Professional Liability Matters

LATEST INSIGHTS

May 3, 2016 • Legal Malpractice, Professional Liability Matters

The Garden State: Malpractice Fee Shifting in NJ

New Jersey is known for its beaches and its tomatoes. In the malpractice community, New Jersey is also known for its unique rules on fee shifting. New Jersey allows successful litigants in attorney malpractice suits to recover as consequential damages the legal expenses and attorneys’ fees they incur in prosecuting the claim. We previously reported on the case of Innes v. Marzano-Lesnevich, pending before the New Jersey Supreme Court that could potentially expand the rules on fee shifting in malpractice cases. Well, the New Jersey Supreme Court has spoken and any attorney practicing in New Jersey should be aware of the outcome.

April 27, 2016 • Engagement Letters, Ethics, Professional Liability Matters

Referral Fees: The Logistics of Fee Sharing

Fee sharing is not unfamiliar to most attorneys. Model Rule of Professional Conduct 1.5(e) permits lawyers who are not in the same firm to share or divide a fee. A typical example is when an attorney refers a case out to “trial counsel”. But, fee sharing has its restrictions. For example, the Model Rules permit fee sharing only when the fee is reasonable, the client agrees to the arrangement and the division of the fee is proportionate to the share of each lawyer’s services or the lawyers assume joint responsibility for the representation. These requirements create ethical implications for lawyers engaged in fee sharing. Fortunately, the ABA recently provided some guidance.

April 26, 2016 • Cyber-Liability, Legal Malpractice, Professional Liability Matters

Liability for Hacked Emails?

Professionals depend on third-party email services to operate their business. As a result, professionals may assume that the vendor is safeguarding their electronic information and therefore the professional is not exposed. False. Consider an attorney sued recently for malpractice arising from an e-mail hacking scam.

April 21, 2016 • Coverage, Professional Liability Matters

Unfair Business Practices = Professional Liability?

What is a “professional liability” claim? Most definitions would include a claim involving a skilled professional – such as an attorney, accountant, doctor or broker – sued in her professional capacity, based upon allegations of negligence in the performance of professional services. The easiest example is a claim for legal malpractice: a client gets a negative or unexpected result, believes that this result is due to failings on the part of hired counsel, and subsequently brings a claim against his attorney for damages. Pretty cut and dry, right? Nope.

April 20, 2016 • General, Professional Liability Matters

The New Fiduciary Rule: Are you Prepared?

The Department of Labor recently announced its new Fiduciary Rule – aka the “conflicts of interest rule.” This new rule expands the definition of fiduciary and alters how investment advice is delivered in retirement accounts. It won’t go into effect for at least another year, but it’s not too early to start thinking about how the changes will affect the professionals who render this advice.

April 19, 2016 • Cyber-Liability, Professional Liability Matters

Cyber Risks for Contractors

Professional have become increasingly reliant on digital technology to run their practices. This digital revolution has reshaped the way that many professionals operate and has allowed professionals to better service their clients. At the same time, reliance on technology has created new areas of exposure for professionals.

April 14, 2016 • Accountants, Professional Liability Matters

Auditor Security Fraud: Negligence Not Enough Part II

For the second time in a few weeks, the Second Circuit dismissed a securities fraud claim targeting an independent auditor. In Special Situations Fund III QP, L.P.,, the Court was tasked with reviewing the trial court’s dismissal of plaintiff’s second amended complaint. The underlying allegations were that the company disclosed that its former CEO and other executives had committed fraud for years by misstating its financials and embezzling funds. Plaintiff alleged that the company’s independent auditor committed securities fraud by issuing a “clean audit opinion” of the company. Ultimately, the Appellate Court upheld the dismissal on the grounds that the plaintiff failed to properly plead the requisite element of scienter.

April 12, 2016 • Law Practice Management, Legal Malpractice, Professional Liability Matters

Guilty by Law Office Association

It’s not uncommon for small or solo attorneys to join together with others to share in operating and overhead costs of running a law firm. Attorneys can sometimes share office space, personnel and equipment yet run completely different practices independent of each other. However, what happens when one attorney is sued? Can any of the other attorneys also be held liable? Of course not, right? Well, according to a decision out of Tennessee it’s not entirely out of the question.

April 7, 2016 • Advertising, Professional Liability Matters

Ethics of Disclosing Client Identity in Advertising

Professionals love to advertise success stories. We want would-be clients to know the results we achieved for current clients. However, publicizing specific results could lead to the disclosure of confidential information. Professionals therefore must be cognizant of whether advertising a particular case or representation is likely to cause embarrassment or harm to the client, and ensure client confidentiality.

April 6, 2016 • Professional Liability Matters, Sanctions, Trial Tactics

Attorney Disbarred for Conspiring to have Adversary Arrested

Many professionals are driven, competitive, proud and devoted to their craft. Professionals want to achieve success for their clients, they want to win. But what defines success? Professionals must stay within the rules of the road at all times or the result will most certainly be a total failure. Take for example the attorney accused of conspiring to setup his adversary on a DUI charge. You can’t make this stuff up.