. So introverts and extroverts, those terms really just describe the different ways we process stimuli, energy, and information. Introverts process all of those types of things deeply and internally and sort of methodically on the inside. Where as extroverts process stimuli and information and energy externally. So, I kind of like to use the image of Time Square in New York, it's a very highly stimulated environment and an extrovert might thrive on the noise and the action and the number of people and gain energy from that scenario. Where as an introvert can handle that with skill, but in a shorter dosage and will need to sort of retreat to quietude and solitude to regain energy and to process all of that stimuli.

In the legal context, well, introverts can be very adept at processing information and complex legal concepts, they need to do it internally. Actually the scientists say that introverts and extroverts use two completely different neurological pathways in the brain to process information. And the introvert's pathway is longer, so that's why is can take us longer to listen to questions, read something, handle a lot of competing voices in a meeting and we process all of that internally and deeply before we're ready to respond aloud. It can seem like an introvert is slower, but actually they're just going very deep into analyzing concepts.

Shyness and social anxiety and completely different concepts. You can be an introvert and not be shy at all. Shyness and social anxiety and more of a fear of judgment or a fear of criticism in performance oriented scenarios. And that can stem from sort of things that we remember from growing up, maybe we had a coach or a well-meaning mentor or peers or a care giver who put us in situations where we felt judgment or even shame, sometimes, can drive adult shyness and social anxiety. So they're very different categories. I find it helps, when we start to understand ourselves in the legal context what might be holding us back in certain scenarios. It's helpful to understand, "Is this because I'm an introvert and I process things internally or is this because I'm afraid of the perception of judgment from a judge or opposing counsel or a colleague or a client.

MARK:

I find it fascinating. There was some real learning out of this and even just what you shared, but I picked up in the book as well. I am an extrovert. I have always sort of viewed introverts as, if you will, a behavioral situation, a behavioral issue. And I don't want to say ... It's just different. But you're talking about this processing, internal brain. I just found that absolutely fascinating. It really sheds some light on an issue for it. I liked that. What prompted you to write the book?

HEIDI:

Well, throughout my litigation career I always loved the legal research and writing aspects of my job, but I struggled with the performance oriented aspects of my job. As you can imagine, in the construction litigation world, performance matters. It's a tough industry, you have these strong personalities and the cases I was dealing with would take about two years to do to trial from complaint filing all the way to the actual trial. We were dealing with a lot of depositions, a lot of discovery. It was very performance oriented, lots of negotiations. I struggled in those environments because, while I loved the research and writing and figuring out the complex contractual issues and the legal issues that happened in all of our cases, in those moments of performance I felt I had to mirror the other attorney's behavior or the client's behavior and a lot of times, as I mentioned these strong or tough personalities, and I just don't have that personality.

For about 15 years of my career path I thought that was a weakness of mine or there was something wrong with me and I was the only nervous one in the room. And as I describe in the book, I have a blushing tendency, I flush, I turn red, my face gets blotchy when I'm nervous. So I have a really bad poker face in negotiations and in court room scenarios. Again, I always thought that was a flaw and what really prompted me to write this book and study this deeply in the legal context what when I transitioned to teaching, while I was litigating, I was working on a big case out in California and I was asked to start teaching a legal writing course at the same time. And I noticed that my strongest legal writers, my most thoughtful, analytical students were also my quiet ones and the most fearful of the performance scenarios, whether it's the Socratic method in the classroom or a mandatory oral argument simulation.

And I finally thought, oh my goodness, Instead of giving these amazing students this message that maybe you're not cut out for litigation or, if this is so stressful for you, maybe you should go do something else, which were messages that I heard and absorbed in my career. I thought, no, these are amazing thinkers, they're great listeners, they're hard workers, they're creative problem solvers and we need to find a way to explain why certain performance scenarios are harder for some of us than other. And it doesn't mean we're not able to do it or we can't be fantastic at it, we just need to understand ourselves better. So that's what led me to study introversion and shyness and social anxiety in the legal context because no one had really talked about it in the legal profession. We obviously have the stereotype of lawyers being extroverted and confident and sort of gregarious and that's not actually the case in every scenario. My goal was really to help quiet law students and junior associates who were worried maybe they weren't cut out for our profession and empower them to know that yes they absolutely are and here are some tips for amplifying our voices in an authentic manor.

Throughout my career the mantras I always heard was, "Fake it till you make it," or "Just do it," that amazing Nike slogan. But those messages aren't really helpful in the types of scenarios that I struggle with and also that I'm talking about here.

MARK:

And what I really enjoyed and another take-away, I guess, from the book is you really talk about the introverted lawyer has a different set of strengths or assets, if you will. I thought that was very interesting, can you kind of highlight what value, strengths do introverted lawyers bring to the profession?

HEIDI:

Yes, what I noticed and gleaned from all the resources that I studied, is that common themes pervade quiet individuals. If you're thinking about introverts or even people who experience that shyness that I mentioned before. The experts on these issues show that these individuals are active listeners, they really can sit in a room, even with competing voices, and they're listening to what these individuals are saying and they're really focused on hearing what someone else is sharing. They're, as I mentioned before, kind of deep thinkers, really methodical, slow, careful, thinkers, they're processing all this information of a deep level. They also have a tendency towards creative problem solving. Because they're listening and absorbing lots of different competing ideas, they're capable of synthesizing those into solutions that maybe some of the individuals speaking are overlook in the moment. And that's why it can also lead to really strong legal writing because when a person can be quiet and reflective and sort of work out a problem through writing, it can really illuminate solutions to legal problems that maybe aren't apparent if we're just debating and talking about them out loud in a verbal valet scenario.

Then one thing that really surprised me or stood out to me during my research was that these experts pointed out that quiet individuals also bring empathy to a human interaction. As a former construction litigator you might not think of empathy as being an important legal trait or a skill of an attorney. But I started remembering scenarios in my job where we were trying to resolve a conflict on a massive construction project and just to kind of take a step back for a minute and to have empathy and try and figure out what really is driving this conflict? It's not the firing off of these angry emails that people do on construction jobs sometimes-

MARK:

Right.

HEIDI:

... but it's really this human frustration that, on a random Tuesday on the job site, rain is pouring down and materials are late and everybody's trying to get something done and it's not working and trying to really understand from an empathy standpoint what's really driving the conflict from a human perspective. I was excited to hear all these positive traits that quiet folks bring to the legal profession, that we sometimes don't appreciate as much as, in my opinion, we should. Good lawyers need to be good listeners and not always speaking, we need to actually listen to the client who might be afraid to tell us what's really going on. Then good lawyers need to deeply think about complicated legal concepts, the law is hard and we need people who can sort of take a quiet moment, find that difficult answer in a sea of research, take the time to write and reflect on the problem and write out the problem and come to a solution that might not be as obvious if we're just talking about it. Things like that really stood out to me as amazing traits that quiet folks bring to our profession.

MARK:

Yeah, and when I think about all this myself, there are certainly the lawyers that we've been talking about, very, very aggressive and these kinds of things. I don't know that that approach really serves our clients best. And I like the focus on taking the time to really go deep and explore and think through and look at the issues. What I hear is we're placing ... we're moving away from the advocacy model toward a, what is really best for the client, problem solving model, both are necessary. But I really value where you're going with all of this, I really do. I'd like to talk a little bit about the process that you describe in your book. You acknowledge that while introverts and otherwise quiet advocates can be pivotal, change agents for the profession. These lawyers still need to be able to jump into the fray and speak with assertiveness at times because it's just called for, it's necessary. And you developed a seven step process for, if you were amplifying the voice. Can you talk a little bit about these steps?

HEIDI:

Yes, as I mentioned, the messages that I absorbed over my trajectory and my career were always sort of just, "Fake it till you make it," or, "Do these performance events 1000 times and it will get easier." I tried those methods and they absolutely did not work for me, it never got easier and when I started studying this, the book, I realized it wasn't getting easier because I was just hurdling myself into these scenarios without any self-awareness and not really understanding that my approach to the law is maybe different from an extroverted person. In developing the seven step process, it really broke down into a reflective plan and an action plan and really beginning to step into these performance events that we need to do as lawyers-

MARK:

Right.

HEIDI:

... we can't just avoid-

MARK:

Of course.

HEIDI:

... performance or human interaction. But doing it with heightened self-awareness and then a conscience plan for each event. So the seven steps really developed into the first two steps being reflection on mental approached to these types of events and physical approaches. I was really excited when I started realizing how important the physical aspect of anxiety is, like what are we doing physically in an anticipation of these types of events that maybe isn't that helpful to us, it's instinctive what our bodies do physically, but it's not always helpful. So step one is reflecting mentally on what we are hearing in our minds as we are approaching a law related performance event. Some lawyers might sort of resist going that direction and feel like, "Oh, I don't want to get too touchy feely with my emotions." But it's so important to realize and reflect on and listen to what we tell ourselves in anticipation of a negotiation or court room appearance or a difficult conversation with the client, what messages are we hearing in our minds and then trying to pin point, "Wait, where have I heard that before and what's the original source of that message because it absolutely is not the person who's in front of us today."

 

It really comes from this ingrained or entrenched mental messages that we've been telling ourselves for years and years and years. It's really remarkable when you can realize, "Oh, this is not the law professor that I'm encountering or the judge or the intimidating opposing counsel or the strong personality client, this is a, perhaps well-meaning, mentor or coach or authority figure from high school or college or an earlier event in our professional careers. And it's really tremendous when you can realize, "Oh, okay that message no longer has any relevance in my legal persona today." But it takes us taking the time to listen to it and then we can sort of override it or delete it from our mental soundtrack. Step one is that reflection piece on the mental messages.

 

Step two is a physical reflection approach. And I mentioned my blushing problem before. To hide the blushing in my legal career, which I felt was a weakness of just this shiny red billboard of my fear, I used to hide it. I used to wear turtlenecks and scarves and try and hide myself, but physically that was just making my physically reactions worse because I was hot, I was feeling constricted. When I started doing step two, which is the physical reflection piece, you realize your body is just going into instinctive protective mode when you feel fear or anxiety. But what we do is we close ourselves off. We cross our legs or hunch our shoulders or constrict our bodies to get small and invisible. But all that's doing is constricting our energy, our adrenaline, it's preventing us from breathing clearly, it's effecting the oxygen levels going to our brain, our blood is not flowing in a productive manor. But we don't realize that's happening to us until we take the time to reflect and monitor sort of minute-by-minute what we do instinctively in anticipation of a stressful moment. Step one and two are really the reflection piece.

 

Steps three and four are flipping those recognitions or those realizations and having a new plan. Step three is having a new mental action plan. And I kind of like to analogize to the fire fighter mantra of stop, drop, and roll. When we step into a performance event or anticipate one, those old messages are gonna show up they just do, they've been ingrained in us for years. But we hear them and realize, "Oh, wait a minute. I'm gonna stop. I'm not gonna listen to that and instead I'm gonna apply my new approach. I've prepared for this event, I know the case law or the statute of the client facts better than anyone in the room, I've done all this preparation, and I have something to say. I'm gonna do it my way." And just having this new mental action plan for when those old messages creeped in.

Same thing when the physical action plan, which is step four. It's knowing that our bodies are instinctively gonna try and close us off from the event and protect us. But having an athlete's approach to the performance event, standing in a balanced stance, either at a podium or even in a seat at a conference table, opening up your channels of breathing oxygen flow, blood flow and giving your excess energy and place to go. It's amazing in a performance moment when you realize, "Oh, I'm crossing my legs again. I need to sort of balance myself out and breathe. And it's really incredible when you realize just by making subtle physical changes, you can breathe better and then your brain works better and everything just kind of flows in a positive direction.

And then steps five, six, and seven are really just building on that for the long-term. Step five is about developing, what the experts call, and exposure agenda. When I first read about the term exposure, I thought this sounds dangerously like just do it, just expose yourself to these scary events and everything will be fine. But exposure in the psychology perspective is stepping into these moments with self-awareness and a plan and it's really looking at law related scenarios that might give some of us anxiety, consciously prioritizing them from least anxiety producing to most anxiety producing. And then having a real conscious mental plan and physical plan for each event incrementally. And then stepping into each event with purpose and the plan.

And then step six gets even more nitty gritty and tangible with each event and that is designed to have, to use an athlete metaphor, a pregame plan and a game day plan for each of those events, trying to put yourself in the scenario, substantively, mentally, and physically if you can go to the space, go to the room if that's possible, check out the seating arrangements, the podium, is there a microphone, what's lighting like, how many people are gonna be there, and just anticipating different situations that normally might derail us but now we can take more control.

And then step seven is just a reflection after each event and figuring out positively what worked great and maybe what you can make some subtle changes to for the next event.

MARK:

What I liked about ... again, as an extrovert approaching this material, I think there's a lot of value to it for non-introverts as well. I really like this aspect of self-reflection and trying to understand, both emotionally and physically, why we do what we do. I think sometimes people are very aggressive for fears and all kinds of things. You see where I'm going. I love the whole model that you've developed here.

HEIDI:

Thank you.

MARK:

Can you talk a little bit about ... the temptation, if you will, is to say, okay. We've talked about some of the strengths are introverted lawyers have. Does that, from your perspective, do you think limits that areas of practice that introverted lawyers can really excel in? Do you see where I'm going with this?

HEIDI:

Right. Not at all. I don't feel the introverts should limit themselves to the types of areas of legal practice or really any aspects of legal practice. To be honest, those were the kind of messages that I either heard or I misinterpreted that, "Well, why did you do into litigation if you were nervous about taking a deposition?" Or, "Why did you go into construction law if you didn't want to fight like a champion?" And I don't think those are productive messages at all because in my experience and working on myself. I realized introverted and quiet individuals can do any aspect of law, they just need to have better self-awareness or enhanced self-awareness of their strength and also scenarios that might cause them some particular challenges, how to step in to those challenges with force and amplification, but in an authentic manner, not trying to fake extroversion or mirror the behavior of a really boisterous gregarious person, but instead stepping into the scenario as a calm, quieter figure but with power. And it was eye-opening when I realize, a quiet individual can be a very tremendous voice in a negotiation or in the courtroom. We don't all have to be boisterous and gregarious to be effective.

That was a huge realization for me. I definitely do not think that introverts should only go into transactional law, for instance, because transactional law requires a lot of performance, so you're really not cutting out those performance scenarios. But I also feel that if we encourage introverts to limit their interest, we're missing out on a tremendous body of voices that have great ideas for any aspect and any area of practice if that law and that's not what we should be doing. We should be including these voices in all aspects of our legal profession. What's been fun and exciting throughout this journey with this book is talking to extroverts who were open to understanding introverts better so they can better manage teams and understand that having both introverts and extroverts on a legal team, whether it's in transactional work or a litigation is an asset because you're bringing these different minds together to solve problems in different ways, and that's really gonna serve the client better. Rather than us all trying to be this one stereotypical lawyer.

MARK:

Let's follow up on that just a little bit because I will confess that I have been one of these people that will say, or at least out of naivety had this thought, that but do it kind of a thing. You know what I ... what advice do you have for manager partners or supervision attorneys in terms of recruiting and developing a talented pool of introverted lawyers?

HEIDI:

I've been really excited to hear how open so many managing partners and leaders are in learning more about different personality types and being vulnerable themselves and looking to see if, are they really extroverted or have they just been acting extroverted all these years. I think the more that law office leaders or law firm leaders or legal profession leaders understand that we are not all the same, but getting a little touchy feely I guess with personality traits and understanding the assets that different diverse individuals bring to the profession is a huge first step. Just realizing, okay, we're not all the same and that's a good thing. Then I've also been trying to study and understand how to encourage law firm leaders and law office leaders to acknowledge the presence of fear in lawyering because there are many scenarios that we encounter in the practice of law that are just scary, and they're scarier for some of us than others.

It really accomplishes a great deal when a law firm leader can say to junior associates, "Hey, look I realize that some lawyering scenarios are gonna be scarier for some of you than others, that is okay. It doesn't mean you're not cut out for this. But let's talk about that and really figure out what is it about this particular deposition or negotiations or client scenario that's troubling you and let's talk about the tactical aspects of it." Not always the substantive preparation because I think all of us endeavor to work as hard as we can on the substance of the law, that really being honest about the mental aspects of our job, that tactical scenarios that we don't always teach in law school, and we assume that junior attorneys can just figure out in the field. Managing partners and law firm leaders, really sit down openly and talk with junior attorneys about the reality of fear in lawyering and provide helpful advice and mentoring on how to handle those scenarios without judgment, without making it seem like a weakness. I think that will really go to great lengths to help the well-being of our profession and help everybody perform better and serve our clients in a really fantastic way.

MARK:

I have one final question I'm very curious about. You've come out at the end of an interesting journey, and we have the book here. Knowing what you know now, if you were to go back and do it all over again, in terms of your career, would you do anything different?

HEIDI:

I would have been so much healthier. If I had known all this then, I would have been able to take the pressure off of myself to prepare for depositions and trial work and client scenarios in a way that made it okay for me to turn red in a deposition and keep going, keep going with my plan, don't let my nerves make me feel weak or like I'm not but out for this. And I so wish I could go back and redo all of those scenarios and just be able to talk myself through those scenarios realizing you are substantively prepared, you know what you're doing, you have a voice, you're entitled to do it your way and not try and mirror the guys across the table, don't worry about if you're blushing, it doesn't matter, you're doing a good substantive job. And I think I would have had a much healthier journey through my twenties and my thirties. But I think all of that experience led me to the place that I am now and I'm very happy in my job, I love teaching legal writing, it's a powerful medium for lawyers to communicate and this book has really taught me how introverts and shy and socially anxious law students can really change our profession if somebody just takes a moment to tell them, "You can do this." And that's been very exciting.

MARK:

We are at the end of our time here. I'd like to say, Professor Brown, thank you so much. It really has been a pleasure. To our listeners, I hope you found something of value and interest today out of this conversation. And if in future you have any ideas for topic or if you have questions or concerns you'd like to see addressed in one of our podcasts, please don't hesitate to reach out to me at mbass@alpsnet.com. Thanks for listening. Bye-bye.

 Heidi K. Brown is a graduate of The University of Virginia School of Law, a law professor at Brooklyn Law School, and a former litigator in the construction industry. Having struggled with extreme public speaking anxiety and the perceived pressure to force an extroverted persona throughout law school and nearly two decades of law practice, she finally embraced her introversion and quiet nature as a powerful asset in teaching and practicing law. She is the author of a two-volume legal writing book series entitled The Mindful Legal Writer, won a Global Legal Skills award for her work in helping law students overcome public speaking anxiety in the context of the Socratic Method and oral arguments, and was appointed to the Fulbright Specialist roster to teach English legal writing in international law schools. As the author of The Introverted Lawyer, Heidi champions the power of quiet law students and lawyers to be profoundly impactful advocates, in their authentic voices.

Episode 11: Where Legal Tech is Heading

If you are not already aware, ALPS proudly partners with Clio, the easy-to-use cloud-based law practice management software company with over 150,000 subscribing lawyers.  ALPS policyholders enjoy a 10% lifetime discount on their Clio subscription. We are also lucky to work with Clio to better understand where legal tech is heading and how we can leverage these advancements as they relate to risk management. ALPS Risk Manager Mark Bassingthwaighte connected with Clio's Content Strategist Teresa Matich and Lawyer-in-Residence Joshua Lenon to elaborate on Teresa's recent blog, 10 Predictions for the Next 10 Years of Legal Tech. The predictions were gathered via Clio Advocates, an online community of legal professionals, legal tech visionaries, and Clio team members. The discussion unearthed some of their most interesting findings. Joshua also weighed in on why lawyers should innovate their practices to avoid risk rather than maintaining the status quo out of fear of the unknown. Joshua also discussed how Clio is helping the legal community innovate intelligently through its million dollar development fund.

ALPS In Brief, The ALPS Risk Management Podcast, is hosted by ALPS Risk Manager, Mark Bassingthwaighte.

Transcript:

MARK:

Welcome to another episode of ALPS in Brief, the ALPS risk management podcast. We're coming to you from the ALPS home office in the historic Florence building in beautiful downtown Missoula, Montana. I'm Mark Bassingthwaighte, the ALPS risk manager, and I have the pleasure of sitting down today with Teresa Matich and Joshua Lenon, both with Clio, a company that delivers cloud-based practice management technologies to lawyers worldwide. Teresa, Joshua, welcome. It's a pleasure. Before we jump into the conversation we're about to have, can you just take a few brief moments and tell our listeners a little bit about yourselves?

TERESA:

Sure. I'm Teresa Matich. I'm a content strategist at Clio, and I manage the Clio blog, where we write about legal technology and the business of law for law firms of all types.

JOSHUA:

I'm Joshua Lenon. I'm the lawyer in residence at Clio. I provide legal scholarship and subject matter expertise to our teams throughout Clio, including Teresa's great blog.

MARK:

That is a good blog, I'll give you that. I enjoy it, and that's really what sort of prompted this podcast idea. It's been a little while, a week or so here, but you came up with the top ten legal predictions for the next 10 years, and that was just one of your blog posts. I thought that was very, very interesting. Normally when you see these predictions for what's going to happen, it's some lawyer sitting down or some tech person sitting down, but this really came out of the advocate community, as I understand it.

Can you tell us a little bit about the Clio advocates community, talk about how the predictions were collected, and just tell us a little bit about the process?

TERESA:

Sure. We wanted to look at predictions for legal tech over the next 10 years, because it's actually Clio's 10th anniversary this year. 10 years ago, Jack and Ryan set out to build Clio and today Clio is the most powerful and popular cloud-based practice management platform available with 150,000 users in 90 countries. A big part of Clio's success has been the people who use Clio, so we thought it would be fitting to ask them what their predictions are for the next 10 years. As you mentioned, the post came out of a discussion in Clio's advocates community, which is the official Clio community where customers can go to discuss legal topics, share their expertise, get advice, and just engage with each other and build that community.

Anyone who wants to join can learn more. You can join at advocates.com/join/advocates. There was discussion going on. We asked what their predictions were for the next 10 years, and we picked some of the most popular ones for this blog post.

MARK:

Nice. When you look at this, in terms of popular ... What surprised you the most about what you found?

TERESA:

There were a few things. The one thing that surprised me in the discussion was how many people predicted that paperless law firms were going to be a big thing in the next 10 years.

MARK:

Mm-hmm (affirmative).

TERESA:

Paperless is a big thing for a lot of law firms now, and I guess I was surprised to see so many law firms seeing that trend continuing and seeing law firms not just be mostly paperless but entirely paperless in the next 10 years. The second thing, along similar lines, is one person's prediction that traditional offices would disappear entirely, and that jurisdictional issues would go away, and lawyers would work across state lines with lawyers in other jurisdictions. Whether you got a mobile practice or you're working from home or you're using a shared workspace, that trend is only going to continue, which does make a little bit of sense.

MARK:

Yeah.

TERESA:

Office overhead is expensive, and then the third thing was Jordan Couch’s prediction that lawyers will practice more like doctors, which was a really interesting way to frame it. In his view, artificial intelligence and automation will not threaten the jobs of lawyers by passing off more routine tasks to apps and services and other legal professionals. Lawyers, like surgeons, are going to be able to focus more on their craft and more on practicing law, which is what most of them want to do in the first place.

If you've got a platform like Clio where you can log time with just a few clicks, communicate with your clients securely, and look at reports and data to see how your firm can improve, you're going to much better off than if you're trying to do those things all on your own without the right tool.

MARK:

It's interesting, and I agree with some of these predictions, just in terms of our own experience, and I do a lot of consulting over the years with apps and just in terms of visiting with firms around the country, but we are seeing more and more, in terms of just supporting what the advocates are saying, lawyers are moving into the, if you will, virtual space or virtual practice space. I see more telecommuting. I do see an increased pace of movement to the cloud, in terms of dropping off the paper, kind of, side here with all of that. It's been fun. It's interesting.

I'm the risk guy, as you're well aware, and work with the malpractice insurance carrier. This is our world. Thinking about the advocate community, the kinds of things you're seeing and learning, what do you think we should be educating our policyholders about? Do you have any thoughts on that one?

JOSHUA:

I do think risk always is a factor when it comes to running any type of business, not just a law firm, but lawyers actually have a phenomenal resource that they're under-utilizing when it comes to managing, measuring, and preparing for risk, and that is their professional liability insurers. Too many lawyers don't innovate because they think their liability insurer will say no, when in fact, what liability insurers in my experience look for is a bit of collaboration, a little two-way communication, such that they can prepare alongside the law firms for these upcoming changes.

Lawyers who want to innovate should, but they should be reaching out to their liability insurers and making sure that everybody's on the same page moving forward. In fact, they can probably get some great advice from their insurers on what's worked for other firms, and better approaches towards managing that risk if there is a factor in their expense.

MARK:

Again, I agree. I'm getting more and more these calls and emails coming in, talking about, "Is it safe to be in the cloud? I'd kind of like to go here, but we're afraid that you as our insurer will say, 'Oh, no. That's too risky.'" My response is, I don't think you guys can get to the cloud fast enough. Part of my challenge is, in trying to educate, say, when you think about moving to the cloud, we need to ... It's not the cloud, if you will, it's how we interact with the cloud, and so there's an opportunity for me to do some training and educating in terms of how to use it more responsibly.

As I've looked at your site and we have a partnership here in terms of Clio and ALPS, and our insurance, do get some discounts in working with you folks, and so we're well aware of what you do. I've been very interested in your million dollar Clio development fund. Can you tell our listeners a bit more about what this fund is about? How do you envision this helping current and future Clio subscribers, and maybe tell us a little bit about what's already being funded?

JOSHUA:

Thanks, Mark. The developer fund is an experiment, but one that we're very excited about. We know that there's no one way to practice law. In fact, our advocates community, the feedback loops that we have via our support team, all tell us of lawyers having, sometimes, very highly specialized needs when it comes to their technology. While Clio is a great platform and highly customizable, it doesn't have, necessarily, every tool for every niche practice out there.

We've been very fortunate to leverage cloud technology to create a platform where law firms can pick their favorite tools to meet their needs and specifications, and plug them into Clio, such that information syncs back and forth, it reduces transcription error, it increases responsiveness, and generally prevents a lot of the different types of complaints that we see coming towards lawyers when it comes to juggling a whole bunch of different data silos separately. When it comes to the developer fund, we know that it's very difficult for tools that target niche practices or niche functions within those practices, to really get up and running fast enough to be sustainable, so our developer fund is one way of us taking our success and investing in these third party tools, such that they're creating these highly specialized components that law firms can plug in.

For example, if you are an immigration firm and really need a strong workflow for soliciting family information or business information and populating those government forms quickly on behalf of your clients, we have several tools that now plug into Clio and just do that for you. Clio will handle your time and billing, your secure communications with those clients, but this plugin tool will handle the forms for you, and between the two, you have an entire immigration practice basically in the palm of your hand on your mobile phone.

If you are an IP attorney, you can plug in a tool like Alt Legal and that will handle your patent documenting for you, which is, again, a highly specialized workflow that Clio would love to build, but it only represents a portion of the 150,000 lawyers that we service, so we have to pick and choose, but we can devote things like our developer fund to get massive scale and massive functionality for lawyers around the world with a cooperative environment.

MARK:

What I hear, and what I really like about this, is, again, talking with our insureds over the past five to eight years as they look at this possibility of moving into the cloud. There've been all kinds of roadblocks that I hear, and what you're saying is, we're now in front of this. We are removing the roadblocks so that we can make the transition for this, particularly what I ... In terms of a lot of our insureds, the solo, small firm lawyers, make this transition to the cloud very smooth and make them far more productive. I just think this is a fantastic approach. Very exciting things happening. That's just fantastic.

We're about running out of time, here. To wrap up, can I have each of you just share a final thought in terms of encouraging, why is it important for legal professionals to at least understand, if not move forward and embrace technology at the level of the like of which Clio offers, that kind of thing? What are your thoughts, final closing thought?

TERESA:

Sure. First, I would say that knowing the benefits and risks of technology is fast-becoming a necessity, not a nice-to-have. 31 states have already adopted comment eight on the ABA's model rule for professional conduct, rule 1.1, and that states that law firms must stay abreast of changes in the law and its practice, including the benefits and risks associated with technology. If you're not using technology to serve your clients better or if you're not aware of the risks that come with technology, it's really important to get educated. The Clio blog covers these topics regularly and you can subscribe to that at clio.com/blog. We put out a regular digest with articles.

The second thing I would say is that technology can do a lot to help you practice more efficiently and help your clients better and focus more on the practice of the law. As Jordan said, lawyers who leverage technology are going to have more of an opportunity to focus on what they got into law to do in the first place.

JOSHUA:

I think that it's only going to get better from here. That's one of the exciting things about legal technology, is I think we're at an inflection point, where better and better tools will come into the hands of lawyers, giving better and better service to their clients, and getting in on the ground floor of that is a market opportunity for the law firms out there.

MARK:

Yeah, yeah. You know, may I just throw one other question at you, based on a conversation I had actually a little bit earlier this morning with another one of our insureds. I would just be curious in terms of the thoughts of either of you on this one. I'm going to restate it, but, this comes up quite a bit in my world. Mark, I'm thinking about looking at a cloud product, whether it's just file storage to a full practice management solution, such as Clio, but my concern is, if I start to let go of my data, I'm concerned about the security of all of that. I am now out of control. What would your response be to someone that says, "I'm just having a little trouble letting go." Can you speak to just data security overall in a solution like Clio versus just keeping everything local?

JOSHUA:

You got it. First of all, dollar per dollar, you get more security moving to a reputable cloud provider than you can ever provide inside of your office, things like 24/7 supervision of the technology are things that Clio provides that a lawyer just can't do in a smaller boutique firm. There's, unfortunately, just not enough dollars to cover that type of security coverage, so moving to the cloud is a great way to get more for your money, but you do have to pick a reputable provider. One way to find out if somebody's a reputable provider, is to look at their transparency when it comes to their security preparations, their willingness to answer your questions, and, quite frankly, their reputation amongst a lot of your peers.

Clio, for example, has a public report on our status for how long we've been up, for the last ... I think it goes back an entire year now, the current report, and for the last three months, for example, I can tell you that Clio has been down a total of three minutes over those three months. That's the type of transparency we provide. We also provide third party security audits that are done on either and hourly or daily basis, depending on which of the three reports you look at. Those are available to the public as well, so you can always see how we're doing and whether or not we're leading the market in security, or lagging behind. Our goal is to always be leading.

MARK:

Yeah, yeah.

JOSHUA:

Yeah, and because of that, then you can take a look and see, not only are we being transparent, but then, what's our reputational effect? Our partnership with ALPS, for example, is one metric that a firm could look at to see that, not only are we being transparent, but we're also being vetted by people who are knowledgeable in the business, and that deem us to be a good bet.

MARK:

I appreciate you sharing that, Joshua. I do think it's important for our listeners to hear directly, if you will, from the horse's mouth, the answer to the question, so thank you for taking the time for that, and boy, I couldn't agree more with you. It's the same message I try to preach, but again, sometimes hearing it from the provider themselves, for themselves, is an important thing. That's about all the time we have today. Teresa, Joshua, thank you very much. It's been a pleasure, and for our listeners, I hope you found something of value and interest today out of this conversation. If, in future, you have any ideas for topics or questions or concerns you'd like to see addressed in one of these podcasts, please don't hesitate to reach out to me at mbass@alpsnet.com. Thanks again, thanks for listening. Have a good one, folks. Bye bye.

 

Joshua Lenon is an attorney admitted to the New York Bar.  He studied law at St. Louis University School of Law, obtaining a Juris Doctorate and a Certificate in International and Comparative Law. Joshua has since helped legal practitioners improve their services, working for Thomson Reuters' publishing departments in both the United States and Canada. Joshua currently serves as Lawyer-in-Residence for Clio, providing legal scholarship and research skills to the leading cloud-based practice management platform from Vancouver, Canada. He's been a guest lecturer for movements like legal hacking and legal technology at schools like MIT, Suffolk Law, and Vanderbilt, as well as before organizations like ReinventLaw and the ABA Law Practice Futures Initiative.

 

Teresa Matich manages the Clio Blog, where she writes about legal technology and the business of law for legal professionals at firms of all sizes. She has previously worked as a reporter in the financial sector, and prior to that, she worked as an office clerk at a Vancouver real estate law firm.

 

Episode 10: Why is mandatory malpractice insurance gaining ground?

 

ALPS Executive Vice President, Chris Newbold, recently sat down with Doug Ende, the Chief Disciplinary Counsel at the Washington State Bar Association in the Bar's Seattle offices. Doug was able to shed some light on mandatory malpractice insurance from a disciplinary perspective and how coverage not only protects attorneys but ultimately is a protection for the public as they engage legal services.

ALPS In Brief, The ALPS Risk Management Podcast, is usually hosted by ALPS Risk Manager, Mark Bassingthwaighte. This episode is hosted by Chris Newbold, ALPS Executive Vice President.

Transcript:

CHRIS:

Hello, and welcome to ALPS in Brief. This is Chris Newbold, executive vice president of ALPS, and today I sit in downtown Seattle in the offices of the Washington State Bar Association with Doug Ende, who's the chief disciplinary counsel of the Washington State Bar Association.

And we're going to talk about an issue that is kind of growing I popularity, dare I say a trend, perhaps, in the legal world, which is bar associations and regulators thinking about their role with respect to protecting the public and whether they should require mandatory malpractice as a condition of licensure to be an attorney.

So Doug has been working on this issue, and so Doug, maybe you could start off by just introducing yourself and your role, how long you've been with the Washington State Bar and what you generally do both with respect to this issue and other responsibilities.

DOUG:

Sure. Thanks, Chris.

I am, as Chris mentioned, the chief disciplinary counsel at the Washington State Bar Association, so my typical portfolio of work is as director of the Office of Disciplinary Counsel, and that is the component of the bar that receives grievances or complaints against lawyers alleging ethical misconduct, investigates those complaints and prosecutes allegations of violations of the Rules of Professional Conduct. So that's my typical day-to-day work.

I should say that in my capacity as staff support or staff counsel to the Mandatory Malpractice Insurance Task Force, that's not because there's a disciplinary dimension to mandatory malpractice insurance, and it's not the intent and it won't be the outcome that it's a disciplinary initiative. It's a general regulatory initiative.

CHRIS:

Sure. And what do you think was the catalyst to get the discussion going in Washington? I mean, obviously there's lots of different kind of things going on in terms of some other states looking at this particular subject, but as it relates to Washington, why do you think now the discussion's happening here?

DOUG:

I would say that there are a number of reasons or catalysts that generated a discussion starting in 2016. One of those catalysts was the existence in Washington State of two other license types: limited practice officers and limited license legal technicians, or LLTs, both of which by rule are required as a matter of licensure to carry malpractice insurance, or otherwise in some cases, to establish proof of financial responsibility. And the gap or the dissonance between one license type being require to have insurance, professional liability insurance, and another license type, the lawyer license type, not having that requirement, began to be questioned.

Simultaneously, there were some members of the Washington State Bar Association that began to inquire of the Board of Governors, "Is this an issue that needs to be revisited in the state of Washington?" And as that exploration happened, the Board of Governors did authorize a work route to start to look into the issue. In 2016, Idaho, seemingly out of nowhere, came on board as requiring mandatory malpractice insurance, becoming, as you know, the second state in the United States to do so.

So I would say those three factors coalesced and became the impetus for further investigation.

CHRIS:

Yeah. And Washington's obviously what I would consider a large state from a lawyer population size. Talk to us about just kind of the numbers of lawyers that you have in Washington. To the extent that you know, how many are in private practice, to the extent that you know, to what extent there might be a problem in terms of lawyers being uninsured in the Washington legal market in terms of those providing service to clients? What do the numbers tell you?

DOUG:

So the membership of the bar in Washington is relatively large for a west coast state. Setting aside California, which is in another league, Washington I think has the largest population of lawyers in the western states. We have approximately 40,000 members, approximately 32,000 actively licensed lawyers. Unfortunately, I don't have at my fingertips the breakdown between private practitioners and other practitioners, but there are a great many private practitioners, lawyers, in Washington State.

And we do have the advantage in Washington State of having some information about private practitioners who are insured or not insured, because we do have an insurance disclosure rule. The insurance disclosure rule, which is in our Admission and Practice Rules, is based on the model ABA as a model insurance disclosure rule. And essentially what it requires is as part of annual licensing, lawyers inform the Bar Association whether they're in private practice, and if so, whether they are carrying professional liability insurance, malpractice insurance.

We've had that rule and we've been collecting that data for about 10 years now, so we have a reliable and fairly deep data source for that information. And at least in recent years, past three-plus years, what that data shows is that of lawyers in private practice, about 85% are reporting that they carry insurance and 15% are reporting that they do not.

CHRIS:

Okay. And what does your gut tell you about that fact? I mean, you obviously work for an organization that has a mission, a component of your mission that's protecting the public, right? And with 15% of your lawyers in private practice going uninsured, what do you think about that?

DOUG:

Yeah, absolutely. Part of the Bar Association's mission is both to serve its members and to serve the public, and certainly a key component of the regulatory mission is to protect the public and make sure legal services are being delivered in the public interest.

From a disciplinary perspective, we do from time to time see the tragic stories where lawyers have made a mistake, there's been an act of negligence, if you will, the client has been harmed, maybe lost their ability to protect a legal right or lost a remedy of some sort, and in the absence of malpractice insurance or other means of, say, satisfying a judgment or making the client whole, most of those individuals have no legal remedy. And from a regulatory and public protection standpoint, that seems like a failure of the mission.

CHRIS:

Yeah. One of the things I think is very interesting about the issue is there are very clear and stark excellent arguments on both sides of the ledger on this particular issue. If you look at Idaho, for instance, when they put this to a vote of their membership, 51/49, right? It was kind of right on the cusp. And obviously, it went in the favor of yes and went to the Supreme Court and got passed.

I wonder if you could just kind of briefly lay out for us kind of what you see as what's the argument for, what's the argument against? Because I do think that the arguments are kind of rock solid on both sides, and most people come at it with kind of a definitive sense of, "This is what I think."

DOUG:

Right. There are interesting and important arguments on both sides of the issue. And I should say preliminarily that when the Board of Governors, the Washington State Bar Association Board of Governors, authorized this and convened this task force, the issues on both sides were paramount in the minds of the board members. And they made it very clear in the charter of the task force, that job one, literally purpose number one, is to solicit and collect input from Washington State Bar Association members about the issue of mandatory malpractice insurance, so that is an element of what the task force is doing.

The arguments, on the one side, it is fundamentally a public protection argument, that in the absence of insurance, lawyers who are practicing and delivering legal services are putting clients, putting consumers, putting the public, at risk should a circumstance arise where someone is harmed and there isn't a realistic remedy to address that harm. There's also perhaps, I'm sure you're familiar with, a risk management component, that it's in the best interest of the members to have that protection. And we see that in other context. Not everyone necessarily likes or wants automobile insurance, and yet as a policy, our government has decided that that needs to happen for the protection of others and for the protection of ourselves. And I think some of the arguments here are similar.

CHRIS:

Yeah, particularly as a self-regulating profession, right? I mean, if we're not regulating ourselves, then we, I think, open ourselves up to other branches of government thinking that they need to regulate us. And so there is kind of some notion of if we're not leading ourselves in this protection movement, then we're probably leaving ourselves vulnerable to others kind of infringing in that space.

DOUG:

Absolutely, to the extent we are self-regulating. And of course, we're ultimately judicially regulated, as the Supreme Court has plenary authority to regulate the practice of law and delegate some of it to the Bar Association. I think it's obligatory on a somewhat self-regulated profession to not act only in its own interest, but also to act in the public interest.

On the other side of the equation, there are important arguments, multiple arguments, and we've seen some of them already come through to the task force, that there's a cost issue. It's going to add yet another cost of doing business to this regulated industry, and I think it's fair to say that no one likes the idea intrinsically of adding more cost to the cost of doing business. Related to that argument, there are those who argue because of the nature of their practice, the cost is prohibitive, because as you well know, not every practice area presents the same risk, and therefore, insures at the same cost.

Some arguments relate to where particular lawyers are in the continuum of practice. So for example, lawyers at the tail end of practice thinking about winding things down or in the midst of winding things down I think are concerned that given the level or magnitude of the practice, which is perhaps diminished, the cost of obtaining malpractice insurance would outweigh the value of continuing to maintain an active license. So they suggest that for retired or nearing retirement practitioners, this may drive them out of practice for new lawyers just coming in to the profession, perhaps carrying a substantial debt load from law school and perhaps even larger than just law school. Again, there's a cost concern.

And then finally, and I'm not necessarily naming every conceivable objection to mandatory malpractice insurance, but some point to an issue of uninsurability. I don't know of the extent to that's true. You probably know more about insurability versus uninsurability than I, but I think some members are concerned that if there are truly uninsurable risks that those individuals are going to be forced out of practice because they just can't obtain obligatory insurance.

CHRIS:

Sure, sure. So where are you at now in your process? Obviously the task force is being convened. As you think about the next 12 to 18 months, where do you see that process going, and then ultimately, what steps does the task force envision kind of taking in terms of recommendations and so forth?

DOUG:

We are still in the fairly early stages of our process. The board launched the task force by adopting its charter in September of 2017. The task force was convened and had its first meeting last month. We are in February of 2018. The task force is about to begin its second meeting. So we are really still at the headwaters, the information-gathering stage. So the Board of Governors through its charter asked for a report and recommendation from the task force in January of 2019. So they gave the task force about a year to do the work, determine what its recommendation would be, and prepare its report back to the Board of Governors.

So what we expect is at some point the task force will make a recommendation. I wouldn't be surprised if it evaluated more than one possible solution to the issue, malpractice versus other initiatives that might service the same or a similar public protection purpose. And we'll solicit and gather input from the WSBA membership when those recommendations start to solidify, and then based on all of that information, we'll report back to the board, we fully expect, in January 2019.

CHRIS:

Okay. Well, good.

Doug, any other kind of closing comments or remarks or kind of perspectives that you'd like to share with our audience?

DOUG:

Should any WSBA members find themselves interested in the issue, or even others find themselves interested in the issue, and care to share their perspective with the task force, with the Board of Governors, now would be a good time. There is a web page on the WSBA website devoted to the activities of the task force, so it's easily accessible and it's easy to provide feedback through electronic means, and we are be eager to hear from the membership, to hear from the public, to hear from others, about these ideas.

CHRIS:

Great. Well, thank you, Doug. I mean, this is an interesting subject, obviously one that we're kind of keeping a close eye on as the endorsed malpractice carrier for the Washington State Bar Association. And I think the carriers are obviously thinking about the affordability issue and whether even some insurance at a good or a basic level is better than no insurance, and particularly your solo practitioner community is a community that we're particularly sensitive to as we think ahead to the future of the market.

DOUG:

Sure.

CHRIS:

Well, good. I appreciate the time, Doug.

And if you have any other thoughts or questions about this subject, feel free to contact me, Chris Newbold at ALPS, cnewbold@alpsnet.com, and we thank you for listening.

DOUG:

Thanks, Chris.

Episode 9: The LLLT, Pioneering Efforts in Access to Justice

Recorded from the Washington State Bar Association offices in Seattle, ALPS Executive Vice President, Chris Newbold, sits down with WSBA Executive Director, Paula Littlewood to discuss Washington’s pioneering efforts in improving access to justice through the Limited Legal License Technician (LLLT) licensure. Today there are 80-90% of people with civil legal problems, particularly people in a lower income bracket, who don’t or are unable to receive help from a lawyer. Hear about where the program is today, its foundational principles and why it is being closely watched nationally as a forward-thinking solution by access to justice advocates as the first independent paraprofessional license in the legal profession in the United States.

ALPS In Brief, The ALPS Risk Management Podcast, is usually hosted by ALPS Risk Manager, Mark Bassingthwaighte. This episode is hosted by Chris Newbold, ALPS Executive Vice President.

 

Transcript:

CHRIS:

Okay. Welcome. Thanks for joining us for another episode of ALPS in Brief. My name is Chris Newbold. I am Executive Vice President of ALPS. Today I'm sitting in downtown Seattle in the offices of the Washington State Bar Association with a colleague and a friend, Paula Littlewood, who's the Executive Director of the Washington State Bar Association. I want to talk about a subject that is trending nationally, which is thinking about how we battle access to justice issues and one of the innovative programs that the Washington State Bar is involved with, which is the triple L.T. program, the Limited Legal License Technician. Before we start, Paula, if you could introduce yourself, your role, and what the Washington State Bar does.

PAULA:

I am Paula Littlewood, Executive Director of the Washington State Bar Association. I've been here about 15 years. The Washington State Bar is what's known as an integrative bar, so we are the regulatory agency operating under delegated authority from the Washington Supreme Court to regulate all licensed legal professionals in the State of Washington.  We are also the professional association supporting our members as they do their work and serve the public.

CHRIS:

Okay. One of the issues that we're really focusing on today is the issue of access to justice. We know that 80 to 90% of folks with civil legal problems in the United States, particularly those of low income, never receive help from a lawyer. I know that one of the things that you've been trying to do, as part of your job here in Washington, is to think about that challenge and to come up with solutions. One of the ways that you've done that is a program that, if you go out to the National Bar Association regional bar gatherings, it's hard not to hear about this particular subject that you all are at the forefront of. Talk about what the triple L.T. program is and why it's unique and why it's different when you think about the context of alternative legal services.

PAULA:

Probably the first thing I'd say is it's not a program. It's a license. What we are doing in Washington State is licensing the first independent paraprofessional in the legal profession in the United States. In many states you might be familiar with a nurse practitioner in the medical field. Nurse practitioners in many states, in our state, are licensed to work independently of the doctor to give medical advice up to a certain point. When they reach the edge of their license, and the scope of their responsibility that they're licensed to do, they refer the patient on to the doctor.  Triple L.T. is the exact same concept in the legal field. A triple L.T. is licensed. They have a limited license, hence the name limited license legal technician, to work independently. If they choose, open their own practice separate from a lawyer, to provide legal advice in certain practice areas.

The Supreme Court rule that creates this license is designed to be applied in various practice areas. The first practice area that the triple L.T.s are licensed in in Washington State is family law. One of the things that the Supreme Court's triple L.T. board is exploring now is what the next practice area will be. It's envisioned that some triple L.T.s may want to get licensed in multiple areas or there may be people that aren't interested in family law but, if a different practice area comes on line, they may choose to become a triple L.T. in that practice area.

I think it's important to distinguish the triple L.T. from other alternative service providers that we all are familiar with nationwide. We have document preparers. We have courthouse facilitators. We have the New York navigators who are all critical in helping service the public. The different with the triple L.T. is they are licensed to give legal advice just like Chris and I are as lawyers. We actually don't consider triple L.T.s non-lawyers because they have a license to practice law from the State Supreme Court just like I do. It's just that they have a limited license and can only provide services up to a certain amount, and then by court rule are required to refer the client on to a lawyer.

CHRIS:

Okay. What was the catalyst for the program? Who provided the thought leadership in coming up with the concept?

PAULA:

It's a two-track approach that it came in on. There was a Supreme Court board. The Washington Supreme Court had a board known as the Practice Law Board.  They were looking at unauthorized practice law and how can we deal with the unauthorized practice law? That was one track that brought us the triple L.T. They were trying to figure out how do you provide to the consumer qualified and regulated legal service providers? At the same time, our Washington Supreme Court had commissioned a civil legal needs study, which quantified the unmet need. Chris referenced this at the beginning of our talk, the unmet need in our country.

The civil legal needs study, we knew we had a lot of unmet needs, but it gave us an actual quantification that 80 to 85% of low and moderate-income folks were going without the representation that they needed in critical civil matters. Between those two things, the need to get more qualified and regulated providers into the marketplace, and the staggering unmet need, the Practice Law Board worked for about eight years and recommended to the Washington Supreme Court the creation of this limited license legal technician license. The court adopted the rule in 2012, and we were off to the races.

CHRIS:

Okay. When was the first class of those applying for licensure?

PAULA:

It was about two years later. When the court created the license, they also created the Limited License Legal Technician Board.  The Supreme Court needed a board that would figure out how the license would run. As the court's regulatory agency, we staff and fund that board. We work together because we're the regulator and they're the Supreme Court's board setting all the policy. It took two years. If you think about what the triple L.T. board was doing, they were creating a new profession out of whole cloth. When you hear the chair of the triple L.T. board talk about it, he'll say, "It wasn't like we could go to California or New York and pull their rule off the shelf and say okay let's modify it to fit in Washington." They had to define the scope of family law and what these folks would be allowed to do. We had to design a curriculum to train them. We had to design a bar exam. We were creating a whole profession.

It took about two years until we actually had candidates in the process being trained. We're about 2012 to 2018, we're about six years in. Right now we have 27 who are licensed. We have another 60 or so that are completing education and admission requirements. Then we probably have a couple hundred coming up through the community colleges. The education happens at two levels. There's what we call a core education at the community college level. Once they complete that, then they can move on to the practice area education, which is offered through the University of Washington Law School. We've had people say to us, "That's all you have?" We're saying, "Well, we started from ground zero." I think, once it starts picking up momentum, we'll ...

CHRIS:

Yeah. One of the things that we found very interesting about the class of folks that you are licensing is just that you require them to have malpractice insurance. ALPS, as the endorsed carrier of the Washington State Bar, actually found it to be a very appealing risk group because of the extensiveness of the educational requirements that you place upon these folks who aren't going to law school but, I would venture to say, are actually more qualified and trained coming out of their program than most folks coming out of law school. I wanted you to just comment on just the extensiveness of the training that your triple L.T.s have to engage in to earn this distinction.

PAULA:

One of the University of Washington law professors said the exact same thing. When we came to the end of developing the family law practice area curriculum, he said, "These folks are going to be better trained in family law than our JDs coming out."  I went to law school and never took family law. I could have started practicing family law the day I received my license. The family law training is 15 credits. Five credits are just basic family law, probably what a lot of us, if I had, would have taken them in school. The next 10 credits drill down very deeply into the actual scope. One of the most important things ... This is where I, as chief regulatory counsel and chief disciplinary counsel, was probably most involved was in this training aspect. We wanted to make sure these folks understood the scope of their authority. Most importantly, when they've come to the edge of it and gone beyond it.

Actually, when we first took the curriculum to the triple L.T. board, the triple L.T. board said, "Wait a minute. You're training them to do things they can't do." We said, "Yeah. We have to expose them to things that they can't do so they understand when they've crossed the line." Each class is twin taught by a law professor and a practitioner. When I think back to my own law school experience, if somebody would have been giving me the doctrine and, at the same time, saying, "Here's what it's going to look like on the ground." It would have been really helpful. Gonzaga is also helping teach the classes.

I would be remiss to not thank ALPS for stepping in. As Chris mentioned, we do require malpractice insurance for the triple L.Ts. We do not yet in Washington require that for lawyers. We had talked to a couple of insurance carriers. They said exactly what Chris said. "Huh. These guys are less risk, better trained, narrower scope." Whereas, lawyers can ...

CHRIS:

Go everywhere.

PAULA:

Go everywhere.  We thank ALPS hugely for stepping in and believing in the license and believing in the caliber of providers we're turning out.

CHRIS:

As you think about the future, what do you think is the outlook for the program and for the ...

PAULA:

For the license.

CHRIS:

For the license. I do think it's one of those that's very unique nationally. A lot of people are keeping their eyes on it. Talk about just what your outlook is for the license here in Washington, and what you see down the road in terms of the many speaking engagements you've done nationally in terms of thinking about where other states may go on this issue?

PAULA:

There's a number of states that are looking at it. Utah is probably the closest. Their rule is drafted. I think they're working on development of their exam. I think they're calling them limited license practitioner ... I can't remember. It's a little bit different name. Oregon has had two task forces recommend that they do it. We'll just wait and see when they get to putting rubber to the road. New Mexico is looking at it. California jumped in the water right behind us. They were moving pretty quickly, but I think they've got other issues they're dealing with right now. Minnesota was looking at it. Florida. I'm trying to think. Montana looked at it.

I'll tell you where I've been traveling a lot is Canada. We've probably been to four or five provinces now that are quite interested in a number of their provinces. I think in particular, states where there's a lot of rural population. We all know it's getting more and more difficult to recruit lawyers into the rural areas. I think there's a lot of states and some of these provinces that are seeing that the triple L.T. might be an option to serve rural areas. The nice thing for the triple L.T. is, since they go to a community college for the first part of their education, they get to stay in their community. Right?

CHRIS:

Mm-hmm (affirmative).

PAULA:

The practice area education that's offered by the law school is streamed, so you can actually be anywhere to take the law school classes. They're synchronous, so it's not like they're downloading podcasts at three in the morning. We've taught in the classes. It's very interactive. The students are there. They're chatting at you. I think a lot of states, and definitely these provinces, are looking at a possible solution for servicing rural populations.

CHRIS:

Mm-hmm (affirmative). Is there anything that's surprised you about the license as it's now moved from concept to regulatory infrastructure to an actual class of folks that you're regulating?

PAULA:

There are a couple of things. One was the collaborations that developed. One was our three law schools saying, "Don't don't have [inaudible 00:13:51] develop the curriculum. We'll do it together." That's was really fun. We worked with the three law schools in the state to develop the family law curriculum. Then the collaboration between the community colleges and the law schools. There were these collaborations that we never anticipated that were really fun. They really came together and said, "How are we going to make this the best license possible?" It created a culture of innovation in Washington.

As you know, the bar and a lot of people were very opposed to this right up until the bitter end. Once the Supreme Court spoke, once the Supreme Court passed the rule and said this is the direction we're going, we need to do this for the public, it really, in a lot of ways, created a culture of innovation. We had people coming to us saying, "Have you thought about the triple L.T. in this area or that area?" We had the Washington Association of Prosecuting Attorneys came and said, there's some parenting things where we think triple L.T.s might be helpful. The ALJs have approached us. That was exciting. Not to say we don't still have people that question the idea or are suspicious. County bars have started embracing them, the members of the county bars. The Washington State Bar two years ago, the Board of Governors voted to make triple L.T.s members of the bar. That's all been super exciting.

CHRIS:

Yeah. Yeah. I thought it was interesting. I mean, you and I, we were observers of legal trends. Our profession is not the fastest to adapt to emerging challenges that society thrusts upon us. I thought it was interesting going back to the Supreme Court order that started the license. Here's the quote. "We have a duty to ensure the public can access affordable legal and law-related services, and that they are not left to fall prey to the perils of the unregulated marketplace." It just seems like that's the type of ... Your Supreme Court, frankly, went out on a limb a little bit and said, "You know what? We think that there is something to be said for creating this opportunity." It's interesting to now watch, six years later, where you're at now and where you hope to go.

PAULA:

Yes. We tell everybody every place where we speak about it, "Come on in. The water is fine."

CHRIS:

Good. Thank you, Paula. I appreciate your time. Fascinating subject. As we think about access to justice and alternative legal services, it's clearly an issue that observers are going to be watching from around the country.

PAULA:

Great. Thank you.

CHRIS:

Thank you.

 

Episode 8: Cyber Coverage 2.0

There are two types of businesses - those that have been hacked and those that don't know they've been hacked. This may sound like hyperbole, but it's fairly accurate and many of those businesses are law firms. So you may ask yourself, how do I protect my law firm from a hack? Mark sits down with ALPS Director of Client Services, Matt Lubaroff, to discuss how ALPS has improved ALPS Cyber Response, our first-to-market cyber policy available exclusively to our legal malpractice insurance policyholders and designed to stay ahead of emerging cyber threats.

ALPS In Brief, The ALPS Risk Management Podcast, is hosted by ALPS Risk Manager, Mark Bassingthwaighte.

Transcript:

MARK:

Welcome to another episode of ALPS In Brief. I'm Mark Bassingthwaighte, the Risk Manager at ALPS, and we're recording here at the historic Florence Building in Missoula, Montana. I'm very pleased to have as our guest today Matt Lubaroff, the Director of Sales, Marketing, and Customer Service here, and today we're going to talk a little bit about cyber insurance.

Matt, in terms of over the years of my experiences consulting with lawyers, conducting risk visits and these kinds of things, it's somewhat common for lawyers to have this belief that we're not big enough in terms of our firm, in terms of size. We're not going to be on the radar of hackers and these kinds of things. I guess, would you agree or do they face a problem that they really need to be concerned about? Do you have some thoughts on that?

MATT: 

Yeah. Thanks, Mark. I would not agree. Maybe 10 or 15 years ago, it was probably the case because hacking was new. We didn't know what ransomware was. We didn't know what clicking on click links were and how that impacted us. But it's evolved into probably one of the most sophisticated industries out there, where some of the best technological minds unfortunately are using their skills for evil and not for good. So it really becomes a matter of when any business, but specifically law firms, will get hacked. Not a matter of if.

MARK: 

Yeah. I love ... there's a ... the FBI has put all kinds of information out there, but for law firms and businesses in general, and there's a great quote from one of the FBI guys. It's been maybe a year or so, but he basically said there's two types of corporations in the world. Those that have been hacked and those that don't know they've been hacked.

MATT: 

Yeah. It's accurate. We all click on things, and go, oh, I didn't mean to do that. But it's a little too late at that point.

MARK:

Well, and I absolutely agree with you, in terms of regardless of size, that law firms have a significant risk. Can we talk a little bit about solutions. What kind of solutions can we bring to the table and help with here?

MATT: 

Well, there's really two types of solutions that I suggest. One, of course, is insurance. Lawyers are trained in ways to manage their own risk. They go to law school not just to learn the substance of law and how to provide services to the community, but they also spend a lot of time in risk management techniques. They build practices that are successful. They build practices that help in our community, and the majority of lawyers out there are purchasing malpractice insurance in case a client sues them. But not enough lawyers and not enough law firms are buying cyber insurance.

One way to prevent something is to purchase a product that will protect you should something happen. Because accidents do happen. The other one that's probably just as important is training. Employee training. Some of that comes from understanding, is how to prevent a hack. What are systems, both technical and people-wise, that you can put in place to make sure that you are up to speed with techniques that will prevent that hack from happening in the first place.

MARK: 

Right. A lot of what I do ... I try to talk, whether it's again consulting or lecturing, I try to talk about the necessity of, if you will, securing the human. Now that certainly is frontline defense. But this other piece of the insurance is absolutely essential and necessary, because again, it just ... a naïve, innocent misstep, clicking on the wrong link, opening the wrong file or attachment or these kinds of things can lead to just devastating consequences.

Now for some time, ALPS has brought to the table, if you will, for our insureds, a basis cyber insurance policy, but we are just launching now a new product. Can you explain and share where we're going with this type of coverage?

MATT: 

Yeah, Mark. Happy to do so. We've tried to also adapt with the times. We've had the cyber policy available to our law firms for low per lawyer cost and lower limits for several years now. As our hackers have become more and more sophisticated ... we're all familiar with malware and ransomware that have become more and more popular, both on TV shows or in just the unfortunate press of everyday life. We've increased that coverage to provide more of that protection. Also expanded the liability coverage to handle really three different ways of providing the coverage.

MARK: 

Interesting.

MATT: 

There's one set of limits is available for that indemnity or kind of make yourself whole. So if you get hacked and there's a cost to you as a law firm, there's one aspect of the policy that provides that coverage. But there's two other towers or layers of coverage that we've included in the new policy that are just as important, if not more important.

One is that prevention. The response to the hack or to the privacy breach. We need to figure how it happened, where it is within your computer systems and how to prevent it from happening again.

MARK: 

This is dealing with some of the forensic teams that come in and the costs associated with that.

MATT: 

Yes.

MARK: 

Right, okay.

MATT: 

The third one is ... I think you were telling me in an earlier conversation that 47 of the 50 states have-

MARK: 

Breach notification.

MATT: 

... breach notification laws and requirements.

MARK: 

Right, right, right.

MATT: 

And so there's an available limit of liability should there be some notification requirements within that breach.

MARK: 

Yes, which can be very, very costly. A lot of people don't understand what did these regulations mean? For example, it's not in terms of the breach notification regulations that you're subject to. It's not where the breach occurred. It's where anybody impacted by the breach resides. When you think about law firms that have clients and all kinds of other people in their databases that cross these borders, this can get costly quickly. It sounds like we've got a wonderful product here at-

MATT: 

Yeah. The thing is, is these are very complicated situations.

MARK: 

Yes.

MATT: 

Let's just take the situation where a firm has ransomware. Ransomware is defined as your data is now encrypted, and the only way for you to get back your data realistically is to pay the ransom. If you think of how a typical cyber policy might respond is you have a payment of ransom. That's cyber extortion. You have the forensic investigation which is that breach response, that second tower, so to speak. Then there's the expense to restore the data from the backup that hopefully you have. That's data protection.

Then you've got a loss of business. There are hospitals, stories of businesses that have had to shut down completely because what they need they can't get to. So that's network business interruption. Then you have the response, to your point, to the regulatory inquiries. You need an expert to navigate through that. You don't want to do it poorly. You don't want to do it too quickly, but you have to make sure that you follow the letter of the regulatory laws.

And then you have these individual third party claims where it wasn't your data. It was somebody else's data that maybe you're in care or control of, and that third party, that other group, has been impacted by that data being stolen or lost, and there's susceptibility for claims there.

MARK: 

Okay, wow! You convinced me when I started to think through all of these different exposures and you think at times initially, oh, I get hacked and you just bring ... this is pretty complex stuff and spins out in all kinds of directions. I love it. You convinced me, and I hope many of the folks listening to us, of the value and need for a product like this. Can you share a little bit about okay, I'm an ALPS insured. How do I get this? What are my options? How do I go through this process?

MATT: 

Well, one of the things that we've aimed to do is make it as easy as possible for you. When you have your quote, when you're accepting your ALPS policy-

MARK: 

We're talking about the quote for the legal malpractice coverage.

MATT: 

Yes.

MARK:

Okay.

MATT: 

When you're being quoted or accepting your lawyer's malpractice insurance, you automatically have the ability, with no application, to accept our low limit, low cost charge per the attorney, right around $50. You don't need an application. Just accept it, sign, pay-

MARK: 

That makes it pretty easy. Yeah, wow!.

MATT: 

... done. We have some different limits-

MARK: 

Nice.

MATT: 

... based on the firm size, but there's no extra effort required. We also are very, very happy to offer limits up to a million dollars, which if you think of the susceptibility of data and how quickly things can happen and spiral out of control, the ability to secure your data and have response services available to you for up to a million dollars of limits is also important. There's no application required.

However, we do have some risk management suggestions that we can help you put in place to make sure that there's no ... we can continue to proceed, get you those limits, protect your law firm. They're a little bit more expensive. We have some minimum premiums and higher per attorney costs, but what I can say without any concern is that it's the easiest process, the lowest cost, and I'd argue, probably the best policy out there in the marketplace.

MARK: 

Yeah, yeah. And it's my understanding this policy's the first out there to be designed, written intentionally, or directed at law firms. Am I correct about that?

MATT: 

You are correct. We've partnered with Beazley, United States and Beazley London, who's probably the leader in this space as it is anyway.

MARK: 

Yeah. Absolutely. Yeah.

MATT: 

And they worked with us to provide a custom form, custom policy and custom process specifically for the ALPS lawyers book.

MARK: 

Yeah, yeah. Well, I appreciate your sharing all this, Matt. From my perspective as a risk guy, and just an individual living in this crazy world, this is a screaming deal, as I see it. Personally, I'm not trying to tell everybody to go out and buy these policies in the sense ... but how can you afford not to do this? When you look at the frequency of the attacks, the severity of these kinds of attacks, and it seems like you guys have really done a great job of putting a fantastic policy together that covers all these things. We've made it as easy possible. Just wow! Well done. Job well done. Do you have any final thoughts before we wrap this up, Matt? Anything else you'd like to share?

MATT: 

Yeah, I would just encourage folks to talk to their account manager if they're an insured, if they're in the process of applying with any type of insurance, specifically lawyer's insurance. Make sure they're asking about this. It's really a shame. It's unfair when businesses or law firms get hacked. It's scary because there's people out there smarter than us that are coming up with ways more devious than we could ever imagine to get access to that data, and we all deserve to have our data protected. We all deserve to have experts by our side who are helping us prevent it and walk alongside that path to recover, should a hack happen.

MARK: 

And a closing thought that I would have, just as, again, coming at it from the risk perspective, is we are charged with protecting the confidences of our clients. I just think even as a consumer ... you and I suspect, in terms of just statistically, are victims of the Equifax breach. I have some feelings about Equifax that are not the most positive things right now. I just encourage all of you listening out there to appreciate, too. If you ever are breached and don't have this type of insurance out there and can deal with this in a responsible way, how do you think your clients are going to respond? I just invite you to look at it from that perspective, too. It's another way to come back and say I just don't understand how you can afford not to do this. How you get to that point.

Well listen, Matt, as always it's been a pleasure. Thank you-

Episode 7: We Can All Use a Champion

In this episode of ALPS In Brief podcast, Mark connected with Ida Abbott, Former Practicing Attorney and Consultant on Optimizing Legal Talent,  to discuss why it is so important for lawyers to find and to be champions. Their discussion ranges from the need for more sponsorship of women in law firms to examining how solo attorneys can benefit from mentorship. Listen to the podcast and comment here on the blog, on our Facebook page or either of our Twitter feeds (@ALPSCorp or @NewLawyerPost) to be entered to win a signed copy of one of Ida’s books, Sponsoring Women: What Men Need to Know  or The Lawyer’s Guide to Mentoring, 2^nd Edition which was recently published by The National Association for Law Placement, Inc. (NALP).

Don’t want to wait to see if you win? Order Sponsoring Women: What Men Need to Know with this 20% off code from Attorney at Work: SAVE20

ALPS In Brief, The ALPS Risk Management Podcast, is hosted by ALPS Risk Manager, Mark Bassingthwaighte.

Transcript

MARK:

Hello, I'm Mark Bassingthwaighte. I'm the Risk Manager with ALPS and welcome to another episode of ALPS In Brief. I am sitting in the corporate office here in the beautiful Florence Building in downtown Missoula, Montana. And I am so pleased to have as my guest this morning Ida Abbott. Ida is from the Oakland area in California and has done some interesting work in mentoring and sponsoring, and has done some writing on the topic.

But before we talk about some of the issues that have been so important and that you've been working on, Ida, can you take just a brief moment and tell our listeners a little bit about yourself, your background?

IDA:

Sure, and thank you. It's really nice to be talking with you, Mark. I am a lawyer. I practiced ... I was a litigator at a large firm for about 20 years. And left there and started a consulting business that's been about the same amount of time. I've been doing work in the area of legal talent management, lawyer's professional development and career development. I specialize in mentoring and sponsorship and also now I'm doing a lot of work helping lawyers transition into retirement and helping firms develop ways to ease that transition.

MARK:

Interesting. And very, very important stuff. One of the things I've been fascinated by, and I'll be honest and say in my 20 years in terms of working in risk management with lawyers here, I've really not come across this whole notion of sponsorship. Can you tell our listeners a little bit about what this is all about the work you're doing here?

IDA:

Sure. And the reason you haven't heard about it is because it's a relatively new concept. In fact, let's start with what mentorship is and then we can distinguish them. A mentor is ... First of all mentoring today is much more collaborative where both parties are involved and learn from each other and help each other. But traditionally a mentor was somebody who was older and wiser and more experienced, took you under his wing, helped teach you the ropes, understand what the profession was about, how to be a lawyer, what it meant, what it meant to be a professional, made introductions and basically helped you in any number of ways in the course of your career.

That was sort of the old fashioned concept of mentor. What happened, really in the '50s and '60s, last century, was people started to study organizations and realized that there was a role for this within an organization. So they started promoting mentoring and started mentoring programs. And in the law mentoring programs became popular in the '90s and as we moved into the 2000s. And because a program necessarily is bringing people together in a way that's not the same. If you and I were working together informally, as a supervisor you might give me the kind of work and the kind of feedback and support that would help me learn and develop.

But when we're matched in a program then necessarily there are some expectations within the program. The relationship ... We may know each other to begin with or we may never have met before. And so you've got a much narrower range of activities that are expected and it kind of diluted the concept of mentoring into something that was more programmatic.

And what actually happened was because people were being matched and anybody could be matched as a mentor. As long as I had a little more knowledge and experience than you, I could be your mentor. But what it meant was that the kind of mentoring that actually helps you move ahead, that gets you a promotion or a raise, or an appointment to an important committee, or an introduction to somebody, to a critical client, that kind of mentoring was usually not within the scope of a program.

So people had to rely on it to happen informally. And as organizations got bigger and mentoring was seen in a narrower way, people started to wonder what was happening. And when they studied this, and it was only about five or six years ago that the first research was done on this, they found that what was happening was that men were being sponsored. They gave it a new term, this idea of helping somebody advance in their career as opposed to develop professional skills and understanding.

That kind of mentoring was not happening for women. And so they called that aspect of it, the advancement piece, or the advocacy piece, they called that sponsorship. And that's why when talking about it as something different I see it as the high end of the continuum. But a lot of people might talk about it as something separate.

MARK:

It's interesting. What I hear and what I like about this is, again, the old school model if you will on mentoring is helping even ... I think of the rural attorney just trying to hang up a shingle out of law school. And you find somebody else to help educate, get you started, teach you the basics. But what you're really talking about here is, in terms of a different way to phrase this, having someone groom you for professional success.

IDA:

That's right.

MARK:

Is that really where you're going with this? Is that ... Am I getting the idea of sponsorship?

IDA:

Yes and no, because even when we've developing, even if you're a brand new lawyer, I want to groom you for success. But the kind of needs that you have have to do more with basically learning what it means to be great lawyer, and how do you run an office, or how do you run a practice. But what I'm talking about happens later in your career. It can happen early. Let me just say we can all use a champion. We can all use an advocate at any point in our career. And a sponsor is that.

But when we talk about it the way we do in terms of professional development, it becomes more important once you've already established the basics. You have the platform. You have the skills. Now what you need is to move up. To move forward whether it's within an organization you want to be the president. Within a firm you want to be the biggest rainmaker or the person who runs the place. Or you just want to get more money and more clients and be better.

But where there are fewer slots or fewer resources available and more competition for them as you move ahead and you become more senior, that's when you really start ... This becomes more important. But there's no question we could use it from the time you're a kid you know.

MARK:

Absolutely. I understand. I see the value of this in terms of to the attorney that's being sponsored. I get that. What would the value be for a firm to look at this more formal, pivoting into this type of a model.

IDA:

Well, the issue is really one about fairness and diversity. The reason this has become so central is because when you look at the profession at the entry level you have equal numbers of men and women, or close to it. You have fairly good numbers at the entry level of diverse lawyers, people of color and people with other characteristics that place them in an underrepresented group.

But as you move toward leadership, partnership, seniority you have fewer and fewer people who are diverse. And what you have are a lot of straight white men running the world. For firms that are concerned about why they're losing women and minorities, then you have to take a look at whether sponsorship is happening in a fair way. What the research shows is that women, for example, get plenty of mentors. And most women today, most lawyers coming into the profession are fairly savvy. They've been told since they were kids the importance of mentoring. So they know to look for mentors and I think people are more conscientious about being mentors.

What they're not getting though, what they find is that women can get mentors, but they don't get sponsored because most of the people ... One of the critical characteristics of a sponsor is it's got to be somebody with some power. It's got to be somebody with power, influence, some sort of clout that can help you actually make a move forward or up.

Most of those people are men, and most men sponsor other men. And they don't sponsor women for a whole host of reasons. Sometimes it's just they overlook women. Sometimes it's deliberate. They want to avoid women. Today we're having a lot of issues about men being afraid to be too close to a woman.

MARK:

Absolutely. I get that. It seems to me too there's an element here that ... You started talking, some of the work you're doing is [inaudible 00:11:12] planning and these kinds of things. It seems to be long term viability of a firm ... A firm would also benefit to have diversity of thought, and diversity of client base that women and diverse races and what not. In terms of these kinds of programs I just think it's going to add to the bottom line and the success of a firm overall. Do you think there's anything to that?

IDA:

Absolutely. And there's loads of research on this. That's one of reasons why people are concerned about diversity. I think a lot of firms have a superficial interest in it. They need to meet numbers. They need to satisfy ... But I think the major reason for that is you need diversity in a whole host of ways to keep the thinking vibrant in an organization.

If your firm is only composed of people who were successful 20 years ago and that's where they learned how to be great lawyers ... When you take a look at the profession today, somebody who doesn't have current skills or look at the world in a different way and bring new thinking to the table, a firm is going to stagnate.

MARK:

When you look at national data in terms of the number of lawyers and the size of the firms they practice in and these kinds of things, a significant percentage of lawyers practice in the solo and small firm arena. In my years, and I've been at this for 20 years and doing a lot of consulting myself all over the country ... It's been fun and interesting to come across a number of all female firms as an example, and smaller firms. It is a different just feel. And I love to go into these kinds of settings at times.

But thinking about that we have a significant number of women in the solo, small firm space. Do you see ... Can these women avail themselves of the kinds of opportunities? How does sponsorship play into this space? Can it? Does it?

IDA:

Well, it does. In a slightly different way though. When we talk about this it tends to be within the context of an organization where people are trying to move up within an organization. In a small firm obviously you don't have a lot of the same dynamics. The larger the firm the more isolated individuals are and the more they need this sort of thing.

But still you can't really be successful on your own in any organization. Even when it's a solo, you still depend on other people. You depend on people sending you business. You depend on getting your name out there. That goes back to building a strong network, and within that network you need people who will be your champions. Who will send you referrals. Who will nominate you for positions in the bar association or some professional organization or business organization that you want to be prominent in.

I know how many lawyers still just graduate law school and hang out a shingle and don't realize how important it is to be connected professionally to other people. I think the general mentor model is more important because you need somebody who's also going to help you understand what it means to be a professional, and a valued and trusted advisor. The sorts of things that you may not learn in law school.

So the traditional model of mentoring I think is more important, but once you're out there and you really, you want to go for it. You want to be the most successful lawyer in town in your field. You need to have people working with you to help you.

One of the things that we encourage everyone to do is to have a constellation of mentors. People call it things like a personal board of advisors because one mentor isn't enough anyway. Some mentors are really great at some things but not at others. And so as you go through your career there may be many different ways that someone can be helpful to you.

Keep in mind this is a very, very much a reciprocal practice. And when I talk about mentoring I emphasize the collaborative and reciprocal nature. This is not a gimme, gimme, gimme. This is a practice and the people who have really good mentors tend to also be generous with their time. And they mentor and support other people. That's a big part of this.

But the advocacy role that a sponsor plays, it is important but it happens, again, later in your career. And when you're starting to think about positions within the community or within an organization of some sort. I think that's when it's more important.

MARK:

Yes, excellent, excellent point. I really like this one in terms of multiple mentors. I think so many people sort of go out and try to find one and we call it good. And that's not, no.

Ida, this has just been wonderful. I love the work that you're doing and I love hearing your thoughts. If any of our listeners were interested in finding out a little bit more, how can they find out more? Do you have email? Do you want to share book materials out? I'm happy to give you a moment. How can they contact you?

IDA:

Well, I have a website, idaabbot.com. My email address is idaabbott@AOL.com. So all that's pretty easy. There's a lot of material on my website that they can download and my newsletters and articles. I've written several books. The two that might interest your listeners in terms of our topic, one is called Sponsoring Women, What Men Need to Know. And the other one is coming out next week, actually. It's a totally updated version of my first book. It's The Lawyer's Guide to Mentoring, and this is the second edition.

Both of them ... Well, the publisher of the mentoring book is NALP. And that, as I say, will be available in another week or two. But that will be on the NALP website and in their bookstore, and also on my website at some point right after that. And the sponsorship book is published by attorneyatwork.com. There's a link to that on my website as well.

MARK:

I think I'm going to need to take a look more in depth at these. I'm looking forward to reading this. I really want to take a look at this one just coming out. Sounds exciting.

To my listeners, I hope you found something of value today. It is certainly a pleasure. And, Ida, thank you. Thank you so much. If any of you listening have topics of interest that you'd like to hear us talk about in future, please don't hesitate to reach out at me here at ALPS. My email address is mbass@alpsnet.com.

That's it. Thanks for listening.

IDA:

And thanks for having me.

MARK:

You're welcome. Thank you, Ida.

 

Episode 6: Pursue the 'Why' Intentionally

Last week the ALPS team gathered for a discussion about the company's vision this year and beyond. Afterwards Mark sat down with ALPS CEO, David Bell, to continue the conversation about vision and why it's imperative for every business, from a large corporation like GE to a solo law firm, to truly understand why they are doing what they are doing in order to give clarity to their vision and in turn, spark intentional action. 

ALPS In Brief, The ALPS Risk Management Podcast, is hosted by ALPS Risk Manager, Mark Bassingthwaighte.

Transcript

MARK:

Hello, this is Mark Bassingthwaighte. I'm the Risk Manager here at ALPS. And welcome to another episode of ALPS in Brief. We're here at the historic Florence Building, in downtown Missoula. And I'm delighted to be able to introduce our guest this afternoon, David Bell, CEO of ALPS.

David, can you take just a few moments and tell the audience a little bit about yourself, your background.

DAVID:

Sure Mark, thanks for including me in today's podcast. I've had the privilege of being at the helm of ALPS for almost six years. I've worked my entire career in the insurance industry, both domestically and abroad for small companies and large, and in some cases turning a small company into a large one. It's such a blessing and a privilege to have the opportunity in 2012 to come home to Montana, and also to take the leadership of ALPS.

We've accomplished a lot of great things together since then.

MARK:

You sure have.

David Bell:       More importantly we have a lot of exciting things on the horizon for the company and for its people, and for its policyholders and stakeholders.

MARK:

Well let's talk about that a little bit. We had just a great meeting today, getting the company together and looking more long-term and developing some vision. Would you just take a couple moments to share your vision, what are we doing here at ALPS, where are we going? I'd love to share this with our listeners.

DAVID:

Sure. We're at an exciting inflection point for ALPS. Having changed our regulatory structure and begun to move into the states remaining that ALPS has not been in historically, and really take the value proposition that has made ALPS successful over the past 30 years, and double and triple down on that. Today's meeting that included everyone in the company in various offices from the east to the west coasts, really set the vision for us together on our culture, on our financial metrics, and what we're striving towards, and how we're measuring ourselves, and also really the why. The why we do this vision. Why we do this together, why we do this for our customers, and what we hope to accomplish with all of the hours that we spend together, growing in the same direction and fighting for the same goal.

MARK:

I've been with the company now, 20 years. It's just been such an exciting time in recent years, to see the growth and the direction ALPS is moving in. And I'd kind of like to pivot the conversation, just a little bit and look at the value of vision for businesses in general, to include solo and small firms.

In my experience, in terms of doing some consulting risk management, vis-à-vis, these kinds of things over the year. At times, you do find attorneys, for lack of a better description, sort of spinning their wheels, and there's not a lot of growth. I would just be interested in your comments in terms of the value of vision to helping a lawyer move forward, and in the context of any business. There's nothing magical about vision, whether it's GE or a small solo. Do you see where I'm going? Your thoughts, your comments.

DAVID:

Sure. Well I think one of the reasons why we had the meeting we had today, coming off of a fantastic year in 2017, was, I felt frankly wanting at the end of '17 in messaging our accomplishments. But yet I'm recognizing that we close a year where we have the highest and first in almost every category, the highest revenue ever, the highest surplus ever, one of the lowest claim frequencies ever. The business is as healthy and vibrant as its ever been, and it's three decades. But yet, I felt like the year-end wrap-up of accomplishments was missing something, and I feel, and this is where I'm accountable, that what it was missing was some clarity and vision beyond the budget. Did we beat budget, did we not beat budget, right? That is a component piece of a plan, and part of a vision, but it's not the vision itself. Nor is a mission statement, or a several sentence tag line that identifies your values. That's important, and we have that, but that's not the vision.

The vision really comes down to the why we do what we do. And doing a little more than last year, a little more revenue, a little more profit, that's good, and it's necessary, but it's not the why. And if it is the why, it's frankly hard to seek inspiration over the long-term, if that is the why. And so today at ALPS, and I suspect the same is true within the story of a solo practitioner or a moderate or large size law firm. The why we do what we do, is as important as how effectively, ... how much money we make, in doing what we do. And so for us, the vision of why, really comes down to solving the problems for our customers. Doing it in a way that honors our core values. We write transparent, easy to read policies. We apply claims in a fair, honest, and transparent way, and we're proud of that. We can all look in the mirror knowing that we've both created and effectuated something that we can be proud of.

But within these walls and the people that are working together, this is a giant relationship potpourri. Everybody is interacting, everybody comes from different life experiences. They have had accomplishments and they have been wounded in different ways, and they bring all of that in those experiences to work. And work, we're complicated people and when we put a lot of us together, we're exponentially more complicated. So reminding ourselves of the why we're doing what we're doing, becomes really important so that it's not just we did a dollar, now we've got to do two dollars. We're doing it for each other, we're doing it for a certain mission, and we can seek inspiration from that. And Ideally, what we come up with is something that makes us excited to do what we're doing. We don't do it for a job, we do it because we really enjoy it, and we enjoy the people we do it with.

MARK:

And I love that. That's just fantastic. Can you, sort of the last topic I'd like to explore with is, ... I'm a lawyer, so it's a hypo here, and I've come together with a few other lawyers, and we're starting a small firm here. We may have a couple employees, this kind of thing. Maybe we've been in practice for a year or so, and we're still struggling, just, again finding direction, finding success. And so we reach out to you just as, if you will, even just as a business consultant, and somebody who just has a tremendous amount of experience here. How would you, ... well David, I appreciate the value of vision, but how would I go about this in a small setting? Do you have some thoughts, or some general, just advice to the business side of this?

Because I think lawyers spend a lot of time, ... we're taught how to practice law, and the education we have is a great education, but we're not taught how to run a business. There is this business aspect, this business side. And if we're not successful with the business of law, we're not, ... you see where I'm going? So do you have any thoughts to share on just a couple of day-to-day tips, how might I go about?

DAVID:

Well anybody who has a law firm is a better expert than I am at this, at the moment, on how to run a law firm. But I would suggest that like any business, as it pertains to lawyers and law firms, which is an industry we know quite well, and we see them succeed, and we see them fail. We see them dissolve, we see them merge, and we see them become phenomenally successful in a lot of cases.

I do think that it is important that those who run a law firm, it doesn't matter whether it's a solo practitioner, or a 50-person firm, really thinks in isolation about, I am a legal practitioner, I strive for excellence in my understand and application of the law. That's critical, that's really hard to be a great lawyer in a law firm if that's not a commitment. I also separately, to your point Mark, separately, I also have a business. And that business needs to be run like a business, which means I need to be sensitive to the fact that my time is billable hours equals money. There's only so many hours in the day. There are both efficient ways to spend that time, and inefficient ways to spend the time. And if I don't take some time understanding the difference between the two, it will lean towards inefficient, and will become financially stressful for the business.

So there is the legal practitioner of, and there is the business manager, and there also is the why. Because, why am I doing this? And the practice of law, is one of the most noble pursuits around. Different lawyers practice different types of law, and that are involved in different areas of law. But the fact that you are bringing your expertise to someone who doesn't have it themselves, and who would be disadvantaged, in some cases are literally lost without you, that's a great fiduciary responsibility that you're undertaking. There's a lot of inspiration that can be naturally born in the why of why I'm doing this, from that. But I suspect, and listeners can just reflect for themselves to what extent this might be true for their practice, that you do have to pursue the why intentionally, and pursue the most noble of the why option.

MARK:

I absolutely agree. In follow-up to that, is it important that, ... so again, I've got this small firm, they're three, four, five of us, whatever we have, is it important that each of us, as lawyers practicing in the firm, and perhaps to include our staff, does the why need to be uniform? Do we all need to have sort of a similar vision if the firm's going to succeed? Is that something you would encourage and advise? Do we sit down and have these kinds of conversations? Or is it more of a personal thing? Do you have any thoughts on that?

DAVID:

This is one guy's opinion, and I can't say that this is the right one. But my opinion is that you don't actually have to have the same why, with your contemporaries and colleagues in the firm. But I do think it is, the why needs to be known and discussed. And to the extent that there are differences, and in some cases there can be enormous strengths harnessed from different whys. As long as the whys are complementary. And as long as the whys are not in conflict, and that they can not just coexist, but that they can work off of each other. And so, I don't know that they need to be the same, I think it could be great if they are exactly the same, but I think it can also be great if they're not the same. But I don't think if can be great if it's just an unknown. An uncoordinated, every man or woman for him or herself, and we'll just see how it works out. If you want to just see how it works out, then you're not going to know how it's going to work out.

MARK:

Well this kind of circles back to what we were talking about earlier today. It seems to me there's this a difference in terms of having a vision and having clarity of vision. We, as business partners, if we all understand the whys of each other, and understand where we're trying to go, we can have some clarity of vision. And I think that lends itself to success in the business side.

DAVID:

And purpose. Success and purpose, where you wake up and say [crosstalk: 12:26].

MARK:

Well yes, exactly.

DAVID:

We've said here before, we have a wonderful business and a noble profession. This is not, ... we aren't feeding kids in Africa and so the inspiration that can be garnered from that type of a business, isn't the same as this business. So you have to, ... so often, people wake up one day, and they lack meaning, or they lack purpose in life. And we should all guard ourselves against that. But we don't all have to be in this wonderful philanthropic non-profit profession in order to feed and fulfill that side of us. But if we aren't watching for it, then one day it will just confront us when we wake up. Whether the crisis actually happens in midlife, or happens at some other point, that's often times when the crisis comes personally.

MARK:

There's some food for thought. Listen David, it has been such a pleasure. I really appreciate your taking the time to visit with the listeners here on the podcast. And I hope at some point in future, we can get together again and explore some other topics.

To those of you listening, thanks again. And please if any of you have any thoughts or ideas or things that you'd to hear in future podcasts, please don't hesitate to reach me at mbass@alpsnet.com. That's it, thanks for listening. Good bye.

Episode 5: What's your speed? 3 new policies to fit your needs.

ALPS is rolling out three new policy forms this year, offering legal malpractice insurance coverage options to fit your firm's needs. No one is more excited it seems to talk policy features than our General Counsel, Brad Dantic. Listen as Brad and Mark Bassingthwaighte share a lively discussion about the ALPS Basic, Preferred and Premier policies and learn how these coverage options can benefit you.

ALPS In Brief, The ALPS Risk Management Podcast, is hosted by ALPS Risk Manager, Mark Bassingthwaighte.

Transcript:

MARK:

Welcome to another episode of ALPS In Brief. This is Mark [Bassingthwaighte 00:00:06] and I’m the Risk Manager with ALPS. We’re recording here in the historic Florence building in beautiful Missoula, Montana.

Today, I have the guest Brad [Dantic 00:00:14]. Brad is the Vice President and General Counsel of ALPS. Brad, I was thinking the purpose of getting together, is talking about some exciting changes here at ALPS. I admit, as insurance guys, not everybody would view this as the most exciting topic. But, there some really important, significant changes coming.

Over the years, ALPS has really had, in terms of the legal malpractice policies, we’ve had two policies. What we have referred to as our standard policy and our enhanced policy. This is changing now. Can you kind of just set out the basic groundwork of what has happened and where we’re going?

BRAD:

Sure, absolutely. Thanks for having me, Mark. ALPS, we’ve kind of been a niche specialists. Lawyers, professional liability for 30 years. We’re endorsed by more state bar associations than any carrier.

So we listen to the legal profession, we listen closely to lawyers, we listen to what they need and what they want. What we’ve realized is that our products could be better tailored to meet the varying needs of different types of law practices.

For example, Sole Practitioner might need a different type of insurance coverage than a law firm.

MARK:

Well of course. Yeah, right.

BRAD:

A 20 member law firm.

MARK:

Right, makes sense.

BRAD:

So what we’ve done, is we’ve created three policy forms rather than two.

MARK:

Okay.

BRAD:

We have the Premier product, our ALPS Premier product, which is the most expansive insurance coverage. It might be what I would characterize as industry leading edge. I don’t think anybody in the industry is offering a product as comprehensive and as solid as the ALPS Premier policy.

Our second policy, is the ALPS Preferred Policy is comparable to what our standard policy used to be like, but with some enhanced features. Finally, we also offer the ALPS Basic Policy. I would characterize the ALPS Basic Policy as a policy that provides the most essential level of coverage. If you needed insurance coverage, it is the beginning of insurance coverage for a lawyer.

MARK:

I can see if somebody … I think back in the day, when I hung up the shingle.

BRAD:

Shingle.

MARK:

Shingle right after law school … Money is tight. I can appreciate some coverage is better than no coverage. I think that’s really where this policy comes into play. It’s the starter policy, perhaps, might be the way to describe it.

BRAD:

Absolutely. What we’ve learned in working with State Bar Associations and the American Bar Association, we’ve learned that there are a significant percentage of lawyers that are practicing law without insurance.

MARK:

Good point. Yeah, absolutely.

BRAD:

As State Bars begin to look at uninsured lawyers, they’re coming to the realization that perhaps it’s important that lawyers maintain at least a basic level of insurance coverage.

For those lawyers that are practicing law uninsured, this might be their first and most affordable option for getting entry into the Lawyer Professional Liability Insurance.

MARK:

It certainly fits a very real, legitimate need. Can we talk a little bit about the Preferred Policy? Can you just fill me in, then, on what we’re doing with it?

You’ve compared it to our historical standard policy, but we’ve got some enhancements, these kind of things. What do I get with this policy? Where am I going with it, if I’m looking at this?

BRAD:

Sure, sure. Again, the ALPS Preferred Policy, it’s our middle of the road policy.

MARK:

Yes, right.

BRAD:

The Preferred Policy is like our Standard Policy, as you mentioned, and here’s what it provides. In any Lawyers Professional Liability Policy, and this has always been the case for ALPS in our 30 years of existence, it is important to look to determine whether or not a claim expense allowances are provided under the policy.

MARK:

Okay.

BRAD:

So when an insurance company undertakes to represent our insured and to defend a claim against our insured, it’s important for the insured to understand are those defense costs being incurred and eroding the limit of liability available to pay damages? Or are they being incurred outside the limit of liability?

ALPS has always provided claim expense allowance, which makes us unique in the industry and perhaps one of the reasons why we’re endorsed by more State Bar Associations. Under the Preferred Policy, we offer up to $500,000.00 in defense costs outside the limit of liability.

MARK:

Now that’s nothing to sneeze at. That’s a nice sum, yeah. Fantastic.

BRAD:

Yeah. In most instances, we can undertake, settle, resolve, defend a claim easily with the $500,000.00 in claim expenses, in most cases.

MARK:

Okay.

BRAD:

We also offer a disciplinary benefit, well I’ll call it a disciplinary benefit. If the lawyer becomes subject to a disciplinary proceeding, say before a State Bar Association, the preferred policy provides coverage of up to $25,000.00 per attorney.

MARK:

Wow.

BRAD:

If you’re in a law firm, multi-attorney law firm, we provide up to $75,000.00 for the entire policy period. Irrespective of the number of attorneys.

But perhaps the most significant change that I think ALPS may have made in the course of moving into these new policy forms, is we now have moved to a pure consent to settle clause.

Under the Preferred Policy and you’ll find it in the Premier Policy as well, ALPS will not settle a claim without the consent of our insured.

MARK:

Now that’s gotta be somewhat unique in the market.

BRAD:

It is unique in the market. We do see some carriers that provide it. ALPS decided we are going to continue to be industry leading, so we went to a pure consent to settle clause.

MARK:

Yeah, very good. Very good.

BRAD:

A couple other unique features that I really like about our Preferred Policy, is our extended reporting period options. So, if you’re somewhat familiar with what … The Lawyers Professional Liability Insurance industry generally operates on a claims made and reported basis.

So we provide coverage for claims that are first made and first reported to us during the policy period. Irrespective of when the act, error, or omission occurred in the professional services. But when your policy ends, you no longer … If the policy simply ended, you’d no longer have the ability to report claims.

MARK:

Claims don’t come up immediately in our line of work.

BRAD:

Exactly.

MARK:

It’s a [inaudible 00:06:56].

BRAD:

It’s important to be able to continue to be able to report claims once your policy has expired, so we refer to that as tail coverage. Or extended reporting period coverage.

Again, I think our ALPS Preferred Policy, offers some of the most expansive, extended reporting period options in the industry. If you have been insured with ALPS for at least five years as a Sole Practitioner, we provide a free ERP.

If you have been insured in a law firm, you’re not a Sole Practitioner but you’re in a law firm, and you are retiring from the practice of law, we call this feature … You get a free ERP if you’ve been with us for five years, we call it, piece of mind piece of paper.

MARK:

I love this one.

BRAD:

You want to know that irrespective of whether your old law firm, from where you’ve recently retired, you don’t have to worry about them continuing to buy insurance.

You can buy from ALPS at the time you retire. You’re entitled to a free ERP, if you’ve been with us at least five years. We also offer free ERPs upon death, upon disability, and I’m unaware of any carrier in the industry offering a free ERP if you’re called to active military service. We provide a free ERP in that instance as well.

MARK:

Now that one is awesome. I’m just … Wow. Wow. Okay. Great stuff.

BRAD:

That’s kind of a run through of the Preferred Policy.

MARK:

Right. So let’s take us in to the Premier, then. I guess I would describe this as the Cadillac Policy of our series here. What am I getting with the enhancements here? Where are we going with this one?

BRAD:

I don’t look at it as the Cadillac Policy, I look at it as the Lamborghini.

MARK:

Oh, okay. I’m loving it, I’m loving it.

BRAD:

The Premier Policy is really what it is. I don’t believe there is a policy out in the industry today that provides the protections and the benefits that’s available under the Premier Policy.

For example, under the Premier Policy, you can receive claims defenses. That claims expense allowance.

MARK:

Right, that we were talking about.

BRAD:

Up to one million dollars. So, we can actually undertake defense and occurred offense costs up to a million dollars.

MARK:

Now that’s some serious coin.

BRAD:

Before the limit of liability begins, the defense costs, begin to apply to the limit of liability. We also look to our insured firm. They have the opportunity to weigh in on the appointment of counsel.

MARK:

Oh, okay.

BRAD:

So they get to participate, we have panels of lawyers that defend claims around the country. But, under your Premier Policy, we’ll always consult you as to which firm you’d like.

MARK:

Yeah, so you have a little more control here, a little say.

BRAD:

Mm-hmm (affirmative).

MARK:

Yeah, okay.

BRAD:

The disciplinary proceeding benefit, under the Preferred it’s $25,000 per attorney, $75,000 aggregate. Under the disciplinary benefit on the Premier, it moves to $50,000 per attorney, $150,000.00 per firm.

Then, I think one of the most significant features of the Premier Policy. Any lawyer buying insurance in the marketplace today, needs to understand, what is the definition of Professional Services. What types of services or activities that you can engage in, what is covered under that policy.

The Premier Policy provides the most expansive description of Professional Services. We include within the definition of Professional Services, for example, if you’re serving as an expert witness.

MARK:

Yes, okay.

BRAD:

You’re covered. If you are serving as a speaker or an author of legal research, or a presenter at a seminar, there is coverage within the definition of Professional Services. We cover you if you’re a government lobbyist. If you’re lobbying on behalf of clients, say before State Legislatures, we include that within the definition of Professional Services.

Really, the Premier Policy provides the most expansive coverage for the types of Professional Services and activities that are covered.

MARK:

I’m getting the Lamborghini analogy here, now.

BRAD:

Then, it has the Pure Consent to Settle clause. It has the similar, the leading industry options on extended reporting periods or tail coverage. We provide a unique feature, I’ll call it, the Reduced Deductible Feature.

Under our Premier Policy, if you settle a claim at mediation.

MARK:

Yes, okay.

BRAD:

There’s a waiver of the deductible up to a particular amount. If you engage, if it’s your customary practice to use an engagement letter that’s signed by the client … It describes the scope of services you’re going to render, it describes the billing arrangements. If you have an engagement letter and a claim arises from that engagement, you are entitled to a reduced deductible, which reduces the amount of money you ultimately have to pay.

MARK:

So we’re incentivizing risk management here, which is awesome.

BRAD:

We are, absolutely.

MARK:

Yeah, yeah.

BRAD:

Then, we provide some supplementary benefits under the Premier Policy that you would not find in our other ones. We provide subpoena assistance, for example. We’ll pay up to $50,000.00 for subpoena assistance.

So if you or your law firm receive a subpoena for the production of records, we will appoint counsel and we will pay for that counsel, up to $50,000.00 to assist you in the responding to the subpoena.

Then, of course, we have the Public Relations Benefit. If your firm were to incur what we would call a public relations event, some disastrous moment in your firm history that causes you to have to engage a Public Relations Consulting Firm. We provide some benefits for that, under the Premier Policy, as well.

I’ve talked a lot about the benefits, now you understand why I call it the Lamborghini of Lawyers Professional Liability Insurance.

MARK:

Yeah. Like I said, I think that’s an apt description. I like that a lot. I like that a lot. Are there any sort of closing thoughts that you have about this?

BRAD:

We’re really excited. We’ve already received approval of these forms in many states. Our plan is to roll it out January 1, 2018. I know the Insurance Regulators, it’s been well received by the Insurance Regulators. So we’re looking forward to offering it in the marketplace and looking forward to insure lawyers and law firms around the country.

MARK:

Brad, it’s always a pleasure. Thank you for sharing the information. If any of you, in terms of listening to us, you have any ideas of topics or things that you’d like to hear in future, please don’t hesitate in letting us know. You can reach me at mbass@alpsnet.com. Thanks for listening, folks.

 

Episode 4: Opening a Law Firm? Think About Protecting Your Future.

Mark talks with seasoned ALPS Business Development Representative, Julie Patterson, about new lawyers hanging their own shingle and the associated challenges. This includes looking at legal malpractice insurance as an investment in protecting all of the work you do from the day you open your doors. Julie and Mark discuss the dangers in going bare and how step rating works.

ALPS In Brief, The ALPS Risk Management Podcast, is hosted by ALPS Risk Manager, Mark Bassingthwaighte.

 

Transcript:

MARK:

Welcome to another episode of ALPS In Brief, the ALPS Risk Management Podcast. We’re recording here at ALPS’s home office in the historic Florence Building in downtown Missoula, Montana. I’m Mark Bassingthwaighte, the ALPS Risk Manager, and I have the pleasure of sitting down today with a long-time colleague, Julie Patterson, who has been with ALPS for over 20 years now. Julie, before we get started, can you just give us a brief introduction, background to yourself for our listeners?

JULIE:

Absolutely, Mark, I’d be happy to. I’ve been here at ALPS for 20 years, really have enjoyed my time here. It’s a great company to work for. I’m originally from California, but moved to Montana to have a different lifestyle in 1990, and have stayed and never left, and am not going to leave, so …

MARK:

Yeah, that happens to a lot of us, huh?

JULIE:

It does, yes.

MARK:

Well, thank you for sitting down with me today. What I wanted to really talk about is looking at the new lawyer situation, and going back many years ago … I’ll use me as, perhaps, the example we might talk about a little bit, but … I was one of those guys that when I came out of law school, I hung up a shingle, and boy, can that get a little frightening and crazy. You know, you sit down, you try to get some kind of business plan in place, you look at trying to get some advertising, get your computers, get the office set up, all these kinds of things, and the last thing that you’re thinking about, in so many ways, is this whole issue of malpractice. I’ve just … I don’t have many clients yet, you know, and I’m thinking here …

But I know that I was not alone or unique in this. When I started thinking about that whole issue, you sit here and say, “You know, I just don’t have the income stream yet to be able to afford this, because, you know, I know what medical malpractice premiums look like. Docs are paying, at times, $20,000, $30,000, $50,000, $100,000 a year in premium, and [inaudible 00:02:26], I can’t afford that.” Is that how the insurance marketplace in terms of the legal malpractice arena is priced, or … Can you just explain to a new attorney, what am I looking at here?

JULIE:

I would be happy to, Mark. It’s completely separate than medical malpractice, so take that out of the equation, and think about protecting your future. Starting out, you’re opening your first practice here, you may not have a ton of money up front, but still, the premium is going to be roughly probably starting out between $1,000 and maybe $1,500.

MARK:

Okay. That’s very different than what docs are paying, that’s for sure.

JULIE:

Yes, it’s very different.

MARK:

Right.

JULIE:

It also depends on what limits you want to hold. It can go a little lower, it can go a little higher. But know that that carrier’s going to have some premium finance terms to help you out so that you’re not paying everything all up front if you don’t have the cash up front. And really, when you open your doors, you want to protect yourself and your clients, and do it right as you start out into your private practice, because if you wait six months or a year down the line, and now decide to go, and you’ve got some money in your pocket, now you want to purchase the malpractice, no carrier in the marketplace is going to cover your prior work history to the day you open the doors to the day you decide to get that policy.

MARK:

Oh, wait, okay, so now that’s important. I want to make sure that we’re all understanding this. So if I sit down, and I open up my office, hang that shingle, and I’m doing a lot of marketing, networking, doing the things we all try to do to get the name out there, and I start to have a little bit of work, not much yet, but I build up, you’re saying that … So if I wait six months to buy my first policy, all of the work that I’ve done up until the day I buy that policy, I’m, in essence, bare on, that the policy doesn’t cover that?

JULIE:

You are, exactly. You’re bare on that time frame.

MARK:

Okay, that’s good to know, right.

JULIE:

Because a lot of new attorneys don’t realize that when they open their doors, and it’s a really key, important fact to before you open your doors, before you take that first client, is to get that coverage in place.

MARK:

Okay. When I think about … So I’m hearing that the premium is relatively affordable. Is that a normal kind of premium? Because it seems to me, I guess what I’m trying to get at is, you know, I don’t … I haven’t been in this long, so my exposure, if I’m thinking about the insurance carrier, it’s got to be pretty low. What does that play … What does that mean to you guys? Am I on to something here, that … What happens to my premium in the early years?

JULIE:

Good question. You are on to something. So, starting out, when you come into a carrier and they give you a new quote for a new policy, you have no work history behind that quote, that policy. And so you’re going to get a credit for having no work history. They know that when they’re quoting you, and they’re putting that factor into the premium before they release it to you. So as your exposure increases over the years, as your practice builds and you get more clientele, your premium is going to mature, or some people call it in the industry “step rating,” where you can expect gradual increases over a six-year timeframe. So basically, by year six, your premium would have almost doubled, provided the carrier has no rate increases, as well as you haven’t reported a claim and a settlement has been reached in that six-year timeframe. So there are varying factors, but maturing rating is common in all professional liability policies, including those for lawyers. Yes.

MARK:

Okay, so, all things being equal, the good news is … I mean, I understand that my risk matures, but it levels out.

JULIE:

It does.

MARK:

So I don’t keep seeing these increases my entire life, because heaven … Okay, I got you. So roughly six years in, I’m considered fully mature, okay. The final point that I’d like to just explore here a little bit is this, you know, what is it … Why do I want to have an insurance policy, in terms of what protection am I buying? Because I can see people sit here and say, “You know, again, I’m just starting out. I’ve got my computer system, and I got a good deal online,” or whatever it might be, “and it’s furnished lightly. There’s just, it’s not a lot of assets, you know? I don’t have tons of money I’m trying to protect and these kinds of things.” So I could also see just waiting a bit until I’m more established before I start to think about insuring. But how do you respond to that kind of perspective? Do you see where I’m going with that?

JULIE:

I see where you’re going with that, and I hear that quite a bit, but you also have to put yourself in where your future is going for your practice, and as you’re starting out, it is a litigious environment that we live in now, and if you take on a client, and for some reason, a year out, you still don’t have coverage, they’re not happy with what they did, you have no coverage. You have nothing to help back you up in case you maybe did something wrong, or maybe you didn’t do anything wrong, but still, that’s what you’re paying for. You’re paying for that peace of mind to cover your practice as it grows, and if a misstep happens along the way, that’s where the policy comes into play for you.

MARK:

Mm-hmm (affirmative). So it’s, in other words, I’m buying a little comfort. I can sleep at night, you know?

JULIE:

You can sleep at night.

MARK:

Yeah, yeah. And I’d also think, I suspect, I mean, colleague to colleague here, too, I think the other side that gets overlooked at times is we’re also just trying to protect the client.

JULIE:

Exactly.

MARK:

I mean, it’s … I want to work … If I think about who I’m hiring, I would want to work with a lawyer that’s insured as opposed to one that isn’t, because again, sometimes just mistakes happen, you know?

JULIE:

They do. They do.

MARK:

So I think it’s important for all of us to just kind of remember, not only are we buying peace of mind for ourselves, but we’re doing … There’s no disciplinary rule that says we need to do this, but it is the right thing to do-

JULIE:

It is the right thing to do, absolutely.

MARK:

… you know, to make sure that these clients are taken care of, should some misstep happen. Well, I appreciate … Do you have any final thoughts, or anything else you’d like to add on this?

JULIE:

No, I think that about covered everything. Thanks.

MARK:

All right. Well, thank you very much, Julie. It’s been a pleasure, as always, and I’ll see you around the halls.

JULIE:

All right, thanks, Mark.

MARK:

Well, thank you very much for listening, folks. That concludes this current episode. If you have any questions about the issues we’ve discussed today, please don’t hesitate to contact me at mbass@alpsnet.com. We’d love your feedback on the podcast, to include hearing about any other topics or issues you’d like to hear us cover. Thanks again. Have a good one.

Episode 3: Stay Away From The Gray Area. Reporting Claims.

There are a number of common questions that policyholders ask in regards to reporting claims. In this episode, ALPS Claims Attorney John Ries talks with Mark about some of questions he often hears. John also sheds light on why it’s important for attorneys to call their legal malpractice insurance provider even if they suspect that an issue or event may give rise to a claim.

 

ALPS In Brief, The ALPS Risk Management Podcast, is hosted by ALPS Risk Manager, Mark Bassingthwaighte.

 

Transcript:

MARK:

Welcome to ALPS In Brief, the ALPS risk management podcast. We’re recording here at ALPS home office in the historic Florence building in downtown Missoula, Montana. I’m Mark Bassingthwaighte, the ALPS risk manager. I have the pleasure of sitting down today with ALPS claims attorney John Reis. John, before we get into some discussions here, can you tell our audience just briefly a little bit of your background here at ALPS?

JOHN:

I’ve been here eight years. Before that, I was in private practice in Washington state for about five years. Then before that, I was in Oregon as a prosecuting attorney.

MARK:

Ah, interesting. Very good, very good. Both of us in terms of the roles that we’re in get some common questions, which are just concerning, “I think I might’ve made a mistake. There’s a problem out here. What happens? What do I need to do? What should I do?” The idea today is just to have some discussions about the claims process. If I am an attorney and I’m concerned that a mistake has happened, can you talk me through what the basic reporting requirements are? When do I need to report this? You see where I’m going? I don’t even know.

JOHN:

In the past, and this is changing starting next year, we have in the past asked for attorneys to give us notice as soon as reasonably possible. Like all attorneys, reasonable is up for interpretation. Now we are changing it to “immediately notify us.” Basically, I always tell attorneys when they call, inevitably they’ll say, “I wasn’t sure if I should report this or not because it’s not a claim yet.” Sometimes there are claims; they’re just flat out “I missed the statute and I had to my tell my client.”

MARK:

Right, of course.

JOHN:

Sometimes, it’s a little more in the gray area. “I’ve just lost a summary judgment motion. Is that a claim?”, or, “I may have forgotten to list an expert. Is that a claim?” I always advise people that it is a claim as soon as you think it’s a claim. If you’re thinking about whether or not to report it, you should just default and automatically report it, and not wait and see if it develops into an actual malpractice claim. There’s a lot of problems if you wait. There’s always the problem down the road. Someone will accuse you of having knowledge of it and not telling ALPS.

MARK:

Right, right.

JOHN:

Nobody wants to fight over that. ALPS doesn’t want to. We’d rather you just tell us up front. It doesn’t hurt you any, so you might as well tell us as soon as you think it’s a possible claim.

MARK:

Right. A takeaway for me here is some people just assume “I don’t have a claim until I’ve been sued,” and that’s not really what this is about. It’s about awareness. If you have questions or concerns, just call us. We’ll sit down and work through it. I think just as a side note, we don’t open everything that is reported as a claim.

JOHN:

Right.

MARK:

Would you explain that just briefly?

JOHN:

Yeah. We have the choice. Sometimes someone will call in and it’s clearly not a claim or even a potential claim, and so we don’t even open anything. We just put a note on the file. Other times, maybe many years down the road, it can turn into a claim or not. We’ll open those as circumstances. A circumstance, we don’t report it when you go to another insurance company, heaven forbid. We don’t report those, so it’s just an internal notation. If it does develop into a claim, they can turn it into a claim down the road. We call them circumstances. Sometimes, you’ll see some insurance companies say, “We don’t require you to report circumstances.” Basically what they’re saying is, “We don’t require you to notify us of things that are not actual claims,” which we think is problematic. That’s why we ask you to report even potential claims, what we call circumstances.

MARK:

It seems to me, the value of that is “we’re just going to pin down coverage.”

JOHN:

Yeah.

MARK:

“We’ve taken care of our reporting requirements just in case it’s a little muddy.”

JOHN:

Right.

MARK:

Okay, okay. So, I’ve had a call with you or someone to chat with me, and the decision is, “Okay, this is something that should be reported.” Is there a formal process that I need to go through to formally report a claim?

JOHN:

Required in writing. We don’t have a form. A lot of people call and ask, “Is there a form we have to fill out?” There’s no form. Oftentimes, it’s best you just call us first and we’ll give you an idea of what we want so you’re not sitting down and writing a 10-page letter that doesn’t really help us that much. We just require written notice that just basically puts us on notice of what the issues are. Has what has been missed, what’s being alleged, who the client is, when did this happen. It could be as short as a paragraph, depending on what the error or the potential error is.

MARK:

So you’re talking about writing. Can I do this even via email?

JOHN:

Email’s fine. Fax, email, regular mail.

MARK:

Okay, very good. Now you and I both know we get these questions a lot too: “Are you guys going to raise my rates?” This kind of thing. Is there an impact? What happens? How does ALPS deal with the fact that a claim has been reported? When we think about underwriting, rates, those kinds of things going forward.

JOHN:

Yeah, there’s no impact on your future rates for just reporting claims.

MARK:

Mm-hmm (affirmative).

JOHN:

In fact, I would consider it to be more of a benefit to you as far as underwriting, that you’re more cautious than the average person if you call in something that’s maybe not a claim. At least it shows that you’re thinking about the issue, which is much better than the other way, if you call us up six months after the claim has been made.

MARK:

Right.

JOHN:

If anything, I think it helps your future rates. There’s not formula that really takes it into consideration. It all goes into the black magic of underwriting. There’s not direct impact on your rates.

MARK:

So what I’m hearing is if I report a claim, you guys do your thing in claims and provide excellent customer service, and the claim goes away. I’m successfully [defended 06:45]. I’m hearing that that’s really not going to be a problem. How about I’ve blown a statute and there is a significant loss here? Let’s say there’s a $300,000 loss and I don’t know, $50,000 or something in defense costs, these kinds of things. Is that a similar outcome? What happens rate-wise there?

JOHN:

Yeah, the first thing that happens is there’s a surcharge. Anything over $30,000 is surcharged.

MARK:

Whether it’s loss or defense?

JOHN:

Right, loss or expense. I don’t know what the exact number is, but the majority of claims are probably in the surcharge level. A fair number don’t ever get to that high number. We can resolve them for next to nothing, or nothing at all. The ones that go over $30,000, the surcharge is relatively small. It’s half the basic rate, which is 1900. It’s a $950 surcharge, but that’s added into the formula mid-way through, so the final number could be higher than that.

MARK:

Are there any obligations that I have under a policy when a claim arises?

JOHN:

Well the only real obligation is you have to report it. When the new policies go into effect beginning next year, you have to immediately notify ALPS as soon as you become aware of a potential or actual claim. That’s your only requirement, is to immediately notify us. All of the claims attorneys have cellphones. We take calls 24 hours a day. Sometimes people say, “Oh, this came in over the weekend.” You can call us on the weekend.

MARK:

I get that I need to report the claim, but how about as you handle the claim, go through the process? Do I have obligations along those lines?

JOHN:

Yeah. The first thing that we’ll tell you after you report the claim, if it is a claim and it’s not just a potential claim or a circumstance, we’ll ask for a complete copy of your file. That’ll be the first, probably the biggest task you have as an insured is copying a file, depending on who the-

MARK:

– the importance of file maintenance and keeping files, but …

JOHN:

Yeah. Some people or some firms and some attorneys have a lot better record-keeping procedures than others. For some people, it’s not a big deal. They can just hit a button, copy it to a memory stick, and mail it to us. Other people, their banker box is scattered through several offices. Papers are loose, they’re difference sizes. I understand that’s a bigger task. Some files are just plain huge. They can take a whole room. If that’s the case, sometimes we can limit the request. Just give us the pleadings for now, or just give us the correspondence for now. Just enough to get us going. I guess the flip side would be if, we usually err on the side of just getting everything. It’s just like when you get a new claim or a new case as a lawyer. You want all of the information, or in discovery, you want all the information. You don’t want just the little bits that they give you. If there’s too much there, we’ll let you know and we can send it back, or just tell you not to send it to us to begin with.

MARK:

Do you prefer that digitally?

JOHN:

It’s a lot easier for us digitally. I guess the downside of digitally, sometimes people copy a file, if there’s multiples of thousands of pages, if it just goes from one to ten thousand, it’s a little hard to sort through. We manage.

MARK:

I can imagine that one.

JOHN:

Yeah. It happens a lot, so we’ve gotten pretty good at going through and sorting it out. Most files are, even poorly kept, some files are better kept than others but all files have some natural order to them. Pleadings, correspondence, notes. There’s a predictable outcome to each one.

MARK:

Going back to this sort of example of blowing a statute or something, I realized, “Oh my gosh, I really have made a mistake here and messed up here. This is going to be a malpractice claim.” Do you have any thoughts or advice that you would share in terms of, what do I do with my client? Should I just run out and fall on my sword and say, “[inaudible 11:18], I’m so sorry. I’m so sorry. I’ll make it right?” What is your advice? Walk through that, that issue of client information or management.

JOHN:

That’s a tricky one. Knock on wood, I’ve never had to deal with that, even when I was in private practice. I can understand that’s a difficult situation. I think most attorneys really want to tell their client, “I’ll make it right,” or they feel bad. If it’s a missed statutes of limitations, for example, they feel bad inevitably. Any error I guess an attorney feels bad. Then the next question is, “Well how do I communicate that to the client?” Well I guess we all tell the insured that you can be honest with them and tell them that the mistake was made. The only thing you can’t do is tell them that the insurance company will pay you a certain amount, or that the insurance company will fix it somehow. You have to limit it to just, “I made a mistake. Here’s what the error was.” You can’t say, “And you’ve been damaged in the amount of x dollars. Just call up John and he’ll cut you the check on Monday.” In the policy, it requires the insured to cooperate with ALPS. Part of that is to not undertake any debts or any obligations with your client.

Within that limitation though, you can pretty much tell your client anything that you feel is necessary. That you feel bad, you wish it never happened. All of that’s fine. It will come back in your deposition, so you have to be aware of that. If you say that you feel bad and you wish it never happened, you’ll be asked about that. Keep that in mind. I think the best advice is just to tell them succinctly as possible, “I made an error. Your case is no longer viable. I’ve reported this to my insurance carrier. Here’s the claim number. Please call him or her as soon as you can.” That’s good enough.

MARK:

Well, my takeaway here is not to be afraid. If I am concerned that I’ve made a misstep, just to call and talk to the people that are experienced in handling these kinds of things and you will work with any of the attorneys calling in to try to understand, “Is this reportable or not?”, understand, explain how the process works. The other takeaway that I have here is, “Hey, if I am afraid I’ve made a mistake, I want to call ALPS first and have some discussions about how to handle this because I can get into some trouble in terms of just coverage issues and these kinds of things. I want to be informed.” For those of you listening, any time a claim comes up, I would just, “Hey, call John and he’ll take you through the process.

Well John, thank you very much for spending a little time. Thanks to all of you for listening to our show. If any of you happen to have any questions about the issues we’ve discussed today, please don’t hesitate to contact me at mbass@alpsnet.com. We’d love your feedback on the podcast, including other issues you’d like to hear us cover. Thanks again. It’s been a pleasure.