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Project Management for Lawyers 2015
The Ethics of Legal Project Management
January 22, 2015
4:15 Session
2 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
PANELISTS
Aileen Leventon President
and Founder
Robert L. Denby Senior Vice President -
Loss Prevention
David A. Rueff, Jr. Shareholder and Legal Project
Management Officer
3 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
Agenda
1.Introductions
2.Evolution of malpractice claims
3. Malpractice and ethics rules and overlaps
4. How LPM helps lawyers avoid malpractice and
complements ethical obligations
5. Relevant LPM tools: Scoping the Work
6.Q&A
4 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
Evolution of malpractice claims
5 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
Overview of ALAS Services
The
ALAS
Perspective
220+
firms
58,000+
lawyers
35 years’
experience
13,000+
claims
6 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
Where Do ALAS Claims Come From?
* Includes corporate, securities, banking, tax/ERISA, and real estate
Frequency
Litigation
39%
Transactional*
43%
Other
18%
Data as of 11/30/2013
7 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
Mistakes Conflicts of
Interest Unworthy
Clients
Problematic
Lawyer
Behavior
Common Themes
8 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
Mistakes Are On the Rise
9 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
12 Major Claims
4 Major Claims 3 Major Claims 6 Major Claims
69 Claims
32 Claims
21 Claims 19 Claims
0
10
20
30
40
50
60
70
80
Mistakes Conflicts of Interest Problematic Lawyers Unworthy Clients
of which
of which
We included claims in multiple categories if more than one type of act drove the loss (e.g., a claim involving a mistake and a conflict).
Blue column represents claims that received $500k or more in reserves during fiscal 2013.
Major” claims were claims to which we posted $5M or more during fiscal 2013.
2013: Top 99 Claims by Type of Problem
10 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
Mistakes Come in Many Flavors
11 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
Recent Lawyer Mistakes
• Filing UCC papers in wrong
state
• Missing statutes of
limitations
• Dawdling with amended
pleadings
• Drafting documents that
don’t achieve goals
• Shooting from the hip
• Offering advice outside of
expertise
12 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
Underlying Causes of Mistakes
• Pace
• 24/7 accessibility
• Cost pressures
• Reduced staffing
• Technology
• Increased specialization
• Lack of personal interactions
13 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
Distinction between malpractice
and ethics rules and overlaps
14 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
ABA Model Rules
Rule Title Project Component
CLIENT-LAWYER RELATIONSHIP
1.0 "Confirmed in writing" Communication
1.0 "Informed consent" Communication
1.0 "Writing" or "written" Communication
1.1 Competence Quality
1.2 Scope of Representation and Allocation of Authority
Between Client and Lawyer Scope
1.3 Diligence Quality
1.4 Communication Communication
1.5 Fees Budgeting, Scope, Communication
1.6 Confidentiality of Information Communication
LAW FIRMS and ASSOCIATIONS
5.1 Responsibilities of Partners, Managers, And
Supervisory Lawyers Communication
5.3 Responsibilities Regarding Nonlawyer Assistance Communication
INFORMATION ABOUT LEGAL SERVICES
7.1 Communications Concerning a Lawyer's Services Communication
7.4 Communication of Fields of Practice and Specialization Project Management generally
15 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
ABA Model Rule 1.2
Scope of Representation and Allocation of Authority
Between Client and Lawyer
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions
concerning the objectives of representation and, as required by Rule 1.4, shall consult
with the client as to the means by which they are to be pursued. A lawyer may take
such action on behalf of the client as is impliedly authorized to carry out the
representation. A lawyer shall abide by a client's decision whether to settle a
matter. In a criminal case, the lawyer shall abide by the client's decision, after
consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and
whether the client will testify. (b) A lawyer's representation of a client, including
representation by appointment, does not constitute an endorsement of the client's
political, economic, social or moral views or activities. (c) A lawyer may limit the
scope of the representation if the limitation is reasonable under the
circumstances and the client gives informed consent. (d) A lawyer shall not
counsel a client to engage, or assist a client, in conduct that the lawyer knows is
criminal or fraudulent, but a lawyer may discuss the legal consequences of any
proposed course of conduct with a client and may counsel or assist a client to make a
good faith effort to determine the validity, scope, meaning or application of the law.
16 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
ABA Model Rule 1.0 (e): Informed Consent
(e) "Informed consent" denotes the agreement by a person to a
proposed course of conduct after the lawyer has communicated
adequate information and explanation about the material risks of and
reasonably available alternatives to the proposed course of conduct.
17 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
ABA Model Rule 1.0 (b) and (n)
“Confirmed in writing”
(b) "Confirmed in writing," when used in reference to the informed consent of a
person, denotes informed consent that is given in writing by the person or a writing
that a lawyer promptly transmits to the person confirming an oral informed consent.
See paragraph (e) for the definition of "informed consent." If it is not feasible to obtain
or transmit the writing at the time the person gives informed consent, then the lawyer
must obtain or transmit it within a reasonable time thereafter.
“Writing” or “written”
(n) "Writing" or "written" denotes a tangible or electronic record of a communication
or representation, including handwriting, typewriting, printing, photostating,
photography, audio or videorecording, and electronic communications. A "signed"
writing includes an electronic sound, symbol or process attached to or logically
associated with a writing and executed or adopted by a person with the intent to sign
the writing.
18 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
ABA Model Rule 1.4: Communication
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect
to which the client's informed consent, as defined in Rule 1.0(e), is
required by these Rules;
(2) reasonably consult with the client about the means by which the client's
objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct
when the lawyer knows that the client expects assistance not permitted by
the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.
19 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
ABA Model Rule 1.5 : Fees / Budgeting
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an
unreasonable amount for expenses. The factors to be considered in determining the reasonableness of
a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to
the client, that the acceptance of the particular employment will preclude other employment by the
lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount
involved and the results obtained; (5) the time limitations imposed by the client or by the
circumstances; (6) the nature and length of the professional relationship with the client; (7) the
experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether
the fee is fixed or contingent. (b) The scope of the representation and the basis or rate of the fee
and expenses for which the client will be responsible shall be communicated to the client,
preferably in writing, before or within a reasonable time after commencing the representation, except
when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in
the basis or rate of the fee or expenses shall also be communicated to the client. (c) A fee may
be contingent on the outcome of the matter for which the service is rendered, except in a matter in
which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be
in a writing signed by the client and shall state the method by which the fee is to be determined,
including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial
or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses
are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify
the client of any expenses for which the client will be liable whether or not the client is the prevailing
party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written
statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the
client and the method of its determination..
20 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
ABA Model Rule 1.5: Fees and Budgeting (Detail)
(a) A lawyer shall not make an agreement for, charge, or collect an
unreasonable fee or an unreasonable amount for expenses. The factors
to be considered in determining the reasonableness of a fee include the
following:
(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances; (6)
the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing
the services; and (8) whether the fee is fixed or contingent.
21 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
ABA Model Rule 1.5: Fees / Budgeting (Detail continued)
(b) The scope of the representation and the basis or rate of the fee and
expenses for which the client will be responsible shall be
communicated to the client, preferably in writing, before or within a
reasonable time after commencing the representation, except when the
lawyer will charge a regularly represented client on the same basis or rate.
Any changes in the basis or rate of the fee or expenses shall also be
communicated to the client.
22 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
How LPM helps lawyers avoid
malpractice and complements
ethical obligations
23 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
ABA Model Rules LPM component
Rule Title Project Component
CLIENT-LAWYER RELATIONSHIP
1.0 "Confirmed in writing" Communication
1.0 "Informed consent" Communication
1.0 "Writing" or "written" Communication
1.1 Competence Quality
1.2 Scope of Representation and Allocation of Authority
Between Client and Lawyer Scope
1.3 Diligence Quality
1.4 Communication Communication
1.5 Fees Budgeting, Scope, Communication
1.6 Confidentiality of Information Communication
LAW FIRMS and ASSOCIATIONS
5.1 Responsibilities of Partners, Managers, And
Supervisory Lawyers Communication
5.3 Responsibilities Regarding Nonlawyer Assistance Communication
INFORMATION ABOUT LEGAL SERVICES
7.1 Communications Concerning a Lawyer's Services Communication
7.4 Communication of Fields of Practice and Specialization Project Management generally
24 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
Relevant LPM Tools:
Scoping the Work
25 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
Clarification of assumptions / risks
Identification of Assumptions
• Factual Assumptions: regarding the facts of the matter which if proved untrue could result in
expansion of the scope and additional tasks to be performed
• Procedural or Strategic Assumptions: regarding the opposing parties litigation or negotiation
tactics which are factored into the tasks to be performed and the time estimates provided
Risk Registers
Factors that may be encountered and how they can be minimized. The objective is to provide a
description of the risk, quantify it (in terms of probability) and identify actions that can be taken to
minimize the risk
26 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
Stakeholder identification and defining requirements
Identification of Stakeholders
• All Stakeholders should be identified to confirm that the scope includes all client objectives.
• This information is captured and shared with the team and should also include:
o Inside Counsel
o Business Department Representatives
o Third Parties
o Vendors
o Opposing Parties
o Opposing Counsel
27 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
Communication plans
• Reporting requirements
• Scheduled meetings versus hap hazard
conferences
• Publication of billing guidelines
• Clarification of reporting timelines and
methods (30 days or less)
• Secure access to Project Plan, Schedule,
Budget, Team Calendars and Matter Status
• Calendars capture major milestones or
deadlines in the case
• Case Notes allow team members to summarize
progress and to avoid duplication of work which
can result from starts and stops in the
engagement.
Clarification of communication requirements before work begins
28 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
Reliable estimates and budgets to support fee proposals
Development of a budget for the current matter or group of matters
• Set constraints (not an AFA, but
reasonable estimates for the
engagement)
• Evaluate historical information
for more reliable estimates;
• Integration of all costs related to
a matter (local counsel,
expenses); and
• Phase / Task codes meet E-
Billing requirements.
• Budget to actual reconciliation
o Identifies original budget
allocations by phase, task,
timekeeper
o Real time comparison by
daily time entry
29 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
Questions
30 PLI: Project Management for Lawyers | January 22, 2015 | The Ethics of Legal Project Management
Thank You!
Aileen Leventon President
and Founder
QLex Consulting Inc.
(917) 860-7043
Robert L. Denby Senior Vice President -
Loss Prevention
ALAS
(312) 697-6900
David A. Rueff, Jr. Shareholder and Legal Project
Management Officer
Baker Donelson
(601) 351-2469