Joanne J. Romero, Author at Professional Liability Matters

March 9, 2020 Employment Practices Liability

Pre-Employment Testing for Marijuana?

In May 2019, Section 8-107 of title 8 of the NYC admin code was amended to make it unlawful for an employer and others to test for marijuana or THC as a condition of employment. This law becomes effective May 10, 2020. The NYC Commission on Human Rights is promulgating rules for the implementation of this law. There was a public hearing on Jan. 9, 2020 concerning potential exceptions to the general prohibition on pre-employment testing to which written testimony by interested parties was submitted. There …

May 6, 2019 Employment Practices Liability

Ambiguity in Arb. Agreement Cannot Be Construed as Consent to Class Arbitration

In Lamps Plus, Inc. v. Varela, the U.S. Supreme Court held that an ambiguous arbitration agreement cannot provide the necessary contractual basis for compelling class arbitration under the Federal Arbitration Act. This decision reverses the Ninth Circuit’s decision that permitted an employee’s data breach class arbitration to proceed.

Lamps Plus built on the Supreme Court’s 2010 decision in Stolt-Nielsen S. A. et al. v. Animalfeeds International Corp, in which the Supreme Court ruled that an arbitration agreement, silent on the issue of class arbitration, was …

June 27, 2017 Miscellaneous Professionals

High Court Hands Victory to Secondary Debt Market

In Justice Neil Gorsuch’s first written opinion for the Supreme Court, he handed down a major victory for the secondary debt market by ruling that debt buyers do not fall under the definition of “debt collector” for purposes of the FDCPA. Under the FDCPA, debt collectors are subject to strict requirements when attempting to collect debts and violating these rules leads to significant liability. Until now, a split among the circuits existed as to whether the term “debt collector” includes entities that purchase debt originally …

August 3, 2016 Privileges

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?

The malpractice suit stemmed from advice given by an attorney at Law Firm. The plaintiff/client consulted the attorney about instituting a “rolling furlough” as an …

April 20, 2016 General

The New Fiduciary Rule: Are you Prepared?

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.

In short, the new rule will require all financial advisers to act in their customers’ best interests. Contrary to popular …

August 11, 2015 Ethics / Legal Malpractice

Lessons from a Bravo Star’s Malpractice Suit

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.

According …

February 27, 2015 Ethics / Legal Malpractice

Play the Hand You’re Dealt

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 …

October 9, 2014 Employment Practices Liability

Company Image Policy Leads to Discrimination Claim

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.

Earlier this month, the Supreme Court agreed to hear such a case involving a national clothing retailer and a Muslim employee who was terminated for wearing a religious headscarf known as a …

April 9, 2014 Legal Malpractice / 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 …