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Professional Liability Matters

Legal Developments and Risk Management Tips Impacting the Professional Liability Community.

LATEST INSIGHTS

• Professional Liability Matters, Social Media Lessons, Technology

Don’t Tweet During a Depo

Today, everyone is a potential news source. Through a handheld device we can instantaneously upload photographs or content via social media to be delivered to an anonymous (and often eager) audience. In a sense, the world is shrinking due to instant access and connectivity. This technology has impacted the way we prosecute and defend cases. It plays into our strategy. Some attorneys use technology in an attempt to strengthen their case. But there are risks and limits. Take for example the Texas attorney who used Twitter to gain an arguably improper advantage.

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• Privileges, Professional Liability Matters, Technology

Waiving Privilege in the Cloud

The security of confidential information is an increasingly hot topic in the age of cloud-based commerce. Indeed, the all-important attorney-client privilege could be subject to waiver if confidential information is revealed to a third party. Yet, in the age of e-communications, almost all contact between attorney and client involves a third party. Consider the Dropbox program for example, which is utilized by many professionals to store client and case information in the cloud. Does the attorney-client privilege still apply given that this third-party may have access to confidential materials stored in the program? Perhaps you’ve overlooked the danger that cloud based storage constitutes a disclosure of confidential information and constitutes a waiver of any privilege.

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• Insurance Products, Professional Liability Matters, Risk Management

Malpractice: Failure to Report Client’s Claim

There is no upside to failing to report a claim. You’ve been warned of the consequences facing professionals who take a wait and see approach or apply self-help measures before reporting. In some cases the professional may consider the claim meritless and therefore think that it doesn’t give rise to a “reportable” event. Other professionals, usually attorneys, may attempt to handle the claim on their own before notifying the carrier. In these scenarios, the carrier may elect to deny coverage and the insured is left to pay the bill. An interesting wrinkle to this theme may apply when the insured is represented by counsel before or during an event that may trigger coverage. What reporting responsibility falls on counsel?

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• Professional Liability Matters, Risk Management

Overzealous Advocacy Leads to Sanctions

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. To this end, lawyers are expected to protect clients during discovery by properly counseling them in anticipation of depositions and objecting to requests that are truly improper without crossing the line. However, overzealous advocacy, which obstructs legitimate discovery requests, may draw judicial ire and potentially lead to disciplinary action. Consider the following example.

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• Professional Liability Matters, Risk Management

Dropping the Problem Client

Professionals and their clients do not always see eye to eye. Whether there are disagreements over litigation strategy, conflicts in personality, or a client who refuses to pay, many professionals encounter a problem client at some time in their career. While professionals may be tempted to cut ties with these clients when the relationship turns sour, an ugly break-up can make matters worse and may invite a malpractice suit.

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• Legal Malpractice, Professional Liability Matters, Risk Management

Attorneys: You’re not Fortune-Tellers

Attorneys can’t predict the future. Even the most experienced of us cannot provide assurances about the outcome of our client’s claims and defenses. Sure, we’ll provide some suggestions and list the possibilities but it is the attorney who sets unreasonable expectations that may end up in trouble. Just ask the attorneys in Dallas who fell victim to a malpractice claim for allegedly over-promising a particular result to their former client.

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• Ethics, Legal Malpractice, Professional Liability Matters

Becoming a Pro at Pro Hac Vice Admission

Pro hac vice admission is a valuable tool for an attorney seeking to practice in a state in which she is not licensed. A Latin term meaning “for this turn,” pro hac vice is a relatively simple process, requiring only a sponsor attorney and that the out-of-state attorney seeking admission be in good standing in her home state. However, pro hac vice admission is not without risks, as illustrated by a recent New Jersey case.

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• Ethics, Professional Liability Matters, Social Media Lessons

Monitoring a Client’s Social Media Content

Proceed with caution! The intersection between social media and attorney ethics is fraught with peril. In fact, all professionals should be on high alert when interacting with clients or would-be clients on social media sites. You all know this and you’ve heard it before from your friends at PL Matters and others. Still, there is no shortage of social media blunders impacting the PL community. The Philadelphia Bar Association Professional Guidance Committee recently released an ethics opinion addressing four common questions facing lawyers whose clients use social media websites. These pointers are helpful to all.

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• Professional Liability Matters, Real Estate Professionals

Open House = Open to Liability? Broker Liability to Open House Attendees

Open houses and showings are a critical part of any real estate broker’s job. More often than not, prospective buyers want to look at the property before committing. But what happens when a prospective buyer is injured while touring a property? Does a listing agreement impose a duty upon a real estate agent to ensure a property is safe before showing it? Is a listing agent a legitimate target of an injured open house guest? Nope, according to a recent decision out of Illinois. But that is not always the case.

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• Legal Malpractice, Professional Liability Matters, Risk Management

Unpunished Good Deeds: Pro Bono Considerations

Pro bono work is an important, and often fulfilling, aspect of an attorney’s practice. For those in financial hardship, the pro bono attorney may spell the difference between hope and disaster. However, some attorneys may hesitate to take on a pro bono assignment because they are wary of the potential for malpractice exposure. Indeed, one report found about half of all attorneys surveyed identified lack of malpractice coverage as a factor discouraging participation. This and other concerns are warranted. While pro bono work is to be encouraged in the appropriate circumstance, there are risk factors to consider before doing so.

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