Professional Liability Matters - Page 49 of 69

LATEST INSIGHTS

May 1, 2014 • Experts, Professional Liability Matters, Trial Tactics

Work-Product Doctrine Tested in Pennsylvania

Attorneys must communicate with expert witnesses to define the scope of the engagement, to prepare for trial, and to evaluate the evidence. Depending on the jurisdiction, some or all of that communication may be protected from disclosure pursuant to the attorney work-product doctrine. In Barrick v. Holy Spirit Hospital, the Pennsylvania Supreme Court considered the extent of the privilege in this context and reached a bright-line rule in favor of non-disclosure.

April 29, 2014 • Ethics, Professional Liability Matters

A Case of Black Robe Disease

Judges are bound by a code of conduct in the jurisdiction where the judge sits. Like the code governing attorneys, judicial codes vary somewhat from state to state. There are ramifications for judges who break this code, some can be very severe. In the more common scenario, a judge may face criticism for conduct that may be perceived as an inappropriate use of the bench also known as “black robe disease,” when a judge lets her authority over the court go to her head. Take for example the Florida judge who was recently investigated for allegedly using the courtroom to publicize his political views.

April 23, 2014 • Advertising, Ethics, Professional Liability Matters

Beware of the Referral Website

Professionals love a good referral source. Some attorneys and others use referral service-providers to reach a wider audience via the internet. But these services are not without risk. A recent Indiana decision demonstrates the ethical pitfalls inherent in referral websites. In this decision, an attorney was held accountable for an improper advertising model utilized by the referral website.

April 22, 2014 • Ethics, Professional Liability Matters

NCAA Sports Probe Triggers Ethics Complaint

The NCAA has established strict rules to regulate the activities of student-athlete representatives, aka “boosters.” If a booster violates collegiate rules, the NCAA can take action to hold an athlete ineligible from competition or impose other sanctions upon the school. In a recent unexpected development, the NCAA was put on the defensive when its investigation of the University of Miami football program revealed that one of its own attorneys may have violated Florida’s ethics rules.

April 17, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

Alternative Litigation Financing Sparks Malpractice Claim

A modern-day offshoot of the contingency fee arrangement is “alternative litigation financing.” Also known as third-party litigation financing, A.L.F. is the practice of making cash advances, usually to a litigant, to be repaid from the proceeds from the litigation. There is plenty of room for debate the pros and cons of this developing trend. Supporters may argue that this practice allows an injured plaintiff to take an “advance” on an anticipated recovery to address financial hardship before reaching a settlement or verdict. This is particularly useful for injured plaintiffs who cannot return to work. But attorneys associated with litigation financing may be susceptible to claims when something goes awry.

April 15, 2014 • Experts, Professional Liability Matters, Trial Tactics

Recent Decision: Impeaching an Expert Witness

Attorneys and litigants would love a peek behind the curtain to develop a better understanding of their adversary’s case. Of course discovery provides the parties with various tools to identify and narrow the issues prior to trial. But discovery can only reach so far. In light of various privileges and exceptions, litigants often grapple over those materials that are discoverable and those that remain protected. In a recent New Jersey Superior Court decision, the court evaluated the extent of the attorney work-product doctrine as it pertains to expert testimony.

April 9, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management, Trial Tactics

Closing Arguments: It’s Business, Nothing Personal

If trial is a performance, than the closing arguments is clearly the final act. Attorneys channel their inner-actor and perform for the jury with an eye toward persuading the fact-finders to rule in their client’s favor. Every attorney has a personal style during closings. Some are assertive, some conservative. Many attorneys look for creative ways to convey their points. However, there is significant risk that unusual closings may go too far and jeopardize the case, or worse. Take for example the recent reversal of a $900,000 award due to counsel’s improper attempt to enhance her client’s alleged damages during closing arguments.

April 8, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

Failure to Disclose Health Condition is Grounds for Malpractice

Attorneys have an ethical duty to keep a client reasonably informed about the status of the representation. The rules of professional conduct generally require a lawyer to provide the client with sufficient information to participate intelligently in decisions concerning the objectives of the representation. Fulfilling this ethical obligation, however, may sometimes require the attorney to inform the client about personal matters that may affect the attorney’s ability to represent the client’s interest. For example, an attorney may be obligated to disclose her own health condition to a client, especially when imminent death is foreseeable.

April 2, 2014 • Cyber-Liability, Professional Liability Matters

Cy-“Burned” – The New Importance of Cyber Insurance

Data breaches that result in the unwanted dissemination of personal information are prevalent in the news of late, particularly given the rapid growth of electronically stored information and online commerce. A data breach can be very, very expensive even for the smallest of companies. On average, a relatively small breach that involves less than 10,000 records reportedly costs about $2.4 million in out-of-pocket expenses, $3 million in lost revenue, and no small amount of lost client confidence. Despite this risk, another recent study found that only 35% of small businesses invest in cyber insurance. This should be a major concern for all businesses and employers given that many standard policies exclude coverage for cyber losses.