To Withdraw or Not to Withdraw

So you may recall that in a previous blog, we addressed the issue of whether you must disclose a mistake or error in judgment to a client, and if so, what must you say.  In this blog, the question is whether, having made an error, must you withdraw from representation, assuming the client wants you to continue?  The answer is, it depends.  If the continued representation would result in a conflict of interest, you must withdraw.  There are many instances where your interest in rectifying the mistake (and avoiding personal liability) is consistent with the client’s interest in having the problem fixed.  If you believe that you can mitigate the damage to the client, you may be in the best position to do so, and therefore, may try to do so if you can.  In those instances where your interests are aligned with those of your client, you would not be required to withdraw from the representation.  If, however, your desire to avoid liability could be in conflict with client’s best interests, or if there is nothing that can be done by you to rectify the error, you must withdraw from the representation.

The ethics opinion, 2015 FEO 4, gives examples of the kinds of mistakes that can and perhaps should be rectified by the lawyer making the mistake.  “[A]n error made in a title search may be readily repaired or a motion in limine may prevent the use of privileged communications that were improperly produced in discovery. It is often in the best interest of both the lawyer and the client for the lawyer to attempt such repair.”  The opinion goes on to say, “when an error is such that the client’s objective can no longer be achieved, as when a claim can no longer be filed because the statute of limitations has passed, the lawyer must disclose the error to the client and terminate the representation.”

No matter what the circumstances surrounding the error, we always recommend that you consult your liability carrier before deciding whether to proceed with or to terminate the representation.

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Space for Rent: Ethical Considerations for Office Sharing

Starting a law firm partnership is a good way to share responsibilities and expenses, but you also share liability for your partners’ conduct and potential malpractice.  Office sharing with other lawyers can be a good alternative, allowing for the shared expense of rent, equipment, and in some cases, support staff, but without the liability of a partnership if set up correctly. However, before you rent that space, consider some of the potential ethical problems related to the office sharing arrangement:

Advertising and Other Communications

A lawyer sharing office space with other lawyers must take steps so that their clients and the public are not misled as to the relationship between the lawyers.

  • To help reduce the risk any misunderstandings with clients, your engagement letter can clarify that no partnership exists between the lawyers in the shared space and that only the lawyer who signs the engagement letter will be responsible for the client’s matter.
  • Rule 7.5 of the NC Rules of Professional Conduct prohibits lawyers from utilizing a false or misleading name. Thus, lawyers may not imply they are practicing under a partnership, when that is not accurate, in any communication including building signage, advertising and marketing.
  • Lawyers in an office sharing situation generally may share a receptionist under certain conditions, but the receptionist cannot imply a partnership where there is none. S/he must answer the phone generically. CPR 265 provides, “While it might be less confusing to have separate telephone lines for each attorney, to have the telephone answered by the words ‘Law Offices’ does not connect the names of [a]ttorneys…in such a way as to suggest the existence of a partnership which does not in fact exist.”  In that context, where three lawyers, A, B, and C share an office but do not have a partnership agreement, the receptionist could not answer the phone, “Law Offices of A, B, and C”.

Conflicts of Interest

CPR 274 provides, “It is conceivable that two or more attorneys may maintain an office sharing arrangement and represent conflicting interests if the confidentiality of each attorney’s practice is maintained both in appearance and fact.  This confidentiality assumes that each attorney maintains a separate, independent practice.  Generally speaking, the sharing of a common library or copying equipment by attorneys representing conflicting interests is acceptable, but the sharing of a common telephone number or personnel by attorneys representing conflicting interests is not acceptable.” Further, it may be difficult to convince adverse parties there is no conflict where the two attorneys share space. Given that, lawyers in an office share likely want to consider conducting conflict checks between the two firms and avoid engaging in adverse representation altogether.

Shared Fees

Any fees shared between lawyers sharing office space must comply with Rule 1.5(e) of the Rules of Professional Conduct. Rule 1.5(e) provides that the division of a fee between lawyers who are not in the same firm may only be made if the total fee is reasonable, the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation, and the client agrees in writing to the arrangement. The Comment to the Rule provides, “Joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.”

Client Confidentiality

While lawyers in a firm must also protect client confidentiality and secure client files, an office sharing arrangement presents a unique situation.

  • Client files and other confidential information must not be accessible by other attorneys and their staff sharing the space. Files should be locked where the other lawyer and his/her staff would not have access to it. Your electronic files and data, whether stored onsite or in the cloud, will also need to be separate and secure from other lawyers sharing the space.
  • Lawyers may share common spaces, such as conference rooms, but the design must protect client confidentiality so that conversations cannot be overheard.
  • One of the great things about sharing space with another attorney, as opposed to a solo office, is having someone to share ideas with. Just make sure you use hypotheticals and leave out identifying information to protect the confidentiality of your clients.
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The First Call

We all know that first impressions matter.  This is true not only with in-person meetings but also with initial telephone calls.  There are several important factors that you should keep in mind when speaking to a potential client for the first time.  First, people want you to listen.  Even if you do not decide to take a client’s case, giving them the courtesy of allowing them to explain their issue and frustrations is incredibly important.  This does not mean you have to spend hours on the telephone with a potential client on an initial call.  It does mean you need to ensure not to make the person feel like you are rushed and do not have time to hear their concerns.  Before you return a call to a potential client, make sure you allow adequate time to listen, ask questions, and actively engage in the conversation.  Your time is valuable but so is the time of the people that call you for help.  “One of the greatest gifts you can give to anyone is the gift of attention.” – Jim Rohn

Second, do your best to ensure that you are understood.  For example, if you are quoting someone a fee for an initial consultation, make sure they understand exactly what they will be paying for – i.e. an hour of your time?  Two hours?  Review of documentation?  You do not want the client to be surprised.  Even if you put the agreement in writing before the consultation, if the client misunderstood the quote on the initial call, they will likely not be pleased to see a higher or different amount in writing.

Third, follow up on your promises.  If you tell a potential client that you are unable to help, but you will contact them with the names of a few people who may be able to assist, make sure you do get back to them.  If you are unable to provide the information you thought you could provide, you need to relay that information as well.

Fourth, make every effort possible to never come across as superior to the person who has contacted you.  Of course you likely know more about the topic the potential client is contacting you about or they would not be calling you.  However, this is not always the case.  Even if a potential client contradicts you, and you know you are correct, try to explain that in your experience, the situation resulted in a different outcome.  “People don’t care how much you know until they know how much you care.” – Theodore Roosevelt.

Following these simple steps should become second nature in any profession.  The first contact with a potential client matters!  We expect this level of professionalism and courtesy from others; therefore, it should also be what we provide.

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Lawyers in Transition: Time to Think About What’s Next?

Last week, I had the pleasure of sitting down and chatting with Tom Lenfestey, Managing Member of The Law Practice Exchange, LLC.  What I found out from Tom is that he and his staff offer a much needed service to lawyers, law firms, and other professionals throughout the state of North Carolina.

Ever wondered about retirement? Could you sustain the value in your firm and provide ethical representation of clients if you simply wanted to work a bit less and play a bit more?  Could you make money from selling your firm or a portion of it? Could you transition to a truly virtual practice? Is there some way to structure a transition so you continue in a mentoring or counseling role, with your practice generating income into your retirement years?  As I began talking to Tom, who is an attorney and a CPA, I came to realize that there were more ways to structure a transition, and more kinds of transitions for that matter, than I had ever known or even thought about before.

Tom’s legal practice has traditionally focused on creating, advising and implementing strategic business and estate plans for his clients. Tom came to recognize the lack of knowledge, attention and options that were provided in the legal profession to attorneys for their own practices, specifically in the realm of succession planning and other transition or exit opportunities.

Tom’s driving principles are as follows:

As a result and a belief in the need to increase understanding and promoting options for lawyers looking for exit or growth options through the transition market, Tom formed The Law Practice Exchange. The Law Practice Exchange aims to curb this lack of knowledge in the profession by educating and advising attorneys on the number of different options available in the legal marketplace and also serving as a confidential advisor to seek and provide connections for those right opportunities between an exiting attorney and a growth-focused attorney or firm.

 The Law Practice Exchange provides value-focused options to:

  • Preserve client goodwill
  • Provide value-based exit strategies
  • Promote mentorship between senior and junior attorneys
  • Provide alternative growth options for law practices
  • Ensure continuous service to legal clients
  • Prepare practices for change and transition
  • Consult and advise on additional practice strategies for attorneys

Tom offers much more than just brokerage services or legal match-making services.  He also helps lawyers find and enhance the value in their firms as they journey through transition.  Some of the strategies he employs would be beneficial in any practice, even if you are not looking to transition immediately. His services are confidential and he’s an accredited business intermediary.

So, what’s your next step?

For more information:

The Law Practice Exchange, LLC
(919) 789-1931
tom@thelawpracticeexchange.com
www.TheLawPracticeExchange.com

*No remuneration was received for writing this blog or recommending Tom’s services.
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Can You Call Yourself “an Expert”?

Every so often, I get the question, can an attorney hold himself or herself out as an “expert” in an area of practice or as having “expertise” in a particular area? Most attorneys know that they can’t hold themselves out as “specialists” or as “specializing” in a practice area unless they are certified as a specialist by the North Carolina State Bar or another organization accredited by the State Bar or the ABA.  See Rule 7.4 of the Rules of Professional Conduct.  While there is no rule specifically prohibiting use of the word “expert” in advertising, the statement cannot be misleading under Rule 7.1.  Several factors determine whether using the term “expert” could be misleading.

State Bar ethics staff counsel has opined that whether the term “expert” is misleading under Rule 7.1 will depend upon whether it can be factually substantiated as a claim by a lawyer.  While years of experience are relevant, simply practicing in an area of the law for a number of years is not sufficient to substantiate a claim of expertise.  According to State Bar staff counsel, the lawyer must be able to demonstrate that he/she is knowledgeable and proficient in the most difficult of cases in the practice area.

Frankly, I am not entirely certain of exactly how you would make a sufficient showing of your knowledge and proficiency in your field of practice, but here are some suggestions:

  • In addition to your many years of practice, you may be a person who has taught CLE courses or written articles for publications on the subject.
  • You may also have colleagues who could attest to your proficiency in the field of practice and to the difficulty of cases you’ve handled.
  • You may have actually served as an expert witness in a particular related field.
  • Perhaps you have taught courses at your local law school.
  • You may have served as a mentor to younger lawyers in the field.
  • Perhaps you hold a position as an advisory member on a Board or leadership positions in related Bar organizations.

Bottom line: before you use the term “expert” in your legal advertisements, be sure you have an idea of how you could prove your expertise.  You may be called upon to do so someday.

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Am I Required to Self Report?

We get this question a lot.  Do I have a duty to self report this conduct to the Bar?  Unless we’re talking about the trust account, which we’ve discussed in other blogs, there is generally no self-reporting duty in the Rules of Professional Conduct.  If you goof, make a bone-headed decision, briefly lose your mind, or aliens have taken over your body, and you have done something that violates the Rules of Professional Conduct, you need not report it to the State Bar.  That is, it is not a violation of the Rules of Professional Conduct NOT to report it.  Whether you should report it, notwithstanding that there’s not duty to do so, is a topic for another day.

Trust accounts are a different animal.  If you inadvertently misapply funds, over-disburse, or disburse in error, and you (1) discover the error promptly, (2) rectify it, and (3) document it in your files, then there is no duty to self report to the State Bar.  The failure to promptly discover the error or rectify it within a calendar quarter from when the error was made, could trigger the new reporting requirement in Rule 1.15-2. (See earlier blog).  But for errors that are discovered and correctly quickly, the State Bar has enough to do without fielding calls or reviewing correspondence about every mistake made in attorney trust accounts. If you do make a mistake in the trust account, let it be a wake up call to double down and make sure you have in place measures to help ensure that such mistakes do not happen in the future.

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Are You Encrypting?

Do you send e-mail or other electronic messages that contain or attach sensitive data or information of a client, patient or other third party, such as:

  • Any type of health or medical records?
  • Bank records, account numbers or other financial information?
  • Tax returns or tax-related information?
  • Intellectual property or trade secrets?
  • Securities related documents or other investment information?
  • Social Security numbers, passwords, PINS or other personal identification information?

For most professionals, the answer to the above questions is yes, and on a fairly regular basis.  If you are one of those professionals, are you taking reasonably adequate measures to protect against disclosure of such data or information? Do those measures include sending such information electronically through some type of encryption?  If not, it’s time to look into utilizing some sort of encryption technology when sending messages or documentation containing sensitive information.

Recent changes to various laws have increased the potential civil and even criminal exposure of various professionals for disclosure of such information.  These changes include among others, updates to HIPPA regulations, RESPA, and creation of the Consumer Financial Protection Bureau.  Even without the new and existing legal requirements, failure to safeguard sensitive information of others can lead to a lack of confidence, trust or loss of business from clients, patients, customers and vendors. This is true even if the disclosure or breach was unintentional, inadvertent or caused by the intentional illegal acts of others.

Fortunately, there now are relatively simple technologies available that make it easy to send encrypted messages and corresponding attachments.  These technologies allow each user to determine for each message whether encryption is necessary and then easily and quickly take the necessary steps.  Receiving the encrypted message only takes a few steps and generally is only necessary for the first encrypted message received from the sender.  The cost of such encryption technology generally is very affordable and well worth the investment to prevent what could be a catastrophic loss for you, your business or your clients, patients or other third parties.

For example, our firm uses Virtru, which embeds directly into Outlook (and other email platforms) and appears as an on/off icon directly above the send button on new messages.  One click and your message is encrypted and it allows you to prevent forwarding of the message, set expiration times and even recall a sent message, for as low as a few dollars per month per user.  Installation involves just a few, easy to follow steps.  What are you waiting for?

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Who Are Ya Gonna Call?

Suppose you have a legal or procedural issue you don’t quite know how to tackle?  Suppose you’re wondering whether you have a conflict of interest?  What if you want to know more about a judge that you’ve never tried a case before?  Who are you going to call?  If you’re in a large firm, perhaps asking a more senior lawyer is the ticket.  But what if you are the senior lawyer in a small firm or if you’re a solo practitioner? If you belong to a legal Listserv, especially one that focuses on your practice area, this might seem like an easy way to get an answer or at least some input.  Just throw your question out there and see what you get back.

Be careful, though. You must remember your obligation to protect your client’s confidential information under Rule 1.6.  OK, so you pose your inquiry in a hypothetical.  Is that good enough?  Maybe.  The problem with Listservs is that you may not know everyone on the receiving end of your inquiry, especially if the Listserv has a large membership.  Suppose you have a question about filing a motion to remove a matter to Federal Court.  You know that opposing counsel is not even a member of the Bar Association, so you feel comfortable posing a question about how to file the motion.  Unbeknownst to you, however, opposing counsel’s law partner is on the Listserv.  Although the inquiry is in the form of a hypothetical, there is enough information for opposing counsel’s partner to surmise that you are talking about a case his firm handles.  Opposing counsel now knows you’re planning to file this motion and perhaps takes some preemptive action in response.  You may have jeopardized a strategic move by making the inquiry on Listserv.  If someone can figure out the client or case from your hypothetical, then you may have breached the duty of confidentiality, unwittingly.

What can you do?  Consider first the kind of inquiry that you have and carefully weigh the risk of opposing counsel, the opposing party, or third parties learning confidential information.  Even a hypothetical question may pose some risk.  Then, consider whether you may have other options.  A hypothetical posed to an individual colleague with no involvement with any of the parties or counsel involved may be sufficient.  Keep in mind that there are other options depending upon the type of question that you have.  For example, Rule 1.6(b)(5) permits lawyers to disclose confidential information to secure legal advice about compliance with the Rules of Professional Conduct.  This means that you may call the State Bar’s Ethics Hotline, a Lawyer’s Mutual (liability insurance) claims counselor, or another lawyer who gives advice about the Rules of Professional Conduct (guess who).  In addition, Rule 1.6 permits disclosure of confidential information to a lawyers’ assistance program approved by the State Bar such as LAP, LAMP or the Center for Practice Management at the North Carolina Bar Association.

Bottom Line: Listservs provide a great service to the profession.  Just carefully consider the possible consequences before posting about a client matter, even in a hypothetical.  And if the risk is too great, there just may be a better option.

 

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Keep an Eye Out for Changing Trust Accounting Requirements

Over the last several years, the State Bar has made a concerted effort to step up enforcement concerning supervision of trust accounts, so it is a good idea to stay informed of changes to the trust accounting rules. The State Bar has recently proposed amendments to the trust accounting rules (Rule 1.15 and its sub-parts). You can view the complete proposed amendments in the Spring 2015 edition of the Journal and on the State Bar’s website.

The proposed amendments would primarily add requirements that facilitate the early detection of internal theft and errors. Although not a complete list of all the proposed changes, a summary of the more significant proposed amendments are below:

Rule 1.15-1

The proposed amendment to Rule 1.15-1 adds credit unions to the list of possible depositories for trust accounts in light of the extension of FDIC insurance coverage to individual client deposits in credit union accounts.

Rule 1.15-2

  • In Rule 1.15-2, the proposed amendments clarify that a lawyer must indicate on a trust account check made out to himself, the name of the client or other identifying information from whose balance the item is drawn.
  • The proposal also specifies that cash and bearer withdrawals from a trust account are not allowed by any means. Debit cards are specifically prohibited to withdraw funds from a general trust or fiduciary account.
  • Rule 1.15-2 also makes clear that no funds, other than those received by a lawyer in connection with professional legal services or professional fiduciary services may be placed in trust (if handling fiduciary funds for family on a pro bono basis, the funds should not be placed in your trust account).
  • In addition, the proposed amendments to the rules clarify the duty to report misappropriation and provide that a lawyer who discovers or reasonably believes that entrusted property has been misappropriated must immediately inform the trust account compliance counsel in the State Bar’s Office of Counsel.
  • Further, when an accounting or bank error results in an unintentional and inadvertent use of one client’s trust funds to pay the obligations of another client, the event must be reported unless the misapplication is discovered and rectified on or before the next quarterly reconciliation.  The proposal also requires disclosure of information otherwise protected by Rule 1.6, Confidentiality of Information, if necessary to report the misappropriation or misapplication.
  • The proposed amendment to Rule 1.15-2 does not affect the current standard that non-lawyers may be signatories on a lawyer’s trust account.  However it does limit signature authority on trust account checks to either: (a) lawyers who have taken an approved one-hour course on trust account management; or (b) supervised employees who are not lawyers and do not perform monthly or quarterly reconciliations, but who have taken the approved course.
  • Trust account checks may not be signed using signature stamps, preprinted signature lines on checks, or electronic signatures.

Rule 1.15-3

In Rule 1.15-3, the proposed amendments do the following: revise the quarterly reconciliation requirement to state exactly how a three-way reconciliation is done; add monthly and quarterly reviews by the lawyer to facilitate early detection and correction of errors and internal theft; and specify electronic storage and retention periods for certain trust account records.

Specifically, the proposed amendments provide the following related to reviews:

(1) Each month, for each general trust account, dedicated trust account, and fiduciary account, a lawyer must review the bank statement and cancelled checks for the month covered by the bank statement;

(2) Each quarter, for each general trust account, dedicated trust account, and fiduciary account, a lawyer must review the statement of costs and receipts, client ledger, and cancelled checks of a random sample (pick at least three) of representative transactions completed during the quarter to verify that the disbursements were properly made;

(3) The lawyer must investigate, identify, and resolve within ten days any discrepancies discovered during the monthly and quarterly reviews;

(4) A report of each monthly and quarterly review, including a description of the review, the transactions sampled, and any remedial action taken, must be prepared. The lawyer must sign, date, and retain a printed copy of the report and associated documentation for a period of six years.  Note however, the signed and dated printed copy may be saved in electronic format provided it is retained in a format that cannot be manipulated, such as a PDF.

Rule 1.15-4

Rule 1.15-4, Trust Account Management in Multiple-Lawyer Firm, is a proposed new subpart related to trust account management in multi-lawyer firms where a firm may, but is not required to, designate a firm principal to serve as the trust account oversight officer [“TAOO”] to oversee the administration of the firm’s general trust accounts.  If you are a managing partner or owner of a multi-lawyer law firm, you should review this proposed rule carefully to determine whether you should designate a TAOO in your office.

The State Bar’s Trust Account Handbook is available on its website for your reference. Our Firm also offers customized trust account procedural assessments for law firms and lawyers who need outside assistance.  We will be discussing some of the proposed changes to the Rules in more depth in future blogs, once they are adopted by the State Bar.

 

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Disciplinary Matter? You May Be Covered

As a busy professional with limited time, one of the last things you want to receive is an official letter from your licensing board or agency about a complaint that has been filed against you.  To make matters worse, hiring experienced counsel to represent you in such a matter may be important but is almost certainly an unanticipated expense.  Fortunately, coverage for such representation from professional liability carriers has become increasingly common in recent years.  One of the first things you should do if you receive such a disciplinary or ethics complaint is to check your professional liability insurance policy and determine if you have coverage.

Historically, liability carriers for physicians, dentists, therapists and other medical professionals have been more likely to contain coverage for representation in disciplinary proceedings than insurers for other professionals.  Increasingly, professional liability carriers for attorneys and other professionals have begun offering such coverage.  Some of these carriers pay the attorney directly and others provide reimbursement coverage, which requires the professional to pay the attorney first and then seek reimbursement from the carrier, typically up to a certain limit.  The amount of coverage can vary significantly, typically in a range from $5,000-$25,000, and generally it has no deductible, unlike malpractice coverage.  Most carriers allow the professional to select the attorney of their choice.

As an example, Lawyers Mutual Liability Insurance Company of North Carolina (LML NC) insures a large number of attorneys in this state.  It recently has amended its policy to include several additional benefits that do not trigger the insured’s deductible amount, including reimbursement coverage in disciplinary proceedings.  This provision is being incorporated into new policies or upon renewal of existing policies.  Under the amended policy, LML NC will reimburse its insured for legal fees paid to an attorney representing the insured as a result of a disciplinary proceeding.

Generally, to trigger such reimbursement coverage, the disciplinary proceeding must be:

(a) related to the provision of legal services on or after the prior acts date of the insured in the policy (generally excluding acts prior to coverage with LML NC); and

(b) first initiated against the insured and reported to LML NC during the policy period or any extended reporting period (“tail” coverage).

Reimbursement coverage is excluded in the following situations:

1.   the insured has been convicted of a felony for conduct giving rise to a disciplinary proceeding; or

2.   the proceeding results in discipline of the insured because of theft, embezzlement, misappropriation, or other unauthorized withdrawal or misapplication of funds.

If coverage is provided under the conditions in sections a and b and is not excluded under 1 and 2 above, LML NC will reimburse the insured up to $5000 per policy period.  This is an excellent additional benefit now being provided for the first time to many lawyers in North Carolina.  For many grievances with the State Bar that are not overly complex or document intensive, the reimbursement amount will cover representation by an experienced attorney at that informal stage.

This reimbursement coverage, however, likely would only cover a small portion of a case referred to the Disciplinary Hearing Commission for a formal evidentiary hearing.  It is yet another reason why it’s important to seek representation by counsel experienced with State Bar matters at the early and informal stages of the proceedings.  Most all of us know the expression that a lawyer who represents himself or herself has a fool for a client.  While that may be an overstatement, it is difficult to be objective in representing yourself while being attacked, often by a client that you have gone out of your way to help.

One of the great aspects of LML NC is that its in-house counsel are very proactive about early intervention and pre-suit, claims repair assistance before the problem gets out of control if contacted early by an insured.  Our firm has a similar philosophy about grievance or disciplinary matters and highly recommends that lawyers and other professionals get assistance and representation as early in the process as possible.  For more information about the grievance process and whether you need to retain counsel, review http://brockerlawfirm.com/state-bar/grievance/.  Regardless of your profession, if you receive an ethics or disciplinary complaint, first check your professional liability policy for coverage and then seriously consider retaining an attorney experienced in handling such matters.  For more information, review http://brockerlawfirm.com/general-board-process/overview/ .  If you have coverage now, take advantage of it and don’t have a fool for a client.

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