Roundtable. Professional Liability. May 8, The Gleacher Center University of Chicago Booth School of Business. Highlights.

Transcription

1 International Association of Defense Counsel Professional Liability Roundtable May 8, 2014 Highlights The In-Firm Attorney-Client Privilege Documents Too Hot to Handle Making Peace in War - Resolving Claims of Conflicts, Chicanery, and Coverage The American Law Institute and the Principles of the Law of Liability Insurance The Gleacher Center University of Chicago Booth School of Business Chicago, Illinois

2 International Association of Defense Counsel 2014 Professional Liability Roundtable PRESENTERS Shaun McParland Baldwin is a partner in Tressler, LLP s Chicago office. Her nationally based practice is focused on insurance coverage and bad faith litigation. She also has served as a binding arbitrator in inter-carrier disputes. Shaun is an active member of the International Association of Defense Counsel (IADC) and is a past director of The Foundation of the IADC. She is a past chair of DRI s Insurance Law Committee and serves on its steering committee. Shaun is a member and past director of the Illinois Association of Defense Trial Counsel and the Illinois Appellate Lawyers Association. She is a member of the ABA and the Professional Liability Underwriting Society. Shaun is a frequent lecturer on insurance coverage law and has authored numerous articles. William T. Barker is a partner in the Chicago office of Dentons (U.S.), LLP, which has a nationwide practice representing insurers in complex commercial insurance litigation, including coverage, claim practices, sales practices, risk classification and selection; agent relationships, and regulatory matters. He is a co-author (with Ronald D. Kent) of New Appleman Insurance Bad Faith Litigation, Second Edition and (with Professor Charles Silver) of Professional Responsibilities of Insurance Defense Counsel. He is Adviser to the ALI project on Principles of the Law of Liability Insurance. Donald D. Campbell is a partner at Collins Einhorn Farrell in suburban Detroit, Michigan. Don s practice focuses on attorney grievance defense and legal malpractice defense. He has extensive experience in counseling and advising lawyers regarding ethics. He is an adjunct professor of law at the University of Detroit Mercy School of Law where he teaches professional responsibility. He is currently Treasurer for the Association of Professional Responsibility Lawyers and APRL s liaison to the ABA s Standing Committee on Ethics and Professional Responsibility. Steven C. Couch joined the Ohio Bar Liability Insurance Company (OBLIC) in January 2012 as its President and CEO. The Ohio Bar Liability Insurance Company provides lawyer s professional liability (LPL) insurance coverage to Ohio attorneys and is a wholly-owned subsidiary of the Ohio State Bar Association (OSBA). Steve is an insurance company executive and former trial attorney with 13 years of experience in the lawyer s professional liability insurance field. He also has nine years of experience in civil trial work, primarily insurance defense litigation. Prior to joining OBLIC, Steve served as vice president of claims for The Bar Plan Mutual Insurance Company of St. Louis, an LPL company originally formed by the Missouri Bar and currently operating in five states other than Ohio. He had earlier served as Assistant Vice President for Claims, Claims Manager, and Claims Attorney for Great American Insurance Company. Steve also has worked as a trial attorney for several Texas law firms. Carla Cowles van Dongen is Associate General Counsel of State Farm Mutual Automobile Insurance Company and currently leads State Farm s Claim Litigation Section, overseeing 39 staff counsel offices across the U.S. and in Toronto. She has held other leadership positions at State Farm and has been actively engaged in the development and implementation of its civil justice policy and initiatives, serving as Operating Committee Co-Chair for the Civil Justice Reform Group from January 2009 through June She is currently taking a leading role in addressing the ALI project on Principles of the Law of Liability Insurance and coordinating with other industry and defense bar personnel regarding that project. She has written and spoken extensively on insurance and litigation-related topics. Timothy J. Gephart, CPCU, has served as Vice President of Claims at Minnesota Lawyers Mutual Insurance Company since He is an adjunct professor at the University of St. Thomas School of Law where he teaches a course on legal malpractice. Tim served for six years on the Minnesota Lawyers Professional Responsibility Board and six years on the Minnesota State Board of Legal Certification, and was recently appointed to the Minnesota Board on Judicial Standards. Tim is a frequent lecturer and has authored a number of articles on the topics of ethics and risk management for lawyers. Nicole Hyland is a partner at Frankfurt Kurnit Klein & Selz PC. She counsels lawyers on ethics issues, including advertising and social media use; conflicts of interest, legal fee disputes, escrow issues, disqualification motions, multi-jurisdictional law practice, and more. She also represents lawyers in disciplinary proceedings and malpractice cases. She is a 2013 Super Lawyers Rising Star. Nicole is Chair of the Committee on Professional Ethics of the New York City Bar Association. She frequently writes and lectures on legal ethics and professional responsibility issues. Michael J. Leech was a partner and trial lawyer at Hinshaw & Culbertson LLP from 1978 to 2011, handling commercial litigation and employment cases. He began acting as a mediator in 1996 and in 2012 became an independent mediator/arbitrator. He has published and spoken on employment law, commercial litigation, and mediation. In 2012 to 2013, the parties reached settlement in 94% of the cases in which he acted as the mediator. He is a member of the ALI, a Distinguished Fellow of the International Academy of Mediators, President-Elect of the Association of Attorney-Mediators, a member of the National Academy of Distinguished Neutrals, a AAA mediation and arbitration panelist - Commercial Litigation & Employment, a Top 100 Illinois Super Lawyer from 2011 to 2014, rated A.V. Preeminent by Martindale Hubbell, and a Fellow of the College of Labor & Employment Lawyers. He received his B.A. and J.D. from the University of Virginia. Charles E. Lundberg is a partner at Bassford Remele in Minneapolis. He practices primarily as a lawyer s lawyer - advising attorneys and law firms on matters involving legal malpractice, legal ethics, and other areas of the law of lawyering. He served for 12 years on the Minnesota Lawyers Professional Responsibility Board, including six years as Board Chair. He also devotes much of his time to appeals, and has been recognized as one of the leading appellate attorneys in Minnesota and elected as a Fellow in the American Academy of Appellate Lawyers. For many years Chuck has been selected as one of the Best Lawyers in America in the fields of Appellate Law and Legal Malpractice Law. He is President-Elect of the Association of Professional Responsibility Lawyers. Daniel K. Ryan joined Hinshaw & Culbertson LLP in January He is a member of the firm s Executive Committee and is the Leader of the firm s Business Litigation Practice Group. He has a diverse commercial litigation practice. He is recognized and distinguished for his strategic ability to successfully and aggressively resolve business disputes, particularly in matters tried in federal courts and through arbitration. His technical background includes a unique combination of capabilities in class action lawsuits, health care litigation, employee benefits litigation, consumer fraud, corporate disputes, employment discrimination, and corporate dissolutions. Dan s business litigation practice is nationally focused, with his cases venued throughout the country. His practice also entails a substantial number of matters involving alternative dispute resolution, both mediation and arbitration.

3 12:15-12:45 p.m. Registration Open SCHEDULE 12:45-1:00 p.m. Welcome and Introductions Molly H. Craig, IADC President, Hood Law Firm, LLC, Charleston, SC Michael E. Brown, Program Chair, Kightlinger & Gray, LLP, Indianapolis, IN 1:00-2:00 p.m. Hot Topics in Attorney-Client Privilege The In-Firm Attorney-Client Privilege: When a lawyer encounters ethical problems, she often will consult the law firm s in-house counsel. If the problem ultimately results in a malpractice suit, the now-former client may seek discovery of that consultation. Over the past 15 years, numerous federal district and bankruptcy courts have categorically rejected the firm s privilege claims in such circumstances. Recently, the first appellate cases to address the issue have upheld the privilege, dramatically altering the balance of authority, and the ABA recently adopted a resolution supporting the privilege in this context. While the ABA s position is a popular one among large law firms, it has been criticized by the Association of Corporate Counsel, many academics, and legal ethicists. Our panel will address the analytical and practical issues raised by this scenario. Documents Too Hot to Handle: What should a lawyer do when he realizes he has possession of privileged documents that belong to the opposing party? Maybe he received them by inadvertence. Maybe a rat sent them. Maybe the client stole them. Panel members will discuss their encounters with corporate moles and other sources that purvey information that may be too hot for lawyers to handle safely. Cases and scenarios to be discussed include the North Country lawyer s saga, the double envelope gambit, the self-help privilege review, and the innocent harvester. Speakers: Donald D. Campbell, Partner, Collins, Einhorn, Farrell, Detroit, MI Timothy J. Gephart, Vice President, Claims, Minnesota Lawyers Mutual, Minneapolis, MN Nicole Hyland, Partner, Frankfurt Kurnit Klein & Selz, New York, NY Charles E. Lundberg, Partner, Bassford Remele, Minneapolis, MN 2:00-2:15 p.m. Refreshment Break 2:15-3:15 p.m. Making Peace in War - Resolving Claims of Conflicts, Chicanery, and Coverage A malpractice suit can stir up a lot of emotions between the claimant who is aggrieved and the attorney who made a mistake, perhaps unwittingly. When the suit contains non-covered claims, the attorney can also be pitted against its insurer and face significant uninsured exposure. Mediating a malpractice claim where coverage is disputed can be a recipe for disaster if the issues of conflict are not anticipated well before the mediation and counsel doesn t manage his or her client s expectations. The insurance dynamics also need to be understood and factored into the mediation. This panel provides guidance on how to avoid the extra mine fields when mediating a malpractice claim with significant coverage issues. Speakers: Shaun McParland Baldwin, Partner, Tressler LLP, Chicago, IL Steven C. Couch, President and CEO, Ohio Bar Liability Insurance Company, Columbus, OH Michael J. Leech, Principal, Michael J. Leech, P.C., Talk Sense Mediation, Chicago, IL Daniel K. Ryan, Partner, Hinshaw & Culbertson LLP, Chicago, IL 3:15-3:30 p.m. Refreshment Break 3:30-4:30 p.m. The American Law Institute and the Principles of the Law of Liability Insurance The American Law Institute, which prepares highly influential Restatements of the Law, currently has a project on Principles of the Law of Liability Insurance. The ALI has already approved proposals for both a novel approach to issues of policy interpretation and a substantial change to the law in most jurisdictions on rescission for application misrepresentations and is actively considering important proposals relating to the duty to defend and the duty to settle. Some of those proposals might be useful to defense and insurer counsel, but some of them will provide ammunition to plaintiff and policyholder counsel. The panel will provide an overview of the process, important proposals approved to date and under consideration, and offer ideas for resisting adoption by courts of some of the more troublesome proposals. Speakers: William T. Barker, Partner, Dentons (U.S.), LLP, Chicago, IL Carla Cowles van Dongen, Associate General Counsel, State Farm Mutual Automobile Insurance Company, Bloomington, IL 4:30-5:30 p.m. Cocktail Reception

4 Professional Liability Roundtable Information Location and Directions The Gleacher Center University of Chicago, Booth School of Business 450 North Cityfront Plaza Drive Chicago, Illinois Please copy the following link into your Internet browser for information on directions and parking; maps, and transportation for the Gleacher Center: Accommodations and Travel If you require lodging while attending the conference, please plan to make reservations at your preferred hotel as soon as possible. CLE Credits Approximately 3.0 hours of general CLE credit in 60-minute states and 3.6 hours of general CLE credit in 50-minute states will be requested for accreditation from all mandatory continuing legal education jurisdictions where registered attendees are licensed. A Special Note for the Disabled The IADC wishes to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently from other individuals because of the absence of auxiliary aids and services. If you are in need of auxiliary aids or services, please contact Amy O Maley at aomaley@iadclaw.org. Cancellation Policy A CASH REFUND, less a $150 processing fee, will be made if a written notice of cancellation is received by the IADC office more than thirty (30) days prior to the first day of the meeting. No reason for the cancellation need be provided for a timely notice of cancellation. NO CASH REFUND will be made if notice of cancellation is received by the IADC office thirty (30) days or less prior to the first day of the meeting. However, if special circumstances arise before the meeting which prevent attendance, a member may request a future meeting credit. The request needs to be in writing and submitted to the IADC office. It should be directed to the Finance Committee s attention and note the special circumstances which caused cancellation. The credit request can only apply to meeting registration fees (not air, hotel, activity, tour, or special event fees) and, if approved, will be valid for use toward any IADC meeting for one (1) year from the date of the meeting for which credit is requested. A $150 processing fee will be deducted from the total future meeting credit. All future meeting credit requests will be considered by the Finance Committee and the decision of that Committee will be final. General Event Sponsor

5 2014 IADC Professional Liability Roundtable DATE: May 8, 2014 LOCATION: The Gleacher Center at the University of Chicago, Booth School of Business 450 North Cityfront Plaza Drive, Chicago, IL International Association of Defense Counsel 303 West Madison, Suite 925, Chicago, IL All Outside Counsel: IADC Member or Non-Member $330 NAME NAME ON BADGE FIRM NAME FIRM ADDRESS CITY STATE ZIP COUNTRY BUSINESS PHONE BUSINESS FAX ADDRESS U.S. STATE BAR NUMBER(S) FOR ALL STATES WHERE LICENSED U.K. SOLICITOR IDENTIFIER NUMBER (if applicable) All Insurance and Corporate Attendees: IADC Member or Non-Member Complimentary NAME NAME ON BADGE BUSINESS NAME BUSINESS ADDRESS CITY STATE ZIP COUNTRY BUSINESS PHONE BUSINESS FAX ADDRESS U.S. STATE BAR NUMBER(S) FOR ALL STATES WHERE LICENSED U.K. SOLICITOR IDENTIFIER NUMBER (if applicable) Total Amount Enclosed $ PAYMENT Complete and mail form with payment to: IADC, 303 West Madison, Suite 925, Chicago, IL or fax to Check/Money Order (Payable to the IADC in USD) AMEX Visa MasterCard Number: Name on Card: Signature: Expiration Date: Security Code: Please note: There is no fee for insurance industry and corporate counsel attendees, but advanced registration is requested by May 2, Guest registration is not limited. Please print additional copies of this form to register multiple attendees or go to to register online. If you have any questions, aomaley@iadclaw.org or call

6 International Association of Defense Counsel 303 West Madison, Suite 925 Chicago, IL USA Presorted First Class Mail U. S. Postage PAID Bedford Park, IL PERMIT NO. 205 Roundtable Planning Committee Thank you to the members of the Professional Liability Roundtable Planning Committee for their work to make this meeting possible. Michael E. Brown, Chair Kighlinger & Gray, LLP, Indianapolis, IN Elliott Abrutyn, Morgan Melhuish Abrutyn, Livingston, NJ David C. Anderson, Collins Einhorn Farrell P.C., Southfield, MI Shaun McParland Baldwin, Tressler LLP, Chicago, IL William T. Barker, Dentons (US) LLP, Chicago, IL Walter H. Boone, Forman Perry Watkins Krutz & Tardy LLP, Jackson, MS Douglas L. Brown, Brady Radcliff & Brown, LLC, Mobile, AL Joseph S. D. Christof, II, Dickie, McCamey & Chilcote, P.C., Pittsburgh, PA Richard J. Cohen, Goldberg Segalla LLP, New York, NY Roy Alan Cohen, Porzio, Bromberg & Newman P.C., Morristown, NJ Charles H. Cole, Schuyler, Roche & Crisham, P.C., Chicago, IL Michael D. Crim, McNeer, Highland, McMunn and Varner, LC, Clarksburg, WV Asim K. Desai, Gordon & Rees LLP, Los Angeles, CA John B. Drummy, Kightlinger & Gray, LLP, Indianapolis, IN Edmund Farrell, Murchison & Cumming LLP, Los Angeles, CA Timothy J. Gephart, Minnesota Lawyers Mutual, Minneapolis, MN Jay Barry Harris, Fineman Krekstein & Harris, P.C., Philadelphia, PA Bradley M. Jones, Meagher & Geer, P.L.L.P., Minneapolis, MN John D. Jopling, Dell Graham P.A., Gainesville, FL Barry Gordon Kaiman, Lewis Brisbois Bisgaard & Smith LLP, Los Angeles, CA Dan L. Longo, Murchison & Cumming LLP, Irvine, CA Charles E. Lundberg, Bassford Remele, Minneapolis, MN Matthew S. Marrone, Goldberg Segalla LLP, Philadelphia, PA Richard L. Neumeier, Morrison Mahoney LLP, Boston, MA Mary G. Pryor, Cavanagh Law Firm, Phoenix, AZ T. David Rheney, Gallivan, White & Boyd, P.A., Greenville, SC Elizabeth Haecker Ryan, Coats Rose, New Orleans, LA Scott H. Sirich, Plunkett Cooney, P.C., Bloomfield Hills, MI George W. Spellmire, Jr., Spellmire Law Firm LLC, Chicago, IL Meredith Kaplan Stoma, Morgan Melhuish Abrutyn, Livingston, NJ Michael J. Sullivan, Collins Einhorn Farrell P.C., Southfield, MI J. Calhoun Watson, Sowell Gray Stepp & Laffitte, LLC, Columbia, SC Jo Ben Whittenburg, Orgain, Bell & Tucker, L.L.P., Beaumont, TX Robert A. Zupkus, Zupkus & Angell, P.C., Denver, CO Daniel Matthew Zureich, Lawyers Mutual Liability Insurance, Cary, NC Professional Liability Roundtable May 8, 2014 The Gleacher Center University of Chicago Booth School of Business What past attendees are saying... Great job! This is one of the best CLE programs I have attended. A wonderful opportunity for topical CLE in a client development conducive environment. The insights offered by defense counsel and insurers with respect to matters of common interest were most helpful. The networking is great seeing people again whom I met at other IADC events. Meeting new people as well. Timely and topical presentations with very knowledgeable presenters. Great networking opportunities.