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Category Archives: Miscellaneous

Ohio Employment Law: Does being salaried mean an employee is not entitled to overtime?

Author By Christopher P. FinneyPosted on

A common misconception about wage and hour law is that salaried employees are not eligible to receive overtime pay when they work more than 40 hours in a week. This is sometimes true, but not always.

Generally speaking, the law  divides employees into “exempt” and “non-exempt” employees. An “exempt” employee is an employee who is exempt from the overtime laws – meaning that employers normally are not required to pay them time and 1/2 when they work more than 40 hours in a week. In order to be considered “exempt,” an employee DOES have to receive a regular salary that – for the most part – does not vary based on the number of hours they work. But (and this is an important “but”) receiving a regular set salary is not the ONLY requirement in order for an employee to be considered “exempt” from the wage and hour laws.

In order to be considered “exempt,” an employee must be performing a certain kind of work that falls into one of the exemptions recognized by federal and/or state law. There are literally dozens of exemptions, but if an employee doesn’t fall into at least one of them, then he or she is entitled to be paid overtime regardless of whether or not he or she is “salaried.” The most common exemptions are for executives, professionals, administrative employees who exercise a great deal of discretion and independent judgment in their jobs, and outside salespeople.

The wage and hour laws are among the most complicated laws that govern the employment relationship. As a consequence, it is very common for employers to “miss-classify” an employee as being exempt when they are not. When an employer makes a classification mistake, it can be very expensive, as employees can recover not only their lost wages, but also additional damages and attorney’s fees from the employer who makes the classification mistake. This is also a field in which employers can be subject to hugely expensive “class action” lawsuits, filed on behalf of dozens, hundreds, or even thousands of employees.

When it comes to classifying employees as either “exempt” or “non-exempt,” it is literally true that “you can’t be too careful!” If you have any questions or concerns about these issues – as an employer or employee – be sure to consult with competent employment counsel.

Finney Law Firm Files Class Action Suit on Behalf of Retired Ohio Teachers

Author By Christopher P. FinneyPosted on

On May 23rd the Finney Law Firm filed a proposed class action lawsuit in Federal Court in Cincinnati on behalf of nearly 150,000 retired Ohio teachers.

The basis for the lawsuit is the 2017 decision of the Ohio State Teachers Retirement Board to eliminate the 2% cost-of-living increases that the retirees had been receiving under Ohio law. The lawsuit alleges that the Board eliminated these much needed cost-of-living adjustments – adjustments that the retirees had been promised, and were counting on – without proper legal authority, and without justification.

The caption of the suit, which has been assigned to Judge Susan Dlott, is “Dean Dennis and Robert Buerkle v. Ohio State Teachers Retirement Board.” We are asking the Court to certify the case as a class action on behalf of all Ohio teacher retirees.

Our clients worked for decades, for very modest compensation, doing one of the most important jobs in the world – educating Ohio’s children. Over the course of those decade of work, our clients had been repeatedly promised that, in their retirement years, they would receive annual cost of living adjustments that would at least allow them to keep pace with inflation.

We believe the State Teachers Retirement Board broke faith with Ohio’s retired teachers in 2017, when it abruptly and indefinitely eliminated their cost-of-living increases without due consideration, and without a valid legal basis for its action.

The perceived financial issues that the Board cited as the justification for eliminating these important benefits could have been more than adequately addressed in a variety of ways that would not have dealt such a devastating blow to our retired teachers. Instead, the Board chose to put 100% of the burden on the people who were most vulnerable, and who could least afford it. We do not believe this was necessary, just, or legal.

We hope this lawsuit will shine a light on the Board’s actions, and that it will lead to the restoration of the benefits Ohio’s retried teachers worked so hard to earn.

Our firm’s employment law department, Steve Imm and Matt Okiishi, are counsel on the case along with the firms of Goldenberg Schneider LPA, (with whom we successfully have prosecuted other class action cases) and Minnillo & Jenkins, Co., LPA.

For more information, contact Stephen E. Imm at 513-943-5678.

You may read the Complaint online here or below.

We will regularly update progress on this important case on this blog.

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Records Management Steps for Doctors Closing Their Practice

Author By Finney Law FirmPosted on


Written By: Janie Ratliff-Sweeney

The time has come to close a chapter and move on from your medical practice. But closing down a physician’s office doesn’t just involve business concerns like notifying personnel or selling equipment. Doctors must also worry about the fate of their patient records.

If you are a Kentucky doctor closing your practice, be sure to notify patients and offer to send copies of their records to another physician of their own choosing. The Kentucky Medical Association recommends notifying patients 60 to 90 days before you close your practice.

For patients who do not opt to have their records sent to a successor physician, records should be retained for storage with a custodian, who may be another physician or a commercial service. An experienced attorney can draft a custodial agreement, which should include such details as:

  • the length of time records should be retained
  • a requirement that you and your patients may continue to access records
  • a requirement to notify the closing practice if the custodian’s contact information changes
  • any fees associated with record maintenance
  • compliance with state and federal regulations pertaining to patients’ records

How long records should be retained depends on several factors. According to American Medical Association ethics guidelines, physicians have an obligation to retain patient records “which may reasonably be of value to a patient.”

For practical reasons, records should be kept for at least as long as the limitations period for medical malpractice claims. Kentucky’s statute of repose says that a medical malpractice lawsuit must be filed within five years of the date a negligent act or omission is said to have occurred.

Doctors participating in Medicare and in Kentucky’s Medicaid program must retain records for five years from the date of a patient’s discharge.

For patients who don‘t respond to the notification that your practice is closing, a second notice should be sent toward the end of the 90 days, informing them of the storage location of their records or, in the case of records older than five years, that the records will be destroyed.

Compliance with the Health Insurance Portability and Accountability Act is critical as well. HIPAA’s patient privacy protections apply to storage — and destruction — of records. For older records that need to be destroyed, consider contracting a records destruction service to properly destroy paper or other media (such as CDs and flash drives) to ensure patient data remains protected.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

 

Another Win for Leased Fee Property Buyers

Author By Finney Law FirmPosted on

The Ohio Supreme Court recently issued decisions in three cases further clarifying the valuation of “leased fee sales” (property that is subject to an existing lease at the time of the sale).

The purchase price of a leased fee interest, particularly when the lease has a many years left, more accurately reflect the value of the cash flow that the lease will generate rather than the value of the underlying real estate. This is why real estate investors had for years sought changes to Ohio’s property valuation law (the legislature  acted in 2013). Since then, the battle has been in the courts to determine how the changes would be implemented.

In recent years, the courts have given life to those changes in decisions ordering the board of tax appeals to disregard the sales in “sale leaseback transactions” and in these most recent cases, in ordering the Board of Tax Appeals to consider appraisal evidence of leased fee sales.

The Court issued decisions on that issue in three cases on May 6, 2019:

Store Master Funding VI, LLC v. Franklin County Board of Revision, 155 Ohio St.3d 253, 2018-Ohio-4301

Spirit Master Funding IX, LLC v. Cuyahoga County Board of Revision, 155 Ohio St.3d 254, 2018-Ohio-4302

Northland-4, LLC v. Franklin County Board of Revision, 155 Ohio St.3d 257, 2018-Ohio-4303

The Court also issued a decision regarding the exclusion of easement rights in determining the value “as if unencumbered.” The Court found that the express language of the statute, ordering that the value of real estate be determined “as if unencumbered” means that the value of an easement benefiting a parcel should be excluded when determining the value of that parcel. Worthington City Schools Bd. of Edn. V. Franklin County Board of Revision, 155 Ohio St.3d 187, 2018-Ohio-2909

The end result for all four of these cases points to a better opportunity for real estate investors to challenge the auditor’s adoption of the recent sale price of properties subject to leases or other encumbrances,

Learn more about Finney Law Firm’s Property Valuation practice here.

How Doctors and Hospitals Can Combat Medicare and Medicaid Fraud 

Author By Finney Law FirmPosted on

Counterintuitive as it seems, it is possible to commit fraud without actual intent. If you and your staff lack careful billing and oversight processes, you could come under investigation for Medicare/Medicaid fraud.

If you bill for 30 patients on a given day but you actually only saw 20, the 10 phantom patient billings are patently fraudulent. But even a simple mistake or oversight, such as a billing clerk including a procedure code for a patient who didn’t receive that service, can be suspect. This could happen if your staff is accustomed to billing certain codes together and they assume you provided the same services to a particular patient when, in fact, you didn’t.

Another common issue is lapsed licenses. If you have a medical provider in your office — such as a doctor, nurse or technician — they should not be working during any lapse in their license, even as short as a day. Insurance companies routinely check license information during claims processing, and such a finding would tarnish billing to all your patients for that day, including those on Medicare and Medicaid. Regulators consider billed services by an unlicensed provider as services that never happened.

Similarly, if you operate a practice but are not present or readily available while certain patients are being treated, billing for those services could be deemed fraudulent because they lacked supervision.

Prescription billing is another area fraught with risk. If you billed for a prescription that the patient never received, it could be deemed fraudulent. To avoid inadvertent billing, have a system in place to flag billed prescriptions that were never picked up.

Physicians sometimes find themselves on the wrong side of the law due to financial arrangements that could be considered kickbacks or self-referrals, such as having a financial interest in another practice to which patients are referred. Even giving small gifts to patients could get you in trouble if the gifts are deemed a reward for continuing to use your services.

With the high risk of fraud investigations arising from inadvertent mistakes, it makes sense to work with a skilled lawyer to devise a compliance plan. If you have concerns about an aspect of managing your practice, contact a knowledgeable healthcare attorney at Hemmer DeFrank Wessels, PLLC.

 

Kentucky Ruling Highlights Importance of HIPAA Employee Training

Author By Finney Law FirmPosted on


Written By: Janie Ratliff-Sweeney

Even with the best standards and practices in place, hospitals, doctors’ offices and other medical institutions are only as good at patient health data privacy as the employees who handle the data on a daily basis. Employee mistakes put medical organizations at legal risk if data is improperly disclosed.

In a recent ruling, the Kentucky Court of Appeals upheld an employer’s right to discharge an employee for a Health Insurance Portability and Accountability Act (HIPAA) violation. Dianna Hereford, a hospital nurse, after prepping a patient behind a curtain for a procedure, told the physician and technician performing the procedure that the patient had Hepatitis C and advised them to wear gloves. The patient later filed a complaint, saying that Hereford spoke loudly enough to be heard by other patients and medical personnel and thus improperly disclosed private health information. Hereford argued she didn’t commit a violation, but the court found that she may have and that, in any case, the hospital had the right to fire her as an at-will employee.

The case, Hereford v. Norton Healthcare Inc. dba Norton Audubon Hospital, highlights the importance of careful employee training on HIPAA compliance and of making sure employees realize that insensitivity to patients and the appearance of improper disclosure can be as problematic as actual privacy violations.

In another case, in Tennessee, an EMS medic posted on Facebook about a man who died of a heart attack in his chicken coop, where his wife and EMS workers tried to revive him. In the post, the medic wrote that treating a patient in a chicken coop “was a first” and complained about the smell of chicken droppings. Even though the medic did not reveal private health information about the victim nor mentioned him by name, the man’s wife argued that mentioning the patient was treated in a chicken coop was enough that people in the community who knew the man could easily recognize the Facebook post was about him.

The lesson that healthcare organizations and their employees can draw from these cases is the importance of teaching employees that improper verbal communication — not just information on paper or data in a computer system — may also rise to the level of a HIPAA violation.

If you have questions about your organization’s HIPAA compliance and training programs, call a knowledgeable employment law attorney at Hemmer DeFrank Wessels, PLLC at [ln::phone] or contact us online.

 

Kentucky Doctor Ordered Jailed, Suspended for Implanting Unnecessary Pacemakers 

Author By Finney Law FirmPosted on


Written By: Janie Ratliff-Sweeney

When you hear of Medicare fraud, you may think of billings for patients who never showed or for procedures that were never performed. What might not come to mind is a doctor performing unneeded invasive procedures or surgeries on patients to increase claims to Medicaid and Medicare billing. But that’s exactly what one Kentucky doctor was found to have done.

Anis Chalhoub, while a cardiologist at a London, KY hospital, allegedly performed multiple pacemaker implants over a four-year period. He was convicted of healthcare fraud and was sentenced to serve 42 months in prison and to pay more than $275,000 in restitution and $50,000 in fines. He has been prohibited from practicing cardiology for three years following his release from prison.

The brunt of the financial fallout landed on his former employer, Saint Joseph Health Systems (now KentuckyOne Health), which agreed to pay a $16.5 settlement to affected patients though it did not admit to charges that it participated in the alleged scheme.

Healthcare organizations can protect themselves from multimillion dollar settlements by paying attention to red flags and putting procedures in place to monitor procedures and claims. Working with a healthcare lawyer knowledgeable about insurance fraud can help clarify any confusion or uncertainty you may have about relevant regulations.

To prevent false claims and unnecessary procedures, your organization can implement internal control procedures such as these:

  • Randomly select and review medical charts of patients who undergo tests and other procedures to confirm that the tests met the medical necessity guidelines for reimbursement.
  • Set up notification alerts for doctors with a pattern of billing for services and care with no supporting documentation.
  • Conduct regular audits to see how patient records and claims line up with patient questionnaires. A record that significantly contradicts a patient’s answers about symptoms or medical history may have been falsified to support billing for tests and procedures.

In addition to proactive measures to monitor for fraudulent practices, you should pay attention to internal and external complaints about providers. Conversely, a pattern of ignoring them might later be used against your company or practice as evidence of negligence.

If you have concerns about whether you are following regulations that pertain to Medicare and Medicaid billing, call a knowledgeable healthcare attorney at Hemmer DeFrank Wessels, PLLC or contact us online.

 

The Harm He Can’t Escape: Nicholas Sandmann and the Internet that Doesn’t Forget.

Author By Todd McMurtryPosted on

By L. Lin Wood & Todd McMurtry

The next time you land an interview with a prospective employer, apply to college, or use an online dating service, be certain that your online presence is free of false and defamatory accusations.

Indeed, 70% of employers use social media to screen a candidate’s personality before hiring,[1] 68% of colleges use an applicant’s online presence as a factor for determining admission,[2] and 89% of surveyed dating app users report “researching” their dating matches online prior to going on the first date.[3]  Employers are especially self-conscious about generating controversy that will potentially put them in a bad light with customers and shareholders.[4]

Nicholas Sandmann, a young teenager unwittingly made the centerpiece of the Covington Catholic media attack, will never have the chance to restore his online presence, despite his innocence.  The internet’s permanence—negative, false and defamatory articles and headlines never ceasing to appear upon a Google search of the word “Sandmann”—will function as a perpetual thorn in Nicholas’s side throughout his adolescence and entire adult life.  Consider what the future might hold.  What follows the internet and the adoption of 5G technologies?  Things could actually get worse. Only our imaginations limit what could be done. This is perpetual reputational harm.[5]

Legal commentators suggest that Nicholas’s prayers for relief against The Washington Post, a demand totaling $250 million, and against Cable News Network, Inc. (CNN), totaling $275,000,000, do not represent an accurate reckoning for the damage caused to Nicholas’s reputation by the Post’s and CNN’s negligence and reckless disregard of the truth in furtherance of their political agendas.[6]  We unequivocally disagree.

Misguided critics justify their flawed analysis of the damages claim on an outdated understanding of the news media landscape.[7]  Before the internet and the twenty-four-hour news cycle, amnesia about certain stories was commonplace.[8]  Yesterday’s news faded into obscurity on archival tapes and yellowing paper.[9]  In contrast, with widespread access to the internet in 2019, it is impossible to completely eliminate a news story.  The internet never forgets.  Consider the following example from the “Duke Lacrosse case.”[10]

In 2006, Duke University athletes Colin Finnerty and Reade Seligmann were falsely accused of raping a dancer in Durham, N.C. who was hired to perform at a private party.[11]  The two men were exonerated after DNA evidence and witness testimony proved their innocence.[12]  To this day, nearly fourteen years after Finnerty and Seligmann’s exoneration, a Google search of the words “Finnerty and Seligmann” yield—on the first page of results—two original articles from 2006 accusing the two men of rape.[13]

Linda Fairstein, a reputable author and former prosecutor, explained in a 2007 Dateline interview that the public’s rush to judgment in the Duke Lacrosse case will forever place an “asterisk” after the names Finnerty and Seligmann.  She stated that because of perpetual reputational damages, there was “no way” to make the falsely accused whole again.[14]

Let us not forget: Nicholas is a private figure that had no platform to defend himself from the baseless media assault that defamed him.  He will never forget the death threats he received.  The perpetual reputational harm he will suffer was not brought on by free choice, but by a plot to assassinate his character in order to advance a political agenda.  Regardless of your politics, an innocent high school student should not be an acceptable casualty in a rhetoric war against the president.

It is time to recognize that the media landscape has changed, and so has the longevity of the harm that is caused to the subject of a defamatory article.  Punitive damages are aimed at deterrence and retribution.[15]  Without an adequate legal deterrence mechanism, news publishers will continue to be insulated from the consequences of their false and defamatory publications that, as in this case, caused irreparable and perpetual harm to an innocent minor.

Still, the fact remains:  Nicholas has many years left to live in the shadow created by The Post’s, CNN’s and other’s reckless disregard of the truth.

Lin Wood and Todd McMurtry are co-counsel for Nicholas Sandmann in defamation cases brought against multiple media defendants, including The Washington Post and Cable News Network, Inc.

 

[1] Lauren Salm, 70% of Employers are Snooping Candidates’ Social Media Profiles, CareerBuilder.com (June 15, 2017), https://www.careerbuilder.com/advice/social-media-survey-2017; Saige Driver, Keep it Clean: Social Media Screenings Gain in Popularity, BusinessNewsDaily.com (Oct. 7, 2018, 7:23 AM), https://www.businessnewsdaily.com/2377-social-media-hiring.html.

[2] Scott Jaschik, Social Media as ‘Fair Game’ in Admissions, InsideHighered.com (April 23, 2018), https://www.insidehighered.com/admissions/article/2018/04/23/new-data-how-college-admissions-officers-view-social-media-applicants#.XG9OKs_pP8Y.link.

[3] Molly Fedick, To Google or Not to Google, HingeIRL.com (last accessed Feb. 21, 2019), https://hingeirl.com/advice/should-i-google-my-dates/.

[4] See id.

[5] See Richard J. Peltz, Fifteen Minutes of Infamy: Privileged Reporting and the Problem of Perpetual Reputational Harm, 34 Ohio N.U. L. Rev. 717 (2008), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1669693.

[6] See, e.g., Fox News, Your World w/ Cavuto, TheDailyBeast.com (Feb. 20, 2019), https://www.thedailybeast.com/judge-napolitano-explains-to-fox-news-host-covington-kids-lawsuit-impossible-to-prove.

[7] See generally, Peltz, supra note 5.

[8] See Jason Feifer, Commentary: When Should the Internet Just Forget?, Wash. Post & ChicagoTribune.com (Oct. 30, 2015, 9:00 PM), https://www.chicagotribune.com/news/opinion/commentary/ct-right-to-be-forgotten-internet-20151030-story.html.

[9] Peltz, supra note 5, at 719.

[10] See generally, Peltz, supra note 5.

[11] Peltz, supra note 5, at 717.

[12] Lara Setrakian, Charges Dropped in Duke Lacrosse Case, ABC News (April 11, 2007), https://web.archive.org/web/20070518222004/https://abcnews.go.com/US/LegalCenter/story?id=3028515&page=1.

[13] Search Query of “Finnerty and Seligmann,” Google.com, http://google.com (search “Finnerty and Seligmann” without quotations, scroll to bottom of first results page) (last accessed Feb. 22, 2019).

[14] ABC Dateline, Collapse of a Case—Duke Case Dismissed, YouTube at 6:39 (April 10, 2007), https://youtu.be/3gh8oGF4iXQ?t=399.

[15] State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003) (citing Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001)).

 

Check and Double-Check: Avoiding Conflicts of Interest Malpractice Claims

Author By Todd McMurtryPosted on

Just uttering the word conflict is enough to make anyone nervous—but not attorneys, right? When their own interests may collide with that of a client’s, however, it’s a different story. Jobs and reputations could be at stake. In fact, “conflict of interest” (including perceived conflict) was the most-cited legal malpractice claim of 2018. Good lawyers know conflicts of interest will eventually happen; smart lawyers know how to plan for them.

Defining Conflicts of Interest

While the American Bar Association gives Model Rules of Professional Conduct, each area has its own interpretation of these rules. In her article, “Analyzing Conflicts: A Necessity for Every Lawyer,” author Marian C. Rice points out that in most jurisdictions, however, conflicts can be analyzed within the following four categories.

PERSONAL CONFLICTS BETWEEN A LAWYER AND A CLIENT

As Rice states, this type of conflict of interest can be broadly interpreted. Romantic entanglements can of course become an issue, as can many other types of personal relationships. Any financial or business interests the lawyer has with a client may also be called into question.

CONFLICTS CONFRONTED IN THE SIMULTANEOUS REPRESENTATION OF CLIENTS WITH DIFFERING INTERESTS

When multiple client interests are involved, the lawyer’s professional judgement can be impaired. An attorney attempting to represent two individuals engaged in divorce proceedings would be an example of this.

CONFLICTS BETWEEN A CURRENT AND FORMER CLIENT

“Current” and “former” can be complex to define, but this conflict may be the easiest to avoid. A closing letter sent by the firm verifying the end of its representation is usually enough to clarify the client’s status.

CONFLICTS INVOLVING THIRD PARTIES

Every decision and action performed by an ethical attorney hinges on his or her duty of loyalty to their own client. Any outside influence that may call that commitment into question should be analyzed. This may include someone other than the client paying the attorney’s fees, or a previous prospective client who divulged information.

Seeing Conflicts Management as Risk Management

Conflict of interest rules need to be established by the firm, and a management plan put into place for their discovery. In fact, conflicts attorney Michelle Turbanic urges legal practices to view conflict management as “very necessary risk management procedures that ultimately protect you, your practice, and your firm.”

Another way to approach conflicts of interest is to think about them in a different way. In her article “Dealing With a Lawyer Conflict of Interest,” author Lori Tripoli encourages lawyers not to panic when these issues arise. “Would we flinch quite so easily,” she wonders, “if conflicts of interest were labeled something more neutral, such as client engagement opportunities or client-centered considerations?” Remember that the ABA and jurisdictions have set up these model ethics rules and regulations not to hinder legal practices, but protect them. If a potential conflict of interest arises or is discovered, it doesn’t necessarily mean the relationship with the client must be terminated. Oftentimes a lawyer can proceed with a known conflict of interest provided there is informed consent, firewall, or other protective prerequisites put into place.

At its core, a management plan should consider how conflicts will be identified, how they will be assessed, how they will be managed, and any long-term goals the firm or its attorneys may be considering. (Will the practice be expanding into other areas of the law? Is an attorney gaining a larger foothold with clients in a particular legal area?) For the most comprehensive management plan, Tripoli further urges attorneys to plan ahead for possible complications by thinking about: at what point a conflict can be discovered, who can discover it, whom should be approached once it is discovered, and what further action will be taken.

The Conflicts Checklist Database

Firm-hopping is on the rise, which means new lawyers may not be aware of a firm’s conflicts of interest. Therefore, a maintained conflicts database system is crucial for every firm, solo or multi-location. Ethics-defense attorney Eric Cooperstein warns attorneys should never “rely on their memories to determine whether they have a conflict.” While some may rely on a binder system (or maintain the boast of elephant-like recall powers), the database system most recommended is a digital one—such as Microsoft Excel or Google Drive. Everyone at the firm should be on the same page and have access to the same information.

In his article for Lawyerist.com, “Making a List: The Conflicts Check” attorney Josh Camson outlines the five elements an effective conflicts checklist database should include.

LIST OF CLIENTS

Include client first and last names, what type of case they are associated with, and a link to the file number.

OPEN OR CLOSED CASE

Anyone consulting the conflicts database should be able to tell at a glance the status of the associated case.

FIRM RELATIONSHIP

Turbanic advises firms to notate the relationship the firm had with each name in the database as “client,” “adversary,” or “third-party.”

CLIENT RELATIONSHIPS

Cooperstein refers to these database entries as “related names.” The information should include names of: spouses, children, employers, beneficiaries, and expert/key fact witnesses. 

ATTORNEYS AT THE FIRM

As a cross-reference check, there should be a section in the database listing all lawyers at the firm, including previous ones. The information included here should be, first and foremost, past clients. Also notate the attorney’s area of expertise; then link to information on past issues and the other parties involved.

Once the information for the database has been gathered, the system should be maintained and utilized on a regular basis. Everyone in the firm should be trained on best practices for inputting new information. Additionally, it should be standard procedure for all members to run a conflicts check after every prospective client meeting. Even if no legal conflict exists, Camson encourages attorneys to continually keep their firm’s image and reputation top of mind when considering new clients.

As I always advise, planning is simply the best way to avoid malpractice. If you want to stay in the game and out of trouble, always look ahead. Having systems like a conflicts database in place aren’t just a good idea; they’re business practices your firm’s protection and future are dependent on.

Todd V. McMurtry is a Member at Hemmer DeFrank Wessels, PLLC.  He is a 2019 Top 50 Kentucky Super Lawyer and Harvard trained mediator, who is dedicated to professional excellence.  Todd has been married to his wife, Maria C. Garriga, for 32 years.  They have three adult children. You may reach him at [email protected] or (859) 578-3855

 

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