Professional Liability Matters

LATEST INSIGHTS

November 12, 2013 • Legal Malpractice, Professional Liability Matters

Dual Representation Leads to Malpractice

We previously discussed the potential for a conflict arising when an attorney represents an employer and possibly an employee in the context of the Penn State/Sandusky scandal. The issue for the attorney is to delineate whether she represents the employer, the employee or both. An attorney cannot wear all the hats and therefore must disclose to an employee the possibility of a conflict. A recent decision from the California Court of Appeals demonstrates how easily a conflict may arise in this scenario.

November 7, 2013 • Employment Practices Liability, Professional Liability Matters

Calculating FMLA Leave: What Employers Need to Know

The Family Medical and Leave Act (FMLA) provides job security to employees who require time away from work due to illness or the need to care for family. By some accounts, the FMLA is one of the most difficult employment laws for an employer to administer and therefore is a risk management “legal labyrinth.” In particular, the seemingly simple task of calculating the duration of FMLA leave can be daunting.

November 6, 2013 • Legal Malpractice, Professional Liability Matters, Risk Management

Attorneys: Don’t be Michael Scott

There’s a great scene from the Office when Michael Scott continues to blindly follow his obviously incorrect GPS device until he has driven his car into a lake. Don’t be Michael Scott. There are times when an attorney must stop and question the client when the representation reaches an uncomfortable level or the attorney suspects wrongdoing.

November 5, 2013 • Professional Liability Matters, Risk Management

Are Deposition Breaks Privileged?

Attorneys should proceed with caution when consulting with a client during deposition breaks. Whether it be for a hospitality break, lunch, or for an overnight adjournment, there is room for trouble when a client and attorney discuss aspects of an ongoing deposition. Depending on the jurisdiction, communication between attorney and client may not be considered privileged and may be fodder for deposition questioning.

November 1, 2013 • Employment Practices Liability, Professional Liability Matters

Gaga’s Overtime Problem

Would you pay attention if we told you that Stefani Germanotta allegedly failed to pay her assistant over $375,000 in overtime pay? What if we told you Stefani Germanotta usually goes by “Lada Gaga”? Reportedly, the uber-famous singer reached a settlement in the 2011 FLSA lawsuit filed by her former personal assistant. The lawsuit serves as a reminder to employers of all sizes that unless their employees meet the requirements of the administrative exemption test, they must be paid overtime under the Fair Labor Standards Act.

October 31, 2013 • Ethics, Legal Malpractice, Professional Liability Matters

Who’s the Boss: Attorney or Client?

Communication is a key to a healthy attorney-client relationship. Client input is critical for the attorney to develop an understanding of the underlying events and the client’s goals. However, when it comes to litigation strategy, the attorney must tread carefully when the client disagrees with the suggested approach. In this scenario, who’s the boss? By one account, the “scope of representation” is one of the “thorniest issues involved in legal practice” yet it is widely misunderstood. Often, the attorney who understands the ethical principles of allocation of authority is in a better position to effectively address the inevitable disagreement with her client.

October 29, 2013 • Insurance Products, Professional Liability Matters

HOA Lessons from Sanford, Florida

Since Trayvon Martin’s February 2012 death, HOA liability and neighborhood watch groups have become a bit of a hot button topic. Following Martin’s altercation with George Zimmerman in the Florida housing complex known as The Retreat, Martin’s parents initiated a wrongful death suit against the HOA. Reportedly, that lawsuit recently settled for approximately $1 million. Now, some HOAs are rethinking risk management strategy and have taken a closer look at neighborhood watch groups in particular.

October 23, 2013 • Accountants, Professional Liability Matters

Flying Under the Radar: Taxing Frequent Flier Miles

Many professionals travel frequently. Hence, professionals may accumulate various rebates, discounts, frequent flier miles or “cash-back” as a result of travel or credit-card incentive programs. Over the years there has been some chatter amongst tax-preparers as to whether those travel-related or purchase perks are considered taxable income. Let’s take a closer look at this risk management issue facing the accounting profession.

October 22, 2013 • Ethics, Legal Malpractice, Professional Liability Matters

Groupon for Professionals? Ok, but Risky

Group coupon websites are a popular marketing ploy among a variety of service providers. The concept behind Groupon, Living Social, and similar sites is for consumers to select from local deals for discounted services. Typically, once a threshold number of coupons are sold, the service provider and the website share the proceeds. The professional liability community has caught on to this marketing trend and is taking notice. However, be aware professionals; utilizing similar group coupon sites is risky due to ethical limitations.

October 18, 2013 • Ethics, Legal Malpractice, Professional Liability Matters

Exposure to Disciplinary Action Away From Home

In most circumstances an attorney may only practice law in jurisdictions where she is licensed. Practicing law in a foreign jurisdiction may expose the professional to prosecution for the unauthorized practice of law. The Ohio Supreme Court recently considered whether an attorney who is not licensed to practice in the jurisdiction is subject to the forum state’s disciplinary authority in Disciplinary Counsel v. Harris, 2013-Ohio-4026 (Ohio Sept. 26, 2013).