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MICKEY MCINNISHAAHRA 2015
OUR ATTORNEYLEGAL AND INSURANCE ISSUES
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Your Attorney
• Choosing the attorney• Procurement issues• No retainer may be in force• Who does he/her represent?
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Know What You Want
• Represent PHA?• Represent staff?• Represent Board?• Attend board meetings?• Review agenda/policy issues• Evictions and collections• General legal advice: i.e. personnel
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COMMUNICATIONS/SESSIONS
• Do we get a regular report of legal activity?• Are we told status of cases/settlement?• Do we have a voice in settlement?• LOOK AT STATE LAWS• What does insurance policy say?
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The Insurance Company
• Procurement?• Limits of policy• Right to obtain counsel• What does the contract say?• Who is the client?
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INSURANCE ISSUES
• Who engages attorney?• Who pays for insurance coverage work?• Do we have coverage?• What are the limits?• What is deductible?• WILL ANYTHING BE PAID FROM FEDERAL
FUNDS?
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Reservation of RightsUmbrella Coverage
• What is the letter about?• Who gets?• Do I need umbrella coverage?• Sued in individual capacity.
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Attorney Communications
• Executive Session?• Can I end effective attorney/client privilege• So what is that?• Work product?• Who is represented: board, PHA, staff, etc?• Represents the best interest of the PHA
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Attorney Duties
• Truthful• Represent to the best of his/her knowledge• Keep client informed• Maintain attorney/client privilege and
attorney work product• Notify of any conflicts
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What Do I Do If I Am Sued
• Do NOT DESTROY any documents, emails, etc.• Do what is said in the attorney hold letter• Don’t talk to any non-party about the case• DON’T TALK TO THE PRESS• Let your attorney represent you• Immediately contact HUD and insurance
company
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Important Attorney Steps
• Must file answer within time period• Must know affirmative defenses• Must have basic knowledge of facts• Must be in touch with insurance and HUD
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Attorney and Insurance
• Engagement letter• Knowledge of policy• Outline of case• Cost projections• Experts, discovery costs• Boil down from many issues to smaller ones
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Attorney Strategy
• Have an idea about the attorney involved• Have information about the Plaintiff• Know the good points• AND: THE BAD POINTS• Work to establish strategy/goals/settlement
options, etc.• Work backwards in general
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WHAT IS REQUIRED? OPTIONS?
• What is required coverage under ACC?• What are some options we need to consider• What if I am sued in individual capacity?• Duty to defend?• Conflict of interest: separate attorney?• Who pays?
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HUD Notification
• When to notify.• What about Board notification?
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SETTLEMENT ISSUES
• Nuisance settlement?• Cost analysis• Board informed?• Board approved?• What if disagreement?
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LEGAL FINANCES
• Detailed statement• For everyday questions: AMP costs?• Or: central office costs• Board direct communications?• Who pays for insurance coverage cases?
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Worst Case Issues
• Judgment against PHA• No coverage: i.e. retaliation in some cases• Excess judgment• No HUD notification• Who pays?
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Case No. 1
• Board holds executive session, returns and puts ED on administrative leave so attorney can investigate.
• HUD IG investigates, finds Board was racially discriminatory.
• EEOC filed.• Insurance issues ?• Who pays?
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Case No. 2
• Temporary worker files EEOC alleging racial discrimination.
• PHA notifies employment agency they don’t want her back because of filing.
• PHA learns she is also employed by another employer. PHA goes to that employer and as a result she gets fired.
• Judgment for retaliation: who pays?
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Prevention Issues
• Have good insurance company• Try to negotiate who will represent you when
sued• Have a strategy for getting information to the
attorney• Know what is going on• Get regular reports• Stay quiet around others
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AND MOST IMPORTANT
• Be sure you are covered• Know the ACC issues• Be sure staff is trained• DO what is right and legal• GET legal advice• FOLLOW IT