Legal Developments and Risk Management Tips Impacting the Professional Liability Community.
PL Matters is pleased to provide the second portion of a three-part series exploring the Pennsylvania Bar Association’s new opinion on the ethics of social media management. Here, we consider an attorney’s obligations when communicating through social media and whether and to what extent an attorney may use social media content during litigation. Simply put, it’s a dangerous but navigable road.
ABA Model Rule of Professional Conduct 3.3, Candor Toward the Tribunal, mandates that an attorney may not knowingly offer false evidence. That’s the easy part: don’t lie. Things get a bit more complicated when it is the client engaged in knowing misrepresentations or deceit. In circumstances when an attorney is aware of a client’s lies, the attorney “shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” But what are “reasonable remedial measures”? How soon must the conduct be reported and how? Although there is some helpful analysis available, it is within this gray area that many attorneys may find themselves in an ethical dilemma. Take for instance, the recently suspended Illinois attorney who waited 1 ½ years before correcting his client’s lie.
Successful professionals promote values of cultural diversity, inclusion, and teamwork. However, occasionally a company policy of general application may have the unintended consequence of infringing on the religious practices of individual employees. Professional employers must tread cautiously when such a situation arises. Unintended discrimination may nevertheless violate civil rights laws protecting religious liberty.
Professional Liability Matters is pleased to present a multi-part blog series exploring a new opinion on the ethics of social media management. As sites like Twitter, Instagram, and Facebook continue to skyrocket in popularity, the use (and abuse) of social media in the business world remains a hot topic in the professional liability realm. Without fail, most networking events, seminars, and CLE presentations include a social media component and for good reason. Social media can be a great tool for all professionals, but can also be a source of risk and unexpected pitfalls. The law continues to adjust to emerging and dynamic technology; as a result, attorneys are sometimes left wondering how to best harness this technology to serve clients, and generate business while still staying in compliance with ethical rules. The Pennsylvania Bar Association recently issued an opinion that may help.
A New York auction house has targeted Rosa Parks’ former lawyer, claiming that he mishandled her estate. According to the claim, the attorney caused the auction house millions in damages based on his alleged misrepresentations that Parks’ heirs had authorized the estate to proceed to auction. In particular, Parks’ reported $10 million estate included her Congressional Gold Medal and a postcard from Martin Luther King, Jr. Instead of proceeding to an individualized private auction as originally contemplated, the auction house alleges that the attorney’s gaff led to a lump sum sale of the estate to a non-profit organization which gifted the items to a museum.
We love blogging! Blogs have become an increasingly important part of professional practice. Writing blog posts allows professionals to increase their social media presence and keep clients informed about recent developments in their respective industries. At the same time, blogs are an invaluable marketing tool that allows professionals to connect with potential clients and develop new business relationships in a less formal, and more interactive, medium than traditional print publications. But, bloggers beware. While this new form of interaction can be highly beneficial, professionals should be mindful of the possibility that their blog content may conflict with traditional ethics principles or otherwise alienate clients through unwanted attention.
Rules are made to be broken, right? The same can be said about legal precedent, which may change over time. Although it’s uncommon for courts to ignore precedent, it does happen from time to time whether it be outdated, no longer applicable or due to the political/philosophical makeup of the presiding judiciary. Unanticipated, new law may create unique problems for attorneys. When the law is clear, an attorney’s obligations are clear. The attorney needs to either distinguish it or apply that law to the facts of her case. But what happens when applicable precedent is overruled altogether? The lawyer can’t be expected to anticipate a change of law, right?
The attorney-client privilege encourages full and frank communication between attorney and client, whether the client is an individual or a large corporation. Protecting confidential communications promotes broader public interests in the observance of law and the administration of justice. However, in shareholder derivative actions alleging harm by the corporation against stockholders, some courts have held that the corporate attorney-client privilege should be balanced with the interests of the shareholders, and that the privilege may therefore be subject to limitations. This is known as the “fiduciary exception,” which was recently upheld in Delaware.
Professionals are only human. Even the most cautious professional is not immune from the occasional mistake. Whether the mistake gives rise to a claim of professional malpractice, however, will often depend not on the error that was made, but on what actions the professional took to resolve the error after it occurred. Professionals are generally reluctant to admit responsibility for a personal mistake. Traditional wisdom suggests that doing so would amount to an admission of guilt that could provide damaging evidence in a future lawsuit. However, recent studies suggest that in cases where malpractice is clear, owing up to a mistake early can actually be the best method to settling lawsuits, or avoiding them altogether.
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?