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?
The Department of Labor recently announced its new Fiduciary Rule – aka the “conflicts of interest rule.” This new rule expands the definition of fiduciary and alters how investment advice is delivered in retirement accounts. It won’t go into effect for at least another year, but it’s not too early to start thinking about how the changes will affect the professionals who render this advice.
Clients will usually say “Bravo!” when you exhibit diligence, zealous advocacy, and candor in your legal representation. But what happens when a client makes a misrepresentation to you or engages in criminal or fraudulent conduct during the course of your representation? What are your duties with regard to assessing the validity of a client’s statements, or the legality of their actions? A recent legal malpractice lawsuit filed by imprisoned “Real Housewives of New Jersey” star Teresa Giudice has thrown these questions into the limelight.
Professionals must play the hand they’re dealt. We can’t pull an ace from our sleeve. We can’t change the facts or the witnesses or the evidence. Many attorneys welcome the challenge of overcoming obstacles within the confines of the ethical code, which can make for a more satisfying result. (Moreover, there is a certain pressure in handling the slam-dunk case because a win is expected and a loss could be unforgivable). Unfortunately, however, some attorneys opt to break the rules when confronted with difficulty. Consider the following examples.
Successful professionals promote values of cultural diversity, inclusion, and teamwork. However, occasionally a company policy of general application may have the unintended consequence of infringing on the religious practices of individual employees. Professional employers must tread cautiously when such a situation arises. Unintended discrimination may nevertheless violate civil rights laws protecting religious liberty.
Today, everyone is a potential news source. Through a handheld device we can instantaneously upload photographs or content via social media to be delivered to an anonymous (and often eager) audience. In a sense, the world is shrinking due to instant access and connectivity. This technology has impacted the way we prosecute and defend cases. It plays into our strategy. Some attorneys use technology in an attempt to strengthen their case. But there are risks and limits. Take for example the Texas attorney who used Twitter to gain an arguably improper advantage.
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.
It is generally understood that an insurance broker may be held liable for failing to obtain requisite insurance for the insured. But, there is plenty of room for debate when the broker fails to obtain coverage for a third-party; i.e. an additional insured. This issue was put to the test by the Cleveland Indians following the death of one of its patrons attending pre-game activities. According to the Sixth Circuit, the team stated a valid claim.
Is “tailor-made” coverage for emerging industries the future of professional liability insurance? “Traditional professional liability” policies, which typically serve lawyers, accountants, architects, brokers and doctors, may no longer provide the precise fit for evolving professionals. “Whether their clients are consultants, nurse’s aides or chicken sexers, many producers have found a gap in the professional liability marketplace,” according to the Insurance Journal. Coverage has not always kept pace with occupational changes, leaving many professionals pushing for an insurance product that addresses the biggest industry-specific exposures. So-called “tailor-made” policies may fill this gap.