Professional Liability Matters

LATEST INSIGHTS

December 10, 2014 • Law Practice Management, Professional Liability Matters

My Colleague’s Keeper – Benefits & Pitfalls of Law Firm Structures

There are many benefits to working in a professional firm including the ability to collaborate and seek support from colleagues. Teamwork amongst colleagues may improve efficiency, innovation, flexibility and branding. But, through the doctrine of vicarious liability, a professional may be liable for her colleague’s conduct in certain situations. There are various corporate models intended in part at protecting an individual for corporate (mis)conduct. But these models are not bulletproof. A recent New Jersey decision emphasizes the double-edged nature of practice in a professional corporation in the context of a multi-attorney law firm. In light of this case, we took a closer look at the benefits and risks of attorney partnerships.

Cyber Liability in the C-Suite

Everything is electronic. Companies are increasingly reliant on electronic processes to obtain and store valuable customer data, confidential, privileged and proprietary information. With that increased reliance comes the increased risk that this information can be compromised. In light of many recent high-profile data breaches, litigation surrounding data and privacy protection is increasing. A side effect of this litigation is the attention now paid to the role of boards of directors in managing and responding to cyber liability risks. Boards concerned about potential liability of its officers and directors can look to two recent sources for guidance on this issue.

December 2, 2014 • Employment Practices Liability, Professional Liability Matters, Risk Management

Tis the Season of Gift Giving (Policies)

Whether it’s a fruit basket from a vendor or an employee gift exchange, it’s that time of year when the approaching holidays can stir up a frenzy of gift giving in the office. Many companies find themselves struggling to define what is appropriate, fair and festive when it comes to holiday gift giving. Certainly no one wants to be a Grinch, but creating a clear gift policy ahead of time is an easy way to avoid controversy and liability. Consider the following tips when creating a company gift policy.

December 1, 2014 • Law Practice Management, Professional Liability Matters, Risk Management

Paralegal Power! Appropriate Delegation = Client Satisfaction

The practice of law is changing. In particular, as a result of modern technology, attorneys’ reliance upon support staff is not what it used to be. This has impacted the role of paralegals, members of a dwindling field. Indeed, according to the 2012 Survey of Law Firm Economics, the average number of paralegals per law firm has dipped by over 30%. However, paralegals still play an important role in a law firm. If utilized effectively, paralegals have proven to be invaluable players who provide a key service to clients.

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.