Author Archives: Kenneth M. Alweis

Loser Pays: Risks of Civil Rights Claims

Federal civil rights actions are somewhat unique in that they allow the prevailing party to be granted “reasonable attorney’s fees.” An employer on the wrong side of a decision or verdict could leave it paying (a) damages; (b) its attorney's fees and (c) its adversary's attorney's fees. But what are “reasonable” attorney fees?  In Sommerfield v. City of Chicago, the Seventh Circuit shed some light on this important question.

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Professional Plagiarism Leads to Copyright Claim

Clients expect professionals to work diligently on their behalf, but also want them to achieve results in a cost-effective manner. Experienced professionals are able to accomplish both ends by drawing from their knowledge base and past work product, rather than attempting to reinvent the wheel each time they undertake a new task. For instance, in the legal profession, it often behooves attorneys to begin legal research on novel issues within their firm to see if others have already addressed the issue and have analysis on hand. But attorneys may at times also find it useful to look to publicly-accessible briefs and filings from outside firms to see how others have addressed the topic. Relying on such third-party work-product, however, could be a recipe for professional liability.

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The Ethical Breakup: How to Switch Firms

It's just business, right? Not when it comes to the ethical and professional requirements associated with the transition to a new professional practice. Many professionals are seeking to expand their practice, or move, or add partners in an effort to acquire new talent. Some firms are streamlining and shrinking their practice. Under the right circumstances, departures may lead to mutually beneficial business opportunities for the departing professional and the former firm. In other cases, however, the actions taken by departing professionals could lead to costly litigation.

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Lamar Odom & HIPAA: A Kardashian Takeaway for Employers

Reality television fans and others were saddened recently when news of a Kardashian family member’s overdose hit the news. Lamar Odom, sometime beau of Khloe Kardashian, was hospitalized after the incident, and his privacy was reportedly violated when staffers at the medical center where he was treated took pictures of him. The staffers were immediately fired due to this conduct. Lamar’s plight contains a teachable lesson for those employers who must comply with the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, which protects the privacy of personal health information (PHI).

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Malpractice Suit Dismissed due to Speculative Damages

A threshold requirement for any legal malpractice claim is proof of actual harm. A party bringing a legal malpractice action has the burden of proving that but for the alleged negligence, he would have been successful in the underlying matter. Plaintiff’s failure to prove actual harm is often a defense in malpractice cases and in some situations can result in a complete dismissal. Take for example, the following case in which a Pennsylvania federal judge granted defendant attorneys’ motion for judgment on the pleadings where plaintiff’s alleged damages in his legal malpractice claim were “impermissibly speculative.”

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Recent Decision: Impeaching an Expert Witness

Attorneys and litigants would love a peek behind the curtain to develop a better understanding of their adversary’s case. Of course discovery provides the parties with various tools to identify and narrow the issues prior to trial. But discovery can only reach so far. In light of various privileges and exceptions, litigants often grapple over those materials that are discoverable and those that remain protected. In a recent New Jersey Superior Court decision, the court evaluated the extent of the attorney work-product doctrine as it pertains to expert testimony.

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Dual Representation Leads to Malpractice

We previously discussed the potential for a conflict arising when an attorney represents an employer and possibly an employee in the context of the Penn State/Sandusky scandal. The issue for the attorney is to delineate whether she represents the employer, the employee or both. An attorney cannot wear all the hats and therefore must disclose to an employee the possibility of a conflict. A recent decision from the California Court of Appeals demonstrates how easily a conflict may arise in this scenario.

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Insurance Agents in the Wake of Superstorm Sandy

Superstorm Sandy’s wind and rain are long gone but the storm’s legal wrath has only just begun. As the cleanup continues, and insurance and legal issues pile up, we are starting the see the first wave of lawsuits following the storm. In particular, the initial targets appear to be insurance agents.

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When Negligence = Murder: Building Defects Result in Manslaughter Charges

An architect faces criminal manslaughter charges arising from the death of an LA firefighter who died attempting to control a blaze that engulfed the defendant architect’s multi-million dollar home. This case raises an unprecedented issue: Can defective design lead to criminal liability? Apparently, the answer is “yes” if the defect is the result of gross negligence.

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ABA says Attorney-to-In-House Attorney Consultation should be Privileged

In a recently published amicus opinion, the ABA took a stand for its position that the attorney-client privilege should protect from disclosure communications between an attorney and her in-house counsel, even if the two attorneys are colleagues. In most scenarios, inter-office communications are discoverable. Privilege may not apply when attorneys consult amongst themselves. On the other end of the spectrum, consultation between client and outside counsel is usually protected from disclosure. However, the ABA’s recent amicus opinion focuses on the narrow situation when an attorney consults with a member of her firm’s designated in-house counsel. Read on for the ABA’s argument.

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