Legal Developments and Risk Management Tips Impacting the Professional Liability Community.
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.
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?
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.
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.
Today’s lesson: stick with what you know. Clients may ask their commercial litigator for an assist with their cousin’s DUI. An estate attorney may feel inclined to advise a longstanding client about a trademark application. It is not uncommon for clients to seek input from their attorneys irrespective of whether the advice falls well outside of the attorney’s area of expertise. As a recent New Jersey case illustrates, the attorney’s best bet may be to refer the client elsewhere.
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.
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.
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.
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.
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.