Professional Liability Matters

LATEST INSIGHTS

March 10, 2015 • Employment Practices Liability, Professional Liability Matters

Decision Limits Defenses to FLSA Overtime Claims

You’ve heard it before, here and likely elsewhere, of the risks of FLSA overtime lawsuits. Yet, these suits continue to make headlines. Simply put, qualified employers must pay employees at least 1.5 times their regular wage for every hour worked in excess of 40 hours per week. This applies to certain professionals who, of course, employee non-exempts personnel. Whether it’s tax season, preparing for trial or meeting a tight deadline, professionals may ask employees to work beyond 40 hours and therefore may be subject to FLSA’s requirements. But what if the employee is also to blame? In certain jurisdictions, employers defending FLSA suits have claimed that it was the employee who is responsible for violating the FLSA and therefore the employer is off the hook. A recent decision suggests that this defense may no longer be viable.

March 4, 2015 • Coverage, Professional Liability Matters

Coverage Denied due to Colleague’s Misrepresentations

Professionals maintain professional liability insurance to protect their assets. Provided that the insured and insurer comply with the obligations set forth in the insurance contract, the exposure arising from a malpractice claim shifts from insured to insurer. Yet, about the only thing worse than getting slapped with a malpractice suit is learning that your firm is not covered despite the professional’s belief that insurance was in place. Consider the possibility that the actions of one of your colleagues could result in a firm-wide declination of coverage. A scary thought. A recent decision demonstrates how the actions of one colleague could result in a denial of coverage for everyone.

February 27, 2015 • Ethics, Legal Malpractice, Professional Liability Matters

Play the Hand You’re Dealt

Professionals must play the hand they’re dealt. We can’t pull an ace from our sleeve. We can’t change the facts or the witnesses or the evidence. Many attorneys welcome the challenge of overcoming obstacles within the confines of the ethical code, which can make for a more satisfying result. (Moreover, there is a certain pressure in handling the slam-dunk case because a win is expected and a loss could be unforgivable). Unfortunately, however, some attorneys opt to break the rules when confronted with difficulty. Consider the following examples.

February 20, 2015 • General, Professional Liability Matters

Nationwide Certificate of Merit Survey

A growing number of states have enacted some version of an “affidavit of merit” statute in professional malpractice matters. The intended purpose behind these laws is to reduce “unnecessary” or unsupported lawsuits against licensed professionals. In states such as Pennsylvania, New Jersey, and others, plaintiffs in malpractice litigation must certify through an impartial professional in the defendant’s field that there is a fundamental basis for the complaint. While the specifics of the particular statute in each state may differ in terms of scope and application, the importance of compliance cannot be overstated. At the request of many of our readers, we compiled a table of the requirements in each jurisdiction. This TABLE (click here) includes a 50-state survey of affidavit of merit statutes, includes a link to the applicable statute, if any, and summarizes the application of each law.

February 18, 2015 • Professional Liability Matters, Technology

Technology in the Courtroom – The Dos and Don’ts

Stuck in court but want to use your tablet to respond to a client e-mail? Waiting for your case to be called and want to send a tweet from your phone? Is this sort of conduct permissible in the courtroom? Nowadays, it is anyone’s guess. Smartphones and tablets have become indispensable in the legal world, but the law regarding electronic communications sent from the courtroom is still in flux. The New Jersey Supreme Court’s proposed Guidelines on Electronic Devices in the Courtroom, which have yet to take effect, aim to provide some guidance in this realm. Now, if you want to scroll and tap on your mobile device in the courtroom, keep these new rules in mind.

February 3, 2015 • Ethics, Professional Liability Matters

Friendly Reminder: Don’t Lie to Clients

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.

January 26, 2015 • Cyber-Liability, Employment Practices Liability, Professional Liability Matters

Employer Liability for Privacy Breach?

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.

January 22, 2015 • Cyber-Liability, Professional Liability Matters

National Cyber-Security: The President Weighs In

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.