Professional Liability Matters

LATEST INSIGHTS

January 28, 2014 • Engagement Letters, Professional Liability Matters

Out of State Advice Leads to Out of State Liability

Professionals may be exposed to liability outside of their “home” state. For those professionals that provide interstate advice, they may be subject to the jurisdiction and laws of any state in which they practice. Take for example the recent legal malpractice case in which a Connecticut law firm was dragged into a lawsuit in Arizona because of allegedly negligent tax advice. Sure, the first rule is to avoid a lawsuit. But, a close second rule is to implement procedures such that the professional is in a better position to defend the inevitable lawsuit. A forum selection and choice of law clause may be the key.

January 22, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

Promptly Disclose…Don’t Promptly Confess

Professional Liability Matters would have little to discuss if professionals were perfect. Needless to say, we are not. Often, it is how the professional responds to the inevitable error that can mean the difference between soon forgotten mistake and malpractice. Upon the discovery of an error, some professionals are confronted with a difficult conflict: their interest in confronting the error and discussing it with the client on the one hand, without making an admission that could jeopardize insurance coverage on the other. This conundrum places the professional in a very difficult position.

January 16, 2014 • Legal Malpractice, Professional Liability Matters

The Limits of Limited Scope Representation

Courts are facing an unprecedented number of pro se litigants. Whether due to the economy, a changing attitude over litigation, technology, or other causes, courts flooded with pro se litigants have struggled to come up with a solution. In certain practice areas such as family law and property cases a high percentage of all suits involve at least one unrepresented party. This places an administrative stress on the courts. Some jurisdictions are experimenting with a potential answer to the “pro se problem” through the use of limited scope representation or “unbundled” legal services. The idea is to reduce the costs of representation and increase access to the courts. This is appealing to an overburdened court but poses some significant ethical issues for attorneys.

January 15, 2014 • Professional Liability Matters, Risk Management

Managing Client Expectations – A Must for Professionals

Managing client expectations is a critical risk management skill necessary to ensure a healthy professional relationship. Every communication provides an opportunity to revisit and redefine expectations. A professional who sets and fails to deliver upon lofty expectations is in an uncomfortable and potentially litigious situation. There are several tools available to the professional to help curb expectations and limit the damage when (inevitably) the result doesn’t go as planned.

January 14, 2014 • Engagement Letters, Legal Malpractice, Professional Liability Matters, Risk Management

First Circuit Enforces Arbitration Clause in LPL Suit

Professional Liability Matters has previously advocated the benefits of a well-drafted mediation or arbitration agreement in the professional engagement letter. The judicious application of alternative dispute resolution can help to mitigate costs, expedite conflict, and preserve business relationships. Although an ADR provision can lead to efficient resolution of the substance of a professional liability suit, invoking the provision itself can sometimes lead to contentious litigation in its own right.

January 9, 2014 • Legal Malpractice, Professional Liability Matters

Better Call Saul? Not Always. The Risks of the Negligent Referral

Fans of the popular series “Breaking Bad” will be familiar with the trials and tribulations of Saul Goodman, an attorney who frequently receives and accepts referrals to handle all types of legal issues. Saul provides the perfect example of the real world risks facing referring attorneys when the subsequent professional commits malpractice.

January 8, 2014 • Design Professionals (A&E), Professional Liability Matters

When Negligence = Murder: Follow-Up Report

On February 26, 2013 we posted this piece regarding an architect facing manslaughter charges arising from the death of an LA firefighter. At the time we posed this unprecedented issue: Can defective design lead to criminal liability? We’re now in a position to definitively answer that question: “yes,” given that the architect just received a one-year jail sentence.

January 7, 2014 • Legal Malpractice, Professional Liability Matters, Technology

Virtual Offices may Violate Ethics Rules

Recent technological advances have made it relatively easy for professionals to maintain a virtual office. A wireless connection may be all that is needed to practice, without the stress of lease payments, utilities, commuting expenses and other costs. Some attorneys have taken advantage of technology to maintain out-of-state offices in order to appeal to a larger client base. But, despite the various temptations to utilize a virtual office, there are serious risks of doing so.

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

Cybercrime Strikes Target Corp

Target Corporation, the nation’s number two general retailer (after Wal-Mart), was recently the center of a cybercrime attack that may have compromised as many as 40 million credit and debit card accounts. Target revealed that a third-party had breached its security safeguards during the height of the holiday shopping season and gained access to private customer data, including shoppers’ names, credit card numbers, expiration dates, and three-digit security codes. This highly publicized debacle highlights the risks of cyber exposure.