Legal Developments and Risk Management Tips Impacting the Professional Liability Community.
Many employers have made great strides in adapting to the risks posed by online activity. Some maintain employee handbooks with social media and computer use policies. Others provide training and many monitor employee use of employer-provided devices. But risks still remain. Take, for example, the recent Indiana appellate decision regarding potential employer liability for an employee’s online conduct.
Have you considered the possibility that attorneys are susceptible to malpractice for failing to initiate suit in the venue most advantageous to their client? Forum shopping is a common term for the practice of initiating a claim in the court thought most likely to provide a favorable judgment. Whether it’s due to the laws of that jurisdiction, a more sympathetic audience, convenience, the fact-finder, or myriad other considerations, the venue may make a big difference. But, as we learn from a recent decision, the attorney that picks the wrong door may be exposed to a malpractice suit.
The recent recession contributed to a surge in legal malpractice claims. Feeling the pinch, financially strapped clients sought ways to recoup legal fees and litigation losses. The result was an uptick in claims against attorneys. Now that the economy has turned somewhat, one would expect to see a decline in legal malpractice claims. This is somewhat true according to a recent survey. While the overall number of claims has dropped, the severity of claims is on the rise. Also, the types of malpractice claims from 2013 may be telling of what the future holds for the malpractice community.
The attorney-client privilege does not provide an excuse to withhold all damaging documents. Documents in an attorney’s possession are not necessarily privileged and the refusal to produce discoverable materials may be grounds for sanctions. A Massachusetts court is currently considering whether a prominent, global law firm should be sanctioned for the allegedly imprudent conduct of a former partner. An appellate panel ruled that the trial court erred in deciding that the partner acted in good faith when he invoked the work-product doctrine to conceal key information in a suit against a former client. The appellate court has yet to determine whether sanctions are appropriate.
Search engine optimization provides a marketing edge. Would-be clients may be more apt to contact those professionals at the top of the online list. So, some professionals spend considerable resources to maintain a priority position in search results. There are marketing tricks to achieve priority status, and tools to employ. But, professionals must not go too far. Take for example the New Jersey attorneys who allegedly stole a competitor’s website content to generate more hits on their website.
Attorneys are on the move. Today’s lawyers rarely stay at the same firm for the duration of their career. Rather, it has become commonplace for associates, partners, of counsel, shareholders, members and any other type of attorney to move at least once before settling on a long-term professional home. Some attorneys leave for money. Some for opportunity or geography. Some leave for personal reasons. Some attorneys may switch firms in the hope that they can transfer business to firms better suited to their particular practice area, or that can better meet their clients’ needs. Regardless of the motivation behind a lateral move, attorneys must consider the ethical consequences of leaving one firm for another.
For the defense bar, a motion for summary judgment can be an incredibly effective litigation tool. The successful motion puts an immediate end to a matter before trial, can limit the issues in dispute, or can provoke more reasonable settlement discussions. The MSJ unclogs dockets and saves litigants and courts time, effort, and money. But statistics suggest that MSJ’s are rarely granted and are often expensive to prepare. So defense practitioners should be asking themselves: is this the appropriate case to file an MSJ? The following tips may help in your analysis.
Mediation may provide an efficient and effective path toward settlement. But, as we discussed in prior posts, settlements sometimes unhinge or litigants may have a change of heart. Despite the tools that we previously recommended to avoid this scenario, a litigant may ultimately conclude that her settlement was not the best option and turn on her attorney with a malpractice claim. Given that mediation sessions are confidential (whether by agreement or law or otherwise) and discussions during mediation cannot be utilized at trial, some attorneys on the wrong end of a malpractice claim have attempted to use the confidentiality shield as a sword. Does this work? Read on to find out.
Part of running a successful professional practice involves fostering a work environment that is free from harassment. Federal law protects employees from harassment in the workplace, which becomes unlawful where the conduct is so pervasive as to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Many employers train employees about the consequences of harassment and have policies to handle employees who violate the rules. However, managing the conduct of employees is not necessarily sufficient to prevent liability.
Employers will implement various tools to increase productivity and efficiency, to generate profit and to create a comfortable office environment. Some employers are utilizing new surveillance systems in the office to achieve these goals; an issue that was recently addressed in the New York Times. Today, the run-of-the-mill security camera is passé; instead, new technologies track seemingly unlimited data about employees, including the amount and nature of employee interaction with co-workers, clients and customers. This is particularly popular in restaurants, retail stores, and other businesses where customer-service is a key to profitability. But is it legal? Is it appropriate for your office? Read on to find out.