Adapting to AI and Technology: Strategies for Law Firm Resilience – 2026 ALPS Bar Leaders Retreat

Episode Notes

Transcript

Mark Bassingthwaighte [00:00:00 – 00:00:30]

Back in the day, it was all about legal malpractice. I am far more concerned today about cybersecurity than I am about legal malpractice. I hear it over and over and over again. I’m a solo or small firm lawyer. We’re not on anybody’s radar. That is incorrect. You are a highly desired target. You cannot Bury your head in the sand and pretend this isn’t going to happen to you.

Mark Bassingthwaighte [00:00:30 – 00:00:36]

I have talked with dozens and dozens of solo lawyers that are out of practice anymore because they didn’t survive the attack.

Marc Raco [00:00:41 – 00:01:46]

Welcome to another exciting and inspiring conversation in our series of insightful conversations with bar leaders and more on location in Missoula, Montana, at the Alps Insurance Retreat for Bar Leaders. I’m Marc Raco, and this one’s a little different because this one is not with a bar leader, but it is with Mark Bassingthwaite. He’s a risk manager with Alps Insurance. He’s been with Alps since 1998, so he’s kind of seen it all. Mark has worked with more than 1,200 law firms nationwide, helping attorneys identify vulnerabilities, strengthening firm operations, and reducing professional liability risks. He’s presented over— get this— 700 CLE seminars across the U.S. He’s written extensively on the topics of risk management, legal ethics, and cybersecurity, which we will get into. He is a trusted voice in the legal community, a member of the State Bar of Montana and the ABA, and holds a J.D.

Marc Raco [00:01:47 – 00:02:04]

from Drake University Law School. And his mission is to help attorneys build safer, more resilient practices in a rapidly evolving legal environment. So let’s get right into it with Mark Basingthwaite. Mark Basingthwaite.

Mark Bassingthwaighte [00:02:05 – 00:02:05]

Basingthwaite.

Marc Raco [00:02:06 – 00:02:08]

I pretty much got it, right?

Mark Bassingthwaighte [00:02:08 – 00:02:09]

You pretty much got it.

Marc Raco [00:02:09 – 00:02:29]

You deserve all the respect in the world. You’ve accomplished so much. The least we can do is get your name right. It’s the least we can do. It’s so great to meet you and have this conversation here on location in Missoula, Montana. at the ALPS Insurance Retreat for Bar Leaders. But you yourself are with ALPS.

Mark Bassingthwaighte [00:02:29 – 00:02:30]

Yes, I am.

Marc Raco [00:02:30 – 00:02:37]

But your career spans quite a bit. You are indeed an Esquire.

Mark Bassingthwaighte [00:02:37 – 00:02:37]

Yes, I am.

Marc Raco [00:02:38 – 00:02:43]

You are yourself an attorney and have practiced.

Mark Bassingthwaighte [00:02:44 – 00:02:52]

Yes. Although the bulk of my career, real interest in my professional career, is non-traditional law as a risk manager here at Alps.

Marc Raco [00:02:52 – 00:02:52]

Right.

Mark Bassingthwaighte [00:02:52 – 00:02:57]

So that’s, that’s been, and I feel very blessed to, to have this opportunity. But— All right, Mark.

Marc Raco [00:02:57 – 00:03:04]

So I want to ask you a little bit of a different chair from some of the other people we’re talking with in this series who are bar leaders.

Mark Bassingthwaighte [00:03:04 – 00:03:05]

Right.

Marc Raco [00:03:06 – 00:03:21]

Let’s start here. What do you see as we go from your chair, as we go this moment forward, particularly across Solo practitioners, what does the future look like?

Mark Bassingthwaighte [00:03:22 – 00:03:22]

Oh boy.

Marc Raco [00:03:23 – 00:03:27]

What are they most thinking about in this moment that you’re also thinking about?

Mark Bassingthwaighte [00:03:27 – 00:03:35]

Uh, I, I think we’re on different pages there in terms of solos and what I’m thinking about for them, if you will.

Marc Raco [00:03:35 – 00:03:37]

Okay, that’s great. That’s good conversation.

Mark Bassingthwaighte [00:03:38 – 00:03:55]

My concern, I guess, over the next decade perhaps, is an issue that has been very significant significant to many of the bars throughout the country, and it’s succession planning. It’s been a huge problem.

Marc Raco [00:03:55 – 00:03:57]

Succession planning for the firm itself?

Mark Bassingthwaighte [00:03:58 – 00:04:31]

Particularly for solos. Yes. You know, I mean, there are too many that if they have a plan, it’s the plan is to die at my desk. And, and the costs involved and the, I mean, I have been on phone calls off and on my entire career at Halps, where someone, it’ll be a spouse saying, you know, they’re grieving. I am so angry. I am so— and you can hear almost just the rage in their voice. He died and didn’t tell me what to do. I have no idea.

Mark Bassingthwaighte [00:04:31 – 00:05:16]

Can you send somebody down here to help? And, you know, the answer to that is no. And a lot of times bars can’t. Do much either. Now they’re starting, you know, there’s some appointment processes and things that they get involved in, but it’s, again, it’s very, very expensive. And why I bring that up is, you know, a concern that I also have, and I think a lot of solo and small firm lawyers have, is with the rise of GenAI, there is a tremendous fear that lawyers are gonna be taken out. I’m seeing an increase in retirements. as an example, or at least an increase in people saying, I need to get out of here soon. This is not for me.

Mark Bassingthwaighte [00:05:16 – 00:05:18]

I don’t understand it. It just—

Marc Raco [00:05:19 – 00:05:38]

So they’re not seeing the opportunity it may bring for them. It has either an ideological issue for them or an ethical issue, if you will, or they’re just like at a certain point in their career where they’re like, I don’t know, I might’ve gone a few more years, but it ain’t worth the effort. I’m fine. Let me transition out of this. Okay.

Mark Bassingthwaighte [00:05:39 – 00:06:51]

But I couple that with, There’s also, I guess, a surprise that I have found over the years just sitting in the chair that I sit in. Lots of lawyers, particularly in the solo space, find themselves trapped because they are not financially in a position to retire. And so it, it becomes this catch-22. And so I, I, again, so what am I concerned about? It’s, it’s wellness issues, it’s, it’s fair succession plan, et cetera. I think in the solo space, their perception right now is, how do I stay in the game? But a lot of them are also frightened and overwhelmed because they have no clue what this AI stuff is about. You know, I personally don’t believe AI is going to take lawyers out. I think It’s a tremendous opportunity for lawyers that learn how to use it and find ways to create efficiencies, et cetera. What it will do is take out those lawyers that refuse to do anything with it, about it.

Mark Bassingthwaighte [00:06:51 – 00:06:58]

You know what I mean? It’s, so it’s those that adapt and change will stay relevant. Those that don’t will not succeed.

Marc Raco [00:06:58 – 00:07:24]

You know, it’s interesting you say that. I was speaking with someone else in these series of conversations and we were talking about the idea that, for some, and this isn’t to specifically advocate for AI or against it, but where there may be opportunity is the kinds of cases that are lower in dollar value but are meaningful to the plaintiff.

Mark Bassingthwaighte [00:07:24 – 00:07:24]

Yep.

Marc Raco [00:07:25 – 00:07:49]

And they are largely transactional. They aren’t about case law. They’re not heavy arguments. It’s more administrative than anything. And the ability for AI to handle a large portion of that process and the attorney to be the one that makes sure everything is right and to be the representative that handles it, they can take on the $25,000 or $50,000 cases that might ordinarily they would have passed on.

Mark Bassingthwaighte [00:07:50 – 00:07:50]

I agree.

Marc Raco [00:07:50 – 00:08:01]

And just have a sheer volume opportunity. And so again, I’m not trying to make the argument for it, but that would be an example to me, right, of where that opportunity is there.

Mark Bassingthwaighte [00:08:02 – 00:08:51]

And I think it creates an opportunity in a lot of new spaces. You know, it’s along the same point you’re making yourself in terms of, you know, it can help solve this access to justice problem because you can create efficiencies. You can even start to do some what I would call hybrid DIY. Okay? So we have, and think more to, you know, 5 years ago, 10 years ago, we would talk about limited scope representation. This is just a variant And so you get into hybrid AI kinds of stuff. And, you know, again, you scale up, you couldn’t afford to do this for 20, but you pick up 200 and you have this limited scope in hybrid AI. Why not?

Marc Raco [00:08:52 – 00:09:17]

It may allow you to give some of the burden onto the plaintiff to gather information. What the attorney’s doing is not just bringing the knowledge of the law to the table, which is the most important component, but they’re bringing a how to use AI for the purposes of the law to the table as well, which is something the mom-and-pop grocery store owner didn’t— doesn’t know, right?

Mark Bassingthwaighte [00:09:18 – 00:09:25]

Yeah. And I think that’s an excellent point and a golden opportunity that lawyers, for the most part, haven’t quite seen and understood yet.

Marc Raco [00:09:25 – 00:09:26]

Well, it’s not why they got into law.

Mark Bassingthwaighte [00:09:26 – 00:09:27]

Right, exactly.

Marc Raco [00:09:27 – 00:09:45]

But, but, but I would argue Might it not be though? Because I think attorneys got into the law either access to justice, they believe in the law and all that stuff, which is awesome, or they saw it as a financial opportunity, a very lucrative career, which is reasonable as well, or some hybrid.

Mark Bassingthwaighte [00:09:46 – 00:09:46]

Yes.

Marc Raco [00:09:46 – 00:09:55]

And this is certainly an argument for access to justice, but if you use it right, could it not be an opportunity to scale as well, which is the lucrative part?

Mark Bassingthwaighte [00:09:55 – 00:09:57]

Yes, of course. Yeah.

Marc Raco [00:09:57 – 00:10:30]

So, Mark, let’s, let’s come back to the succession planning point that you made. So how does talking about AI and technology and innovation, those kind of tools, why is that such a part of the thinking of the issue of succession? And is this just an unsolved issue or is ALPS or bar associations, do they have some sort of plan or opportunity in mind here that can— or is this still something available for solving?

Mark Bassingthwaighte [00:10:31 – 00:11:26]

It’s all of that. I mean, I think from a state bar level, what is happening is states are beginning to change the RPCs, the rules of professional conduct, and mandate succession planning and defining what that means. You know, you have to name a backup attorney, you have to, you know, so there’s that piece. From a carrier’s perspective, as it relates to succession planning, you know, we certainly want to encourage lawyers and have been doing a lot of education and training and writing, doing everything we can, you know, to do this in part, you know, because I believe, you know, we all have ethical, how do I wanna say it? The obligation to protect your client interests go beyond your death or disability, period.

Marc Raco [00:11:26 – 00:11:26]

Yeah.

Mark Bassingthwaighte [00:11:26 – 00:11:28]

You know, and so you need to take some steps.

Marc Raco [00:11:29 – 00:11:29]

Sure.

Mark Bassingthwaighte [00:11:29 – 00:11:30]

And do we see claims?

Marc Raco [00:11:30 – 00:11:31]

And not just to yourself.

Mark Bassingthwaighte [00:11:31 – 00:11:31]

Yeah.

Marc Raco [00:11:32 – 00:11:40]

In the interest of your clients, you have ongoing litigation cases and so forth, right? Do you not have an obligation to make sure that they are taken care of, right?

Mark Bassingthwaighte [00:11:40 – 00:11:45]

And do we see claims for the failure to do succession planning? Oh my gosh, yes.

Marc Raco [00:11:45 – 00:11:52]

But who are they gonna claim against? I mean, can they claim personally against the attorney or is this about a practice that has not succeeded?

Mark Bassingthwaighte [00:11:52 – 00:12:23]

Well, but, but think about this. Yes, there are times where when an attorney passes and there’s no succession plan and the family doesn’t know what to do, think rural area, you know, and a statute gets blown. And then heaven forbid nobody called in to get a tail. It’s 6, 9 months later. You, you see where this goes. And now, or even a year later, and now this claim comes up. And it— the estate can be held liable for that. But succession planning isn’t just about death.

Mark Bassingthwaighte [00:12:24 – 00:12:29]

We see lots of claims where there’s a short-term or long-term disability.

Marc Raco [00:12:29 – 00:12:30]

Mm-hmm.

Mark Bassingthwaighte [00:12:30 – 00:13:20]

I have a story. Years ago, a lawyer, solo, down in, actually it was in Las Vegas, was hit and injured very severely in a car crash and was in a coma for Roughly four to five weeks, and then of course some recovery time after. Staff there was one staff person that had no background in in the legal profession and just kept trying to take calls. She’s ill in the hot you know, and during that time six statutes ran, and we had viable claims. You know, so there’s that. So we want to do a lot of education. This AI piece. in my mind, is accelerating the emphasis on the problem perhaps, and accelerating, for lack of a better word, perhaps the crisis.

Marc Raco [00:13:20 – 00:13:23]

You’ve done over 700—

Mark Bassingthwaighte [00:13:23 – 00:13:25]

CLD.

Marc Raco [00:13:25 – 00:13:35]

Presented at 700 CLD sessions across the US. You’ve written extensively on the topics of risk management, legal ethics, and cybersecurity.

Mark Bassingthwaighte [00:13:35 – 00:13:36]

Yes.

Marc Raco [00:13:36 – 00:13:38]

This seems to intersect all of those.

Mark Bassingthwaighte [00:13:39 – 00:14:38]

Yes, I would agree. I would agree. The AI and, you know, this kind of— the AI issue goes obviously way beyond succession planning. But I’ll tell you, this is going to be a game changer, I think, from exposure, how coverage works. And it’s going to be years for this to shake out in terms of how will policy language, for instance, adapt and adjust going forward. I have no idea. I can take some guesses, but you know, when we talk about these opportunities as an example, and I think they’re tremendous opportunities, but if there’s a difference between, let’s say I’m a solo and I decide to set up some type of DIY thing using AI and I create some forms and I do all this stuff, but I set it free. And your subscription, whatever the model is, and people use it on their own, and I don’t go back and see what they’re doing with it.

Mark Bassingthwaighte [00:14:38 – 00:15:06]

That’s not the practice of law. Now, if every form it spits out, I review and accept accountability for the AI output, okay, now it’s a tool being used internally, and that would be a covered situation because it’s in furtherance of the practice of law. And so that’s just one example of how, and there’s all kinds of spinoffs on this where AI’s gonna go. This is one of the things that I can get— it keeps me awake at night, if you will.

Marc Raco [00:15:07 – 00:15:42]

It keeps you in a job too. Yeah, I know. I mean, I would imagine. It’s— all kidding aside, so this must be not only affecting the realities of the profession, particularly with solos who have different types of resources and education at their fingertips because they’re operating independently. They’re depending on bar associations and CLEs and so forth, but they may not have a large firm around them wrapping them in, you know, a backup of education and insights. And so they’ll— so they’re depend— it’s on their own initiative to some degree, right?

Mark Bassingthwaighte [00:15:42 – 00:15:42]

Right.

Marc Raco [00:15:43 – 00:16:14]

So my question is, how are you seeing things like AI and innovation, the changing legal landscape, perhaps in an accelerated rate lately, and this focus on succession planning? What are you seeing in terms of career outlook and professional direction. How is this affecting almost even psychologically the sense of their own careers beyond, ah, this AI thing, I don’t know if I wanna do it anymore?

Mark Bassingthwaighte [00:16:15 – 00:17:03]

My problem with it is it gets back to saying that solos and even lawyers in the small, uh, firm space are overwhelmed. Well, what is it that’s overwhelming them? You know, if, if I— It’s like from so many directions right now. Well, It even is more basic than that in some ways. If I happen to be, you know, a new hire or a partner or an associate at, you know, an AmLaw 200, there are a team of lawyers and IT experts that know what they’re doing. And they vet all these products. They understand and have consultants that help them embed the AI into their systems and processes. They’re trained on how to use it.

Marc Raco [00:17:03 – 00:17:03]

Sure.

Mark Bassingthwaighte [00:17:03 – 00:17:13]

They’re trained on the dos and don’ts. They understand what hallucinations are, you know, all of that. It’s all done for them. That does not exist in the solo small space.

Marc Raco [00:17:13 – 00:17:27]

Well, sure. Think about it. Yeah. A solo attorney has been practicing for 35 years, been pretty successful. He got into law so he didn’t have to do the tech stuff in part. And now it’s unavoidable.

Mark Bassingthwaighte [00:17:27 – 00:18:04]

Right. How I tie that in And I guess again, one of my concerns when I think about succession planning is they’re, they’re into these catch-22s. I truly don’t understand this AI stuff. You tell me, Mark. And you, they read all the news headlines of all these law firms getting dinged for, you know, submitting briefs with, you know, fake sites and all of that. You know, I, we’re up to 1,400 now or 1,500. of these cases. And, you know, but they don’t know what to do about it.

Mark Bassingthwaighte [00:18:05 – 00:18:20]

They’re so overwhelmed. It’s also, well, now I become— how do you— the more we get overwhelmed, the harder it becomes to do anything. It creates stagnation. Maybe that’s the way to best describe it. That’s what I get concerned about— stagnation.

Marc Raco [00:18:21 – 00:18:35]

So there’s stagnation and there’s a sense of being overwhelmed, which is why that might happen. So rather than Rather than me navigating you to painting a dire, unsatisfactory picture of all of these obstacles.

Mark Bassingthwaighte [00:18:35 – 00:18:35]

Yeah.

Marc Raco [00:18:36 – 00:18:46]

Where is the path right now to attorney wellbeing and satisfaction, would you say, given these many headwinds?

Mark Bassingthwaighte [00:18:47 – 00:19:42]

Well, and that’s a really good question too. I like that. From where I sit, and this is one of the challenges I have, Because my job for the last 28 years has been to sort of figure out and look at all the things that can go wrong. Tell all these lawyers, here’s what can go wrong. Give them all the examples of how it’s gone wrong for all these other lawyers and say, good luck with that. No, you know, but I also bring solutions and try my— what I’m trying to do at the moment is to really, one, be sensitive to the concerns they’re expressing, but also trying to reassure and say, it’s just like with the succession plan in general. You know, if you look at everything that you have to do all at once, it’s very overwhelming. Just name a backup attorney.

Mark Bassingthwaighte [00:19:43 – 00:19:47]

Let’s start there and then take it step by step.

Marc Raco [00:19:47 – 00:19:47]

Better than nothing.

Mark Bassingthwaighte [00:19:48 – 00:20:21]

Right. And it, it may be 2 years. To where you really should be, it may take you 2 years to get there. But then once you even get there, you’re going to have to tweak it now and again because your practice and life evolves. It’s the same thing with AI. You know, it’s— I said, don’t start putting all sorts of client files in, you know, upload because it’s, you know, it’s training on the data and etc. But go home. Learn, play around with Copilot or ChatGPT or Gemini, whatever you want to do.

Mark Bassingthwaighte [00:20:21 – 00:20:32]

Have some fun with Claude and just learn so that it now, it’s going to talk to you. It’s, you know, so I, you know, I want to take it in small bites.

Marc Raco [00:20:32 – 00:21:18]

Absolutely. You know, a great solution is there are so many podcasts out there, even if someone’s not super into podcasts, and more and more people are, but there are a lot of wonderful podcasts out there that are specifically talking about technology within law. whether it be AI or other Marceting technology or business, running your business well or whatever. But the point is, is if you don’t know what’s going on or the tools to use or how to think about it, when you’re driving to work or on your jog or washing the dishes or whatever it is, or walking your dog, listen to a podcast about this and let it just seep into your brain. And what you might learn is the different tools that are out there, right? But also you might learn about ways to use AI that had not occurred to you.

Mark Bassingthwaighte [00:21:18 – 00:21:19]

Yeah.

Marc Raco [00:21:19 – 00:21:31]

So, I mean, you could take a simple thing like put into AI, here are the 10 most difficult things that are happening with my clients just in dealing with them.

Mark Bassingthwaighte [00:21:32 – 00:21:32]

Right.

Marc Raco [00:21:32 – 00:21:53]

Extrapolate from these issues, perhaps a common point and how I might solve it. And you might get a starting point to start to think about it that’s going to save you angst and hours trying to identify that through trial and error. And that, for example, to me is a really good use of AI that has nothing to do with case law.

Mark Bassingthwaighte [00:21:54 – 00:22:02]

Yeah. I, but I, but I really like that idea. Yeah. It, it’s, you know, and I have found value in that myself, whether it’s sometimes trying to—

Marc Raco [00:22:02 – 00:22:03]

The podcast?

Mark Bassingthwaighte [00:22:03 – 00:22:05]

Well, in, in terms of using—

Marc Raco [00:22:05 – 00:22:06]

Oh, right.

Mark Bassingthwaighte [00:22:06 – 00:22:17]

AI, you know, ask it some questions. Yeah. How can it help me? And, and there are times where you get some great ideas and sometimes where it’s just, so far off base.

Marc Raco [00:22:17 – 00:22:17]

Sure.

Mark Bassingthwaighte [00:22:17 – 00:22:21]

But if it’s off base, you need to learn and just practice prompting.

Marc Raco [00:22:22 – 00:22:22]

Sure.

Mark Bassingthwaighte [00:22:22 – 00:22:24]

And learn how to, you know, one of my—

Marc Raco [00:22:24 – 00:22:24]

Good question.

Mark Bassingthwaighte [00:22:25 – 00:22:38]

One of the best things that I ever heard about how to prompt AI was tell it whatever, you know, and then at the very end, what else do you need to know? And I do that every time and it’ll give me this list.

Marc Raco [00:22:38 – 00:22:39]

That’s right.

Mark Bassingthwaighte [00:22:39 – 00:22:45]

It would help me if you could, and I don’t even think at times about that. So, So again, it gets back to, let’s learn some basics.

Marc Raco [00:22:46 – 00:22:46]

Yeah.

Mark Bassingthwaighte [00:22:46 – 00:23:02]

And remove that fear factor, try to get a little familiar. And then I think we’re not as stuck in the molasses, we’re not as stagnated. And you, the path forward, I truly do believe this, will start to show itself. I really do believe that.

Marc Raco [00:23:02 – 00:23:06]

Sure. Most innovations, you know, the car after the horse and buggy.

Mark Bassingthwaighte [00:23:06 – 00:23:06]

Yes, exactly.

Marc Raco [00:23:06 – 00:23:07]

And so forth.

Mark Bassingthwaighte [00:23:07 – 00:23:07]

Yeah.

Marc Raco [00:23:08 – 00:23:20]

There, there’s pushback. Even when the internet came out, there was people, I’m not using this darn thing. You know, it’s in, in the, the point. And that’s a common point of conversation as well. The key is you can push back all you want.

Mark Bassingthwaighte [00:23:21 – 00:23:21]

Right.

Marc Raco [00:23:22 – 00:23:31]

Eventually it will— look, if you’re using, let’s say, Google right now and you see the little description that comes up, guess what, buddy? You’re using AI.

Mark Bassingthwaighte [00:23:31 – 00:23:32]

Yeah, I know.

Marc Raco [00:23:32 – 00:23:52]

You’re just using a really easy method of accessing it that you do very little work. But there was a point when you didn’t know how to search for things online. Now you know. That’s just prompting AI basically. So it is really, yeah. Uh, and I’m not trying to sound like an advocate. I’m saying it is about being open to learning.

Mark Bassingthwaighte [00:23:53 – 00:23:53]

Yes.

Marc Raco [00:23:53 – 00:23:58]

What other people are doing that is helping them go to the next level.

Mark Bassingthwaighte [00:23:58 – 00:23:58]

All right.

Marc Raco [00:23:58 – 00:24:00]

So let, let’s, let’s move on a little bit.

Mark Bassingthwaighte [00:24:00 – 00:24:00]

Okay.

Marc Raco [00:24:00 – 00:24:02]

Because we could probably talk all day about this.

Mark Bassingthwaighte [00:24:02 – 00:24:03]

Oh, we could go on and on.

Marc Raco [00:24:03 – 00:24:03]

We could go on.

Mark Bassingthwaighte [00:24:03 – 00:24:04]

I’m a gabber.

Marc Raco [00:24:04 – 00:24:05]

I love it.

Mark Bassingthwaighte [00:24:05 – 00:24:06]

And a storyteller.

Marc Raco [00:24:06 – 00:24:08]

Us Marcs are, aren’t we? Yes, exactly.

Mark Bassingthwaighte [00:24:08 – 00:24:09]

Um, yeah.

Marc Raco [00:24:10 – 00:24:28]

What are the other needs that you’re seeing practices have now outside of adapting to the changing environment of— I mean, we have a larger legal world out there that seems to be transforming very quickly, if nothing else, to the pressures of political realities.

Mark Bassingthwaighte [00:24:28 – 00:24:28]

Oh boy.

Marc Raco [00:24:29 – 00:24:50]

I mean, just, we don’t have to get into that, but I’m saying that we all know that’s impacting the way attorneys are choosing to practice in particular areas. And so that means the way, you know, educational institutions and how they’re teaching, and therefore the kind of new attorneys you may have coming into your larger firm.

Mark Bassingthwaighte [00:24:50 – 00:24:50]

Yeah.

Marc Raco [00:24:51 – 00:25:12]

Or as new solo, the kind of other attorneys you’re going to be up against in cases. What are we looking ahead in terms of practice, the needs of practices, and The kinds of resources that attorneys are going to need to be looking at implementing for themselves, aside, let’s say, from AI?

Mark Bassingthwaighte [00:25:15 – 00:25:17]

I’m going to chew on that for just a second.

Marc Raco [00:25:18 – 00:25:21]

Okay. But I have a place where I want to— From your chair.

Mark Bassingthwaighte [00:25:21 – 00:25:27]

Yeah. I want to— there’s something basic here that you’re asking in terms of how I hear it.

Marc Raco [00:25:29 – 00:25:29]

Good.

Mark Bassingthwaighte [00:25:29 – 00:26:07]

Let me start approaching it this way. So my, again, you know, what I do is try to identify problems and, you know, and I talk about and write on, you know, here’s, you know, what is an independent redundant countering system and how do you do conflict checks? And let’s talk about intake and on and on. And file doc, I have all these things. And one question that I get asked at times on these various presentations, and it’s the one I like the best, And it’s, Mark, you’ve given us all kinds of really great ideas. I’ll be honest, you scared the crap outta me with some of this.

Marc Raco [00:26:08 – 00:26:09]

Which may have been part of your job in a way.

Mark Bassingthwaighte [00:26:09 – 00:26:10]

But at times it is.

Marc Raco [00:26:11 – 00:26:12]

It’s a snap to reality.

Mark Bassingthwaighte [00:26:12 – 00:26:16]

You have to have people, and that’s particularly true in cybersecurity.

Marc Raco [00:26:16 – 00:26:16]

Yeah.

Mark Bassingthwaighte [00:26:16 – 00:26:57]

But they’ll say, out of all these ideas, all the things, where would you start? Where do I get the most bang for my buck? If you as a risk manager say, Speaking to you, Mark, what’s the one thing you could do? You know, the answer is prioritize wellness. And particularly in today’s fast-paced world, the geopolitical instability, you know, how many times do you read the headlines? You know, is the bull Marcet about to collapse? Oh my God, this next heat dome’s coming in. You know, we are just overwhelmed with Everything, the message is just—

Marc Raco [00:26:57 – 00:26:58]

We’re being attacked from all sides.

Mark Bassingthwaighte [00:26:58 – 00:26:59]

We are.

Marc Raco [00:26:59 – 00:27:00]

Or we feel like it at least.

Mark Bassingthwaighte [00:27:00 – 00:27:39]

The spin is the world has just fallen apart, okay? That’s hard. Take care of yourself. It truly, the data will bear this out. I don’t know if you’re aware, but the ABA has a standing committee on lawyers’ professional liability. And every 4 years, you know, they, all the, I shouldn’t say all, but many of the insurance companies in the United States, all sizes, all shapes, and some in Canada, submit data. The committee number crunches it, and it’s, here’s what’s going on, the snapshot. Here are the top practice areas of concern. Here are the common mistakes that are making, on and on.

Mark Bassingthwaighte [00:27:39 – 00:28:22]

And that is good stuff. It is really good stuff. And you get a great sense. The problem with it is all of this data is what’s happening. We’re not asking and looking at why is it happening. When you talk to claims attorneys and risk guys like me, the numbers, you know, and it’s going to vary over time, and there’s not a hard data set, but we will sit and say there is some type of impairment component in play easily to 50-70% of claims. And know that we, we gotta define that very broadly.

Marc Raco [00:28:23 – 00:28:25]

The clients are impaired or the attorneys can be impaired?

Mark Bassingthwaighte [00:28:25 – 00:28:25]

The attorneys.

Marc Raco [00:28:25 – 00:28:25]

Yes.

Mark Bassingthwaighte [00:28:25 – 00:29:09]

Okay. So it, it can be, you know, stress, burnout, overwork, financial, you know, financial stress. Right now, huge problem in our profession is dementia. It really is. The aging population. I have seen another example. Well, you got mental illness and addictions and on, it just goes on and on. But in terms of real-world stories, if an attorney is dealing with depression as an example, and it’s chronic depression, he or she can often present very well, can still come into the office, interview clients, have coffee with the morning staff, you know, and just present very well.

Mark Bassingthwaighte [00:29:10 – 00:30:01]

But can also at the same time, particularly if we are in a small firm and it’s our A firm in name only, meaning we each have our own independent practices. Nothing wrong with that per se. It has its consequences. But, and so I’ll be the, the person in this, in a situation I’m currently thinking about, the attorney was unable to make any decisions at all and was hiding files in the trunk of his car, behind furniture, under the carpet. I am not kidding you. And we had multiple viable claims. The record that I have seen personally was 66 claims when an attorney basically just had a mental, emotional breakdown during the COVID lockdown and just couldn’t handle it.

Marc Raco [00:30:02 – 00:30:48]

Well, I mean, this is an opportunity for that person to be observed. Think about a solo practitioner would really no one checking on them until something alarming happens and then someone’s forced to check on them and finds this. You know, I think also in any type of impairment, whether it be depression, whether it be dementia, whether it be, you know, a brain tumor, a drug addiction, whatever, alcoholism, whatever, or just something even subtler than that, just the realities of aging perhaps, someone may just be overwhelmed in their life. Maybe they’re not going to be as fastidiously diligent in their search of case law.

Mark Bassingthwaighte [00:30:49 – 00:30:50]

Or— Exactly.

Marc Raco [00:30:50 – 00:31:15]

They’re going to do the bare minimum to get it done because that’s about all they can handle. They’re so stressed out. And they’re not going to do what they might have done 10 years ago. And honestly, they have such a reputation and they’re well trusted, the plaintiff, or the client, I should say, They may never, ever be aware that they may have not gotten the representation they thought they were getting.

Mark Bassingthwaighte [00:31:15 – 00:31:16]

I agree. Yeah.

Marc Raco [00:31:16 – 00:31:23]

And this looks like it goes in a few directions. This goes to protecting the clients.

Mark Bassingthwaighte [00:31:23 – 00:31:24]

Yes, absolutely.

Marc Raco [00:31:25 – 00:31:33]

Obviously protecting the attorney themselves from liability and risk. It also goes into just ethics. Yeah.

Mark Bassingthwaighte [00:31:34 – 00:31:34]

Yeah.

Marc Raco [00:31:34 – 00:31:45]

And at what point do you say, I’m not, I’m not being an ethical attorney? And, you know, there are situations when we may not realize it because you are, let’s say, mentally or emotionally impaired.

Mark Bassingthwaighte [00:31:45 – 00:32:32]

And think about it from that perspective. You know, look at 5.1, 5.3. We are partners keepers. In other words, you know, we do have an obligation to keep an eye on each other. And there’s an ABA opinion and a Virginia opinion that talks about even If you and I are in separate firms and you see me having a problem and we’re both solos, and if you have sort of firsthand awareness and knowledge, you really should try to do something about it, you know? And we would, we have some obligations in that regard. But to kind of start on, so the data, when I talk about that, is observational data of seeing multiple claims and understanding what’s going on and driving that. Okay? So that’s sort of where I say, you gotta be care— you know, the—

Marc Raco [00:32:32 – 00:32:32]

Yeah.

Mark Bassingthwaighte [00:32:33 – 00:32:37]

There’s not gonna be I’m not aware of any major study along those lines.

Marc Raco [00:32:37 – 00:32:38]

No, I got it. But—

Mark Bassingthwaighte [00:32:38 – 00:33:03]

But why I continue to talk about this, and it gets back to why it’s a favorite question, is say, you know, first we have to acknowledge that we all have our bad days, bad weeks, trying times. We also need to understand and have the internal fortitude perhaps, or the strength to make some decisions to do something about it. Even if it’s just—

Marc Raco [00:33:03 – 00:33:03]

Sure.

Mark Bassingthwaighte [00:33:06 – 00:33:23]

One hour, one step at a time. And I understand I’m depressed. I need to maybe go to counseling. I had a lawyer say he was getting concerned, getting a little older, and he went to all his partners and said, if you see anything of concern, please talk to me ’cause I’m not gonna see it.

Marc Raco [00:33:23 – 00:33:58]

Is an attorney entitled to have a bad day and provide less service to his client because of that bad day? Because the attorney’s entitled to be human and have a bad day, He’s not entitled to overlook something because his mind is wandering that day. I’m assuming this is correct. So how do we approach that to make sure that we are never missing a beat? And if not assuming liability, doing wrong or harm by our lack of ideal actions?

Mark Bassingthwaighte [00:33:59 – 00:34:03]

And that’s a really interesting question. I’m gonna push back on this in an interesting—

Marc Raco [00:34:03 – 00:34:04]

Oh, good. I love it.

Mark Bassingthwaighte [00:34:04 – 00:34:10]

Because I would say, is entitled the right word to use here?

Marc Raco [00:34:10 – 00:34:11]

Okay.

Mark Bassingthwaighte [00:34:11 – 00:35:34]

It, in my mind, it starts to, I mean, I’d say, are we entitled to a bad day? Well, you know, we have this humanity issue and, you know, but are we entitled to make mistakes? And, you know, to me that doesn’t, Compute. What I want to say instead is, let’s just acknowledge that none of us are perfect. I mean, every time that I go see a physician and you know going through surgery or something, you know, I’m entitled perhaps as the patient to the best care possible. I would you know I’d like to believe and but some days the docs do a good job and sometimes they don’t. Some days they The equipment or the the MRI or you know there things things happen and that’s just the way it is. And so with that understanding, well then you look at two things: you manage the risk, you go out and you get a malpractice policy because that’s how you protect your clients in the event of an imperfect act, decision, choice, advice on your part. That’s what How you take care of that? Yeah. And then for yourself, whatever it is, reach out for help and address the problem.

Marc Raco [00:35:34 – 00:35:35]

Mitigate that risk.

Mark Bassingthwaighte [00:35:35 – 00:35:40]

Mitigate it. Yes. So to me, by admitting you’re human. Yes. Yes.

Marc Raco [00:35:41 – 00:35:42]

Get support. Yeah.

Mark Bassingthwaighte [00:35:42 – 00:35:52]

Because there’s so many lawyers and doctors too. I’ve been married to a doctor my entire life, but actually two doctors. But you know what? So I’ve been— yeah.

Marc Raco [00:35:52 – 00:35:54]

Lay the groundwork for that. Yeah.

Mark Bassingthwaighte [00:35:54 – 00:36:28]

Lay the groundwork. Yeah. So, you know, very, very few times in law or medicine have I ever come across somebody that I’ve described as just a bad person. Everybody’s really trying to do the best they can, but the best they can isn’t perfect. So what can we do about that? And that to me is the positive message. That’s acknowledge that we are not perfect. We aren’t judged. Here’s another thing, ’cause so many lawyers in claims, you know, they just, are crushed by this.

Mark Bassingthwaighte [00:36:29 – 00:36:38]

And I will say to them, look, I don’t care what happened. I truly don’t. I care about what you do with it.

Marc Raco [00:36:38 – 00:36:38]

Yeah.

Mark Bassingthwaighte [00:36:38 – 00:36:46]

You are not judged by the mistake you made. You are judged by how you responded to it. That’s what people are gonna remember.

Marc Raco [00:36:46 – 00:36:46]

That’s right.

Mark Bassingthwaighte [00:36:47 – 00:36:49]

And so to me, that’s a message of hope.

Marc Raco [00:36:50 – 00:37:05]

Yes. That’s so great. You know, it’s one of the best things I ever heard was like, if you ever get a customer complain, do what you can for that because that person is saying, I still want to do business with you. I’m trying to find a way to do it.

Mark Bassingthwaighte [00:37:05 – 00:37:07]

Yes. I love that.

Marc Raco [00:37:07 – 00:37:19]

You know, so that’s, it’s what you do with that complaint is what matters. Exactly. Just like this. All right. So I wish that was the note that we end on because that’s so great, but I want to make sure that we’ve touched on cybersecurity.

Mark Bassingthwaighte [00:37:20 – 00:37:21]

Okay, that’s talking to me.

Marc Raco [00:37:21 – 00:37:25]

This is a great area for you because this also has to do with a tough area.

Mark Bassingthwaighte [00:37:26 – 00:37:26]

It is.

Marc Raco [00:37:26 – 00:37:38]

That a lot of people, yeah, maybe can’t wrap their head entirely around. It feels foreign, but it is clearly and obviously so crucial to reducing risk.

Mark Bassingthwaighte [00:37:38 – 00:37:39]

Yes.

Marc Raco [00:37:39 – 00:37:55]

Uh, staying in business and protecting your clients, all of the things that we were just kind of talking about. So what would you say What are you most focused on in the things that you’re talking about in the area of cybersecurity these days across the legal field?

Mark Bassingthwaighte [00:37:56 – 00:38:31]

As a risk guy, I’ve been at this with, you know, legal malpractice insurance company here for 28 years. Back in the day, it was all about legal malpractice. I am far more concerned today about cybersecurity than I am about legal malpractice. I don’t wanna minimize legal malpractice. There’s, you know, but the odds of something happening that can take you out financially and just take your business down overnight is far higher with cybersecurity than is with, with legal malpractice. That’s the first thing.

Marc Raco [00:38:32 – 00:38:38]

Because by the way, it’s just not just how you protect yourself, it’s the who you deal with and how they protect themselves.

Mark Bassingthwaighte [00:38:38 – 00:38:39]

You bet.

Marc Raco [00:38:39 – 00:38:42]

I’m a savvy guy when it comes to this, I have to tell you.

Mark Bassingthwaighte [00:38:42 – 00:38:42]

Yeah.

Marc Raco [00:38:43 – 00:39:05]

And we got taken down, my wife and I, not down, but affected. I won’t say the company, but a very well-known company because there were holes in their security and it affected us. And we were very lucky that we were made whole in the very long run. But there are a lot of people that lose everything. And so anyway, speech over.

Mark Bassingthwaighte [00:39:05 – 00:39:06]

I could tell stories here.

Marc Raco [00:39:06 – 00:39:14]

Maybe we’ll have time for one or two. That’s what I’m saying. I’m saying, I’m a technically apt guy who understands cybersecurity and I still got hit.

Mark Bassingthwaighte [00:39:14 – 00:39:16]

Yeah. So I hear this all the time.

Marc Raco [00:39:16 – 00:39:25]

If you’re not, if you’re, if you’re not doing at least the basics, I guarantee you, you’re in trouble.

Mark Bassingthwaighte [00:39:25 – 00:40:01]

So my first message, and again, you know, this is direct and I’m really speaking to this sort of small crowd here. The first message is this is the higher risk of concern. The second message, I hear it over and over and over again. I’m a solo or a small firm lawyer. We’re not on anybody’s radar. That is incorrect. You are a highly desired target and they are intentionally going after you for all kinds of reasons, which we don’t have time to get into today. But my second point is to say you are a primary target.

Mark Bassingthwaighte [00:40:02 – 00:40:36]

You cannot bury your head in the sand and pretend this isn’t gonna happen to you. I have talked with dozens and dozens of solo lawyers that are outta practice anymore ’cause they didn’t survive the attack. And a number of small law firms too. The third is the evolution of GenAI. Thus far, GenAI is not being used aggressively against the masses.

Marc Raco [00:40:36 – 00:40:38]

What is GenAI for people who don’t—

Mark Bassingthwaighte [00:40:38 – 00:41:23]

Generative AI. So we’re talking about, you know, tools like ChatGPT. But there are tools, and some of these tools like ChatGPT can be tricked into helping the bad guys, if you will, do bad things. But there are bad versions of these tools, and they are very, very good at what they do. But what I need people to— I would encourage people to be open to hearing AI is being used to do 2 things at the moment. Well, maybe 3 things. It’s accelerating because they can do these phishing emails just as a basic example. And most people are aware what a phishing email is at scale.

Mark Bassingthwaighte [00:41:25 – 00:41:51]

But they can also target at scale. So they can make these things because, you know, you can aggregate all this data, Equifax breach, social media, you know, AI can process this stuff. And so now they can start to target people. It used to be what we’d call, what’s it, oh, you know, whales, whale fishing. I can’t remember the word for it. Or I’m sorry, spear phishing. Spear phishing.

Marc Raco [00:41:52 – 00:41:52]

Yeah.

Mark Bassingthwaighte [00:41:52 – 00:42:45]

You know, which is a targeted phishing attack. You can now spearfish at scale. And then AI cleans up the language. There’s no longer poor spelling and the great— and it can do it whatever language you ask it to do. So the attacks are not necessarily changing in general, but they are far more effective. And that’s what AI’s doing. So if you at least understand those 3 things, my hope would be that you are open, even if you’re a true solo with no staff, to saying it’s not optional anymore. I need to at least start to get some basic understanding, get some training on social engineering awareness.

Mark Bassingthwaighte [00:42:46 – 00:43:12]

You know, and, and, and people say, oh, it’s got to cost so much money. It doesn’t cost a penny. I mean, it can— there are ways, you know, there’s companies out there. But just start looking at podcasts, blogs. knowbefore.com is a great place. The SANS Institute is a great place. You know, these are— they have blogs and resources that are free, you know. Or even just start to use ChatGPT.

Mark Bassingthwaighte [00:43:13 – 00:43:42]

Copilot, whatever, and say, “I’ve heard something called quishing. Can you please explain what that is?” Q-U-I-S-H-I-N-G. By the way, folks, it’s QR code phishing. But and and how and why do I need to be concerned about it? What do I do to protect myself? Once a week, every other week, just Bing something or put in an LLM and ask a question. What what don’t I know about social engineering that I need to know? I’m a small firm lawyer.

Marc Raco [00:43:42 – 00:44:51]

You know, it makes me think of and and and. I mean genuinely no disrespect to attorneys across the universe here, but I can’t imagine a surgeon or an infectious disease doctor going, this is how I’ve operated my practice for the last 20 years. I know there’s new infections out there, but that seems like a lot of trouble to go out about learning about them, or there’s new threats, or there’s new ways to solve this problem, but I’m comfortable in my base of knowledge and I don’t really have time for that. I can’t imagine any reasonable, proficient medical doctor doing that. So what I don’t understand is why someone would operate their business— no, I do understand it, but it seems beyond comprehension to operate your business, be aware that there is an existential threat. to both your practice and your clients, because what happens to you can happen to your clients.

Mark Bassingthwaighte [00:44:51 – 00:44:51]

Yes.

Marc Raco [00:44:52 – 00:45:00]

Also, how are you supposed to be reasonably able to defend your clients in circumstances like this when you yourself have not protected yourself?

Mark Bassingthwaighte [00:45:01 – 00:45:01]

Exactly.

Marc Raco [00:45:01 – 00:45:12]

And it just is a reality. I’m not preaching. I know it sounds like I am, but it seems to me it’s just a reality of the Yeah. As it stands now.

Mark Bassingthwaighte [00:45:12 – 00:45:12]

Yeah.

Marc Raco [00:45:13 – 00:45:21]

And are you going to be the lucky person that missed the buckshot that was shot your way? Maybe, but probably not.

Mark Bassingthwaighte [00:45:22 – 00:45:38]

Yeah. Yeah. To me, and you hear this all the time from security experts, it’s not if, it’s when. You know, and it just— you can’t bury your head in the sand anymore. You just can’t.

Marc Raco [00:45:39 – 00:45:39]

Yeah.

Mark Bassingthwaighte [00:45:39 – 00:45:49]

Um, I, I encourage people to look like they’re— to approach this as if their life, at least their financial life, depends upon it. Because you know what? It does.

Marc Raco [00:45:50 – 00:46:25]

So we have talked about a lot of sort of doom and gloom stuff here a little bit. And so, so here’s, here’s what I like to leave with. Give us some hope in terms of here’s what’s available, here’s what’s possible in Reference, resources, counsel, programs, education, what have you. Well, what— how does ALPS fit into this, for example, beyond, you know, the actual insurance protection and so forth? What are some of the kinds of ways that whether it’s ALPS or bar associations or other programs that can be helpful?

Mark Bassingthwaighte [00:46:25 – 00:46:34]

There’s a lot of things. And I will also circle back and just reaffirm what you said earlier about just podcasts and technology. There’s a lot of great stuff out there. Well, you know what it is?

Marc Raco [00:46:34 – 00:46:35]

There’s a lot of people talking about solutions. Yes. Podcasts.

Mark Bassingthwaighte [00:46:35 – 00:46:38]

Yes. I agree.

Marc Raco [00:46:38 – 00:46:43]

Look, right now, if you’re consuming this piece of content right now, this is one of them.

Mark Bassingthwaighte [00:46:43 – 00:46:43]

Yeah, right.

Marc Raco [00:46:43 – 00:46:53]

So, you know, and, and, but also, you know, ALPS probably puts out white papers or whatever, and the bar associations are holding CLEs and there’s, you know, and so forth.

Mark Bassingthwaighte [00:46:53 – 00:47:32]

So, and I think all that, you know, we certainly, alpsinsurance.com, A-L-P-S insurance, one word, dot com. Go to our website and there are a whole collection of free CLEs. There are a collection of resources, sample forms, the blog, all kinds of things that talk about a lot of this stuff. But here’s something else to be aware of. You know, we talk— I’m the risk manager with ALPS, right? I’m not a traditional risk manager. I’m not the CRM. My job is not to manage the risk of the corporation here, folks. My— I’m hired by ALPS, in essence, to be a risk manager for the bar at large.

Mark Bassingthwaighte [00:47:33 – 00:48:10]

In essence, I am your risk manager. You do not need to be an Alps insured to visit with me. There’s no cost. If there’s something I can do to help on any of the topics and others we’ve talked about, truly you are free to, to call, you know, 1-800— what is it— 367-2577, the 800 number for Alps, and ask for that crazy risk guy or Mark. You know, um, [email protected]. Happy to try to help. Resources like I shared earlier, Know Before, K-N-O-W-B-E, the number four dot com. Know Before is a company.

Mark Bassingthwaighte [00:48:10 – 00:48:46]

Now it’s a global company based out of Tampa, of all places. And I just we recently moved to Florida, so it’s just down the way. But these guys are the 800-pound gorilla in the social engineering awareness training space and lots of things. There’s a lot of free resources there, and there are services you can sign up. For on an annual basis, and they will, you know, fake attack you to help train you and/or your staff. SANS Institute, sans.org, that’s the SANS Institute. They have a newsletter called Ouch. Sign up for it.

Mark Bassingthwaighte [00:48:47 – 00:49:23]

The knowbefore.com blog, again, great stuff. There are free resources there. I like the idea of asking, you know, the LLMs, ChatGPT, Gemini, some questions. If, you know, as a solo lawyer practicing in South Dakota, what do I need to be aware of? What types of— and, and just start to educate. I like that because you’re going to get educated, but you’re also going to learn to use a tool. So it’s, you know, there are all kinds of things out there, folks. You just have to decide it’s important enough to go do it, I guess. Does That’s great.

Marc Raco [00:49:23 – 00:49:27]

That’s great. All right. Well, Mark Bassingthwaite. Yes. Yes.

Mark Bassingthwaighte [00:49:27 – 00:49:28]

Yes.

Marc Raco [00:49:28 – 00:49:40]

All right. Well, risk manager with Alps Insurance, as you mentioned. What a useful and far-reaching conversation. I think we solved the world, or at least we talked about the things to look for.

Mark Bassingthwaighte [00:49:40 – 00:49:43]

Right. Hopefully we’re solving at least our corner, our corner of it.

Marc Raco [00:49:44 – 00:49:45]

All right. Thank you very much. You’re most welcome.

Mark Bassingthwaighte [00:49:46 – 00:49:47]

Always a pleasure. Thank you.

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