Legal Developments and Risk Management Tips Impacting the Professional Liability Community.
The below cases correspond with the March edition of Professional Liability Monthly and the analysis of each case. Click here to access to the newsletter. Cases are provided courtesy of LexisNexis. Brady v. Urbas Granger Constr. Co. v. G.C. Fire Prot. Sys. Meyers, Harrison & Pia, LLC v. Riella Ntumbanzondo v. Bang Chau Scalise v. Cummings & Lockwood, LLC …
Although many attorneys may hate to admit it, the attorney-client privilege has its limitations. Of course, this long-standing privilege protects confidential communications made by a client to her attorney for the purpose of seeking legal advice. By protecting these confidential communications, clients are encouraged to disclose all pertinent information to their attorneys. Particularly in the private sector, the attorney-client privilege enjoys wide latitude. However, a recent Pennsylvania Supreme Court decision suggests that the issue of whether the privilege extends to government entities and the attorneys who represent them is a more challenging issue for courts.
April 15 is looming. For tax professionals across the country, the emergence of spring also means it’s time to hunker down to prepare tax returns. In the midst of preparing returns and meeting deadlines, tax professionals must also consider the reality that tax advice and return preparation reportedly result in the greatest number of claims against accountants. Some good news is that there are common themes amongst the types of claims facing tax professionals which provide insight and valuable lessons. In particular, the IRS publishes an annual list of the “dirty dozen” tax scams which can provide an important risk management tool to the APL community. In its recently published 2014 list, identify theft and phone scams top the charts.
It was nearly 20 years ago when a white Ford Bronco sped down an Los Angeles highway containing O.J. Simpson. Some believe that the trial that followed changed litigation, but there have been a number of trials that have garnered international attention since: Oscar Pistorius, Michael Jackson, and Amanda Knox are more recent examples. Attorneys involved in high-profile litigation have unique responsibilities to consider when balancing obligations to the client with immense pressure imposed by the media and the public. In particular, confidentiality issues are prevalent in these types of cases as the media probes for sexy details. This makes an attorney’s job more difficult. Confidentiality agreements may help, but they are not a sure thing as demonstrated by a recent decision.
Facebook strikes again! Just ask a settling plaintiff who learned that his negotiated settlement payment was deemed void as a result of his daughter’s Facebook post. According to a recent decision out of Miami, an $80,000 payment was presumptively waived as a result of a post from the plaintiff’s daughter broadcasting the “victory” due to a confidentiality clause within the settlement agreement. This is just another example of the serious consequences of inadvertent disclosure of confidential information and the risks of social media.
Although studies vary, by most accounts we spend anywhere from 20-50% of our waking hours at work. Reportedly, nearly 10% of U.S. workers have commutes of 60 minutes or longer and the average one-way commute is about 30 minutes. What does this tell you? We’re either working or commuting a great deal. As a result, it’s probably no surprise that professionals may gab about work-related issues while commuting. But therein lies the risk. Ethical responsibilities prohibit professionals from disclosing confidences, yet we may be more susceptible to a slip-of-the tongue during an informal conversation away from the office. Do the same ethical rules governing in-firm communications apply during a quiet conversation in a taxi or train? Of course they do yet recent data suggests that many professionals forget the importance of confidentiality during their commute.
Maintaining a website is just the tip of the iceberg for professionals engaged in online marketing. There are many more options available to professionals fishing for business, depending on their technological comfort level. Today’s professionals also compete for prime domain names and utilize tools to manipulate “searchability.” Commanding that top spot on search engine results can be crucial to a marketing campaign by taking advantage of the reportedly 3-4 billion number of google searches per day. As a result of these staggering statistics, some firms purchase search terms to quickly direct users to their site. This practice is not free of risk.
A recent trend is developing of late where employers are considering “no smoker” employment policies. These policies go beyond “no smoking in the workplace;” some ban employees from smoking at any time. Such policies may lower insurance premiums. Some employers also suggest that these policies cut down on productivity issues due to smoke breaks and high absenteeism due to smoking-related illnesses. Opponents of these policies argue that they are discriminatory or in violation of privacy laws. This raises an interesting debate.
All insurance policies are not created equal. Some policies contain exclusions that many professional may not expect. Take for example a recent decision that evaluated whether a law firm’s advertising practices were covered under a D&O policy. In Rob Levine & Associates, Ltd. v. Travelers Casualty, a Rhode Island federal court considered whether conduct relating to Internet and television advertisements was considered “professional services.”
A fundamental risk management pointer is to properly document your file. As a result, many professionals are great note-takers; they follow-up conversations in writing, confirm strategy and clearly document instructions. These are all risk aversion tools to protect the professional, to hold others to oral commitments, and provide clarity in future disputes. But, professionals cannot take this too far. There is a difference between jotting notes or confirming conversations on the one hand, and secretly recording or transcribing conversations on the other. Such secret recordings may run afoul of state privacy laws and lead to potential civil and criminal liability.