Legal Developments and Risk Management Tips Impacting the Professional Liability Community.
Professionals are passionate about their work. Consequently, professionals may become discouraged when they receive an unfavorable result. Professionals must be cautious in the manner in which they respond to bad outcomes, however. Taking to public forums to criticize a decision or ruling could result in a violation of rules of professional conduct and lead to personal liability.
A law firm in Connecticut recently recovered the largest med-mal verdict ever in the state only to be sued by their client for malpractice. How does that happen? We’ll tell you. Plaintiffs retained a well-known Connecticut law firm (“Firm”) to represent them in a med-mal claim alleging that Defendant Doctor (“Dr.”) made significant errors during childbirth which caused Plaintiffs’ son being born with cerebral palsy. In 2011, a jury returned a verdict for Plaintiffs, and awarded $58 million – the largest medical malpractice verdict in Connecticut state history. Following verdict, the parties settled for $25 million.
It’s easy enough to determine the statute of limitations for a malpractice claim. It’s not as easy to determine when the limitations clock begins to click. In New York, for example, the limitations period is three years but courts have grappled with questions regarding when a relationship between attorney and client ends. Courts have more recently employed what’s become known as the continuous representation doctrine in order to extend the accrual time. However, a recent decision in the Southern District of New York highlights an about-face of sorts.
Subpoenas provide a means to obtain testimony or documents from a non-party. Many lawyers routinely issue subpoenas during the discovery or trial phases of litigation. But lawyers are sometimes on the receiving end of a subpoena. This is when things get a bit tricky.
You love blogging. Who doesn’t? For some professionals, blogging is an important part of education, outreach and networking. But, as we’ve discussed previously, blogs may be considered advertising and, if so, ethical considerations apply. The State Bar of California Standing Committee on Professional Responsibility recently circulated a proposed opinion for public comment that addresses the ethical implications of blogging by attorneys. The opinion considers when a communication subject to the Rules of Professional Conduct on attorney advertising.
Even the most experienced of professionals cannot predict the future. So, as a risk prevention measure, many of us turn to the next best thing by agreeing to clear contractual terms with our clients so as to eliminate confusion down the road. We spell out the terms and scope of our engagement and we identify the client’s responsibilities in an effort to avoid problems before they arise. We attempt to reach agreements today that may impact us tomorrow. According to the ABA, conflicts of interest are one of the most common legal malpractice claims so some attorneys may be tempted to seek a waiver of future conflicts in their engagement letters. This practice does not work. Consider for example the following case out of California.
Performance reviews are a necessary step in the path to ensuring a team of productive employees. However, as illustrated by a series of recent lawsuits filed by Yahoo employees against the internet giant, performance reviews are not without risks to the employers who administer them. In one such suit, an employee alleges that he and approximately 600 other Yahoo employees were unfairly fired based upon an allegedly unfair performance evaluation system, and were terminated without the notice required by federal and state laws, including the Worker Adjustment and Retraining Notification Act (WARN).
An attorney can’t be held accountable for her client’s breach of the Rules of Professional Conduct, right? Wrong. Model Rule of Professional Conduct 1.15 provides that a lawyer cannot commingle a client’s property (i.e. money) with the lawyer’s. Seems simple enough: don’t mix personal with business. However, what happens when the lawyer complies with this standard but her employee doesn’t? According to a Texas state court, the lawyer is still responsible.
Professionals must communicate clearly with clients regarding the existence and scope of the professional-client relationship. This is especially true for general counsel, who represent a company but also interact with its employees. We discussed these issues here in the context of the Penn State/Sandusky scandal two years ago but lingering issues remain which highlight the risks of dual representation.
Lawyers wear many hats; the key is not to wear them all simultaneously. Many lawyers are well versed in areas outside of the law and can be a source of non-legal knowledge for clients. However, lawyers need to be mindful when their services extend beyond the traditional landscape of legal advice. Mixing business interests and legal advice can easily get you in hot water if the transaction goes awry. Take for example the case of Burk & Reedy, LLP v. Am. Guarantee & Liab. Ins. Co., in which a professional liability insurer denied coverage for an attorney that was involved in both the legal and business aspects of a transaction.