Skirting the edge of a malpractice cliff?

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Skirting the edge of a malpractice cliff?

Postby Anonymous User » Tue Jun 23, 2015 12:03 pm

So in work at a very very small law firm. Basically 2 partners, me and 2 incompetent support staff. I feel like I am increasingly being asked to do things I have no business doing as a first year and that they have no business doing as a law firm. A few examples. Recently one of the partners asked me to see about a medical provider setting up an LLC/PLLC. I realized that there might be a bigger regulatory issue here about the practice of medicine(just happened to check some regulatory opinion). It really worried me because the medical provider was leaving a previous employer and might get sued by them for a non-compete and/or reported to the licensign authboroity if any regualtory infractions arose. No case law or statutes on point, I consulted with a friend who is a healthcare attorney and called the licensing board. I could not get a straight answer. When I brought my concerns to the partner about our ability--given our lack of a healthcare practice and lack of healthcare contacts--to be sure we would be properly advising our client, he was like "well, do you want me to just give this to a bigger firm. I mean, all this requires is reading a statute or drafting a contract and if we can't even do that, we're in bad shape."
Today, we had an discussion about the share prices and allocations I calculated (over 6 months ago, he just got around to giving our client the info today) for a merger of 4 companies. I basically just used excel and a calculator. I have not done math since highschool and even then I was super shitty at it, so, again, I do not feel qualified to do this. When I was like "um, do they have accountants to do this?" He was like "well it's just some division, accountants are useless." I could go on, but these last 24 hours left me kinda freaked out. Maybe I am being overly cautious (having seen clients in transactional matters at bigger firms get fucked by sloppy lawyering and file malpractice claims), but Im also scared because it's my reputation that's on the line here in a small legal community and I will be the one who is blamed if there is a screw-up. I've made small mistakes before (like an incorrect citation or a typo) that only got picked up after a document was filed and after partners reviewed it multiple times and I got chewed out for that and told that I need to oversee the partners' oversight of me. Oh yea, and the partners also expect me I double check every email and document that our support staff do because they have no confidence in them. Sorry for the rant, I'm just kinda freakin out.
Basically my question is: is this normal? Friends and mentors of mine in big law are like "dude, that is NOT what a first year does." And I initially thought it was a matter of size, but then I also talked to people at similarly small firms sand one was like "I feel really bad for you because you are getting a completely skewed view of this and no training." I don't mind biting off more than I can chew, but I do worry about the ethical implications of it and, of course, it really sucks when I get shit for not doing something right that the partners have no idea how to do either, oversee and fail to catch, or just don't oversee. Obviously, I've started looking for another job, but I am wondering if it will just be the same or worse at a different firm. I feel lke with biglaw at least you have better oversight structures and more institutional expertise, is that accurate?. And, anyway, it may be awhile before I can lateral (I am a first-year and was by no means a star law student) so I have to find a way to deal with it. I've suggested hiring more support staff and have forwarded resumes from (really qualified) laterals I know to the partners. Should I raise my concerns more directly by being like "I have serious concerns about our institutional ability to do X kinds of cases?" I just don't know what to do if I don't find a new position soon.

CanadianWolf
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Re: Skirting the edge of a malpractice cliff?

Postby CanadianWolf » Tue Jun 23, 2015 12:07 pm

Seems like you'd be more comfortable in a specialty practice group rather than in a general practice firm.

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Desert Fox
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Re: Skirting the edge of a malpractice cliff?

Postby Anonymous User » Tue Jun 23, 2015 12:16 pm

OP here: Oh I don't mind general litigation practice and actually prefer it. The problem is the general litigation and general transaction practice with the occasional specialty thing throw in where there is no one for me to even consult and be lke "hey, ummm so I found XYZ case, but there is also ABC statute, am I totally off-base or can we do this?" I guess I am just wondering if it's normal in a general practice to be doing heathcare regulatory interpretation or crunching transactional numbers. I always thought that boutique firms or biglaw practice groups specialized for a reason. But, if I'm wrong I'll just suck it up and wait until I can find a more specialty practice.

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Re: Skirting the edge of a malpractice cliff?

Postby Anonymous User » Tue Jun 23, 2015 12:23 pm

But being able do divide shit and looking up whehther they can form an LLC/PLLC is work any attorney should be able to do.

You lack confidence and discipline.

Not sure you read the post; did all those things BEFORE I notified the partner that we might want to do some more checking with someone who specializes. Thanks for the ad hominem attack tho.

dixiecupdrinking
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Re: Skirting the edge of a malpractice cliff?

Postby dixiecupdrinking » Tue Jun 23, 2015 3:00 pm

Pause and consider the irony of you asking a bunch of junior lawyers (if that) on an Internet forum for their opinion about whether you may be committing malpractice.

That said, the specific stuff you are complaining about is the job. You should be able to divide. You always need to check support staff's work. It isn't the partner's job to proofread your writing (or LOL check your cites).

blsingindisguise
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Re: Skirting the edge of a malpractice cliff?

Postby blsingindisguise » Tue Jun 23, 2015 3:02 pm

My NOT LEGAL ADVICE opinion is that a first year lawyer is a lot more qualified to do what he is asked by his superiors than to determine whether his superiors are committing malpractice, unless it's an obvious situation.

NotMyRealName09
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Re: Skirting the edge of a malpractice cliff?

Postby NotMyRealName09 » Tue Jun 23, 2015 3:20 pm

Malpractice is like statutory rape - if you're seriously asking the question, you (should) know the answer.

And I recall one of the best pieces of advice I ever heard on ethics. My contracts prof once said something like "your license is your ticket to earn. It does not belong to anyone but you. Protect it at all costs." That was his lesson for why he left a job as a young associate - he was being asked to do things he felt crossed the line, so he stopped.

Your post finishes with a lament to the effect that you hope you can find a new job before you REALLY have to take a stand on an ethical dilemma. As you (should) know, ethics doesn't care about your paycheck, and neither will the state bar. Keep looking for a job, and SACK UP to your employer. If the malpractice train comes rolling down the tracks, you want to be able to say you (as a junior attorney) spoke up to the senior attorneys.

Here's an ethical cite that I LOVE - ABA Model Rule 5.2(b) (your state may vary but not likely much) - "(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty."

So in order to be PROTECTED, as a junior lawyer you MUST (1) raise the issue with your supervisor (as required in order for there to be a "resolution" of the issue), and then (2) act in accordance with the supervisor's REASONABLE resolution. If your supervisor's answer doesn't seem reasonable - get out.

blsingindisguise
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Re: Skirting the edge of a malpractice cliff?

Postby blsingindisguise » Tue Jun 23, 2015 3:35 pm

I was being a bit tongue-in-cheek in my above post, but seriously, there's a fine line between keeping your ethical antennae up and dodging responsibility. I mean the "I can't do math! We need an accountant to figure out how many shares there are!" stuff is a bit much.

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Re: Skirting the edge of a malpractice cliff?

Postby pancakes3 » Tue Jun 23, 2015 3:41 pm

Desert Fox wrote:If your clients wanted the the care and quadruple checking of biglaw they'd pay for biglaw.

But being able do divide shit and looking up whehther they can form an LLC/PLLC is work any attorney should be able to do.

You lack confidence and discipline.


Harsh. Maybe he's just lacking competence.

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rpupkin
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Re: Skirting the edge of a malpractice cliff?

Postby rpupkin » Tue Jun 23, 2015 3:42 pm

Anonymous User wrote:
But being able do divide shit and looking up whehther they can form an LLC/PLLC is work any attorney should be able to do.

You lack confidence and discipline.

Not sure you read the post; did all those things BEFORE I notified the partner that we might want to do some more checking with someone who specializes. Thanks for the ad hominem attack tho.

He's right, though: you should able to do sixth-grade-level math. If you feel unprepared to apply the basic skills that we all learn in primary school, perhaps you should consider some kind of remedial education on the side. I'm not joking.

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LeDique
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Re: Skirting the edge of a malpractice cliff?

Postby LeDique » Tue Jun 23, 2015 3:52 pm

Uhhhh I'm not really sure what in this post is out of your depth as a first year at a small firm. I am a first year at a small firm, I have to supervise support staff. Every attorney does that. Maybe they're asking you to micromanage too much, but so what? On the other hand, if you're telling me your not comfortable checking their work because you don't know if they've done it correctly or not, you should probably ponder about the implications of that. You're supposed to be the intermediate layer, so be the intermediate layer.

Then you're complaining about a basic research question with healthcare LLC/PLLC. I'd be stunned if there's not a statute directly on point -- I don't do healthcare law or biz lit or anything like that, and I know there is one in my state. It sounds like you dived down multiple rabbit holes that you weren't asked to explore and the provided might not have asked your firm to explore. There's a huge difference between saying "I got nothin" and "Here is what I believe is relevant, here are the ambiguities. I am not sure, what do you think?" It sounds like you did the former.

And jesus, you're complaining you're not competent to do basic math? God forbid you're asked to calculate prejudgment interest – I've done this numerous times and have staff do it sometimes. I really must be missing something because nothing you're being asked to do sounds above what I would expect any first year to be able to do. I gotta agree with DF.

But maybe…is this a slow reveal situation where you're going to spell out more detail that explains actual problems or is this really it?

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Desert Fox
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AreJay711
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Re: Skirting the edge of a malpractice cliff?

Postby AreJay711 » Tue Jun 23, 2015 5:50 pm

LeDique wrote:It sounds like you dived down multiple rabbit holes that you weren't asked to explore and the provided might not have asked your firm to explore. There's a huge difference between saying "I got nothin" and "Here is what I believe is relevant, here are the ambiguities. I am not sure, what do you think?" It sounds like you did the former.


Yeah. You should be able to at least come up with a probable answer. A first year in a non-specialized firm is probably more equipped to handle that kind of question because they look at it with fresh eyes.

Anyway, OP: I wouldn't worry too much about malpractice. The standard is whether a reasonable, diligent attorney (or some other equivalent formulation) would have uncovered whatever twist you fear might be out there, and it seems like you researched the issue. Absent a case on point that shows the opposite, you're probably going to be ok. It is highly unlikely that you'd have ended up lacking a solid authority if a medical provider couldn't form a LLC/PLLC -- It'd be in the statute or a prominent case. A reasonable, diligent attorney might check his math a few times though.

smallfirmassociate
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Re: Skirting the edge of a malpractice cliff?

Postby smallfirmassociate » Tue Jun 23, 2015 6:02 pm

I don't know where you practice. I probably don't practice where you practice. This is not legal advice, but as a mishmash of career advice and opinion on how ethics works where I practice:

You need to come up with legal advice that is consistent with the advice that a reasonably competent attorney would provide. Not the best attorney, not the worst, but a decent one. As an attorney, regardless of how long you've been in practice, I feel like you should be able to answer the regulatory question in a way that helps the client. If you are unsure of the answer, advise the client of the potential risks. E.g. "The statute says X. I interpret that to mean Y in your case. However, if this is incorrect, a court could determine Z, and you'd be kinda fucked."

No offense, but I agree with some of the harsh things said earlier in this thread. You're not in a support job. You're not in retail sales. You're a lawyer at a general practice firm. Put on your big boy / girl pants and advise your client appropriately. If you feel overwhelmed or don't have the research skills to read, understand, and apply the law and then communicate it to your client in a way that makes sense to him or her, then now would be a good time to start applying to jobs more suited to your skill set. It also may be a case where you're not being properly trained and mentored at your firm, but it's hard to tell. At some point you have to do at least some shit on your own, and yes, that is as a first year in small firms.

edit: And yes, it's pretty normal to freak out now and then as a small firm associate. Of course, that doesn't mean you can write off all your concerns as normal. It takes a certain type of person to do this work.

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Re: Skirting the edge of a malpractice cliff?

Postby NotMyRealName09 » Tue Jun 23, 2015 9:11 pm

"If you are unsure of the answer, advise the client of the potential risks. E.g. "The statute says X. I interpret that to mean Y in your case. However, if this is incorrect, a court could determine Z, and you'd be kinda fucked."

This is like the best summary of being a lawyer I've ever read.

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Re: Skirting the edge of a malpractice cliff?

Postby Anonymous User » Wed Jun 24, 2015 6:28 pm

And jesus, you're complaining you're not competent to do basic math? God forbid you're asked to calculate prejudgment interest – I've done this numerous times and have staff do it sometimes. I really must be missing something because nothing you're being asked to do sounds above what I would expect any first year to be able to do. I gotta agree with DF.

But maybe…is this a slow reveal situation where you're going to spell out more detail that explains actual problems or is this really it?


Yea maybe I am not explaining the share calculation thing. I've done prejudgment on my phone in court; maybe I am missing something, but this was definately not as simple as that. It wasn't just division, it was like we have X number of entitiers and X number of shareholders and each entity is worth a differernt amount and held by X shareholders with stock valued at X amount, now put that all into a new entity and assign a share price to it that reflects the monetary values of the shares in each pre-existing company. It involves division for sure, but like most lawyers, I went to law school because I am math incompetent. Is there some formula people use to make sure that's right? I billed alot checking it and its just seemed super shitty to a bill a client for all those hours if there was a more competent person or a quicker way to do it.
As for the support staff; if you have support staff you can trust to do prejudgment, I want your job! We're talking about a level of incompetence that basically necessitates me doing admin work. I admit that supervision is totally part of my job, but, when you have to handle all the prep for a jury trial without any support staff because the partners don't trust support staff to even print a list of docs, it's pretty extreme. I asked an assistant to check on filing a cert of inc today and the fees assoc with it and how to address the check and it was so overwhleming for her that she told us she was sick and left the shit sitting on her desk (I emailed her a memo and spoke to her multiple times about doing this).

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AreJay711
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Re: Skirting the edge of a malpractice cliff?

Postby AreJay711 » Wed Jun 24, 2015 8:16 pm

Anonymous User wrote:
It wasn't just division, it was like we have X number of entitiers and X number of shareholders and each entity is worth a differernt amount and held by X shareholders with stock valued at X amount, now put that all into a new entity and assign a share price to it that reflects the monetary values of the shares in each pre-existing company. It involves division for sure, but like most lawyers, I went to law school because I am math incompetent. Is there some formula people use to make sure that's right? I billed alot checking it and its just seemed super shitty to a bill a client for all those hours if there was a more competent person or a quicker way to do it.


No worries dawg. It seems to me that you overthought it and made it harder than it had to be. Let me school you real quick.

Calculating Share Price.

The easiest way (in my mind) to do that would be to set an arbitrary price for the new shares and then apply that back to the old shares. Imagine this situation:

Entity A (100 shares at $150/share=$15000) -- SHa1 (30 shares=$4500), SHa2 (60 shares=$9000), SHa3 (10 shares=$1500)

Entity B (250 shares at $40/share=$10000) -- SHb1 (75 shares=$3000), SHb2 (50 shares=$2000), SHb3 (125 shares=$5000)

Entity C (500 shares at $25/share=$12500) -- SHc1 (200 shares=$5000), SHc2 (175 shares=$4375), SHc3 (125 shares=$3125)

Rather than try to figure out something elegant, I'd just assign each share(new) = $1. Since there were $37,500 worth of old shares, there are 37,500 shares(new).

So we just need to find the number/37500 of the company that each person owns. It matches conveniently the $ value that each shareholder had in his old entity. This would be the breakdown:

SHa1 -- 4500 shares
SHa2 -- 9000 shares
SHa3 -- 1500 shares
SHb1 -- 3000 shares
SHb2 -- 2000 shares
SHb3 -- 5000 shares
SHc1 -- 5000 shares
SHc2 -- 4375 shares
SHc3 -- 3125 shares

That's easy enough, but you were probably given some arbitrary share price. That's still easy to handle. And can be done with division. Looking at it, I would make each share worth $25 to make it less ridiculous, so let's use that as an example, looking at SHa1.

Step 1: Calculate the total value assigned to SHa1's ownership value. I already did that above, but if you have enough to calculate this, all it can require is multiplication. Either multiply SHa1's portion of ownership of Entity A by the value of Entity A (0.30*$15000), or multiply the share value by number of shares ($150*30). Anyway, it's $4500.

Step 2: Divide 4500 by 25 (or $4500/[$25/share], if we're paying attention to units). It equals 180.

Step 3: Repeat over and over again.

You could also do it the more complicated way -- but which is actually closer to what is theoretically happening -- using just the tiniest bit of algebra. Once you enter into Excel the total $ value of the new entity and the $ amount of each shareholder's interest, it's super easy to do.

Step 1: Find the total numbers of the shares at the given price. The new entity is valued at $37500 so we just divide that by $25 (actually divide it by $25/share, if we're paying attention to units) and get 1500 shares.

Step 2: Find the shares for each shareholder. So this is where you may need basic algebra: what you want is for the proportion of (shares to shareholder)/(total shares) = ($ "contributed" by shareholder)/($ total value of new firm). We have all the information in that equation besides (shares to shareholder) so we just solve for that. Looking at SHa1, and again ignoring units, that's (# of shares to SHa1)/1500=4500/37500. Remember the central tenant of algebra is just that as long as you do the same thing to both sides of an equation, shit's all good, so we multiply both sides by 1500 and find that (# of shares to SHa1)= 4500*1500/37500 = 180. So SHa1 has 180 shares at $25 a share.

Step 3: Just repeat that shit over and over for each shareholder.

Checking Your Work

So there are a few ways to check to make sure you have it right: (1) Each shareholder's ownership interest should be worth the same amount of money as their previous ownership interest; (2) Each merging entity's ownership total value should be the same (add up the SHb's and you should get $10000); (3) The sum of the total value of the shares should equal the sum of the value assigned the merging companies; (4) All shares should be accounted for. The best way might be to use both ways I describe above and make sure they match. It's unlikely that you'd make the same stupid mis-key twice. In the interest of brevity, I'll just try (1) with SHa1.

SHa1's shares in entity A was valued at $4500. Above we determined, each share is valued at $25 and he has 180 shares. So that's 180*$25= $4500. It's good.

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Re: Skirting the edge of a malpractice cliff?

Postby smallfirmassociate » Wed Jun 24, 2015 8:46 pm

And on that day, TLS's first truly useful post was born.




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