Professional Liability Matters

A recent South Dakota Supreme Court decision serves as a reminder of some of the ethical issues and pitfalls when representing an elderly client. Unlike some of our posts which apply to a particular specialty, the potential for hiccups arising from representing the elderly impacts all professionals: accountants and attorneys, real estate professionals, brokers of all sorts, to name a few. The lesson is often the same: be particularly wary when representing an elderly client to avoid a potential malpractice suit or ethical problem.

A recent decision before the Nevada Supreme Court highlights the importance of timely reporting all claims. The issue: is a carrier’s “constructive notice” of a potential claim sufficient to trigger coverage? Lesson: all professionals must have a firm grasp of the reporting requirements under their professional malpractice policy or risk denial of coverage. The Nevada Supreme Court’s decision in Physicians Insurance Co. v. Williams raises the all-important question: must all professionals, even pill-poppers and cocaine abusers, provide their insurance representative with timely notice of a claim? This decision also clarifies that the reporting requirement is not excused even if the insurer had independently learned of a potential claim.

All professionals must maintain and follow a clearly documented record retention policy. These policies are more stringent and regulated for some professions. Each of the 50 states maintain regulations governing work-paper ownership and record retention for accountants, for example. Attorneys, too, may be guided by fairly specific record retention policies pursuant to the applicable Rules of Professional Conduct governing lawyers state-by-state. Despite these regulations, all classes of professionals routinely face legal woes as a result of poor record retention compliance. This risk intensifies as a result of cyber risk and associated liability from electronically stored information.