Status Update: Facebook “Likes” Receive Constitutional Protection

Social media issues arising out of the workplace are ever-changing. Your friends at Professional Liability Matters recently discussed the potential consequences to employees for posting objectionable personal information on Facebook. However, a novel decision from the Fourth Circuit Court of Appeals on Wednesday may turn the tables on employers who take retaliatory action against employees based upon their Facebook activity. Spoiler alert… Facebook “likes” are protected free speech under the First Amendment.

In Bland v. Roberts, 2013 U.S. App. LEXIS 19268 (Sept. 18, 2013), …

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Law Firm Denied Coverage Due to “Fraud Exclusion”

Most professionals are governed by this universal rule: always act in the best interests of the client.  But, there is an unspoken footnote to that rule: unless the client engages in unethical, illegal or otherwise improper conduct. Make no mistake, when a professional cooperates in the client’s foul play, she is also exposed to liability and perhaps a denial of coverage due to a fraud exclusion existing in many professional malpractice policies.  This limitation became a reality for a Colorado law firm accused of assisting …

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Dealing with the Problem Client

We’ve all been there. Inevitably, every professional encounters a client whose demeanor or attitude make the representation difficult. As a result, the professional may be tempted to ignore the situation and limit contact with these clients.  But, that would be a mistake.  Pursuant to a recent ethics ruling in Matter of Azar, DRB 13-041, the New Jersey Disciplinary Review Board determined that providing the cold shoulder to problem clients warranted disciplinary action.

In Azar, the Board evaluated three ethics grievances against an attorney.  In …

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Responding to Legal Audit Letters = Risk Management Headache

As many of you probably know, auditing standards require that an auditor confer with the attorneys for the audited entity about certain types of loss contingencies, such as pending litigation and unasserted claims.  During this process, the audited entity/client asks that its attorneys respond to the “legal audit letter.”  Some attorneys may view this procedure as cumbersome and perhaps even annoying, but it is a required element of the auditing process and must be taken seriously. This is especially so because the attorney’s response …

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When a Settlement Unhinges: Failure to Document a Mediated Agreement

Mediation is intended to facilitate the expeditious resolution of disputes.  Often, mediation offers the ideal setting to promote productive conversation and settlement discussions.  Skilled mediators know the right buttons to press, highlight strengths and weaknesses, and allow the parties an opportunity to “be heard,” all of which can go a long way toward settling a dispute. But, mediation does not always go as intended particularly when the terms of a proposed agreement are not documented.

In Willingboro Mall v. Franklin Avenue, available here, …

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Does Malpractice Insurance Cover Fee Disputes?

You may be surprised to learn that some professional malpractice policies do not cover fee disputes. Professional liability insurance is an essential component of every professional’s practice, helping to mitigate risk in malpractice actions.  But many professional liability policies may leave professionals to fend for themselves in one of the most fundamental aspects of the practice: collecting fees for services rendered.  This limitation was recently highlighted by Louisiana’s Western District Court in Pias v. Cont’l Cas. Co., No. 2:13-cv-00182 (W.D. La. Aug. 6, 2013).…

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Unringing the Bell: Clawback Provisions and Inadvertent Document Production

Technological advancements have prompted an explosion in electronically stored information (ESI).  A single laptop computer is capable of holding more than 2,000 banker’s boxes of paper, and a smart phone with 16 GB of memory can hold roughly the equivalent of 1,000,000 printed pages.  Given the potential value of this data, litigants are routinely requesting ESI during discovery.  At the same time, lawyers responding to these requests are faced with the Herculean task of sorting through mountains of evidence to remove privileged or confidential documents.  …

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JK Rowling’s Secret Revealed by her Attorney

A prominent British law firm recently admitted that it was responsible for leaking JK Rowling’s pen name in her new mystery novel.  The venerable author of the Harry Potter series intended to wear an invisibility cloak of her own, releasing her latest work – the Cuckoo’s Calling – under the pseudonym Robert Galbraith.  Rowling reportedly hoped to “publish without hype or expectation” that would accompany her true identity.  But the anonymity did not last long thanks to her attorney’s blunder at a cocktail party.…

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NY Attorney’s Attempt to Recover Legal Fees Backfires

Let it be said: we don’t work for free.  The business of law, like any profession, is based on a simple formula: quality work + results = payment.  Sometimes obtaining payment can be the most difficult piece of the equation.  When a fee dispute does arise, an attorney may be required to strike a balance between demanding full compensation and maintaining a productive and ongoing relationship with the client. 

We’ve previously warned of the risks of engaging in collection proceedings against former clients.  However, that …

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Secret Video Exposes Expert Witness to Criminal Proceedings

A New York state judge recently provided a compelling reminder of the serious ramifications for failing to provide truthful testimony on the stand.  The focus of Queens Supreme Court Justice Duane Hart’s admonition was an orthopedist routinely hired to assist in the defense of personal injury cases. When the court discovered through a hidden camera recording that the expert’s testimony was exaggerated at best – or an outright lie at worst – the court ordered a mistrial and directed his attention to potential criminal …

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