Professional Liability Matters

LATEST INSIGHTS

May 4, 2017 • Employment Practices Liability, Professional Liability Matters

When There’s Smoke, There’s Fire: Allegations of Harassment Can Point to Liability

The recent departures of high-profile executives and the flurry of harassment lawsuits provide plenty of teaching moments for employers. Notably, these very public exits and lawsuits are a prime example of why employers must act decisively when complaints of harassment arise in the workplace. Unfortunately, this situation is all too familiar for some employers. Some employers may be tempted to overlook the conduct of top performers even though it may open the door to liability. However, it is critical that allegations of harassment be taken seriously and that prompt investigations are conducted by employers. Sometimes it’s necessary to bring in third-parties to conduct a thorough investigation particularly if higher level executives are involved or if there is a pattern of troubling allegations.

May 3, 2017 • Defenses, Professional Liability Matters

Arbitration Clauses Put to the Test in LTC Suits

Arbitration agreements are relatively common in nursing home agreements but often are not enforced by courts. One basis courts rely upon in refusing to enforce arbitration agreements are state court rules that require certain claims to proceed to trial. The U.S. Supreme Court recently declined to hear the appeal of a Pennsylvania Supreme Court decision requiring a survival claim to proceed to arbitration, despite a local rule that requires trial for such claims. The decision provides some clarity on how courts will assess clashes between the Federal Arbitration Act (FAA) and contrary state laws at a time when clarity is needed on this topic in light of the recent decision by CMS (Center for Medicare & Medicaid Services) to postpone its ban on arbitration agreements in nursing homes.

May 2, 2017 • Law Practice Management, Legal Malpractice, Professional Liability Matters

Don’t Be a Halfway Law Partner

It is not uncommon for attorneys to join forces to defray costs. This often means sharing office space, support staff, and equipment. Some attorneys take this a step further, advertising themselves as a partnership even if their practices remain separate. Such arrangements should be made with caution, however, as they may lead to vicarious liability among the so-called partners.

April 27, 2017 • Miscellaneous Professionals, Professional Liability Matters

What’s a “Communication” under the FDCPA?

The five-day rule under the FDCPA, which requires a debt collector to provide the precise amount owed within five days of its initial communication with a borrower, often operates as a trap to debt collection firms. The lack of a statutory definition for “initial communication” means that courts are free to interpret what will qualify, leaving debt collection firms to make their own determinations as to what will sufficiently protect them from later lawsuits based on this section of the statute. Although pleadings are still a widely acknowledged exception, many states do not include pre-foreclosure notices.

April 26, 2017 • Employment Practices Liability, Professional Liability Matters

Employer Guidance on Mental Health Disorders

According to the National Alliance for Mental Illness, one in five US adults experiences mental illness in a given year. In a recent article authored by PL Matters contributor Dove A.E. Burns, the “prevalence of these disorders has a significant impact upon the workplace and upon employers and their accommodation policies and procedures.” The New York Law Journal article evaluates the EEOC’s publication titled “Depression, PTSD & Other Mental Health Conditions in the Workplace: Your Legal Rights.” The article also considers what the EEOC’s guidance means for employers navigating the ADA landscape.

April 17, 2017 • Accountants, Professional Liability Matters

Attorneys: Be a Watchdog for Your Accountant Clients

The standard of care governing every professional begins with the scope of the engagement. That may seem fairly obvious to those in the professional malpractice community but it is often misunderstood by laypeople. Isn’t a CPA engaged to detect fraud? Isn’t a lawyer engaged to win my case? One of the difficult aspects of defending a malpractice case is overcoming the lay perspective of the precise role of a professional. Often the defense of a professional can turn on whether the fact finder fully understands the distinct role of the professional in the limited context of the facts presented. Accordingly, professionals should be proactive in ensuring that the parties and others refer to the applicable professional standard that governs the case.

April 13, 2017 • General, Professional Liability Matters

Privilege for Public Relations Team?

In the wake of recent well-publicized public relations nightmares, your friends at PL Matters considered the impact of PR firms on professionals. Public relations are a critical aspect of maintaining status in the public eye, communicating a message to consumers, and helping to promote a positive image. As a result, professionals often rely on outside PR professionals, both for their own business needs and the needs of their clients. But have you considered the implications of disclosing sensitive information to an outside PR firm?

March 30, 2017 • Law Practice Management, Professional Liability Matters

Lawyers ≠ Partnering with Non-Lawyers

Law firm financing has become an increasingly complex and interesting aspect of the legal business. From personal injury litigation loans, to the financing of the Gawker lawsuit by a Silicon Valley billionaire, it appears many want to get a piece of a lawsuit these days. However, the Second Circuit recently affirmed a district court ruling that law firms are still forbidden fruit for third-party financiers.

March 22, 2017 • Ethics, Law Practice Management, Professional Liability Matters

Ethics of Law Firm Dissolutions

All good things must come to an end. Professional firms are no exception. There are many reasons that a professional firm may close its doors; however, regardless of the cause, professionals must remain cognizant of their ethical duties to third-parties and clients throughout the dissolution process.

March 16, 2017 • Defenses, Professional Liability Matters

Bankruptcy Law Preempts State Claim for Wrongful Use of Civil Proceedings

The Automatic Stay under U.S. Bankruptcy law is a powerful tool in the judicial system. By filing for bankruptcy, a person or entity immediately creates a cocoon of safety that is generally impenetrable without subjecting the offending party to punitive repercussions. In fact, even parties without knowledge of the bankruptcy filing may nevertheless face consequences from the presiding bankruptcy court for violating the Automatic Stay. Of course, this does not mean that parties can use a bankruptcy petition solely to protect themselves from outside pressures. The bankruptcy rules also allow a court to impose sanctions upon a party or its attorney if it the petition is found to have been filed frivolously. However, a Pennsylvania trial court recently reaffirmed that it remains within the bankruptcy court’s sole discretion to do so, and that any similar state court claim is preempted by federal law.