CIAO Risk Management
Bellacicco/Pinnington
May 23/12
Agenda
CANADIAN ITALIAN ADVOCATES ORGANIZATION
Continuing Professional Development Program
An evening with
•
•
•
•
Avoiding claims
Avoiding bad cheque frauds
Administrative dismissals
Professionalism, practice and
technology tips
• Resources
• Questions
May 23, 2012
Columbus Centre Rotunda
Practising Safely:
How to Avoid a Malpractice Claim
Dan Pinnington,
Vice President, Claims Prevention & Stakeholder Relations
Lawyers’ Professional Indemnity Company
© Lawyers’ Professional Indemnity Company 2012
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CIAO Risk Management
Bellacicco/Pinnington
May 23/12
4/5
© Lawyers’ Professional Indemnity Company 2012
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CIAO Risk Management
Bellacicco/Pinnington
May 23/12
Claims prevention agenda
• LAWPRO policy
• General claims statistics
• Big firm claims
• Tools and strategies to
avoid claims
• Questions
What is LAWPRO?
• Full-fledged licensed insurance company
• Independent and distinct from LSUC
• Governed by Ontario Insurance Act, Ontario
Corporations Act, and other applicable
legislation
• Insure 23,500 Ontario practitioners
• Excess and title insurance
Details on LAWPRO
policy coverage
• Standard 2012 base premium $3,350
– Paid by firm
• Individual coverage
• Provides for indemnity and defense
• $1M per claim; $2M in aggregate
Mandatory LAWPRO
Policy Coverage
•Liability insurance for claims arising as
a result of an error, omission or
negligent act in the performance of, or
the failure to perform, Professional
Services for others
•Full policy at www.lawpro.ca
Premiums Match Risk
• We operate to be commercially viable
• Risk rated program in which the highest risk areas
of the bar pay premiums that closely match their
claims experience
• $65 Real Estate and $50 Civil Litigation
transaction levies
• Premium reductions for some practice types
– Many firm will have excess
• Claims made policy
© Lawyers’ Professional Indemnity Company 2012
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CIAO Risk Management
Bellacicco/Pinnington
Exclusions
• Claims:
– Arising out of lawyer’s dishonest,
fraudulent, criminal or malicious acts
– By an employer
– Arising out of investment advice, unless
the advice is the direct consequence of
legal services
Insured’s obligations
• Promptly report claim or circumstances
which might give rise to a claim
– Talk to internal claims person
– Provide information to LAWPRO
• Assist and Co-operate
– Do not admit liability or settle except at your own
cost
Claims management
• 2,300 new claims each year
• 3,200 open claims files
• Gross claims under management $400
million
• Average $90 million claims costs per
year (on the increase)
• Matters are repaired, settled or
vigorously defended
© Lawyers’ Professional Indemnity Company 2012
May 23/12
Exclusions – cont.
– Claims arising out of business ventures
or investments not directly related to
practice of law
– Claims by insured, spouse or partner
who has a beneficial ownership of a
business
– Legal fees or accounts
– Most fines or penalties
– Punitive or aggravated damages
LAWPRO’s obligations
• LAWPRO has 2 obligations
– Duty to defend
– Duty to indemnify
• What to expect
– Prompt, personal contact from a claims
examiner
– To be defended by experienced knowledgeable
counsel
– To be involved and consulted
What we are seeing
• More claims
• More complex claims
• Defence costs are increasing
• Claims are more costly to resolve
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CIAO Risk Management
Bellacicco/Pinnington
May 23/12
General claims statistics
• 4 of 5 lawyers will have at least
one
claim during their career
• Claims are reported an average of 2-3 years
after the service is provided
• Most claims activity during 6 - 25 years in
practice
• No claims sensitivity for any geographical
region
LAWPRO claims by error type
(claims by count % for 2000-2010)
Conflict
6%
Fraud
3%
Clerical
6%
Other
6%
Communication
34%
Fail to Know Law
12%
Inadequate
Investigation
16%
Time & Deadline
17%
See LAWPRO Magazine article on biggest claims risks
Resolution of Closed Claims
(2000 to 2010)
Count of claims by size of loss
(2001 to 2011)
Indemnity Paid
13%
No Cost
48%
Defence Only
39%
Cost of claims by size of loss
(2001 to 2011)
© Lawyers’ Professional Indemnity Company 2012
Top 10 Descriptions of Loss by Count
(2001 to 2011)
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CIAO Risk Management
Bellacicco/Pinnington
May 23/12
100%
LAW PRO Claims Count by Area of Law
2000 to 2010
90%
Are big firms really
that different?
Claim Count (%)
80%
Corporate
Plaintiff
Real Estate
Defence
IP
Tax
Wills/Estates
Labour
Family
70%
60%
50%
40%
30%
20%
10%
0%
Solo
2 to 5
6 to 10
11 to
24
25 to
74
75 Up
Firm Size
LAWPRO Claims Count by Error Type
2000 to 2010
Communications Errors
100%
90%
• Failure to follow client’s instructions
Claim Count (%)
80%
70%
60%
Communication
Time & Deadlines
Law or Tax Error
Investigation/Discovery
Clerical & Delegation
Conflict of Interest
Other
50%
40%
30%
20%
• Failure to obtain consent/inform client
• Work done without instructions
• Implications of decisions/actions
• Poor communication with client
10%
+
75
74
24
to
to
• Who looks after what
25
11
to
2
6
to
5
10
0%
So
lo
• Work promised, but not done
• Often he said, she said…
Firm Size
Time and
calendaring errors
• Failure to know/ascertain deadline
• Missed limitation
• Failure to calendar properly
• No tickler system
• Fail to react to calendar
• Basic calendar snafu
• Procrastination/lack of follow up
Inadequate discovery
or investigation of facts
• Bad advice because didn’t dig deep enough to deal
with all relevant issues
• Examples:
–
–
–
–
Not asking about spousal status/assets on will matter
No medical reports on personal injury matter
Not doing title search on commercial lease
Failing to exercise due diligence on an amalgamation of
two corporations
– Failing to verify the accuracy of information received
from someone unknown to the lawyer
• Not doing work as promised/timely basis
• Instructions sent, no follow-up
© Lawyers’ Professional Indemnity Company 2012
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CIAO Risk Management
Bellacicco/Pinnington
May 23/12
Failure to Know or
Apply the Law
Delegation Errors
• Clerical error
• Substantive law
• Letter filed in wrong file
• Mistake on filing/form
• Legislation
• Regulations
• Work delegated to employee not checked
• Work delegated to outsider not checked
• Case law
• Recent decisions
• Instructions to/from foreign lawyer
• Often dabblers!
Conflicts of Interest
• Acting >1 party/entity
CBA Task Force on
Conflicts of Interest
www.cba.org/conflicts
– Previous vs. current clients
– Family members and businesses
– Company and directors/shareholders
• Acting where self-interest
– Investing in client
– When fees owing
Conflicts on firm merger
or lateral hire
• Last thing considered
– Want to make it happen
– Often blind eye to obvious or potential
conflicts
• Desire to keep both clients
• Inevitably conflicts arise and both
clients must walk
• Often very costly as new counsel must
be hired and get up to speed for both
clients
LAWPRO claims by error type
(claims by count % for 2000-2010)
Conflict
6%
Fraud
3%
Clerical
6%
Other
6%
Communication
34%
Fail to Know Law
12%
Inadequate
Investigation
16%
Time & Deadline
17%
See LAWPRO Magazine article on biggest claims risks
© Lawyers’ Professional Indemnity Company 2012
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CIAO Risk Management
Bellacicco/Pinnington
May 23/12
Plaintiff litigation claims
(2000 to 2010)
Defence litigation claims
(2000 to 2010)
Conflict of Interest Other
1%
4%
Clerical
5%
Other
12%
Communications
25%
Law
11%
Conflict of Interest
5%
Communications
36%
Clerical
4%
Inadequate
Investigation
12%
Law
14%
Inadequate
Investigation
7%
Time Management
42%
Real estate claims (2000 to 2010)
Time Management
22%
Corporate law claims (2000 to 2010)
Fraud Other
4%
5%
Other
3%
Fraud
4%
Conflict of Interest
7%
Conflict of Interest
19%
Communications
40%
Clerical
14%
Communications
41%
Clerical
6%
Law
8%
Time Management
3%
Law
12%
Inadequate
Investigation
19%
Family law claims (2000 to 2010)
Conflict of Interest
4%
Other
7%
Inadequate
Investigation
12%
Wills & estates claims (2000 to 2010)
Conflict of Interest
7%
Clerical
5%
Time Management
3%
Other
4%
Clerical
8%
Communications
40%
Communications
42%
Law
15%
Law
28%
Inadequate
Investigation
6%
Time Management
8%
© Lawyers’ Professional Indemnity Company 2012
Inadequate
Investigation
15%
Time Management
11%
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CIAO Risk Management
Bellacicco/Pinnington
May 23/12
IP claims (2000 to 2010)
Securities law claims (2000 to 2010)
Other
2%
Conflict of Interest
2%
Other
9%
Clerical
12%
Communications
29%
Communications
46%
Clerical
25%
Law
24%
Law
6%
Time Management
26%
Inadequate
Investigation
10%
Inadequate
Investigation
6%
Cost of years between error date and reporting
date by area of law (1997 to 2007)
Bankruptcy law claims (2000 to 2010)
Conflict of Interest
5%
Other
10%
Communications
20%
Clerical
5%
Time Management
5%
Law
25%
Inadequate
Investigation
30%
Time Management
3%
Under 10
%
10 to 15
%
Over 15
%
Real Estate
$172,940,664
92.1
$11,244,552
6.0
$3,528,914
1.9
Plaintiff
$156,093,081
97.0
$3,523,337
2.2
$1,241,177
0.8
Corporate
$105,310,606
95.0
$4,027,826
3.6
$1,493,544
1.3
Family
$27,713,830
84.9
$3,260,625
10.0
$1,658,938
5.1
Defence
$23,474,025
95.2
$681,248
2.8
$502,362
2.0
Wills
$41,656,308
93.5
$2,025,035
4.5
$889,163
2.0
Labour
$5,809,962
97.3
$163,391
2.7
$0
0.0
IP
$7,188,781
98.2
$129,840
1.8
$0
0.0
Tax
$16,828,067
97.9
$305,467
1.8
$61,175
0.4
Criminal
$3,904,314
96.2
$5,801
0.1
$150,092
3.7
Securities
$6,149,909
100.0
$0
0.0
$0
0.0
Bankruptcy
$4,427,432
93.9
$286,230
6.1
$0
0.0
Avoiding a malpractice claim:
File handling procedures
• Formal file opening/closing procedure
– Conflicts check
– Written retainer with clear scope
• Conflicts
–
–
–
–
Follow firm procedures religiously
Listen to your instincts - Who is your client?
You can't judge your own conflicts
Take appropriate action when real or potential conflict
arises
• Be clear when retainer is over
© Lawyers’ Professional Indemnity Company 2012
9
CIAO Risk Management
Bellacicco/Pinnington
May 23/12
Avoiding a malpractice claim:
Control client expectations
• Manage/control client expectations from the start
–
–
–
–
Process and procedures
Anticipated timing
Prospects for success/likely outcome
Anticipated costs/disbursements
• Don’t assume client understands everything
• Keep client informed
• Explain consequences of decisions
• Don’t wait until end to ask how you did
Avoiding a malpractice claim:
Create a paper trail
• Confirm information, instructions, advice
work done in writing
– But not everything
• Confirm in writing or get signed directions on major
decisions
• Detailed contemporaneous dockets
– Telephone conference with client re termination
provisions of lease
• Use tickler system for limitation periods/tasks
• Use written offers to settle
• Send interim and final reporting letters
Avoiding a malpractice claim:
Do your homework
• Get the facts
• Don’t rush or take shortcuts - dig deeper - ask
yourself:
•What does client really want need?
•Read between the lines
•Is there anything unusual?
•Is there something that doesn’t add up?
• Know the law
• Do good work
– Put case in properly
• Evidence Act notices, expert reports etc.
– Appropriate due diligence
Problems with precedents
• Final draft does not reflect the client’s
instructions
• Ambiguous clauses
• Conflicting clauses
• Missing clauses
• Often due to miscommunications
Biggest technology dangers
Accommodate the big client errors
• Inappropriate things for big client
– Cut corners
– Take shortcuts
– Overlook conflicts of interest
• Drivers
– To please the client
– Keep client for fees
© Lawyers’ Professional Indemnity Company 2012
and
• Email
–
–
–
–
Sending email to wrong people
E-mail auto-address
BCC
Saying nasty things
• Metadata
• E-discovery obligations
• Getting into trouble online or in another jurisdiction
• Loss of client data on portable devices
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CIAO Risk Management
Bellacicco/Pinnington
May 23/12
Social media
• Be professional
• Regard everything you post as public
Be careful: Is there coverage?
• Advice/work regarding US or other foreign
law
– Not covered by LAWPRO policy
– Consider client reaction
• Avoid inadvertent client relationships
• Be careful who you “friend”
• Don’t communicate with client
Avoiding disputes about money
• Note: malpractice coverage is not mandatory
in most US jurisdictions
– Is required by some clients
•
•
•
•
•
Control client expectations about fees
Get sufficient retainer at start
Bill regularly
Replenish retainer when it runs out
If clients don’t replenish retainer or pay
outstanding accounts:
• Don’t sue for fees
Risks in a soft economy
• Unhappy clients
looking for
–
–
–
–
Someone to blame
Someone to pay
A way to delay things
A way out
• Ambiguous retainers
• Ambiguous language in
documents
• Poor communication
• Missed deadlines/delay
• Unanticipated scenarios
or circumstances
• Unexpected results
• Conflicts of interest
© Lawyers’ Professional Indemnity Company 2012
Risky lawyer behaviour
in a soft economy
• Poor client selection
• Rushing/taking shortcuts
• Bending the rules
• Dabblers
– Helping existing client, family or friends
– Switching to “growth” area
• Suing for fees
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CIAO Risk Management
Bellacicco/Pinnington
May 23/12
Beware of difficult clients
Categories of difficult clients
•
•
•
•
•
•
•
•
•
How to deal with difficult clients
•
•
•
•
•
Set expectations at the start
Continually manage expectations
Be firm and consistent
Don’t tolerate inappropriate behaviour
Know when to say goodbye
• See paper by Justice Carole Curtis and client
billing and administrative information precedents
Angry/hostile
Vengeful/with a mission
Over-Involved/obsessive
Dependant
Secretive/deceitful/dishonest
Depressed
Mentally Ill
The difficult client with the difficult case
Client unwilling to accept, follow or believe
lawyer’s advice
The lessons
•Claims are real
•Claims are preventable
•Understand the risks
•Be proactive in using risk
management tools
and strategies
– www.practicepro.ca/difficultclients
Thanks and questions please!!
www.titleplus.ca
www.lawpro.ca
www.practicepro.ca
© Lawyers’ Professional Indemnity Company 2012
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CIAO Risk Management
Bellacicco/Pinnington
May 23/12
Beware of bad
cheque fraud
and other frauds
How bad cheque frauds work
• Contrived legal matter
• Basic goal: have you run
fraudulent certified cheque
through your trust account
• You disburse funds on the bad
cheque
• Fraudster gets real money
• You get shortfall
© Lawyers’ Professional Indemnity Company 2012
Common types
• Bad debt collection
• IP licence agreement payment
• Spousal support collection
– “Collaborative law participation agreement”
• Business loan
• Inventory purchase loan
• Refund of retainer/deposit
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CIAO Risk Management
Bellacicco/Pinnington
© Lawyers’ Professional Indemnity Company 2012
May 23/12
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CIAO Risk Management
Bellacicco/Pinnington
May 23/12
The common red flags
• Initial contact email is generically addressed
(e.g., “Dear attorney”) and BCC’d to many
people.
• The name in the sender email address and
name in the body of the email are different.
• Sender email address is different from email
address mentioned in body of the email.
• Client uses one or more email addresses from a
free email service (e.g., Gmail,MSN, Yahoo!),
even when the matter is on behalf of a business
entity.
The common red flags (cont.)
The common red flags (cont.)
• Client raises issues of conflicts or payment of a
retainer.
• Domain name used in personalized email
address or website was recently registered
(check at WhoIs.net).
• IP address in metadata of email indicates sender
is in a geographic location that is different from
where he/she claims to be.
• Client is new to your firm.
• Client is in a distant jurisdiction.
• Client shows up and wants the matter completed
around banking holidays.
• Client says they prefer email communication due
to time zone differences.
• Client provides only a cell number.
• Client is in a rush – and pressures you to “do the
deal” quickly.
• Client and others involved don’t seem
concerned if shortcuts are taken.
© Lawyers’ Professional Indemnity Company 2012
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CIAO Risk Management
Bellacicco/Pinnington
May 23/12
The common red flags (cont.)
• Client is willing to pay higher-than-usual fees on
a contingent basis from (bogus) funds you are to
receive.
• Despite the client stating a lawyer is needed to
help push for payment, the debtor pays without
any hassle.
• Cheque or bank draft arrives at your office in
plain envelope and/or without covering letter.
• Cheque is drawn from the account of an entity
that appears to be unrelated (i.e., a spousal
arrears payment from a business entity).
Don’t let your guard down
•
•
•
•
•
The common red flags (cont.)
• Payment amounts are different than expected or
change without explanation.
• Client instructs you to quickly wire the funds to
an offshore bank account based on changed or
urgent circumstances
– E.g., health issues, sick child
• Some or all of the payment is going to third party
that appears unrelated to the matters.
More info on fraud prevention
Getting very sophisticated!
Watch for red flags
Dig deeper if things don’t add up
Cross-check facts
DON’T DISBURSE FUNDS UNTIL
YOU ARE SURE THEY ARE THERE
• Terminate retainer if not sure
• www.AvoidAClaim.com blog
• LAWPRO Fraud Fact sheet
• Only wired funds via LVTS are
irrevocable!!
• www.practicepro.ca/fraud
Thanks and questions please!!
• Report suspicious matters to
fraudinfo@lawpro.ca
• CALL FOR HELP
Administrative Dismissals
“Case
dismissed!”
“The Sequel!”
www.titleplus.ca
www.lawpro.ca
www.practicepro.ca
© Lawyers’ Professional Indemnity Company 2012
Domenic Bellacicco
New Unit Director & Counsel
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Bellacicco/Pinnington
May 23/12
Status Notice
The Saga Continues!
Thank You For Listening!
Questions please…
60 Professionalism, Practice and
Technology Tips in 60 Minutes
Dan Pinnington
Vice President,
Claims Prevention & Stakeholder Relations
LAW PRO
© Lawyers’ Professional Indemnity Company 2012
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Bellacicco/Pinnington
May 23/12
Today’s agenda
• Internet
•
•
•
•
•
•
•
Security and privacy
Software and Gadgets
Productivity
Keyboard shortcuts
Networking and social media
Where to learn more
Future of law?
Internet
© Lawyers’ Professional Indemnity Company 2012
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CIAO Risk Management
Bellacicco/Pinnington
May 23/12
Your one stop travel shop
•
•
•
•
•
•
Searches all other travel sites
Flights and hotels
You filter results to find what you want
Reviews
www.kayak.com
Also www.tripadvisor.com
Get The Best Free Online Clipart
• Microsoft Office images page
• Clip art, photos, animations
and sounds
• Searchable by keyword topic
• Royalty free for non-commercial use
• office.microsoft.com/en-us/images/
Join.me
Instant ad hoc virtual meetings
• Share your desktop via a web browser
with 1-20 other people
• Can look at other person’s computer too
• Also IM and document sharing
• $50/month
• GoToMeeting or WebEx
Can we meet next Tuesday?
Use online scheduling tools:
• GatherGrid
• Tungle
• WhenIsGood
• Doodle
• Mikogo (free)
© Lawyers’ Professional Indemnity Company 2012
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CIAO Risk Management
Bellacicco/Pinnington
Free long distance calls
May 23/12
Google
• Skype (www.skype.com)
– To landlines for small fee
• Google Talk
(www.google.com/talk)
• Also chat via IM
– A good back-channel
• Need mic and sound card on
your computer
Google Gmail.
© Lawyers’ Professional Indemnity Company 2012
Google Maps
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CIAO Risk Management
Bellacicco/Pinnington
May 23/12
Real Property Sneak Peak
Google Translate
• Want a look at specifc property clients
 Google Earth
satellite
– Google Maps – Streetview 
Have you “Googled”
yourself lately?
• How the rest of the world sees
you through the eyes of the Web
– Good and bad stuff
• Make it a regular habit
• Search variations of your name
in quotes
• Your department name,
stakeholders, etc.
Don't be the last to know
• Google Alerts
• E-mail alerts of Google
news and/or Web search results
based your query or topic
• Delivered instantly, daily or
weekly
• News about any person or topic
More  Even more
SECURITY and PRIVACY
© Lawyers’ Professional Indemnity Company 2012
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CIAO Risk Management
Bellacicco/Pinnington
May 23/12
Keep your electronic data
secure and private
Keep your electronic data
secure and private (cont.)
#1 Install latest updates
#2 Use passwords
#3 Antivirus software is essential
#4 Avoid spyware and adware
#5 Install firewall on your Internet
connection
#6 Avoid the dangers of e-mail
#7 Beware the dangers of metadata
#8 Lockdown and protect your data
#9 Harden your wireless connections
#10 Learn how to safely surf the Web
#11 Change key default settings
#12 Implement a technology use policy
#13 A backup can save your practice
www.practicepro.ca/securitybooklet
Build a better password
Ninite.com
• Automated install/update of common web
apps
• Over 12 characters
• Combo of
upper/lowercase,
numbers, symbols
• Change it frequently
LastPass password utility
• Over 12 characters
• Combo of
upper/lowercase,
numbers, symbols
• Change it frequently
• No birthdays,
dictionary words,
famous quotations
• Don’t use the same
one for everything
• No birthdays,
dictionary words,
famous quotations
• Don’t use the same
one for everything
Google Account
security best practices
•
•
•
•
•
Use a strong password
Set-up two step authentication
Enable Google account recovery options
Check application access
See post on Rick Klau’s blog
– http://tins.rklau.com
CSR..2
© Lawyers’ Professional Indemnity Company 2012
22
CIAO Risk Management
Bellacicco/Pinnington
MyPermissions.org
May 23/12
Email gotchas
• Don’t send to wrong person!
• Check your permissions with this
collection of links to your social media
profile pages
– Links work when you are logged in
– Check before sending
– Message recall doesn’t work
• Turn off auto-complete
– In Outlook:
• Tools – Options – Email Options – Advanced
Options…
• Don’t say nasty things!
Wireless Security
• Lock down your router
• Using it as is out-of-the-box leaves
you wide open
• See instructions on practicePRO site
– www.practicepro.ca/securitybooklet
Phishing Scams
Gadgets, Software and
Hardware
• ‘Spoofed' e-mails
– Appear to be from bank,
credit card company etc.
– Links to counterfeit websites
– Tricks you into divulging credit
card numbers, account
usernames, passwords and
more
• Avoid being taken in!
© Lawyers’ Professional Indemnity Company 2012
23
CIAO Risk Management
Bellacicco/Pinnington
May 23/12
Dual Monitors
Triple monitors…
• Working screen and
reading screen
• Easier cut/paste/edit
• Less printing
Telephone Headsets
• Once you try one, you’ll never go back
• Models
– Over the head
– Over the ear
– In the ear
• Prices - $50-$350
• Consider dual phone/computer type
BlackBerry Tips
• Keyboard shortcuts
• Helpful features and settings
• BlackBerry 101 article from LawPRO
Magazine
• www.practicepro.ca/LawPROmag/Blackberry101.pdf
– Voice recognition software
– Virtual meetings
Essential Mac and
iPhone resources
Adobe Acrobat X Professional
• iPhoneJD
– www.iphonejd.com
• The Mac Lawyer
– www.themaclawyer.com
• ABA Techshow 60 iPad and iPhone Apps
in 60 Minutes
•
•
•
•
•
•
Create/Edit .pdf files
OCR
Portfolios
Security
Forms
Email archiving
– www.ReidMyBlog.com
© Lawyers’ Professional Indemnity Company 2012
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CIAO Risk Management
Bellacicco/Pinnington
May 23/12
Voice Recognition
• Direct translation of speech to
text
• Dragon’s Naturally Speaking
11.5 (Nuance) for Windows
– Preferred, Professional or Legal
• Dragon Dictate for the Mac
• Windows Speech Recognition
in Vista or Windows 7
Digital Dictation
•
•
•
•
•
Same size as tape machines
Eliminate tape problems!
Greater capacity and clearer
Work on multiple files
Upload to your computer and email
• Allows you to easily send in
dictation from remote location
• Can also work in conjunction with
VRS
• KnowBrainer addon adds
voice commands
DIY document assembly
Tasks and time management
• Pathgoras.com
• Easiest way to do document automation
assembly yet
• Simple to learn
• Easy to convert existing documents
• Try TheFormTool.com
The different types of tasks
Urgent and
important
Important but
not urgent
1 2
3 4
1 2
3 4
Urgent but
not important
• Motion today
• Court filing due
tomorrow
• Real estate closing
Not urgent and
not important
• Calls/emails
• Most interruptions
• Other people imposing
on your time
• LAWPRO premium
due next month
• Employee issues
• Collecting ARs
• Marketing
• Exercise/time off
•
•
•
•
Trade press
Television
Did the Leafs win?
Facebook updates
Stephen R. Covey's book, The 7 Habits of Highly Effective People
© Lawyers’ Professional Indemnity Company 2012
25
CIAO Risk Management
Bellacicco/Pinnington
May 23/12
Getting things done
with a daily to do list
•
•
•
•
•
Use it every day
Write it out
Have only one list
Make it at beginning/end of day
Show priorities
Ways to capture smaller tasks
or reminders
•
•
•
•
Send email to yourself
Create a new email message
Save draft message in email drafts folder
Dedicated to do or reminder sub-folders in
Inbox
– What are the top 3 or 5
• Use standard form
• Enter bigger tasks in calendar
Control your boundaries and space
PRODUCTIVITY
• Daily/weekly meetings for routine issues
• Set aside your best time in the day to do
work
• Don’t bug me protocol
– Close your door; phone to voicemail
• Work in a war room
• Consider call display
• Have people send email, not voicemail
• Used detailed voicemail messages
• Learn to say “NO”
Turn off new e-mail
pop-up and beep
Go for fewer interruptions by:
• Turn off the pop-up
• Turn off the beep
• Set check for new messages
to lower frequency
• Enable new mail icon
on task bar
© Lawyers’ Professional Indemnity Company 2012
26
CIAO Risk Management
Bellacicco/Pinnington
Make your mouse
more sensitive
• Smaller mouse/touchpad movement
to cross desktop
• Start, Control Panel, Mouse icon,
Motion tab
• Will take you time to adjust
May 23/12
Try a right-click on your mouse
• Or the right-click key on
keyboard
– it has arrow
cursor and
menu on it
• The fastest way to jump
to context sensitive
features
Help me with spelling
Keyboard shortcuts
• Right click (or menu shortcut key) on
misspelled words (underlined in red) to
see correct spellings
Save your work
• Press Ctrl+s to save your work
• Works in most applications
• In most email programs will save copy of
current message in Drafts folder
© Lawyers’ Professional Indemnity Company 2012
Clean up a mess with the
miraculous Undo or Ctrl+z
• To undo changes press Ctrl+z,
Alt+Backspace, or click the Undo button
• To redo undone changes press Ctrl+y or
click the Redo button
• You can do this multiple times
• Works in all MS Office apps,
and many other programs
27
CIAO Risk Management
Bellacicco/Pinnington
Alt + Tab
To switch from one program to another
• Hold down Alt, and
• Repeatedly hit Tab
Essential word
processing shortcuts
May 23/12
Jumping and selecting text
• Ctrl+left or right arrow to jump one whole word
• Ctrl+up or down arrows to jump a paragraph at
a time
• Ctrl+Shift+right or left arrow to both select and
jump one whole word at at time
• Ctrl+Shift+up/down arrows to both select and
jump a paragraph at a time
Print without your mouse
• To turn on/off; or change selected text:
– Ctrl+B = bold
– Ctrl+U = underline
– Ctrl+I = italics
• Ctrl+A
=
selects all text in a document
Essential Outlook
keyboard shortcuts
•
•
•
•
•
•
• Ctrl+P - opens Print dialog
• Up/Down Arrows - increments
the number of copies
• Enter - same as hitting OK
Ctrl+M = new E-Mail message
Ctrl+Enter = to send an email message
Ctrl+T = new Task
Ctrl+N = new Note
F7 to spell check
Ctrl+B = open Address Book
Work smarter in Outlook
• Use plain-English dates in
date fields
– will enter next occurrence of
the described date
– Ex: “tomorrow”; “nov 4”; “one
week” or “2 days”
• Sort items listed in any
column by clicking on the
column’s title bar
© Lawyers’ Professional Indemnity Company 2012
28
CIAO Risk Management
Bellacicco/Pinnington
Keep calendar open while using
other parts of Outlook
• Open Calendar in new window
• Right-click on Calendar and select Open in
New Window
Where did I store that document?
May 23/12
Outlook Add-Ons
• Adobe Acrobat
archive
• Simply File makes
organizing e-mails
easier
• Copy2Contact makes
contact management
a breeze
• Xobni makes Outlook
more powerful
Chatty Caller?
• Don’t waste time looking for electronic
copies of documents
• Use the same folder structure on your
computer hard drive and in your email
Inbox sub-folders
• Caller has more time than you do?
• Need help to get off the phone?
• www.sorrygottago.com can help
© Lawyers’ Professional Indemnity Company 2012
29
CIAO Risk Management
Bellacicco/Pinnington
Learning More
May 23/12
2-page Quick Reference Guides
• Use Microsoft, Adobe, or Mac software?
• Download free, full colour guides here:
www.customguide.com/quick_references.htm
•
•
•
•
•
•
Online Training
Word
Powerpoint
Excel
Acrobat
Photoshop
and more
Learn Acrobat
• Lynda.com
• Training for:
–
–
–
–
–
–
Microsoft Office
Corel/Word Perfect
Acrobat
Google
Windows 7/Mac OS
Moving versions
• Starts at $25/month
blogs.adobe.com/acrolegal
practicePRO/LAWPRO Resources
Places to learn more:
•
•
•
•
•
LAWPRO Magazine
AvoidAClaim.com blog
Managing booklets
Lending Library
practicePRO Resource Guide
• www.lawpro.ca
• www.practicepro.ca
© Lawyers’ Professional Indemnity Company 2012
30
CIAO Risk Management
Bellacicco/Pinnington
May 23/12
LSUC Resource Centre
LSUC/OBA Solo &
Small Firm Conference
May 30-June 1, 2012
ABA Resources
•
•
•
•
Law Practice magazine
LawPracticeToday Webzine
ABA TECHSHOW
Books
Implementing all this Stuff!!
• Resolve to make some
changes
• Small/easy ones first
• Bigger ones over time
B
Thanks and questions please!!
www.titleplus.ca
www.lawpro.ca
www.practicepro.ca
© Lawyers’ Professional Indemnity Company 2012
Contact Info
Dan Pinnington, BSc, LLB/JD
Vice President, Claims Prevention & Stakeholder Relations
LAWPRO, Toronto, Ontario
(416) 598-5863 or 1-800-410-1013
dan.pinnington@lawpro.ca
www.practicepro.ca and www.lawpro.ca
Blogs: AvoidAClaim.com; slaw.ca;
• Connect with me:
– Linkedin: Dan Pinnington
– Twitter: danpinnington
– Facebook: Dan Pinnington
– Google+: Dan Pinnington
31
practicetip
beware
the ides of
Rule 48
The following scenario is familiar to all
plaintiffs’ counsel. Consider it, for example,
in the context of a slip and fall claim.
Upon being retained and after having
reviewed the relevant factual background,
counsel chooses, wisely, to explore the
prospect of resolving the claim without the
need for formal proceedings. The liability
insurer is like-minded and appoints an
adjuster to investigate and engage counsel
in a settlement dialogue. As is often the case,
the running of a limitation period outstrips
the pace of negotiations and the expiry of
the limitation looms.
To protect the client’s interests and preserve
the right to formally advance the claim,
counsel commences an action. Mindful of
the six-month deadline for service, counsel
serves the statement of claim and an agreement is struck with the adjuster to hold the
action in abeyance pending the outcome of
settlement discussions. The outlook in this
regard is favourable and counsel is justifiably
optimistic. All is well, but for one thing…
Rule 48.15.
The Rule provides as follows:
48.15 (1) Dismissal – The registrar shall
make an order dismissing an action as
abandoned if the following conditions are
satisfied, unless the court orders otherwise:
1. More than 180 days have passed
since the date the originating process
was issued.
38
2. None of the following has been filed:
i. A statement of defence.
ii. A notice of intent to defend.
iii. A notice of motion in response to an
action, other than a motion challenging the court’s jurisdiction.
3. The action has not been disposed of
by final order or judgment.
The action has not been set down for trial
in our slip and fall scenario.
The registrar has given 45 days notice in
Form 48E that the action will be dismissed
as abandoned: O. Reg. 438/08, s. 46, O. Reg.
394/09, 21(1).
It does not matter that the parties are
engaged in ongoing and perhaps vigorous
negotiations, with a clear and unequivocal
intent on the part of the plaintiff to proceed
with the claim. The rule deems the action as
“abandoned” in the absence of the specified
filings. Ordinarily, the filing of these
documents would be a routine measure if
defence counsel were appointed. The problem
arises where the defence representative is
an adjuster.
Assume for a moment that the court office
has delivered the required 45-day notice.
Counsel then advises the adjuster of the
deadline and asks that defence counsel be
appointed to deal with the appropriate filing.
Unfortunately, 45 days is often far too brief a
span for the adjuster to communicate with his
principals, have the insurer appoint counsel,
and have that counsel respond in a timely
manner so as to keep the action alive. Add
a vacation to the mix, and the result is all
too common: The action is dismissed.
While there is recourse by way of a motion to
set aside the dismissal, time and money are
better spent in some prudent planning so as
to avoid the dire consequences of Rule 48.15.
Perhaps the simplest and safest course
(instead of issuing the statement of claim) is
a “tolling” or “standstill” agreement, whereby
the parties agree to suspend the running of
the limitation period while negotiations are
ongoing. If a formal action becomes necessary, the agreement stipulates the time frame
within which an action must be commenced,
upon written notice from the defendant.
Perhaps the Rules committee may revisit
this issue and see fit to extend the time
frame within which an action is allowed
to lay dormant. For the moment, it is up
to the plaintiff ’s counsel to be mindful
and watchful. ■
Dale Herceg is senior claims counsel at LAWPRO.
© 2011 Lawyers’ Professional Indemnity Company. This article originally appeared in LAWPRO Magazine
“Communication Breakdown” Fall 2011 (Vol. 10 no. 2). It is available at www.lawpro.ca/magazinearchives
The practicePRO and TitlePLUS programs are provided by LAWPRO
LawPRO Magazine | Volume 10 issue 2
< previous
next >
www.lawpro.ca
practicetip
administrative
Dismissals
Part 2
You have just settled a very complicated case on the eve of trial. The
preparation leading to trial has left little time to work on other files, but
fortunately the two weeks previously blocked off have now opened up. Time to catch
up and start returning all those old phone calls and responding to those never ending emails.
You start reading an email from defence counsel on one of your personal injury files who has let you know that the
Registrar dismissed your client’s action for delay about six months ago and he is closing his file.
He reminds you that you did not answer his previous letters asking you to move the action along and deliver the
pre-accident clinical notes and records of your client’s treating doctors. When you review the file, you find underneath
a copy of the police report, a status notice from the court warning of the pending dismissal, but you do not recall
ever seeing it before.
Your first reaction is panic, but you then remember that this did happen to you before, and you recall having
read an article in the July 2009 LAWPRO Magazine on this very issue. That article stressed that these dismissal
orders need to be taken seriously and you should call LAWPRO immediately and ask for help.
You recall that the claims counsel at LAWPRO helped you write the appropriate letter to your client, and vetted your
draft motion materials, which were later served on opposing counsel. Fortunately, the action was restored on consent,
but you knew that LAWPRO would retain counsel on your behalf should the matter proceed to cross examinations
and then be argued on a contested basis.
When you first read the article and spoke with claims counsel, you were quite surprised to learn that a Registrar’s
dismissal order is not routinely set aside, and the case law is quite extensive.
You recall being advised that your materials were poorly drafted, and your affidavit lacked crucial details. You were
stunned to find out that if you proceeded with the motion without contacting LAWPRO, you would likely have lost
the motion and jeopardized your coverage. Any appeal was doomed to fail because all of the relevant material was
available before the motion and there would be little hope of introducing fresh evidence.
Without delay, you begin writing your Claims Notice Report to LAWPRO.
32
© 2011 Lawyers’ Professional Indemnity Company. This article originally appeared in LAWPRO Magazine
“2010 Annual Review” Summer 2011 (Vol. 10 no. 1). It is available at www.lawpro.ca/magazinearchives
The practicePRO and TitlePLUS programs are provided by LAWPRO
LawPrO Magazine | Volume 10 issue 1
www.lawpro.ca
practicetip
Unfortunately, LAWPRO claims counsel deal
with actions dismissed for delay by the Registrar every week. Many lawyers have busy
practices, and mistakes are made because
they fail to implement a procedure in which
files are diarized for review and all staff are
involved in bringing a Status Notice front
and centre to the lawyer’s attention. To avoid
problems, the deadline dates should be
recorded in the firm’s tickler system.
You want to avoid dealing with a Registrar’s
dismissal in the first place by ensuring you
have a good system in place. However, if you
have to bring a motion to restore an action,
the key is ensuring that the motion materials
are done right.
Case law on dismissal orders
The law regarding setting aside dismissal
orders pursuant to Rule 48.14 is now well
settled. The involvement of LAWPRO counsel
has been instrumental in developing the law
and four key Court of Appeal decisions were
argued by our counsel.
In Scaini v. Prochnicki (2007), 85 O.R. (3d)
179, the Court of Appeal stated that although
there are a series of factors that should generally be considered in these motions, the court
should not be restricted to a rigid application
of a test involving only the four factors set out
in Reid v. Dow Corning Corp (2001), 11 C.P.C.
(5th) 80. Rather a contextual approach is to
be used, which involves a review of all relevant
factors with the ultimate goal of balancing
the respective interests of the parties.
The four Reid factors remain the starting
point for these motions, and need to be
addressed in the affidavit material. Those
factors are:
1. an explanation of the litigation delay from
the start of the action until the deadline
for setting the action down;
2. evidence that the plaintiff always intended
to set the action down by the deadline but
failed to do so through inadvertence;
3. promptness in bringing the motion to set
aside the dismissal; and
www.lawpro.ca
4. a lack of significant prejudice to the
defendants arising from the delay or
as a result of the dismissal.
The plaintiff need not satisfy all four factors
as such an approach would undermine the
court’s discretion to consider all relevant
factors and attempt to balance the interests
of the parties.
In Marche D’Alimentation Denis Theriault
Ltee v. Giant Tiger Stores Ltd. (2007), 87 O.R.
(3d) 660, the Court of Appeal confirmed the
need to consider all of the contextual factors
to make a “just” order in the circumstances.
But it also pointed out that significant delay
in moving an action forward undermines the
public interest in promoting timely resolution
of disputes and should not be condoned.
The Giant Tiger decision established that the
principle of finality was an important consideration even in the absence of prejudice. In
my view, the lower courts focused on the
finality principle and often ignored that the
court was also aware that justice favours
the “goal of having disputes resolved on
the merits.”
appeal, Laskin J.A. stressed that this delay had
to be “assessed in the context of the time
frame preceding it — a timeframe in which
the lawsuit proceeded reasonably promptly.”
The court took notice that the action was
moving reasonably well before service of the
Status Notice, and contrary to what occurred
in Giant Tiger, the lawyer in Finlay did not
make a deliberate decision not to move the
action forward.
After reviewing all relevant factors, the court
stated that “cumulatively, these considerations
outweigh the two-year delay in bringing
the motion and justify setting aside the
registrar’s order.”
The Court of Appeal in Wellwood v. Ontario
provincial police 2010 ONCA 386, upheld
the Master’s finding that there was delay in
advancing the action, in bringing the motion
that was not adequately explained and that
this delay was intentional. The majority also
upheld the initial finding of a presumption of
prejudice due to the expiry of the limitation
period. As such, if the plaintiff rebuts the
presumption, the onus shifts to the defendant
to establish actual prejudice.
Moreover, it was often forgotten that the court
made a finding that the plaintiff ’s lawyer was
unaware of the dismissal order because he
had put his file in abeyance and “there was
a deliberate intention not to advance the
litigation toward trial.”
The Wellwood decision is commonly relied
on by defence counsel opposing motions to
restore the action, but the key is to provide a
very detailed affidavit to explain any delays
as to avoid a finding of intentional delay.
Fortunately, our counsel was successful before
the Court of Appeal in Finlay v. Paassen
2010 ONCA 204 in which the Court of
Appeal stressed that the issue of prejudice
“invariably is a key consideration on a motion
to set aside a dismissal order.” The Court of
Appeal also stressed that courts should not
be too quick to dismiss these motions on the
basis that a plaintiff will then have a remedy
against his own lawyer. A lawyer’s potential
negligence should not be a factor at all.
LAWPRO counsel who argued both appeals
maintains that the decision of Laskin J.A. in
Finlay remains unaffected. The majority in
Wellwood distinguishes Finlay on the basis
that the delay in Finlay was not deliberate.
The majority decision in Wellwood, like in
Giant Tiger, can be explained by their finding
that on the evidence that the delay in proceeding with the action and in moving to set
aside the dismissal order was inordinate,
unexplained and intentional.
In Finlay, the motion’s judge focused on the
two-year delay by the plaintiff ’s lawyer in
moving to set aside the Registar’s Order. On
The court will have no difficulty in dismissing a motion for want of proper evidence
being adduced.
LawPrO Magazine
| Volume 10 issue 1
33
practicetip
As an example, one of our files involved a
tort claim for damages as a result of a motor
vehicle accident.
The insured lawyer argued the motion without contacting us and lost. The Master found
that the evidence addressing the Reid factors
to be “woefully inadequate.” The lawyer
simply indicated he missed the deadline to
set the action down due to inadvertence,
but provided no further explanation.
The Master wanted to know if someone had
failed to record a key date, or if there were
any problems with the firm’s tickler system.
The lawyer waited one year to bring the
motion to restore the action, and again there
was simply a “blanket referral to inadvertence,” and this is not enough. The lawyer
had to be more specific about what happened
after the dismissal order came to his attention.
There was simply no evidence to rebut the
presumption of prejudice.
Even if he was incorrect regarding prejudice,
the Master went further and criticized the
plaintiff himself for making a deliberate decision not to advance the litigation because
he left the jurisdiction for a considerable
period of time without communicating with
his lawyers. Relying on Giant Tiger and
Wellwood, the Master found that the intentional delay was fatal to restoring the action.
By involving LAWPRO early, you can ensure
that the motion materials are properly
prepared, and there is a good chance that the
motion will go on consent or unopposed.
Alternatively, we can retain counsel for you
to prepare and argue the motion. We have
been successful when we have time to
respond. We are here to help. ■
Domenic Bellacicco is new claims unit director
and counsel at LAWPRO.
Take a fresh step…
before it’s too late
In January, 2012, litigators may see a tsunami of “deemed dismissals” of stale
actions. Note especially Rule 48.15(6)2:
Rule 48.15(6)
In the case of an action commenced before January 1, 2010, other
than an action governed by Rule 76 or 77, the following rules apply,
unless the court orders otherwise:
1. If a step is taken in the action on or after January 1, 2010, and before
January 1, 2012, subrule (1) applies as if the action started on the
date on which the step was taken.
2. If no step is taken in the action on or after January 1, 2010, and
before January 1, 2012, the action is deemed on January 1, 2012,
to be dismissed as abandoned on that date, unless the plaintiff is
under a disability.
3. An action deemed to be dismissed under paragraph 2 may be set
aside under rule 37.14 and, for the purpose, the deemed dismissal
shall be treated as if it were an order of the registrar. O. Reg.
394/09, s. 21(2).
Based on the lack of proper evidence at
first instance and the Master’s finding of
intention delay on the evidence presented,
there was no way to succeed on appeal.
The costs of the action and motion were
fixed at $15,000.
The “leading” cases on setting aside dismissals by the registrar are Scaini v.
Prochnicki (2007) 85 O.R. (3d) 179 (C.A.); Finlay v. Paassen, 2010 ONCA 204,
and Welland v. Ontario Provincial Police, 2010 ONCA 386. These are discussed
at length in Domenic Bellacicco’s article “Administrative Dismissals.”
Call LAWPRO – immediately
If you have a file that has gone nowhere in the past one and one half years, it
is surely better to “take a fresh step” before the end of 2011, rather than to
be forced to bring a motion in 2012, hoping that you can satisfy the Court of
Appeal’s criteria for setting aside the dismissal of your client’s action.
When you realize that an action has been
dismissed for delay, call LAWPRO immediately. Don’t bring the motion without
telling us first, and don’t advise us of the
situation on the eve of the motion.
34
LawPrO Magazine
| Volume 10 issue 1
Debra Rolph is director of research at LAWPRO.
www.lawpro.ca
Update on dismissal orders
The recent Court of Appeal decision in Machacek v. Ontario Cycling Association, 2011
ONCA 410 underlines the importance of reporting a dismissal order promptly to
LAWPRO. The plaintiffs' lawyer waited almost two years to report the matter to
LAWPRO. The Court stressed motion delay and finality as opposed to litigation delay
and lack of prejudice. The finding of the lack of prejudice had to be "balanced by a
consideration of the finality principle." Motion delay coupled with the fact that the
plaintiffs' lawyer was not communicating with his clients after discovery, led the court to
conclude that the delay and the conduct of the lawyer "tip the balance" toward the
finality principle.
FRAUD
FACT
SHEET
…making a difference for the legal profession
Avoid becoming
its next victim
How you can
Fraud continues to be a significant and costly problem for LAWPRO.
Fraudsters are successfully duping lawyers and law clerks, and it’s not
just real estate lawyers who are being targeted. Litigation, business and
family law lawyers are frequent targets of bad cheque scams involving
debt collections, spousal support payments and business loans.
Don’t be complacent and think you would never be fooled. These
frauds are very sophisticated. The matters will look legitimate, the
fraudsters will be very convincing and the client ID and other documents you get will look real. The fake cheques have fooled bank
tellers and branch managers.
What to do if you have a
suspicious file
Proceed with caution if you have even the
slightest suspicion that the matter you are
handling isn’t legitimate.
• Look for the red flags of a fraud. See the
lists on the following pages.
• Ask questions and dig deeper, especially
if the facts don’t add up or are inconsistent.
See the next page for a list of things you
can do.
• Visit the AvoidAClaim.com blog to see
email messages and documents from
the frauds LAWPRO is seeing. Click on
the Confirmed Frauds button to see a
full listing of names of confirmed
fraudster clients.
If you still aren’t sure the matter is legitimate,
call LAWPRO. Our experience with multiple
frauds can help determine if you are being
duped. If the matter turns out to be a fraud
and there is a potential claim, we will work
with you to prevent the fraud, if possible, and
to minimize potential claims costs.
Ultimately, if you aren’t completely sure a
matter is legitimate, terminate the retainer.
Don’t be sucked in by your emotions or a
strong desire to help. Don’t let the lure of
a generous fee cause you to ignore your
concerns as to the legitimacy of a matter.
If it looks too easy or sounds too good to
be true, it probably is.
Report
obvious frauds
to LAWPRO
Help us help other lawyers by sending obviously fraudulent messages
or scans of identification and other
documents provided to you to
fraudinfo@lawpro.ca.
Bad cheque scams
Fraudsters retain the firm on a contrived legal matter so that they
can run a counterfeit cheque or bank draft through the firm trust
account and walk away with real money. These contrived matters
Common types of bad
cheque fraud:
Business loan/inventory
purchase fraud
• Targets business lawyers.
• Fraudster will ask you to handle a loan.
• Loan proceeds are coming from fake
lender.
Spousal support collection fraud
• Targets family lawyers.
• Fraudster will ask you help with collection
from ex-spouse, often further to a
“collaborative settlement agreement.”
will look real. The fraudster will provide extensive and very real
looking ID and documents. When the bad cheque or draft bounces,
there will be a shortfall in the trust account.
Red flags
Digging deeper
These are the common red flags that indicate
that a matter is a fraud. Some of these may
occur on legitimate matters, but if many
appear on the same matter you should heed
the warning signs.
Take these steps to cross-check and verify
information provided to you by the client.
• Initial contact email is generically
addressed (e.g., “Dear attorney”) and
BCC’d to many people.
• Sender email address is different from
address mentioned in body of the email.
• Client uses one or more email addresses
from a free email service (e.g., Gmail,
MSN, Yahoo!), even when the matter is
on behalf of a business entity.
• Client is new to your firm.
• Ex-spouse will pay up with little or no
pushing.
• Client is in a distant jurisdiction.
Debt collection fraud
• Client prefers email communication due
to time zone differences.
• Targets litigators.
• Fraudster will ask for help with a
debt collection.
• Debtor will pay up with little or
no pushing.
• Client shows up and wants the matter
completed around banking holidays.
• Client provides only a cell number.
• Client is in a rush – and pressures you to
“do the deal” quickly.
• Client and others involved don’t seem
concerned if shortcuts are taken.
• Cross-check names, addresses, and
phone numbers of the client and other
people/entities involved in the matter on
Google and other search engines. While
the real names of people or businesses
may be used, contact information on fake
documents will put you in touch with
people in cahoots with the fraudsters.
• Do reverse searches on phone numbers.
• Look up addresses using Street View in
Google Maps.
• Ask your bank or the issuing bank to
confirm the branch transit number and
cheque are legitimate.
• Call the entity making the payment or loan
and ask if they are aware of the transaction.
• Contact the company to confirm it is
expecting debtor’s payment or business
loan.
• Hold the funds until your bank confirms
the funds are “good” by contacting the
other bank, and have the bank confirm,
in writing, that it is safe to withdraw
from the deposit.
• Client is willing to pay higher-than-usual
fees on a contingent basis from (bogus)
funds you are to receive.
• Despite the client stating a lawyer is
needed to help push for payment, the
debtor pays without any hassle.
• Cheque or bank draft arrives at your
office in plain envelope and/or without
covering letter.
Get fraud updates from
AvoidAClaim.com blog
For immediate updates on fraud and
claims prevention, subscribe to the
email or RSS updates from LAWPRO’s
AvoidAClaim blog.
• Cheque is drawn from the account of an
entity that appears to be unrelated (e.g., a
spousal arrears payment from an insurance company or travel agency).
• Payment amounts are different than
expected or change without explanation.
• Client instructs you to quickly wire the
funds to an offshore bank account or third
party that appears unrelated to the matters.
www.lawpro.ca
Real estate scams
Identity theft fraud
Flip (value) fraud
• Client uses fake ID to assume identity of existing property
owner (or director/officer of corporate owner).
• Client says she or he is a real estate agent or in business of
buying and selling.
• Client sells or mortgages the property, or discharges mortgage
from title, then gets new (often high-ratio) mortgage from
another lender.
• Client promises high fees, lots of business for quick turnaround
on deals. (Short turnaround means proper searches aren’t
conducted.)
• Paperwork looks in order; no encumbrances on title, but one or
more recently discharged mortgages.
• Once transaction closes, client flips property to accomplice
(e.g., appraiser and/or mortgage broker) for much higher value.
• Client in a hurry and accommodating: May discourage house
inspection or appraisal.
• Lender issues mortgage on inflated property value.
• Transaction closes, you pay proceeds to client who makes a few
mortgage payments, then disappears with funds.
• Lender sues you for value of mortgage.
• Client uses mortgage proceeds to pay initial purchase price,
splits excess funds with accomplices.
• Client makes a few payments, and then disappears with funds.
• Lender sues you for excess/inflated value of mortgage.
Red flags: The client
Red flags: The transaction
• Does not care about property, price, mortgage interest rate, legal
and/or brokerage fees.
• Repeat activity on single property or for single client.
• Only uses a cellphone number for contact.
• Cannot produce title documents, survey, reporting letter, tax or
utility bills.
• Rental and vacant properties especially vulnerable.
• Client buys and sells often, prefers to deal in cash.
• Property listing expired without sale (i.e., sale may be unregistered).
• Does not appear familiar with property.
• Frequent and quick mortgage discharges on property.
• Won’t permit contact with prior lawyer.
• New referral source sending lots of business.
• Client is “out of sync” with property – e.g., don’t appear educated/
affluent enough.
• “Rush” deals, often with promise of more.
• Client produces small deposit relative to price.
• Funds directed to third party with no apparent connection to
transaction.
• No amendments to Agreement of Purchase and Sale.
• Stranger who appears to control client attends to sign documents.
• Sale is presented as a “private agreement” – no agent involved,
or named agent has no knowledge of transaction.
• Municipality or utility companies have no knowledge of client’s
ownership.
TIP: BE ALERT
• Avoid having documents executed outside your office.
• Consider reviewing or discussing transaction with
another lawyer.
• Consider market trends in the transaction area.
www.lawpro.ca
• Client paying little or nothing from own funds.
• Unusual adjustments in favour of vendor, or large vendor-takeback mortgage.
• Use of counter cheques.
• Use of Power of Attorney.
More information on
protecting clients against real estate fraud
TitlePLUS® title insurance provides coverage
for your clients when they buy a home.
Through the OwnerEXPRESS® program,
TitlePLUS insurance also provides fraud
protection for clients who may have purchased a property earlier but did not also
secure title insurance protection on that
purchase.
TitlePLUS insurance provides fraud
coverage as follows:
• for frauds that may have occurred prior
to purchase (e.g., it turns out that the
vendor does not really have the right to
sell the property);
• if the property becomes a target of
fraud at a later date. This is part of
the post-Policy Date protection in the
TitlePLUS policy.
not yours, if someone must contact the
government to request that title be restored
to your name in the official records. (Please
refer to the policy for full details, including
actual terms and conditions.)
For more information visit
www.titleplus.ca under our "Products and
Services," and "Publications" tabs.
The TitlePLUS policy is underwritten by
Lawyers’ Professional Indemnity Company
(LAWPRO).
There is also a “duty to defend” in the
policy, which means that it is our problem,
Is the fraudster
in your office?
Not all fraudsters are strangers. Even partners,
associates, law clerks or other employees may
turn to fraud because of financial pressures
from a divorce, failed business venture,
or other personal crisis.
More information
on fraud
• Someone never takes vacation or sick
leave, works overly long hours, or
refuses to delegate work.
LAWPRO has assembled a variety of
articles, resources and tips on fraud and
how to avoid being its next victim. To
learn more about what fraud looks like
and how to prevent it from happening
to you and your firm, go to:
www.practicepro.ca/fraud.
Red flags
LAWPRO’s
enhanced coverage
for counterfeit
certified cheques,
bank drafts
As of January 1, 2010, the LAWPRO policy
provides some overdraft protection to
lawyers in relation to their trust accounts
where liability for the overdraft results
from the handling of a counterfeit certified
cheque or counterfeit bank draft in the capacity of a practising lawyer. This enhanced
protection is subject to several conditions
and limitations. Review the FAQs
(www.lawpro.ca/FAQs) on the LAWPRO
website to make sure you understand this
coverage and the extra steps you must take
to quality for it.
MASTHEAD
President & CEO:
Kathleen A. Waters
• A firm member undergoes a sudden
change in lifestyle or change in
temperament.
This information bulletin is published by LAWPRO to provide
lawyers and law firm employees with an overview of some common
types of fraud, and to provide practical advice on ways to minimize
their exposure to fraud-related claims.
• The firm receives mail for a corporation
for which no client file is opened or
billed, or minute books are kept in the
lawyer’s office instead of with the
corporate law clerk.
www.lawpro.ca
Tel: (416) 598-5800 or 1-800-410-1013
Fax: (416) 599-8341 or 1-800-286-7639
• Unusual patterns such as a sudden
increase in payments to a person or
credit card company or government, or
complaints about slow payment from
suppliers or clients, or an increase in
written-off work in progress (WIP).
Managing Editor:
Dagmar Kanzler
dagmar.kanzler@lawpro.ca
Editor/writer:
Dan Pinnington
dan.pinnington@lawpro.ca
Design & Production:
Freeman Communications
studio@freemancomm.com
Disclaimer:
The material presented does not establish, report or create the standard
of care for lawyers. The material is not a complete analysis of the topics
covered, and readers are encouraged to conduct their own appropriate
legal research.
©
For more information see “Fraud on
the Inside: What to do when partners,
associates or staff commit fraud” at
www.lawpro.ca/magazine.
2011 Lawyers' Professional Indemnity Company (LAWPRO).
All rights reserved.
® Registered trademark of Lawyers' Professional Indemnity Company.
Printed on recycled paper. This product can be recycled.
B6/2011