Author Archives: Jennifer M. Mannion

Arbitration Clauses Put to the Test in LTC Suits

Arbitration agreements are relatively common in nursing home agreements but often are not enforced by courts. One basis courts rely upon in refusing to enforce arbitration agreements are state court rules that require certain claims to proceed to trial. The U.S. Supreme Court recently declined to hear the appeal of a Pennsylvania Supreme Court decision requiring a survival claim to proceed to arbitration, despite a local rule that requires trial for such claims. The decision provides some clarity on how courts will assess clashes between the Federal Arbitration Act (FAA) and contrary state laws at a time when clarity is needed on this topic in light of the recent decision by CMS (Center for Medicare & Medicaid Services) to postpone its ban on arbitration agreements in nursing homes.

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Faulty Audit Lands Accountant in Hot Water

The most common forum for malpractice claims is civil litigation. However, a professional may find himself in a potentially worse situation if the appropriate professional regulatory board also gets involved. Take for example a recent case of accounting malpractice that demonstrates the serious side effects that can occur when an accountant falls short of the standards of the profession.

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Who Is Really the Client?

The attorney-client privilege is one of the most basic tenants of professional liability. While the general rule itself is uncomplicated, complex circumstances between attorneys and their clients can often trip up even the most experienced lawyer. Take for example the following New Jersey malpractice case involving a law firm’s general counsel which raises the question: who is really the client?

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Lessons from Largest U.S. Tax Fraud in U.S. History

If you are in the world of finance, accounting or tax chances are you have probably heard of Sam Wyly and his late brother Charles Wyly. In recent years, the business mogul brothers have been the hot topic of litigation as they battled with the IRS and SEC over alleged tax and securities fraud that may have spanned decades. In the most recent decision to come out of the Wyly saga, Sam Wyly was ordered by a Dallas bankruptcy court to pay $1.1 billion in back taxes, interest and penalties. While the litigation is noteworthy because of the massive amount of dollars involved, it can also provide some reminders for tax professionals, particularly those with sophisticated clients.

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Fee Shifting with Non-Lawyers

As a general matter, the Rules of Professional Conduct prohibit lawyers from sharing fees with non-attorneys. However, there are certain exceptions to that rule. Rule 5.4 states that “a lawyer or law firm may include non-lawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.” A recent case out of Pennsylvania describes how a non-lawyer attempted to put this exception into action, albeit unsuccessfully.

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New Jersey Permits Leeway in AOM Requirement

The particular nuances of each state’s affidavit of merit rule can be difficult to navigate. Since affidavits of merit (AOM) are so critical to malpractice actions, we do our best here at Professional Liability Matters to keep you informed of the particular differences among states and various defenses that can be raised in a malpractice suit requiring an AOM. Last week we blogged about a particular exception to the AOM rule in New Jersey, which you can check out here. This week we turn our attention to another New Jersey case, in which the court again finds an exception, but under different circumstances, when it comes to the AOM requirement.

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Common Knowledge Exception to Affidavit of Merit Rule

Your friends at Professional Liability Matters often focus on interpretation of Affidavit of Merit (“AOM”) requirements. As our handy table shows, each state has its own rules as to AOM requirements and other details regarding substance and form. These rules are of critical importance to many malpractice claims. Most states require an AOM from a professional within the same field certifying that the malpractice case has merit. This is a necessary gateway function so that litigants cannot sue professionals without any justification. Implicit in this requirement is that the typical fact-finder may not understand the appropriate standard of care, and therefore must rely upon professionals within the field. However, in some cases, an expert opinion may not be necessary to understand how the standard of care was breached. In some states this qualifies as an exception to the AOM requirement. Take for example the following case out of New Jersey which applied the common knowledge exception to the AOM requirement.

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Tax Consequences of Employee Wellness Programs

Employee wellness programs are all the rage. While the concept is still relatively new, the potential implications of such programs are still being ironed out. Consider for example our recent post about how such plans can comply with other existing federal regulations. As employers struggle to make sure that their programs comply with existing regulations, another aspect of the employer wellness programs cannot be forgotten: taxes. The potential tax implications for both the employer and employee are an important aspect of any wellness program. In a recent Chief Counsel Advice (CCA) the IRS addressed what constitutes taxable income when benefits are provided to employees through a wellness program. Employers and tax-preparers should take note.

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Duties of the Unintended Email Recipient

Model Rule of Professional Conduct 1.6(c) provides that “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure” of client information. Generally that isn’t too difficult but things get complicated when it comes to electronic communication. Over 220 billion e-mails are delivered each day. According to reports, e-mail remains the most “pervasive form of communication in the business world.” Given the rampant use of e-mail, eventually there will be mistakes: your e-mail will land in the wrong hands or you will receive an e-mail meant for someone else. In some cases, the disclosure can be harmless, but what happens when the information lands in the hands of counsel for your adversary?

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Final Word on Employer Wellness Plans

Employee wellness plans are a hot item these days. Increasingly, wellness plans are seen as a benefit to both employees and employers alike. As many employers jump on the bandwagon of this growing health trend, they should be aware of the other legal implications of creating and implementing these programs within their company. For example, a popular topic ever since the EEOC issued its proposed regulations last year has been how employee wellness programs can comply with existing regulations such as the ADA and Title II of the Genetic Information Nondiscrimination Act (GINA). Well now it’s time for employers to take note because the EEOC has just finalized its rules in this regard.

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