Professional Liability Matters

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February 5, 2013 • Accountants, Professional Liability Matters, Risk Management

Why Avoiding the ‘Fiscal Cliff’ May Have Caused Increased Risks to CPAs

We avoided the fiscal cliff. That is old news and, for most Americans, it is also good news. But, the developing fallout and the impact of Congresses’ eleventh-hour solution has particular implications on accountants gearing up for tax season. On January 2, 2013 Congress enacted the American Taxpayer Relief Act of 2012; a fiscal cliff tax package whopper which effectively changed the rule-book. At a time of year when accountants across the country are typically saying “so long” to their families to prepare for the hibernation that is tax-season, this year’s crop of tax-preparers is stuck in its tracks waiting for the IRS to issue updated software. From a professional liability and risk management standpoint, this is troublesome.

January 31, 2013 • Professional Liability Matters, Professional Liability Monthly

Professional Liability Monthly – January Edition is Now Available

For a free copy of this month’s edition of Professional Liability Monthly, click here. To be added to our circulation list, where you will receive this publication for free each month via email, please contact Brian Biggie at bbiggie@goldbergsegalla.com.

January 31, 2013 • Professional Liability Matters, Professional Liability Monthly

Cases for Professional Liability Monthly – January 2013 Edition

Cases provided courtesy of LexisNexis.

January 31, 2013 • Professional Liability Matters, Risk Management

The Importance of Record Retention

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.

January 31, 2013 • Legal Malpractice, Professional Liability Matters

Attorney Suspended for Operating a Foreclosure Mill

In a recent consent agreement reached with the Florida Bar Association, Attorney Marshall C. Watson, was suspended for 91 days and agreed to shut down his legal practice for his role in operating a foreclosure mill. The issue: may an attorney be held personally responsible for his oversight of a large foreclosure mill? The lesson: even when an attorney’s work-product is not technically negligent, she may still be in violation of ethical rules and subject to strict discipline.

January 31, 2013 • Legal Malpractice, Professional Liability Matters

Chinese Walls Are No Longer High Enough

The New Mexico Supreme Court recently entered a decision with ramifications regarding conflicts of interest in law firms. The issue: may a firm cure a clear conflict of interest by erecting a “Chinese wall.” The lesson: Chinese walls are not as strong as they used to be and some conflicts may only be cured through the disqualification of counsel, and maybe the entire law firm.

January 24, 2013 • Medical Malpractice, Professional Liability Matters, Risk Management

Colorado Shooter’s Psychiatrist Sued for Medical Malpractice

The widow of a man killed in last year’s mass shooting in Aurora, Colorado has filed a lawsuit against the alleged gunman’s psychiatrist claiming she knew of his threats to harm others and failed to warn of the imminent danger. Issue: When is a psychiatrist obligated to warn the public of her client’s threats to the public? Lesson: Threats of imminent harm cannot be taken lightly and preventive measures should be taken despite the application of doctor-patient confidentiality.

January 23, 2013 • Legal Malpractice, Professional Liability Matters, Risk Management

When Your Client Lies: What we can learn from Lance Armstrong

Lance Armstrong’s legal team played a part in each of the racing metals, the Livestrong brand, the endorsements, the accusations, the denials and of course the many lawsuits he filed to defend his reputation. Frankly, in light of the recent confession on Oprah, Armstrong’s attorneys may be feeling a bit uncomfortable.

January 10, 2013 • Professional Liability Matters, Risk Management

Engagement Letters 101 – The Professional Rule Book

The first rule of engagement letters: obtain a signed engagement letter.
The second rule of engagement letters: obtain a signed engagement letter.
The remaining rules are a bit more complicated. A well written engagement letter is absolutely critical to managing risk. It defines the scope of the engagement and, as a result, sets appropriate expectations with the client. An engagement letter may help to discourage meritless malpractice claims and may serve as “Exhibit A” in a dispositive motion. On the other hand, the lack of an engagement letter may result in an undefined engagement and may promote meritless, protracted litigation.

January 10, 2013 • Medical Malpractice, Professional Liability Matters

Sleeping with the Enemy: When a Consensual Relationship = Medical Malpractice

New York’s high court recently concluded that a consensual relationship between a patient and her family doctor constituted medical malpractice. Issue: Whether a consensual sexual relationship between a married patient and her physician is grounds for a medical malpractice claim. Lesson: When possible, avoid sleeping with your clients.