Professional Liability Matters

LATEST INSIGHTS

November 21, 2013 • Professional Liability Matters, Risk Management

When Does a Professional Liability “Claim” Arise?

Professional liability insurance policies cover professionals for claims arising within the agreed upon policy period. At first blush this appears to be a relatively simple concept but there is plenty of room for confusion which can result in a lack of coverage. What is a claim? The fact that a lawsuit was filed within a policy period does not necessarily mean that the “claim” giving rise to the lawsuit is covered under a PL policy. A perfect example of this issue was presented to the court earlier this month in Regency Title Co. v. Westchester Fire Ins., (E.D. Tex. Nov. 15, 2013) during which the USDC for the Eastern District of Texas considered the date on which a claim arises for purposes of triggering coverage.

November 19, 2013 • Legal Malpractice, Professional Liability Matters, Risk Management

Tripartite Relationship Put to the Test

The so-called “tripartite” relationship exists when an insurer retains defense counsel to represent the interests of the insured. Against this backdrop, it is relatively uncommon for an insurer to maintain a successful claim against defense counsel. In the majority of states, direct malpractice claims by an insurer are disfavored. The theory behind these decisions stems from the sanctity of the attorney-client relationship and a hesitation to interfere with defense counsel’s duty to the insured in the tripartite scenario. Accordingly, few claims of this nature succeed. A recent decision by the Washington Supreme Court is no exception.

November 15, 2013 • Professional Liability Matters, Risk Management

Leave ‘Em at Home: Don’t Bring Anything to a Depo

Have you ever considered the consequences of a witness bringing her mobile phone to a deposition? May a deposing attorney ask a witness to retrieve information stored on a hand-held device during a deposition? Many lawyers may fail to anticipate the consequences of a witness bringing documents or other materials to a deposition and may overlook this issue when preparing the client. This lack of foresight can lead to unintended discovery disclosures.

November 14, 2013 • Employment Practices Liability, Professional Liability Matters

Workplace Bullying: More than a Dolphins’ Problem

Thanks to the developing news regarding the Miami Dolphins, workplace bullying has generated national attention. There has been considerable press of late concerning school bullying and its impact on children but it is now clearer than ever that in some environments, bullying can exist in the workplace and can cause serious damage to professionals and their employers.

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.