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Professional Liability Matters

Legal Developments and Risk Management Tips Impacting the Professional Liability Community.

LATEST INSIGHTS

• Employment Practices Liability, Professional Liability Matters, Social Media Lessons

Employee Fired for “Private” Facebook Post

Plaintiff Deborah Ehling thought she could comment freely on Facebook because she limited her posts to a restricted group of her “friends” and her posts were not available to the general public. She was wrong. When her employer learned of her controversial posts and terminated her, she thought she had recourse. She was wrong. In an important ruling for employers, the District Court of New Jersey recently dismissed Ehling v. Monmouth-Ocean Hospital Service Corp., et al., (August 20, 2013). This case put to the test the Federal Stored Communications Act, 18 U.S.C. §§ 2701-11 (“SCA”) as applied to social media content in the workplace.

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• Agents and Brokers, Professional Liability Matters

Cleveland Indians Sue Insurance Broker following Wrongful Death Claim

It is generally understood that an insurance broker may be held liable for failing to obtain requisite insurance for the insured. But, there is plenty of room for debate when the broker fails to obtain coverage for a third-party; i.e. an additional insured. This issue was put to the test by the Cleveland Indians following the death of one of its patrons attending pre-game activities. According to the Sixth Circuit, the team stated a valid claim.

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• Ethics, Legal Malpractice, Professional Liability Matters

Dealing with the Problem Client

We’ve all been there. Inevitably, every professional encounters a client whose demeanor or attitude make the representation difficult. As a result, the professional may be tempted to ignore the situation and limit contact with these clients. But, that would be a mistake. Pursuant to a recent ethics ruling in Matter of Azar, DRB 13-041, the New Jersey Disciplinary Review Board determined that providing the cold shoulder to problem clients warranted disciplinary action.

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• Professional Liability Matters, Risk Management

Pleading the Fifth in the Civil Context

Dropping the nickel, a/k/a pleading the Fifth Amendment is most often referenced on TV dramas in a criminal setting. Most civil practitioners do not encounter the Fifth and therefore may be unfamiliar with its role in civil litigation. However, since the line between civil and criminal liability is not entirely clear in some scenarios impacting professionals, there may be situations when the Fifth is appropriate, albeit risky.

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• Employment Practices Liability, Professional Liability Matters

Fantasy Sports in the Workplace

Football season kicks off Thursday, September 5. As a result, millions of otherwise well-respected and seemingly professional Americans turn their attention to a grown-up version of make believe; a/k/a fantasy sports. Over 25 million Americans now belong to at least one fantasy football league and fantasy sports represent a multibillion dollar industry. Surveys suggest that many of those fantasy football participants access their league at the workplace, on equipment provided by employers. Most employers are cognizant of the importance of maintaining up-to-date computer use policies, social media protocols and other important workplace regulations, yet they inexplicably miss regulating participation in fantasy sports.

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• Accountants, Legal Malpractice, Professional Liability Matters

Responding to Legal Audit Letters = Risk Management Headache

As many of you probably know, auditing standards require that an auditor confer with the attorneys for the audited entity about certain types of loss contingencies, such as pending litigation and unasserted claims. During this process, the audited entity/client asks that its attorneys respond to the “legal audit letter.” Some attorneys may view this procedure as cumbersome and perhaps even annoying, but it is a required element of the auditing process and must be taken seriously. This is especially so because the attorney’s response to the legal audit letter presents risk management problems particularly with respect to the potential waiver of the attorney-client privilege.

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• Professional Liability Matters, Social Media Lessons

Ethical Advertising on LinkedIn

Most professionals utilize a LinkedIn profile and/or a professional Facebook page. A large proportion of LinkedIn’s 150 million users are professionals; about 2% of which are attorneys. The proliferation of social media use by professionals has sparked debate regarding the collision between ethics and online marketing. This is particularly so because the standard, one-size-fits-all format available to social media users does not take into account that many professionals must adhere to state specific ethical rules when advertising. This gap has prompted some serious ethical concerns.

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• Professional Liability Matters, Risk Management, Settlement

When a Settlement Unhinges: Failure to Document a Mediated Agreement

Mediation is intended to facilitate the expeditious resolution of disputes. Often, mediation offers the ideal setting to promote productive conversation and settlement discussions. Skilled mediators know the right buttons to press, highlight strengths and weaknesses, and allow the parties an opportunity to “be heard,” all of which can go a long way toward settling a dispute. But, mediation does not always go as intended particularly when the terms of a proposed agreement are not documented.

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• General, Professional Liability Matters

The Inevitable Question: Who Hired You?

Invariably, during the representation of a professional, defense counsel may be asked by his or her adversary: who hired you? For a variety of reasons, opposing counsel may be interested in whether you were retained directly by the professional or you were appointed as defense counsel by an insurance company. A perfectly reasonable and appropriate response to this question could be: it’s none of your business.

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