Professional Liability Matters

LATEST INSIGHTS

July 27, 2016 • Cyber-Liability, Professional Liability Matters

Baseball’s Cyber Lesson: The Cyber Field of Dreams

Remember when you chose your first online login credentials? Perhaps it was for your brand new Hotmail account, or that lightning fast AOL dial-up internet. Like many people, it was probably the first time you ever had to choose a password and it was also probably some combination of your kids’ names, your spouse’s name or your mailing address. Like far too many people, your password in 2016 may not be much different from the one you made in 1996. Despite the best efforts of IT, most people are loath to complicate their lives with long and varying passwords. However, corporate espionage is a real threat in today’s computerized society and executives must realize that treating the privacy of your company account is a recipe for liability. While it may not be your job to keep the entire system safe, it is your job to keep your key to it safe.

July 26, 2016 • Accountants, Professional Liability Matters

Lessons from Largest U.S. Tax Fraud in U.S. History

If you are in the world of finance, accounting or tax chances are you have probably heard of Sam Wyly and his late brother Charles Wyly. In recent years, the business mogul brothers have been the hot topic of litigation as they battled with the IRS and SEC over alleged tax and securities fraud that may have spanned decades. In the most recent decision to come out of the Wyly saga, Sam Wyly was ordered by a Dallas bankruptcy court to pay $1.1 billion in back taxes, interest and penalties. While the litigation is noteworthy because of the massive amount of dollars involved, it can also provide some reminders for tax professionals, particularly those with sophisticated clients.

July 15, 2016 • General, Professional Liability Matters

Seeking Your Nomination

Attention blog readers! This year, the ABA Journal is publishing their 10th Annual “Blawg 100” celebrating the best legal blogs around today. In order to be named, we’ll need your help! Since the start of our blog in October of 2015, Asbestos Case Tracker has reported on hundreds of asbestos decisions and has been hailed …

July 12, 2016 • Engagement Letters, Ethics, Professional Liability Matters

Fee Shifting with Non-Lawyers

As a general matter, the Rules of Professional Conduct prohibit lawyers from sharing fees with non-attorneys. However, there are certain exceptions to that rule. Rule 5.4 states that “a lawyer or law firm may include non-lawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.” A recent case out of Pennsylvania describes how a non-lawyer attempted to put this exception into action, albeit unsuccessfully.

July 7, 2016 • Ethics, Legal Malpractice, Professional Liability Matters

Unethical ≠ Negligent

It’s not uncommon to see allegations of ethical breaches incorporated into malpractice claims. Former clients may argue that their attorney’s failure to comply with the rules of professional conduct evidences negligence. Often, however, that’s insufficient to sustain a claim. An ethical breach may be considered by the fact-finder but, without more, is unlikely to support a claim. Consider the recent decision from the New York State Appellate Division which continued a trend of dismissing legal malpractice claims based purely on ethical violations.

June 29, 2016 • Engagement Letters, Professional Liability Matters

Til Death Do Us Part: Prenuptial Agreements for the Professional

Engagement letters are a must. In case that wasn’t clear enough: all professionals should document the scope of the client relationship for each and every engagement. New clients and long-standing clients alike, engagement letters are a must. It’s a key aspect of best practices that is often overlooked. “My client and I have developed a trusting, professional relationship over the years and therefore it is entirely unnecessary to propose an engagement letter.” It may feel a bit like a prenuptial agreement. Why plan for the worst when things are going so well?

June 28, 2016 • Defenses, Professional Liability Matters

New Jersey Permits Leeway in AOM Requirement

The particular nuances of each state’s affidavit of merit rule can be difficult to navigate. Since affidavits of merit (AOM) are so critical to malpractice actions, we do our best here at Professional Liability Matters to keep you informed of the particular differences among states and various defenses that can be raised in a malpractice suit requiring an AOM. Last week we blogged about a particular exception to the AOM rule in New Jersey, which you can check out here. This week we turn our attention to another New Jersey case, in which the court again finds an exception, but under different circumstances, when it comes to the AOM requirement.

June 23, 2016 • Legal Malpractice, Malpractice Defenses, Professional Liability Matters

Judicial Scrutiny of Frivolous Litigation Statute

Nobody wants to be named as a defendant in a lawsuit. Litigation is expensive, time-consuming, upsetting, and often intimidating for clients. Being dragged into a suit is even more frustrating when the defendant knows the claims are entirely without merit. Defendants who are the victim of frivolous litigation are not without recourse, however. Where the underlying lawsuit is unwarranted, without evidentiary support, or presented for an improper purpose, such as harassment or delay, defendants may have the opportunity to seek damages against the plaintiff and the lawyers who brought the claim.