Professional Liability Matters

LATEST INSIGHTS

July 29, 2015 • Ethics, Legal Malpractice, Professional Liability Matters

Ahoy! Attorney Sunk by File Transfer In Shipwreck Case

Much of our discussion at PLM revolves around duties to clients during the time of representation. However, your professional duties and ethical obligations to a client do not end when the engagement ceases. As illustrated by one recent swashbuckling tale, an attorney has a duty to provide a former client with that client’s file, and may not withhold these materials to leverage other benefits, regardless of the circumstances surrounding the end of the engagement.

July 28, 2015 • Cyber-Liability, Legal Malpractice, Professional Liability Matters

Attorneys: Don’t Hack Your Adversaries’ Files

Professionals look for ways to gain an edge over their competition. Taking extra time to prepare, investigate claims, and anticipate an adversary’s strategy can often mean the difference between success and failure. However, professionals must ensure that their attempts to gain a tactical advantage do not run afoul of ethics rules. When professionals cross the line, they not only jeopardize their clients’ interests, but also put themselves at risk of litigation or disciplinary action. Some lines are clearer than others. For example, one firm recently learned that it is improper to hack into an adversaries’ files to gain a strategic edge.

July 23, 2015 • Ethics, Professional Liability Matters, Settlement

Attorneys Admonished for Settlement Posturing

Attorneys have a duty to act as zealous advocates for their clients. This duty is particularly important during settlement negotiations, where counsel’s strategy and negotiation skills play a significant role in achieving a favorable result. However, settlement statements that are intended to deceive one’s adversary can quickly cross the line from permissible posturing to unethical misrepresentations of fact.

July 22, 2015 • Ethics, Professional Liability Matters, Technology

Failure to Keep Up with Technology Could Lead to Ethics Violation

Technology is rapidly changing the manner in which businesses operate. This is equally true for professionals, who must incorporate and adapt to technological advances in order to thrive in a competitive marketplace. However, keeping up to date with technology is not merely a matter of protecting the bottom line. Professionals who fail to stay on the cutting edge could violate ethics rules and jeopardize their client’s interests.

July 21, 2015 • Agents and Brokers, Professional Liability Matters

Negligence Claims Against Insurance Adjusters?

Claims professionals, a/k/a “adjusters” play an important role in evaluating and defending an insured claim as part of the tripartite relationship. When something goes wrong, it is not uncommon for the insured to turn on her attorney but the adjuster is never a target, right? Maybe not. At least two jurisdictions, New Hampshire and Alaska, permit claims of negligence against individual insurance adjusters on the theory that they owe a duty of ordinary care to conduct adequate investigations into an insured’s claim. Pennsylvania recently considered the issue and concluded that the Pennsylvania Supreme Court may permit such a claim against an insurance adjuster.

July 20, 2015 • Employment Practices Liability, Professional Liability Matters

Is Obesity a Disability?

A case currently pending before the Eighth Circuit will address whether ADA protections should extend to obese workers. With more than 2/3 of the US adult population considered overweight, recognition of obesity as a disability under the ADA – defined as physical or mental impairment that substantially limits major life activities – will result in accommodations and protections in unprecedented numbers.

July 14, 2015 • Ethics, Professional Liability Matters

99 Problems But A Conflict Ain’t One

Conflicts must always be at the forefront of an attorney’s mind throughout the life of an attorney-client relationship. An attorney’s first duty is to her client, but what happens when a witness in a case also seeks representation? Can you represent a party as well as a witness? Such a question creates the potential risk of disqualification, as illustrated by a recent lawsuit involving hip-hop mogul Jay-Z.

July 9, 2015 • Ethics, Professional Liability Matters

Case Closed? Ethical Obligations Upon Termination of Representation

Under Model Rules of Professional Conduct 1.15 and 1.16, a lawyer must safeguard a client’s property and deliver it promptly to the client upon the client’s request and upon termination of representation a lawyer shall take whatever steps are reasonably practical to protect a client’s interest. The ABA recently issued a formal opinion clarifying and updating a lawyer’s ethical obligations under these Rules and addressing practical considerations regarding the application of these Rules to practice.

July 1, 2015 • Employment Practices Liability, Professional Liability Matters

Employers: Adapt to Obergefell

Employers must adapt to Obergefell v. Hodges. Prior to the Supreme Court’s June 26, 2015 decision, many states did not require employers to recognize and provide benefits for married same-sex couples. Only 36 states and Washington D.C. legalized same-sex marriage. Now, the Supreme Court determined that the 14th Amendment requires states to license same-sex marriages and to recognize lawfully licensed same-sex marriages performed out-of-state. In light of this holding, employers must ensure that their policies, procedures and the benefits comport with federal law.