Author Archives: Daniel W. Gerber

Liability for Inadvertent Metadata Disclosure

In the modern practice of law, attorneys are expected to be familiar with discovery of electronically stored information. Often this involves the production of files in their native format, which preserves metadata such as the document author, dates of creation and alterations, and where the document was stored. Production of electronic information thus facilitates document review, but also could lead to the disclosure of information that is beyond the scope of permissible discovery.

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Facebook Post May Lead to Attorney Disqualification

Social media is ubiquitous in the workplace. Professionals use social media to write about their achievements, to discuss developments in their field, and to promote their practices. Professionals who use social media as an extension of their practice must be cautious, however, that the discussion of pending matters does not violate their duty of confidentiality to clients or expose confidential information that would prejudice others.

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Dual Representation Risks Waiver of AC Privilege

Professionals must communicate clearly with clients regarding the existence and scope of the professional-client relationship. This is especially true for general counsel, who represent a company but also interact with its employees. We discussed these issues here in the context of the Penn State/Sandusky scandal two years ago but lingering issues remain which highlight the risks of dual representation.

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Emotional Distress in Medical Malpractice Claims?

We were pleased to see your interest in our recent post regarding emotional distress damages in the LPL space. In continuing with that topic, we turn to emotional distress claims in the context of medical malpractice. Medical malpractice victims are generally entitled to recover for emotional harm they endure, but what about the victim’s family? Many states permit some form of recovery for bystander emotional distress. However, translating that type of claim into the field of medical malpractice can be trickier as there is often no specific “accident” to observe when a medical mistake is made. The Supreme Court of Connecticut recently addressed this issue, reconciling a split in the state courts as to whether a claim of bystander emotional distress was available as a result of medical malpractice.

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Be an Expert at Retaining Experts

Expert witnesses play a key role in professional liability matters. The perfect expert will work with counsel to identify and address issues during discovery and later will effectively condense complex issues to a jury in layperson terms. As a result, attorneys must carefully consider who they select and how to best utilize the expert. In a sense, an expert witness is just another tool available to the professional malpractice practitioner; an expensive and unwieldy tool if not vetted and monitored properly. Often, it is the attorney who may be left to answer for poor results arising from an expert’s misconduct.

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The Limits of Limited Scope Representation

Courts are facing an unprecedented number of pro se litigants. Whether due to the economy, a changing attitude over litigation, technology, or other causes, courts flooded with pro se litigants have struggled to come up with a solution. In certain practice areas such as family law and property cases a high percentage of all suits involve at least one unrepresented party. This places an administrative stress on the courts. Some jurisdictions are experimenting with a potential answer to the “pro se problem” through the use of limited scope representation or “unbundled” legal services. The idea is to reduce the costs of representation and increase access to the courts. This is appealing to an overburdened court but poses some significant ethical issues for attorneys.

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Professionals Beware: Unpaid Internships May Prove Costly for Employers

With summer break in effect, many students are utilizing the time off from school to participate in internships. Internships provide students with an opportunity to gain work experience in a particular field and, arguably, make them more marketable upon graduation. However, these intangible benefits may not excuse an employer from failing to pay interns under state and federal labor laws.

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Vague Settlement Agreement May Result in Malpractice Claim

Reaching a settlement agreement is supposed to conclude litigation, right? Well the failure to draft a clear settlement agreement may result in serious repercussions for client and attorney. The Seventh Circuit Court of Appeals recently ruled that a plaintiff is entitled to attorneys’ fees and costs due to a vague offer of judgment.

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