Professional Liability Matters

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November 21, 2014 • Employment Practices Liability, Professional Liability Matters

The Dangers of Using Social Media in Hiring

Hiring a new employee is a major investment. Not surprisingly, many professionals utilize social media to screen potential candidates prior to making a hiring decision. Social media can help to confirm a candidate’s professional qualifications and provide insight whether the candidate is a good fit. At the same time, some employers may use social media to identify potential reasons to reject a candidate, such as posting compromising photographs or making inappropriate statements. Employers may feel justified in disqualifying a candidate based on their social media activity; however, doing so for the wrong reasons could violate a candidate’s rights and give rise to liability.

November 19, 2014 • Ethics, Professional Liability Matters

When and How to Report Ethics Violations

The legal profession is somewhat unique in that it permits self-policing. An attorney has an obligation to report misconduct; however, a threat to report misconduct may itself run afoul of the ethical rules. At issue are at least two competing rules of professional conduct. We all want to make sure attorneys, as a group, are fighting cleanly, but these competing rules present a dilemma. How to know when, if, and how to report?

November 12, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

S.O.L.: The Continuous Representation Doctrine

Statute of limitations laws are intended to protect defendants from stale and meritless claims. Moreover, these statutes pressure plaintiffs to institute supported causes of action while the evidence is ripe. Certainly, these statutes are an ally to the defense bar and can be a major obstacle for plaintiffs. A plaintiff asserting a professional malpractice claim may attempt to circumvent a time-bar defense through the continuous representation doctrine. The argument is that the continuing professional-client relationship delays the accrual of a claim. This theory was recently asserted successfully in New York against an attorney.

November 11, 2014 • Legal Malpractice, Professional Liability Matters

Former Client May Sue Without Appealing Underlying Matter

Generally, a plaintiff has an obligation to mitigate her damages. In the context of a legal malpractice claim, the professional may argue that the plaintiff is obligated to cure the alleged harm by appealing the underlying issue. In the appropriate scenario, the defendant attorney may claim that the plaintiff had the last opportunity to avoid any damages but improperly filed a malpractice claim as opposed to appealing the underlying matter. Just how far must a plaintiff proceed with litigation before pointing a finger at former counsel? This issue was recently addressed by the to the New York Court of Appeals in a case of first impression.

November 4, 2014 • Engagement Letters, Legal Malpractice, Professional Liability Matters, Risk Management

Duties to Non-Clients: The Exception, Not the Rule

The standard malpractice claim pits former client against professional. In most scenarios, the client alleges that the professional’s conduct fell below the acceptable standard and/or below the expectations set forth in the engagement contract. On occasion, non-clients test the waters and sue professionals under various theories. However, the knee-jerk defense to claims from non-clients is usually lack of privity. Lack of privity is often a successful defense but there are exceptions to the general rule. Professionals must be aware of these exceptions and take into account non-clients who may have standing to assert a malpractice claim.

October 30, 2014 • Legal Malpractice, Professional Liability Matters, Technology

Protect Your E-Filing Passwords

It wasn’t long ago when filing deadlines forced attorneys to rely on the speed and reliability of their process-server or messenger. How many filings were missed due to a flat tire or traffic? If the filing wasn’t stamped before the court closed at 4 PM, the filing could be considered late and the attorney left answering to the client. The dawn of electronic filing has changed this process. Many courts accept filing up to midnight of the due date and hand-delivery is no longer a requirement. But how many of you have considered some of the risks of e-filing? How about the importance of monitoring your filings and safeguarding your e-filing password? Consider the lesson taught to an attorney subject to discipline in New York for allowing non-attorneys to use his e-filing information without proper oversight.

October 23, 2014 • Experts, Professional Liability Matters

Experts are Like Produce: Buy Local

A key issue in most professional malpractice cases is whether the professional complied with the applicable standard of care. Given that this standard is defined by individual professional communities, an expert is almost always needed to assist the fact-finder. Not just any expert will do. Rather, an ideal expert must be in a position to opine whether the questionable conduct complied with the standard upheld in the defendant’s jurisdiction. This issue was recently raised in Delaware when an expert’s opinion was ignored because he lacked an understanding of the locale at issue.