Professional Liability Matters

LATEST INSIGHTS

March 5, 2014 • Ethics, Professional Liability Matters

Shhh…Loose Lips Sink Ships: Confidentiality During Commute

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.

February 27, 2014 • Employment Practices Liability, Professional Liability Matters

Holy Smoke! Employers Refusing to Hire Smokers

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.

February 26, 2014 • Ethics, Legal Malpractice, Professional Liability Matters, Risk Management

Are Law Firm Advertisements Covered?

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.”

February 25, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

Criminal Exposure Arising from Secret Recording

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.

February 20, 2014 • Employment Practices Liability, Professional Liability Matters, Risk Management

Winter Wreaks Havoc on Employers

Winter storms create challenges for employees and employers alike, with snow, sleet, and freezing rain adding unwelcome stress and hassles. An employer has certain responsibilities when it comes to responding to weather conditions. To eliminate uncertainty and confusion inside the workplace, employers are advised to create a comprehensive emergency weather plan.

February 19, 2014 • Director and Officer Liability, Professional Liability Matters

D&O Suits Reach Historic High: Economy to Blame?

The fallout from the 2007-2010 economic downturn is behind us, right? Nope; not so for the professional malpractice community in light of the many lawsuits arising from the recent market collapse. In fact, lawsuits relating to 2007-10 bank collapses in particular have increased dramatically and the primary targets are executives. According to a February 13, 2014 report which is available here, litigation against directors and officers of failed banks reached an all-time high in 2013. To make matters worse, many of those directors were forced to reach into their own pockets to absorb the costs.

February 18, 2014 • Insurance Products, Professional Liability Matters, Risk Management

Double Covered but Uninsured

Prudent professionals maintain different types of insurance to protect against various risks. Some typical policies for professionals may include D&O, cyber, and/or E&O policies. The foregoing policies and others may overlap, while others allow gaps for claims that would not be covered. It is incumbent upon each professional to purchase the perfect mix applicable to her practice; there is no one size fits all and more is not necessarily sufficient. Although multiple policies may fit together seamlessly to form a safety net, other policies allow for gaps in coverage that could result in out-of-pocket exposure.

February 13, 2014 • Professional Liability Matters, Risk Management, Technology

The Risks of Auto-Reply Messages

One of the consequences of modern technological advances is that many expect 24/7 access to their employees and outside professionals. Today there is really no such thing as unreachable and there are fewer and fewer locales that are “off the grid.” 48 hours without responding to e-mail is not acceptable to some. As a result, when business travel, vacation, or other events preclude timely e-mail responses, many employees and professionals utilize the all-too-familiar auto-reply message. However, some experts suggest that these messages carry considerable security risks.

February 12, 2014 • Legal Malpractice, Professional Liability Matters, Technology

Inadvertent E-Discovery Disclosure Leads to Sanctions

Document production is often an arduous task made more so by e-discovery requirements. Electronically stored data results in exponentially more complicated, time-consuming and expensive discovery. Many law firms have protocols to efficiently handle e-discovery or they work with a vendor to lend a hand. However, recent decisions suggest that courts have heightened expectations and are less likely to overlook mistakes by firms who handle sensitive data. A recent decision out of California serves as a reminder that failure to follow reasonable e-discovery standards may result in sanctions.