Professional Liability Matters

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June 23, 2015 • Ethics, Legal Malpractice, Professional Liability Matters

The Ethical Implications of Legal Ghostwriting

Ghostwriting on behalf of pro se litigants has sparked an interesting debate. Although unrepresented parties may be at a bit of a disadvantage when presenting their position to a represented adversary, some may take advantage of an attorney lending assistance behind the scenes. Legal ghostwriting is one form of “limited-scope representation”, or the unbundling of legal services, a practice in which a client retains an attorney for limited tasks as opposed to the traditional handling of all aspects of a matter. Rules regarding this practice vary widely by jurisdiction; many federal courts do not allow it but many state courts do.

June 18, 2015 • Employment Practices Liability, Professional Liability Matters

Attorney Lawsuit over Overtime Pay

Professionals often require additional assistance handling time-consuming, but routine, tasks. This is particularly apparent in complex litigation that involves voluminous discovery and document review. Not surprisingly, document review can quickly become one of the more labor-intensive and expensive stages of the case. In order to meet this challenge, many firms will hire temporary attorneys to review the discovery for privilege and scope. Before doing so, query whether these firms consider the overtime implications of the FLSA.

June 17, 2015 • Ethics, Professional Liability Matters

Limitations on Local Counsel?

Attorneys often utilize local counsel to assist in a venue they are not licensed. The role of the local counsel will vary from case to case. Generally speaking, local counsel have a more limited role in the litigation. However, according to a recent NY ethics opinion, a limited role does not necessarily mean limited responsibilities or risks.

June 16, 2015 • Ethics, Professional Liability Matters

Professionals Don’t Kiss and Tell

Professionals love to promote their success stories. Securing major victories can help attract new clients and help establish professional reputation. This is especially true of attorneys, who are often solicited to comment on public aspects of a case once it has concluded. However, post-case commentary could lead to a violation of the attorney’s duty of confidentiality—even when the information discussed concerns issues that are widely known or publicly available.

June 11, 2015 • Ethics, Privileges, Professional Liability Matters

Perusing Privileged Papers Prohibited

What to do? When reviewing discovery provided by your adversary you stumble upon a privileged document. It happens…sometimes privileged materials fall through the cracks and into the hands of opposing counsel. Do you read it, burn it, return it? According to a recent New Jersey decision, reading an inadvertently produced privileged document may be grounds for disqualification.

June 9, 2015 • Medical Malpractice, Professional Liability Matters

Emotional Distress in Medical Malpractice Claims?

We were pleased to see your interest in our recent post regarding emotional distress damages in the LPL space. In continuing with that topic, we turn to emotional distress claims in the context of medical malpractice. Medical malpractice victims are generally entitled to recover for emotional harm they endure, but what about the victim’s family? Many states permit some form of recovery for bystander emotional distress. However, translating that type of claim into the field of medical malpractice can be trickier as there is often no specific “accident” to observe when a medical mistake is made. The Supreme Court of Connecticut recently addressed this issue, reconciling a split in the state courts as to whether a claim of bystander emotional distress was available as a result of medical malpractice.

June 4, 2015 • Legal Malpractice, Professional Liability Matters

Emotional Distress in Legal Malpractice Claims?

Emotional distress is not uncommon in malpractice cases. We have blogged before about jurisdictions that have expressly permitted the recovery of such damages, while other jurisdictions don’t have any law addressing this potential area of recovery. In the past year a few states have addressed this issue and the decisions are worth noting.

June 3, 2015 • Professional Liability Matters, Risk Management

To Retain or Refrain? Legal Record Retention Requirements

Litigation generates a ton of paper – pleadings, motions, drafts, correspondence, legal research – and these materials do not simply vanish once your involvement with a case has ended. What happens to all of this paper is an important question not only in terms of your legal obligations with regard to retention, but also for your bottom line. The necessity of managing and storing records from closed cases adds to the cost of providing legal services. So what happens when a case closes or you pass the case along to another attorney? Must you keep the 500,000 pages of documents generated during your representation? Can you simply send everything to the shredder? How long must an attorney retain client files once the case is closed or the representation is terminated?

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

Is a Single Threat Enough to Trigger Liability For Retaliation?

Retaliation claims account for almost half of all EEOC claims filed nationwide. The 2014 EEOC Enforcement and Litigation data reflects that 42.8% of all EEOC charges are retaliation claims. Therefore, the crucial question when assessing the legal landscape for employers may be: what is enough to trigger liability for retaliation? The question of whether a threat to reduce pay constitutes an adverse employment action is before the Fifth Circuit. The underlying claim was dismissed at the trial level. A reversal of this decision could lead to a significant expansion of the scope of actionable retaliation in the Fifth Circuit and likely beyond.

May 28, 2015 • Advertising, Professional Liability Matters

State Bar Prohibits Advertising via Text

Professionals are continuously looking for new ways to reach new clients. Given the popularity of text messaging, many firms have considered incorporating SMS messaging into their marketing plans. However, sending direct advertising to individuals’ cell phones could violate ethics rules on advertising and implicate federal laws prohibiting certain unsolicited telephone communications.