Risk Management

Category: Risk Management

May 8, 2014 • Professional Liability Matters, Risk Management

Case Closed! Tips For Properly Closing a File

All professionals should maintain a consistent and carefully considered practice for closing files. Don’t rush to send the file to the shredder. Don’t push the boxes into a dusty warehouse. Rather, best practices mandate that all professionals, notably attorneys, engage in a series of important tasks when closing a file. Poor practices at the end of an assignment can lead to conflicts issues, document retention woes, client confusion or worse. Take for example the attorney in Maryland who was recently disbarred for conduct that could have been prevented with a proper close file checklist.

April 17, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

Alternative Litigation Financing Sparks Malpractice Claim

A modern-day offshoot of the contingency fee arrangement is “alternative litigation financing.” Also known as third-party litigation financing, A.L.F. is the practice of making cash advances, usually to a litigant, to be repaid from the proceeds from the litigation. There is plenty of room for debate the pros and cons of this developing trend. Supporters may argue that this practice allows an injured plaintiff to take an “advance” on an anticipated recovery to address financial hardship before reaching a settlement or verdict. This is particularly useful for injured plaintiffs who cannot return to work. But attorneys associated with litigation financing may be susceptible to claims when something goes awry.

April 9, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management, Trial Tactics

Closing Arguments: It’s Business, Nothing Personal

If trial is a performance, than the closing arguments is clearly the final act. Attorneys channel their inner-actor and perform for the jury with an eye toward persuading the fact-finders to rule in their client’s favor. Every attorney has a personal style during closings. Some are assertive, some conservative. Many attorneys look for creative ways to convey their points. However, there is significant risk that unusual closings may go too far and jeopardize the case, or worse. Take for example the recent reversal of a $900,000 award due to counsel’s improper attempt to enhance her client’s alleged damages during closing arguments.

April 8, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

Failure to Disclose Health Condition is Grounds for Malpractice

Attorneys have an ethical duty to keep a client reasonably informed about the status of the representation. The rules of professional conduct generally require a lawyer to provide the client with sufficient information to participate intelligently in decisions concerning the objectives of the representation. Fulfilling this ethical obligation, however, may sometimes require the attorney to inform the client about personal matters that may affect the attorney’s ability to represent the client’s interest. For example, an attorney may be obligated to disclose her own health condition to a client, especially when imminent death is foreseeable.

February 26, 2014 • Ethics, Legal Malpractice, Professional Liability Matters, Risk Management

Are Law Firm Advertisements Covered?

All insurance policies are not created equal. Some policies contain exclusions that many professional may not expect. Take for example a recent decision that evaluated whether a law firm’s advertising practices were covered under a D&O policy. In Rob Levine & Associates, Ltd. v. Travelers Casualty, a Rhode Island federal court considered whether conduct relating to Internet and television advertisements was considered “professional services.”

February 25, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

Criminal Exposure Arising from Secret Recording

A fundamental risk management pointer is to properly document your file. As a result, many professionals are great note-takers; they follow-up conversations in writing, confirm strategy and clearly document instructions. These are all risk aversion tools to protect the professional, to hold others to oral commitments, and provide clarity in future disputes. But, professionals cannot take this too far. There is a difference between jotting notes or confirming conversations on the one hand, and secretly recording or transcribing conversations on the other. Such secret recordings may run afoul of state privacy laws and lead to potential civil and criminal liability.

February 20, 2014 • Employment Practices Liability, Professional Liability Matters, Risk Management

Winter Wreaks Havoc on Employers

Winter storms create challenges for employees and employers alike, with snow, sleet, and freezing rain adding unwelcome stress and hassles. An employer has certain responsibilities when it comes to responding to weather conditions. To eliminate uncertainty and confusion inside the workplace, employers are advised to create a comprehensive emergency weather plan.

February 18, 2014 • Insurance Products, Professional Liability Matters, Risk Management

Double Covered but Uninsured

Prudent professionals maintain different types of insurance to protect against various risks. Some typical policies for professionals may include D&O, cyber, and/or E&O policies. The foregoing policies and others may overlap, while others allow gaps for claims that would not be covered. It is incumbent upon each professional to purchase the perfect mix applicable to her practice; there is no one size fits all and more is not necessarily sufficient. Although multiple policies may fit together seamlessly to form a safety net, other policies allow for gaps in coverage that could result in out-of-pocket exposure.

February 13, 2014 • Professional Liability Matters, Risk Management, Technology

The Risks of Auto-Reply Messages

One of the consequences of modern technological advances is that many expect 24/7 access to their employees and outside professionals. Today there is really no such thing as unreachable and there are fewer and fewer locales that are “off the grid.” 48 hours without responding to e-mail is not acceptable to some. As a result, when business travel, vacation, or other events preclude timely e-mail responses, many employees and professionals utilize the all-too-familiar auto-reply message. However, some experts suggest that these messages carry considerable security risks.

January 22, 2014 • Legal Malpractice, Professional Liability Matters, Risk Management

Promptly Disclose…Don’t Promptly Confess

Professional Liability Matters would have little to discuss if professionals were perfect. Needless to say, we are not. Often, it is how the professional responds to the inevitable error that can mean the difference between soon forgotten mistake and malpractice. Upon the discovery of an error, some professionals are confronted with a difficult conflict: their interest in confronting the error and discussing it with the client on the one hand, without making an admission that could jeopardize insurance coverage on the other. This conundrum places the professional in a very difficult position.