Professional Liability Matters

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September 24, 2014 • Employment Practices Liability, Professional Liability Matters

Yellow Flag: Employers Need to Exercise Caution When Disciplining Employees for Off-Duty Conduct

NFL star Ray Rice was the subject of a recent media storm when he was suspended by the NFL due to allegations of domestic violence. Many have questioned the response by the NFL and the Ravens’ ownership’s to the Rice saga. This incident provides an opportune time to consider an employer’s obligations when it comes to an employee’s non-work related misconduct and underscores the debate over public and professional spheres. Can an employer discharge an employee for private conduct that has nothing to do with the job? How can an employer discipline an employee for conduct outside of the workplace without running the risk of suit?

September 23, 2014 • Legal Malpractice, Professional Liability Matters

Don’t Judge a Client by its Cover

Clients come in all shapes and styles, backgrounds and personalities. Some are needy; they are less knowledgeable and require handholding, they have a litany of questions and need more attention. Others are more sophisticated, understand the subject matter, have been there before and therefore ask less from you. The sophisticated client is a treat because she understands general concepts and allows you to focus elsewhere, right? Nope! The professional that takes her client lightly, hits the autopilot switch and relaxes her attention is asking for trouble. Consider this recent malpractice claim out of New Jersey.

September 18, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

The Continuous Treatment Doctrine: A Doctor’s Nightmare

Every jurisdiction maintains a series of statute of limitations which set the amount of time a litigant has to initiate a claim before it expires. Some of the purposes of these statutes is to prompt reasonable diligence by the plaintiff to initiate claims and to prevent exposure for long dormant claims. Attorneys are familiar with the various exceptions that act to toll the limitations period, and establishing when the statutory period begins to run can sometimes lead to protracted litigation in its own right. Here, we focus on the “continuous treatment doctrine” against the backdrop of a particularly scary decision for the medical malpractice community.

September 16, 2014 • Professional Liability Matters, Real Estate Professionals

What E&O Means to the Real Estate Professional

Attorney or accounting malpractice makes the headlines. Certainly we’ve all heard of high-profile medical malpractice cases. But the real estate professional community faces its own challenges. Real estate professionals face significant exposure to claims that may fall under E&O coverage. In particular, E&O coverage is useful when a buyer brings suit against an agent/broker for failure to disclose a property defect, for misleading the buyer about the purchase, or for breach of contract. Most commonly, E&O policies are useful for the real estate professional community when termite infestations, mold, hidden water damage, title problems, or disputes about square footage, easements, or property boundaries emerge.

September 11, 2014 • Legal Malpractice, Professional Liability Matters

Liability to Non-Clients: Rule Put to the Test

The general rule: attorneys are not liable to non-clients. Accordingly, apart from limited exceptions, privity is required to pursue a malpractice claim against an attorney. Despite this rule, plenty of non-clients file suit against attorneys. Are courts receptive to these all-too-common claims? A recent decision reinforces the general principle that privity is a must to proceed against an attorney.

September 10, 2014 • Cyber-Liability, Professional Liability Matters, Technology

Cyber Lessons from Jennifer Lawrence

As you’ve no doubt heard, hackers recently accessed dozens of female celebrities’ personal cloud-based storage accounts, releasing hundreds of nude photographs and videos onto the web. Many of the photographs were taken by cell phones, which automatically backed up the files to popular cloud services, such as iCloud and Dropbox. Some suspect that the hackers then employed targeted attacks in which “brute force” programs were used to randomly guess weak passwords for a given username until it found a match. Once inside the celebrities’ cloud accounts, the hackers could access all manner of personal information. This is how many criminals operate today and all professionals should pay attention.

September 3, 2014 • Professional Liability Matters, Sanctions, Trial Tactics

Overzealous Advocacy Leads to Sanctions: Part II

Attorneys have an obligation to provide zealous advocacy on behalf of their clients and to pursue a client’s interests within the bounds of the law. We recently posted an example of an attorney that crossed the line. Here’s another example which resulted in sanctions imposed upon an attorney for discovery abuse. In both cases, sanctions were levied against attorneys defending a deposition. Accordingly, we’ll take the opportunity to provide some tips to avoid a similar result in your practice.

September 2, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

Well Documented Advice Defeats Malpractice Claim

The best is not always good enough. Clients sue their professionals, whether justified or not. So, while there is no way to eliminate malpractice exposure, there are plenty of steps to avoid or help to defend such a suit. One of the golden rules of risk management is to properly maintain a written record of communications with the client. In particular, documentation is especially important when the client and professional may disagree. A well-documented file will not prevent all lawsuits but, as exemplified in a recent New Jersey decision, may serve as a dispositive defense during litigation.

August 25, 2014 • Privileges, Professional Liability Matters

Interesting Take on the Common-Interest Privilege

Generally, we’re encouraged to share, to cooperate, and to collaborate. But, that’s not always the case for lawyers. Attorneys may shy away from these niceties because open communication may result in the unintended disclosure of non-public information during discovery. The attorney-client privilege obviously protects those communications between professional and client. The common-interest privilege goes further. The common-interest privilege protects the confidentiality of communications passing amongst attorneys for different parties, often in the context of a joint defense effort. This privilege affords all parties the opportunity for open communication, in turn enabling counsel to strategize in anticipation of or in the course of litigation. This privilege was significantly expanded in a recent decision out of New Jersey which expressly adopted broad confidentiality protections in the common interest scenario.

August 20, 2014 • Ethics, Professional Liability Matters

Blurred Lines: Professional Advisor or Business Partner?

Some professionals are regularly presented with the opportunity to engage in business ventures with their clients. Whether the professional is retained to review an investment opportunity for a client, provides advice regarding a client’s business, or invites a client to invest in a new venture, professionals may occasionally find themselves transitioning from the role of advisor, into that of a business partner. However, blurring the line between professional advisor and partner can easily lead to ethics violations and civil liability.