Legal Developments and Risk Management Tips Impacting the Professional Liability Community.
Professionals are often approached by friends and family for advice. At times, the particular issue might not fall squarely within the professional’s area of expertise or may involve a matter outside of the jurisdiction in which they are licensed to practice. Although the matter involves a seemingly trivial task, professionals cannot forego ethical standards simply because they happen to be close with the individual seeking assistance.
Your friends at Professional Liability Matters often focus on interpretation of Affidavit of Merit (“AOM”) requirements. As our handy table shows, each state has its own rules as to AOM requirements and other details regarding substance and form. These rules are of critical importance to many malpractice claims. Most states require an AOM from a professional within the same field certifying that the malpractice case has merit. A recent decision focuses on the application of this rule in the med-mal context.
According to a recent Law360 article co-authored by a member of PL Matters, “the practice of law can be incredibly rewarding, yet it is fraught with risk. Those risks amplify when an attorney steps outside her primary practice area or fails to effectively communicate with the client. Serving as a local counsel can be beneficial to all — client, lead, and local counsel — as long as expectations and communication are clear.”
It seems the law firm mergers are on the rise. 2015 was considered a “record year” for US law firm combinations. This merger-happy world has brought on a list of potential ethical questions. One of those issues was recently addressed in the case Victorinox AG v. The BF System Inc., 13 Civ. 4534, in the Southern District of New York.
Professionals strive to develop a reputation within a particular field. The real success stories involve those who are known as the go-to professional for one or more situations. A problem with such success is that it may increase the risk of potential conflicts. If all clients seek the same professional for Issue X, there are bound to be conflicts down the road. In a recent case in the Southern District of Florida, one company alleged that its accountants and lawyers violated their professional duties when they provided proprietary information to a competitor.
Depositions generally involve a series of questions and answers between the deponent and counsel. At times, however, counsel may want to use the deposition as an opportunity to have the witness demonstrate a task or record physical characteristics of a witness. Conveniently, nearly all attorneys now carry a camera in their pocket, in the form of their mobile device. When capturing images or video during depositions, counsel must be careful not to violate a right to privacy, or cast them in an offensive manner.
The most common forum for malpractice claims is civil litigation. However, a professional may find himself in a potentially worse situation if the appropriate professional regulatory board also gets involved. Take for example a recent case of accounting malpractice that demonstrates the serious side effects that can occur when an accountant falls short of the standards of the profession.
The attorney-client privilege is one of the most basic tenants of professional liability. While the general rule itself is uncomplicated, complex circumstances between attorneys and their clients can often trip up even the most experienced lawyer. Take for example the following New Jersey malpractice case involving a law firm’s general counsel which raises the question: who is really the client?
Professionals love to publicize success stories on the web. Writing posts on recent victories is a valuable way of marketing a practice and generating new business. In the case of professionals, however, success stories often entail details regarding clients, which could raise client confidentiality concerns.
Many professionals are transitioning from paper to electronic files. As a result, professionals tend to rely more heavily on electronic signatures. However, professionals must be cautious that e-signature technology does not violate any requirement to maintain traditional signatures with official filings.