Risk Management Archives

Category: Risk Management

September 24, 2013 • Ethics, Risk Management

Boston’s Big Dig Spawns Big Malpractice

Boston’s “Big Dig” continues to spark lawsuits 15 years after construction was completed. The most expensive US highway project – in excess of $24 billion – the Big Dig rerouted a major highway in Boston into a 3.5 mile tunnel. The project was plagued by delay, leaks, design flaws, and substandard materials. Ten years after completion of the project, in 2006, 26 tons of ceiling tiles and concrete became dislodged, fell and killed one motorist, injuring others. Reportedly, the National Transportation Safety Board blamed the collapse on faulty epoxy. In the most recent lawsuit arising from this incident, an insurance carrier sued its attorneys for malpractice for allegedly failing to disclose a conflict of interest.

September 12, 2013 • Legal Malpractice, Risk Management

Law Firm Denied Coverage Due to “Fraud Exclusion”

Most professionals are governed by this universal rule: always act in the best interests of the client. But, there is an unspoken footnote to that rule: unless the client engages in unethical, illegal or otherwise improper conduct. Make no mistake, when a professional cooperates in the client’s foul play, she is also exposed to liability and perhaps a denial of coverage due to a fraud exclusion existing in many professional malpractice policies. This limitation became a reality for a Colorado law firm accused of assisting its clients in the commission of fraud.

September 6, 2013 • 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.

August 22, 2013 • 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.

August 14, 2013 • Risk Management

Lessons Associated with the Professional Liability Insurance Application

All professionals who maintain professional liability insurance are familiar with the insurance application. When completing the application, professionals must make decisions regarding the type and amount of coverage, and the costs for the premium and deductible. Moreover, the professional must provide information that the insurance company’s underwriter will rely upon to weigh the risks of insuring that professional. Notably, many PL applications request historical information regarding threatened or potential litigation. This question, perhaps more than others, has led to significant coverage issues and presents a risk management concern.

August 1, 2013 • Legal Malpractice, Risk Management

Unringing the Bell: Clawback Provisions and Inadvertent Document Production

Technological advancements have prompted an explosion in electronically stored information (ESI). A single laptop computer is capable of holding more than 2,000 banker’s boxes of paper, and a smart phone with 16 GB of memory can hold roughly the equivalent of 1,000,000 printed pages. Given the potential value of this data, litigants are routinely requesting ESI during discovery. At the same time, lawyers responding to these requests are faced with the Herculean task of sorting through mountains of evidence to remove privileged or confidential documents. This presents a risk management nightmare.

July 26, 2013 • 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 23, 2013 • Ethics, 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 17, 2013 • 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.