Professional Liability Matters

LATEST INSIGHTS

May 26, 2015 • Privileges, Professional Liability Matters

Death to the Company is Death to the AC Privilege

The law in Pennsylvania, like most other jurisdictions, is clear that the attorney-client privilege survives the death of an individual. However, until recently the law was not so clear as to whether that same privilege applies to a corporation after it dissolved or “died.” Earlier this year the Pennsylvania Superior Court answered this question in Red Visions Systems v. National Real Estate Information Services, and just recently, the state Supreme Court denied allocator, leaving the Superior Court’s decision as the law of the state.

May 20, 2015 • Ethics, Professional Liability Matters, Trial Tactics

“Name Calling” Warrants Mistrial in New Jersey

Attorneys are held to a reasonably well defined standard when it comes to professional conduct. Clearly, however, not all attorneys abide by this code. What an attorney may consider zealous advocacy can easily turn into unprofessional conduct if taken too far. Take for example the following case out of New Jersey where comments from the plaintiff’s counsel were found to exceed the bounds of permissible advocacy and resulted in a mistrial, vacating a nearly $2.5 million judgment.

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

What Constitutes Harassment? Impact of New Law

Retaliation and harassment are the most commonly filed employment law claims nationwide. After the Fourth Circuit’s recent decision in Boyer-Liberto v. Fountainbleau Corp., No. 13-1473 (4th Cir. May 7, 2015) lawsuits alleging hostile work environment and harassment will only be more difficult for employers to dispose of. The Fourth Circuit held that a single instance of harassment may create an actionable hostile work environment claim, and that an employee can be protected from retaliation when complaining about harassment, even if the purported harassment is ultimately not severe enough to create a hostile work environment.

May 14, 2015 • Ethics, Professional Liability Matters

Moonlighting: Perils of Working on the Side

Moonlighting is the practice of working for more than one employer or working for yourself while working for an employer. Professionals who moonlight may be asking for trouble. Many employers have policies forbidding the practice, some going so far as to deem it grounds for immediate termination. A recent case provides an extreme example of moonlighting at its worst.

May 12, 2015 • Engagement Letters, Professional Liability Matters

Risks of Client Indemnification Agreements

Professional consultation doesn’t always go as intended. Despite good intentions, there are always risks facing professionals that the representation will turn sour and lead to a malpractice claim. Clients also face risks and some sophisticated clients take steps to reduce exposure. For example, more corporate clients are attempting to reduce exposure by requiring counsel to sign indemnification clauses within the engagement agreement. Many firms agree to represent clients pursuant to such clauses in order to develop or maintain business relationships, notwithstanding the additional risk. However, experts warn that doing so may make firms personally responsible for unforeseen liability, and that long term risk may not justify the short term gain.

May 7, 2015 • Experts, Professional Liability Matters, Risk Management

Who is Really Writing the Expert Report?

Expert reports are a staple in many litigated matters. A good report should clearly convey the opinion and provide sound reasoning for the basis of the opinion. It is to be expected that an attorney and the expert will work together to formulate the expert opinions and ultimately to author a report. But how much input may an attorney provide? Federal Rule 26 clearly states that the expert report is to be prepared and signed by the witness. Nothing in the rule prohibits counsel from helping the witness. But, it’s not completely clear from the rule exactly what level of involvement is permissible. A recent federal case sheds some additional light on this issue.

May 6, 2015 • Professional Liability Matters, Risk Management

Drop Dead Deadlines – Impartial or Indiscriminate?

The world of litigation is rife with deadlines. Even a meritorious argument or strong case can be derailed by failure to timely file pleadings and motions. This reality was illustrated in the recent case of Connolly v. 129 East 69th St. Corp. In this slip and fall case, a defendant moved for summary judgment to dismiss plaintiff’s case, and the trial court granted the motion. On appeal, however, the decision was reversed, as the court held the motion was filed one day after the motion filing deadline.

April 30, 2015 • Employment Practices Liability, Professional Liability Matters

Supreme Court Clarifies EEOC Conciliation Process

A growing concern of late among employers has been the often heavy-handed tactics of the EEOC with respect to its statutory obligations to pursue pre-suit conciliation processes. Though the EEOC is required by Title VII of the Civil Rights Act of 1964 to attempt settlement negotiations between an employer and the allegedly wronged employee prior to suing for a judicial intervention, many employers felt that the EEOC has been overly aggressive with its pre-suit tactics. The end result for these employers has been a rise in avoidable, costly, and occasionally reputation-damaging litigation.

April 29, 2015 • Defenses, Professional Liability Matters

Case Dismissed due to Untimely AOM

Readers of PL Matters know that most states now require some form of affidavit of merit in professional malpractice claims. (Check out our handy Table for a state-by-state compendium.) In certain jurisdictions, the AOM is a prerequisite for malpractice lawsuits, as failure to timely file can result in dismissal and possibly another malpractice suit. It is the rare case where there is a justifiable excuse for not timely filing an AOM, and the following case is no exception.

April 27, 2015 • Privileges, Professional Liability Matters

Are Communications with Experts Privileged? Maybe

In general, the attorney-client privilege protects confidential communications between an attorney and her client when made for the purpose of obtaining or providing legal advice. The AC privilege applies not only to individual clients, but also to corporations. In the case of corporations, courts have held that the AC privilege may extend to third parties hired by legal counsel when necessary for the effective consultation between the attorney and the corporate client. However, the “agent of attorney” exception to the privilege is not unlimited, and may lead to the unintended discovery of information when used for an improper purpose.