Professional Liability Matters

LATEST INSIGHTS

December 16, 2015 • Professional Liability Matters, Risk Management, Sanctions

Abuse of Process Examined

Combating bullies has recently become a trending topic, particularly with the rise of bullying on social media. However, in the legal world, bullies also run the risk of being sanctioned, as a recent fashion copyright infringement case illustrates. The suit, filed by graffiti artist RIME against fashion label Moschino, alleges illegal copying of a design. In response to the designers’ motion to dismiss, RIME filed its own motion, based in part on abuse of process. According to RIME, the designers’ motion to dismiss is a tactical and intentional attempt to scare and burden RIME in the hope that he will retract his lawsuit.

December 15, 2015 • Employment Practices Liability, Professional Liability Matters

Liability for Improper Use of Database

Many professionals have access to online databases that store information not readily available to members of the public. These databases are a valuable tool for professionals who need additional information about a person for litigation purposes or for other lawful use within the course and scope of their professional practice. While these databases are only intended to be used for professional use, it is generally possible to access them for non-work-related purposes. This improper use of otherwise legitimate databases raises potential civil and criminal repercussions for the professionals.

December 10, 2015 • Legal Malpractice, Professional Liability Matters

Pro Bono Malpractice?

Pro bono activities are not unfamiliar to most attorneys. Many attorneys will volunteer their time with organizations that provide pro bono legal services to those who could not otherwise afford legal representation. Most jurisdictions permit volunteer attorneys to be on a list of counsel that the court may appoint when a party is in need of representation. Some states may even assign attorneys in good standing to a court appointed representation. What happens though when that court appointed attorney allegedly commits malpractice in the course of the pro bono representation? A recent case out of Illinois addressed this scenario in the context of a court appointed child representative.

December 8, 2015 • Design Professionals (A&E), Professional Liability Matters

Avoiding Individual Liability for Corporate Acts

Incorporating a professional practice can help to avoid individual liability when a professional is acting within the course and scope of his employment. For instance, certain states provide statutory immunity to design professionals such as architects and engineers who are acting in a corporate capacity. However, individual immunity from claims may be waived if the professional makes a representation, even inadvertently, in contracts or design plans that could be construed as accepting individual accountability for negligent acts.

November 30, 2015 • Accountants, Engagement Letters, Professional Liability Matters

Limitation on Liability Clause Not Enough to Protect Accountant

Here at PL Liability Matters we have written on numerous occasions about the importance of an engagement letter. The engagement letter is a critical tool for setting expectations and managing risks. As we have said before a well drafted engagement letter can deter malpractice claims and in meritless suits it can be “Exhibit A” to a dispositive motion. A case out of New York involving an accountant-client relationship demonstrates just that scenario. Unfortunately in this case, however, the court found that the engagement letter did not sufficiently limit the risk to the professional in order to avoid the malpractice claim.

November 18, 2015 • Employment Practices Liability, Insurance Products, Professional Liability Matters

The DOJ on D&O: What You Need to Know

In September the Department of Justice released its new directive on individual accountability for corporate wrongdoing in a revived effort to fight corporate fraud. The “Yates Memo” by Deputy U.S. Attorney General Sally Quillian Yates, outlines the DOJ’s policy on targeting and pursuing corporate executives in cases of corporate wrongdoing. With the DOJ’s new guidelines companies should be taking a fresh look at their D&O insurance.

November 16, 2015 • Employment Practices Liability, Professional Liability Matters

Fashioning Employee Schedules: Employees Question Compensation Practices

Technological advancements have impacted employee scheduling in certain industries. Notably, employers with access to real-time data that suggest the level of expected business on any given day may require employees to be “on call.” But, in a recent lawsuit against clothing retailer Forever 21, employees allege they’ve been subjected to “exploitative” scheduling practices regarding so-called “on call” shifts. Comparable suits have recently been filed against other fashion retailers like Victoria’s Secret and BCBG Max Azria, regarding similar policies.

November 10, 2015 • Legal Malpractice, Professional Liability Matters

Fee Shifting in Malpractice Cases

The concept of fee shifting in the field of legal malpractice may not be well known or understood if you don’t practice in New Jersey. That is because New Jersey is one of the only states to employ this unique fee structure. The so-called “Saffer rule” was created by the NJ Supreme Court decision in Saffer v. Willoughby, in which the Court held that clients may recover as consequential damages the legal expenses and attorneys’ fees they incur in prosecuting a malpractice claim against their former attorney. Recently, the NJ Supreme Court heard oral argument in the case of Innes v. Marzano-Lesnevich, to determine whether attorney-defendants can be liable for attorneys’ fees as consequential damages to a non-client under Saffer.

November 3, 2015 • Coverage, Medical Malpractice, Professional Liability Matters

Liability for Lack of Malpractice Insurance?

Friends of PL Matters know that maintaining malpractice insurance is a must, regardless of your profession. Clients count on professionals to get things done right. When things don’t go exactly as planned, clients get unhappy, lawsuits are filed, and malpractice insurance kicks in to protect the professional. But what if the professional lacks insurance? May the client maintain a cause of action for lack of insurance?

October 28, 2015 • Professional Liability Matters, Technology

Lamar Odom & HIPAA: A Kardashian Takeaway for Employers

Reality television fans and others were saddened recently when news of a Kardashian family member’s overdose hit the news. Lamar Odom, sometime beau of Khloe Kardashian, was hospitalized after the incident, and his privacy was reportedly violated when staffers at the medical center where he was treated took pictures of him. The staffers were immediately fired due to this conduct. Lamar’s plight contains a teachable lesson for those employers who must comply with the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, which protects the privacy of personal health information (PHI).