National Legal Malpractice Conference


Grand Canal Shoppes at the Venetian

Grand Canal Shoppes at the Venetian

Thursday, September 27, 2018
8:45–9:45 a.m. Plenary Session 1

The Art of Storytelling
Storytelling is not a metaphor for advocacy; it is advocacy itself, the foundation of all lawyers do. Using video clips from his own television shows, along with his own experiences as a trial lawyer, journalist, and law professor, Shapiro illustrates the structure, elements and uses of narrative in law, providing concrete advice on how lawyers can become better storytellers.

Prior to becoming a full-time writer, Shapiro spent a decade trying cases as a federal prosecutor at the U.S. Department of Justice Criminal Division, Organized Crime and Racketeering Section, and as an assistant U.S. attorney for the Central District of California, Los Angeles. He has created and produced some of television's most iconic law-themed television shows, including The Blacklist, Boston Legal, The Firm, The Practice, and Life. An Emmy, Peabody, and Humanitas Award winner, he is the creator and executive producer of Goliath on Amazon Prime, winner of the 2017 Golden Globe Award for Best Actor in a Drama (Billy Bob Thornton).

Jonathan Shapiro, Author, Producer and Law Professor, Jonathan Shapiro Productions at Paramount Studios, Los Angeles, CA
10:00–11:00 a.m. Breakout 1
Wire Fraud Transfer
There has been an ever-increasing rise in the number of wire fraud incidents, involving both social engineering and email account hacking to lure attorneys, their staff and clients to wire money directly into a scammer's account. In 2016, the FBI reported over $346 million had been stolen in these types of attacks. Wire fraud is not always the fault of one person, and therefore, all parties involved in a wire transaction must be vigilant. In a Virginia "failure to warn" case, a plaintiff’s attorney was held responsible for the damage caused by a spoof email for failing to also notify defense counsel who later wired settlement funds to an overseas' account. This program will focus on best law firm practices to implement in guarding against becoming a victim of wire fraud.

Keith Novak, Senior Director, Kroll Cyber Security, Secaucus, NJ
Hector Sepulvada, Supervisory Special Agent, Cybersecurity, Federal Bureau of Investigations, Las Vegas, NV
Howard Panensky, Senior Broker, Willis Tower Watson, New York, NY
Crystal Ivy, Claims Director, AmTrust Financial Services, Inc., Chicago, IL
Karen Painter Randall, Partner, Connell Foley LLP, Roseland, NJ (Moderator)
Breakout 2
Lateral Risk
Join our discussion to learn how to better manage and limit your law firm's risk. Internal threats to a law practice arise in a multitude of common circumstances, often leaving law firms reeling from self-created but avoidable consequences. Risky behaviors, from the complacent to the dishonest, arise from human frailties: laziness, greed, and incompetence. Similarly risky are sins of omission, such as lax conflict procedures and poor lateral partner screening. "The Enemy Within" will focus on the most common and most creative internal threats appearing in recent claims histories, and provide plain-spoken solutions to keep your firm safe.

Jon Margolies, General Counsel, Michael Best & Friedrich LLP, Milwaukee, WI
Janis Meyer, Partner, Hinshaw & Culberston, New York, NY
Michael Ellenhorn, Co-Founder and General Counsel, Decipher, St. Louis, MO (Moderator)
Breakout 3
The Lawyers Must Have Helped: Defensive Strategies When It's Clear the Law Firm's Former Client was a Crook
Whenever large-scale fraud or white-collar crime comes to light, the wrongdoer's victims are often quick to assume that the wrongdoer "must have" had help, especially from lawyers—and that whoever helped was a willing and knowing participant in the scheme. This scenario can lead to government investigations of the lawyer, or civil claims from individuals who were never the lawyer's clients, premised on any number of legal theories other than negligence, all of which may have significant implications for how the lawyer can be defended. It raises issues of aiding and abetting liability and collective scienter within a law firm, the equitable defense of in pari delicto, possible ties to a simultaneous regulatory or receivership proceedings, and the decision whether or not to defend or downplay the client's actions in order to defend the lawyer. This panel will address a variety of unique defensive challenges—and opportunities—that can arise when a lawyer is targeted in the fallout from her client's crimes.

Arthur Burger, Director, Jackson & Campbell, Washington, DC
Ellen Oberwetter, Partner, Williams & Connolly, Washington, DC
Kevin Rosen, Partner, Gibson Dunn, Los Angeles, CA
Mark Anesh, Partner, Lewis Brisbois, New York, NY (Moderator)
11:15 a.m.–12:15 p.m. Breakout 4
Tripartite Typhoon: Malpractice, Bad Faith and Stormy Seas
Excess verdicts often put complex risk in the lap of defense counsel and her E & O carrier.  The underlying carrier seeks recovery from defense counsel.  The defendant sues their former defense counsel even while the underlying case is going up on appeal.  Your little boat could flounder in the waters between Scylla and Charybdis. The former defendant may become real chummy with the plaintiff for mutual benefit. Can they even do that? A bad faith claim against the carrier ups the ante for defense counsel in the malpractice case. Are privileged communications between defense counsel and the underlying carrier discoverable in the bad faith case?  Was the defense lawyer too chummy with the carrier and not concerned enough about the defendant? Don't be left off-shore 3 sheets to the wind. This program will show you how to navigate these stormy seas and return to home port without getting keelhauled.

Nolan Knight, Shareholder, Munsch Hardt Kopf & Harr, P.C., Dallas, TX
Melissa Demmon, Vice President, Claims Counsel, Sompo International, New York, NY
Alan Barbanel, Founding Partner, Barbanel & Treur, San Diego, CA
Shannon Sprinkle, Partner, Carlock Copeland, Atlanta, GA
Breakout 5
Blockchain Technology in the Practice of Law and Insurance
Blockchain technology is a current reality facing lawyers, not a distant future event. The promise of blockchain is a single source of truth. Our expert panel will explore actual blockchain applications including cryptocurrency and smart contracts to assist lawyers in recognizing blockchain usage and prepare for development and growth of this disruptive force. Best practices adopted for blockchain today can help preclude exposures lawyers will face in the future.

Susan Joseph, Founder/CEO, Susan Joseph LLC, New York, NY
Bonnie Thompson, Associate, Wiley Rein, Washington, DC
Jolene Negre, Partner, Jenner & Block, Los Angeles, CA
Reshma Kamath, 2017-2018 Fellow, ABA Center for Innovation, Chicago, IL (Moderator)
Breakout 6
Buyers Remorse: Settle and Sue (Young Professionals Session)
The trend of a plaintiff settling their lawsuit and immediately suing their lawyer as a result of the settlement is not new. But, we can now look back and identify certain characteristics and trends that present in these claims, as well as the best practices that have emerged to effectively navigate and resolve them. This panel will discuss the specific types of cases where the "settle and sue" trend is consistently appearing and how to handle these types of claims from the insurance and defense side.

Judy Burnthorn, Partner, Deutsh Kerrigan, New Orleans, LA
Charlie Coffey, Senior Claims Counsel, The Bar Plan, St. Louis, MO
Karen Stromeyer, Partner, Murphy Pearson Bradley & Feeney, San Francisco, CA
James Spithogiannis, Associate, L'Abbate, Balkan, Colavita & Contini, L.L.P., Garden City, NY (Moderator)
12:15-1:15 p.m. Lunch
1:30–2:30 p.m. Breakout 7
My Client's Clients: Protecting the Privileges Held by Your Lawyer Client's Clients
Attorney and law firm defendants are unique in a number of ways. One significant way is that the sued attorney is not released from maintaining client confidences belonging to clients other than the one who has sued her. Protecting your lawyer client from waiving privileges held by her clients requires careful consideration throughout the defense of the case. For example, can you collect and review all of the attorney's email when trying to identify specific emails responsive to discovery requests? In an interview with defense counsel, can the lawyer describe situations that have arisen with other clients that are nonetheless of some relevance to the lawsuit? And what if the attorney is asked questions at his deposition that would require him to disclose information related to clients other than the one who is suing? Protecting privilege becomes even more complicated in an increasingly technological practice. This panel will explore a lawyer's ethical obligations to maintain client confidences and provide practical guidance for real-world situations that arise when that lawyer is subjected to discovery in a lawsuit.

Bryan Feldhaus, Shareholder, Lommen Abdo, P.A.
Jeremy Boeder, Partner, Tribler Orpett & Meyer
Marta Alcumbrac, Counsel, Robie & Matthai, Los Angeles, CA
Breakout 8
Due Diligence in M&A
2018 is overwhelmingly predicted to be the biggest year ever for M & A. Highly motivated brokers want a done deal at any cost and lenders are sometimes left in the dark. Increasingly a completed deal results in litigation between over earn outs and reps and warranties. Legal drafting comes under intense scrutiny and a simple cut and paste job can result in catastrophic mission failure. Lawyers conducting due diligence get dragged into these lawsuits with regularity, sometimes the suit even comes from the party on the other side of the table. This program will show you how to spot the danger zones in due diligence and drafting; identify the parties and determine how they might be part of the solution, as well as part of the problem; and evaluate your case while putting some teeth into your defense.

Shawn Harpen, General Counsel, Patron Spirits, Las Vegas, NV
Thomas Best, Partner, Steptoe and Johnson, Washington, DC
Dana F. Kopper, Managing Director, Directors & Officers Liability and Governance Risk Management, Lockton Insurance Brokers, LLC, Los Angeles, CA
Shauna Reeder, Vice President, CNA, New York, NY


3:00-4:15 p.m. Plenary Session 2

#MeToo in the Law Firm: Sexual harassment, gender discrimination and other employment exposures in 2018
Since the unprecedented and momentous developments known as the #MeToo Movement or the Reckoning exploded last fall, claims against law firms based on sex harassment, gender discrimination, and pay/promotion disparity issues have become a daily fixture in the legal press. This panel will discuss how the law firm exposure landscape has been fundamentally altered by these developments, explore the unique challenges these employment-based claims pose for law firms, and provide insight on defense, resolution, and avoidance strategies.

Cynthia Carter, Executive Claims Consultant, Berkley Select, Chicago, IL
Sheila Engelmeier, Partner, Engelmeier & Umanah, Minneapolis, MN
Camille Olson, Partner, Seyfarth Shaw, Chicago, IL and San Francisco, CA
Chuck Lundberg, Founder, Lundberg Legal Ethics, Minneapolis, MN (Moderator)
5:30–7:30 p.m. Thursday Evening Reception: The Mob Museum
Friday, September 28, 2018
9:00–10:15 a.m.
Plenary Session 3

Et tu, California? Mandatory Professional Liability Insurance, Disclosure and Other Efforts to Insure Attorneys and Protect the Public
Two states recently passed measures mandating professional liability insurance for lawyers, the first to do so since Oregon created its Professional Liability Fund in 1978. Some states have considered and rejected a mandatory insurance model; still others have added teeth to mandatory disclosure rules. California, with 266,000 licensed attorneys, is conducting a statutorily mandated study of all insurance options, through a Malpractice Insurance Working Group. The Group's findings, due in 2019, are sure to provoke great debate.

Join this panel as it breaks down the considerable issues involved in protecting the public.

Carol Bernick, CEO, Oregon State Bar Professional Liability Fund, Tigard, OR
Susan Fortney
, Professor and Director, Program for the Advancement of Legal Ethics, Fort Worth, TX
Linda Katz, Principal Analyst, State Bar of California, San Francisco, CA
Richard Pocker, Nevada State Bar President, Partner, Boies Schiller Flexner, Las Vegas, NV
Randall Miller
, Principal and Chair of Mandatory Insurance Working Group of the State Bar of California, Miller Law PC, Los Angeles, CA (Moderator)
10:15–11:45 a.m. Plenary Session 4

Evolving Technology and Professional Responsibility: Teaching Lawyers New Tricks
Legal technology is evolving faster than most attorneys can keep up.  Current technology can be used to produce pleadings and initial discovery requests in under two minutes, or to analyze litigation documents to perform automated legal research based on a computer-generated algorithm.  Both the use of this technology and the failure to embrace it can present unique exposures for attorneys and their firms.  This presentation will discuss the potential impact of the legal tech explosion on professional liability issues, including effective ways to manage its associated risks.

Steven Puisziz, Partner, Hinshaw & Culberston
Lori Thompson, General Counsel, LeClairRyan, Roanoke, VA
Charles Ottenweller, Management Consultant, Kraft & Kennedy, Inc., Houston, TX
Jan Jacobowitz, Lecturer in Law, Director, Professional Responsibility & Ethics Program, University of Miami School of Law, Coral Gables, FL (Moderator)