Legal Developments and Risk Management Tips Impacting the Professional Liability Community.
A recent class action suit filed by two Oakland Raiders cheerleaders alleges that the NFL team violated labor laws, including paying less than minimum wage and illegally requiring them to pay expenses out of their per-game salaries. Add this to the fairly lengthy list of off-season concerns facing one of last season’s worst teams in football.
What to do? Your colleague begins to choke on his sandwich at lunch. The courier trips on loose carpet in your office lobby. Your co-worker goes into anaphylactic shock. What to do? Good Samaritan laws are designed to indemnify individuals who provide reasonable assistance to others in a time of emergency. The laws are intended to encourage assistance without fear of legal repercussion for unintentional injury or wrongful death. These laws have an interesting role in the office setting.
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.
Tweet with caution. It only takes 140 characters for professionals to embarrass themselves or worse. Social media has many advantages. No doubt. But, many users could benefit from an “unsend” option after their post has already infiltrated cyberspace. Of course this option doesn’t exist. We’ve all heard stories of the impulsive, ill-advised posts (like these), an embarrassing typo (like this) , or the heat of the moment tweet (like this) sent hastily without a second thought. In certain circumstances these posts go unnoticed but some professionals may not be so lucky. Take for example the attorney in Kansas who was sanctioned for blasting her opinions about pending cases on Twitter.
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.
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.
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.
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.
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.
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.