“QDRO” DOESN’T HAVE TO BE A FOUR LETTER WORD: PRACTICE PREVENTATIVELY TO MANAGE RISK (PART I OF II)

The Risk Manager, a Newsletter by Lawyers Mutual Insurance Company of Kentucky
Avoiding Legal Malpractice and Bar Complaints in Family Law Cases
WINTER 2014, Volume 26, Issue 1

Well, I've tried to avoid dropping the M-Bomb outright in my blog for as long as I could, as I would like to keep from disenfranchising my readership (nod to TM, perhaps the only attorney that reads this blog unforced).  Although my December 7, 2013 post emphasized a certain “malpractice trap”, it was Appeals Court Judge Taylor that actually used those words, not me.

For the faint at heart, I always try to 'skirt the elephant' by turning the M-Bomb around.  Instead of saying, "If you do that, you'll be in big trouble", I say rather, "If you don't do that, you'll be your client’s hero".  It may be a smoke and mirror trick that most of you see right through, but I’m sure only with the fondest appreciation for my attempted benevolence.  You’re welcome.

But alas, it is time.  And it isn't me who says so.  It's Lawyers Mutual Insurance Company of Kentucky (LMICK), and the exponentially increasing number of QDRO-related cases being brought before the courts (just take a look at Part II of II of today's posts, as well as my earlier posts featuring recent appeals cases).

So here it goes...   Take a deep breath, this is going to hurt a little.  And remove any sharp objects from your wingspan.

Malpractice.  There. I said it. Now how do we identify it (you know, in some other attorney, of course) and what can we do about it to provide better services to our clients?

While attending the Northern Kentucky Bar Association’s Family Law Seminar a few months ago, Ms. Ruth Baxter (Crawford & Baxter, PSC, Carrollton, Kentucky) led an eye-opening session aptly entitled, “Avoid Being Sued or Disciplined While Practicing Family Law”.  It was the first session of the morning, and let’s just say it wasn’t the coffee that woke us all up and had us on the edge of our seats.  Ms. Baxter is the current President at LMICK, and has sat as a Director there for more than fifteen years, and has been on the claims committee for the past ten years.  Ms. Baxter shared her first-hand experience in watching the proliferation of QDRO-related claims and increased malpractice risk to family law attorneys over the past decade.  In fact, Ms. Baxter observed that during the past two years she has seen claims relating to QDROs take over the much-feared #1 spot for the highest percentage of claims in the area of family law.  (Ms. Baxter gave me permission to share her observations, as I felt it was a shame for only the attorneys present to become privy to this pervasive malpractice trend).

After hearing Ms. Baxter, and in response to the rising number of QDRO-related claims, it seems appropriate that this quarter’s LMICK newsletter, The Risk Manager, spotlights “Avoiding Legal Malpractice and Bar Complaints in Family Law Cases”.  The front page article, authored by Ms. Baxter, highlights the predominance of QDRO claims in Kentucky, and identifies two specific areas of attorney error in the preparation of a QDRO, including: (1) the failure of the QDRO to include the proper language, and (2) the failure to process the QDRO correctly.  In presenting a solution, LMICK suggests that practitioners who anticipate a potential claim in this area should, among other things, retain a company or individual who specializes in the preparation of QDROS. 

There’s not much I can value-add here; my views on this issue are probably (and I’m sure without bias) crystal clear.   The ‘take home’ is that there is almost always a solution that can preventatively manage risk (for both the attorney and the client) when dealing with retirement assets.  Ask around, get help.  We don’t know what we don’t know.  And if we do know that we don’t know, there is simply no justification for not engaging the assistance of someone who does know.  Maybe that means you retain a third-party with particular knowledge of the subject matter, or maybe that you consult with a mentor to see what he/she does to manage such risk, or perhaps it means that you just simply pick up the phone and brainstorm with a colleague. 

* I would be remiss if I did not give credit where credit is due.  In this case, my catchy two-part post title ("QDRO" Doesn't Have to be a Four Letter Word) came from marketing genius of my friend Erin Loudner Emerson, Director of Marketing at the Cincinnati Bar Association.