Legal Developments and Risk Management Tips Impacting the Professional Liability Community.
Professional Liability Matters would have considerably less content to discuss but for professionals who break seemingly obvious rules. For example, some would think that it goes without saying that a professional can’t lie to clients. Yet, a recent New Jersey ethics decision is proof positive that professionals don’t always follow the rules, even the easy ones.
In the age of lawyering we now live in, law firms frequently use blog posts, Twitter and newsletters as a marketing tool and to provide content of interest to clients or prospective clients. These blogs and postings have become a tool not only for “reporting” in the broad sense, but also of showcasing an attorney’s depth of knowledge about a particular subject, and the fact that they have their fingers on the “pulse” of legal developments in their field as they happen. While blogging, tweeting, or e-mail blasts often implicate ethical questions, another concern is whether, and to what extent, they may create possible exposure for defamation.
Professionals are often entrusted with confidential information. Ethical rules as well as federal and state laws limit when such information may be accessed by professionals and under what circumstances it may be disseminated. Sure, professionals may be held accountable for errors that result in the unintended disclosure of confidential or sensitive data. However, liability is not limited to the professional directly responsible for the breach; rather, employers may be on the hook too. In fact, the employer may be responsible even if the employee’s conduct was illegal or in violation of company policy.
Data breaches and cyber-security issues are hot topics. Any company that utilizes electronic means to conduct business, obtain and store information or customer data is subject to the risk of a data breach. The effects of a breach can be devastating. We have recently blogged about practice pointers and tips for companies and boards of directors to be gleaned from high-profile breaches such as the one facing Sony. Against the backdrop, President Obama weighed-in on the significance of cyber crime.
Professionals have embraced social media as a means to promote their businesses and market their professional successes. Managing social media accounts and writing blog posts allow professionals to directly communicate with prospective clients and advance their brand. However, professionals must be cautious that marketing tactics in the new age of digital media do not run afoul of traditional ethics rules and statutes regulating advertising and communications with clients.
E-mails rule the business world. Due in part to the sheer volume of e-mails we receive, many professionals use standardized email signatures, which are automatically inserted at the bottom of an email. The shift to more transactions occurring by email raises the question: what constitutes a legally binding signature? A recent decision by the California Court of Appeals addressed the issue of when an e-mail may constitute a binding signature. The decision underscores the importance of understanding the validity of electronic signatures and the statutory requirements for your jurisdiction.
Rapper Dr. Dre recently made headlines when he gifted each member of his legal team a holiday “bonus,” in sums of $10,000 and up. While undoubtedly very generous, is such a grand gesture from a client to an attorney ethically permissible? It depends.
Reportedly nearly 2/3 of us resolve each new year to improve our fitness level (yet ¾ of us don’t achieve that goal). Maybe our employers can help? Employers are beginning to offer financial incentives to workers who take part in wellness programs that include screenings for blood pressure, cholesterol and body mass index. But, these programs are under scrutiny by the EEOC, which recently filed suit targeting wellness programs deemed involuntary. The lawsuits bring into focus what seem consider an inconsistency between the Affordable Care Act (“ACA”) and the Americans with Disabilities Act (“ADA”).
Our prior posts in this three part series have explored the benefits of the law firm structure and the responsibilities of supervising attorneys at a firm. In the conclusion of this series, we turn to another integral part of a law firm’s structure: subordinate attorneys and their duties and responsibilities with regard to taking directives from supervisors when ethical questions are implicated.
Many states have enacted some version of an “affidavit of merit” (AOM) requirement for professional malpractice claims. We’ve blogged in the past about the significance of affidavit of merit requirements, including the potential advantages from a defense perspective when a plaintiff fails to comply with the applicable state statute. Professionals involved in malpractice suits will want to take note of a recent decision by a New Jersey appeals court, which addressed the state’s affidavit of merit statute and limited affidavits of merit to the same professional field at issue.