Professional Liability Matters

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July 26, 2013 • Professional Liability Matters, Risk Management

JK Rowling’s Secret Revealed by her Attorney

A prominent British law firm recently admitted that it was responsible for leaking JK Rowling’s pen name in her new mystery novel. The venerable author of the Harry Potter series intended to wear an invisibility cloak of her own, releasing her latest work – the Cuckoo’s Calling – under the pseudonym Robert Galbraith. Rowling reportedly hoped to “publish without hype or expectation” that would accompany her true identity. But the anonymity did not last long thanks to her attorney’s blunder at a cocktail party.

July 24, 2013 • Legal Malpractice, Professional Liability Matters

Emotional Distress Damages in Professional Malpractice Matters

Many aspects of litigation involve high levels of emotion when reputations, resources, pride, and goals are on the line. Nonetheless, it is highly unusual for an attorney to be subject to mental distress damages arising from a legal malpractice claim. Recoverable damages are usually limited to compensatory losses. However, a recent decision from Iowa’s highest court suggests that the tide may be turning.

July 23, 2013 • Ethics, Professional Liability Matters, Risk Management

The Power of the Conflict of Interest Waiver

A vast majority of professional malpractice matters arise from an alleged conflict of interest. Legal malpractice claims, for example, most frequently involve conflicts of interest; a whopping 46% according to a recent study. Perhaps this is no surprise. According to one scholar, the “exercise of his independent professional judgment” goes to the “heart of the skills” which a professional offers to his client. Thus, lawsuits typically follow in the event of a breach – or perceived breach – of that independence. Of course, there is no bright line test that delineates what a client may perceive as a conflict and therefore the conflict of interest waiver may be the professional’s saving grace.

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

NY Attorney’s Attempt to Recover Legal Fees Backfires

Letit be said: we don’t work for free. The business of law, like any profession, is based on a simple formula: quality work + results = payment. Sometimes obtaining payment can be the most difficult piece of the equation. When a fee dispute does arise, an attorney may be required to strike a balance between demanding full compensation and maintaining a productive and ongoing relationship with the client.

July 17, 2013 • Professional Liability Matters, Risk Management

The Effective Litigation Hold Letter

Our recent post on the ramifications of destroying social media content got us thinking about the importance of an effective legal hold letter. Also known as a “preservation” or “hold” order, this document instructs an entity or individual to preserve all data that may reasonably relate to pending or anticipated litigation. A goal of the litigation hold is to suspend the normal dispositions of records and to prevent spoliation. Another goal is to avoid the potential for sanctions and ethical issues facing those who destroy relevant content. Given the importance of a legal hold, and the serious ramifications for failing to comply, all professionals must be aware of the contents of a proper legal hold.

July 11, 2013 • Ethics, Professional Liability Matters, Risk Management

Secret Video Exposes Expert Witness to Criminal Proceedings

A New York state judge recently provided a compelling reminder of the serious ramifications for failing to provide truthful testimony on the stand. The focus of Queens Supreme Court Justice Duane Hart’s admonition was an orthopedist routinely hired to assist in the defense of personal injury cases. When the court discovered through a hidden camera recording that the expert’s testimony was exaggerated at best – or an outright lie at worst – the court ordered a mistrial and directed his attention to potential criminal proceedings against the expert.

July 10, 2013 • Medical Malpractice, Professional Liability Matters

The Cost of an Apology: Pennsylvania Considers Apology Law

Malpractice is devastating. Professionals work tirelessly to earn a degree (or more), develop client relationships and trust, and subsequently a book of business all of which can be at risk in the event of professional negligence. The professional’s reaction may be to approach the client or patient with an apology, explanation or consolation but there are serious risks to doing so. Depending on the professional’s E&O policy, an apology may constitute a waiver of coverage. Moreover, that apology may be an admissible “confession” which can be introduced at trial. Pennsylvania legislators have considered this conundrum and introduced a bill that would preclude reference to a doctors’ apologies to patients during medical malpractice lawsuits. Practitioners believe this could greatly reduce the number of medical malpractice lawsuits in the state.

July 9, 2013 • Employment Practices Liability, Professional Liability Matters

The Floodgates have Opened: Unpaid Internship Suits on the Rise

Don’t say we didn’t warn you. Last month we discussed the first suit filed by unpaid interns against their “employers” under the Fair Labor Standards Act. Channeling our inner Miss Cleo, we suggested at the time that the decision in Glatt v. Fox Searchlight Pictures, Inc., would have far-ranging implications on the EPL community. Sure enough, the floodgates have opened for unpaid interns seeking repayment under the FLSA.

July 4, 2013 • Professional Liability Matters, Risk Management

Here’s to an Uneventful Fourth of July

July 4 is not the ideal time to consider insurance but for too many it is a reality. By way of a reminder, after voting for independence on July 2, 1776, in the midst of the American Revolution, Congress turned its attention to the Declaration of Independence. The document was a statement explaining this decision, which had been prepared by a committee led by Thomas Jefferson. Congress debated and revised the wording of the Declaration, finally approving it on July 4, 1776. The following year, Americans celebrated their independence with fireworks and the tradition continues today. Let’s celebrate our Nation’s birthday safely. Reportedly, there are more than $35 million per year in fire damages on July 4. In addition, thousands of people flood the emergency room each year from injuries associated with fireworks. As we reflect on and enjoy the holiday, be smart and stay safe. Happy 4th of July from your friends at Professional Liability Matters.