Michael P. Luongo

All articles by Michael P. Luongo


Attorney-Client Privilege Put to the Test

Although many attorneys may hate to admit it, the attorney-client privilege has its limitations. Of course, this long-standing privilege protects confidential communications made by a client to her attorney for the purpose of seeking legal advice. By protecting these confidential communications, clients are encouraged to disclose all pertinent information to their attorneys. Particularly in the private sector, the attorney-client privilege enjoys wide latitude. However, a recent Pennsylvania Supreme Court decision suggests that the issue of whether the privilege extends to government entities and the attorneys who represent them is a more challenging issue for courts.  

Promptly Disclose…Don’t Promptly Confess

Professional Liability Matters would have little to discuss if professionals were perfect. Needless to say, we are not. Often, it is how the professional responds to the inevitable error that can mean the difference between soon forgotten mistake and malpractice. Upon the discovery of an error, some professionals are confronted with a difficult conflict: their interest in confronting the error and discussing it with the client on the one hand, without making an admission that could jeopardize insurance coverage on the other. This conundrum places the professional in a very difficult position.  

First Circuit Enforces Arbitration Clause in LPL Suit

Professional Liability Matters has previously advocated the benefits of a well-drafted mediation or arbitration agreement in the professional engagement letter. The judicious application of alternative dispute resolution can help to mitigate costs, expedite conflict, and preserve business relationships. Although an ADR provision can lead to efficient resolution of the substance of a professional liability suit, invoking the provision itself can sometimes lead to contentious litigation in its own right.  

Third-Party Harassment Could Lead To Employer Liability

Most employers understand the significant consequences of sexual harassment at the workplace and take proactive measures to train employees about proper conduct. However, liability is not limited to the conduct of employees. Employers also have a responsibility to prevent sexual harassment by third parties such as clients, vendors, patients, and customers, when the employer knows about the conduct and fails to take any corrective action. Although third-party harassment is reportedly just as common, many employers do not take appropriate steps to prevent it.  

When Does a Professional Liability “Claim” Arise?

Professional liability insurance policies cover professionals for claims arising within the agreed upon policy period. At first blush this appears to be a relatively simple concept but there is plenty of room for confusion which can result in a lack of coverage. What is a claim? The fact that a lawsuit was filed within a policy period does not necessarily mean that the “claim” giving rise to the lawsuit is covered under a PL policy. A perfect example of this issue was presented to the court earlier this month in Regency Title Co. v. Westchester Fire Ins., (E.D. Tex. Nov. 15, 2013) during which the USDC for the Eastern District of Texas considered the date on which a claim arises for purposes of triggering coverage.  

Leave ‘Em at Home: Don’t Bring Anything to a Depo

Have you ever considered the consequences of a witness bringing her mobile phone to a deposition? May a deposing attorney ask a witness to retrieve information stored on a hand-held device during a deposition? Many lawyers may fail to anticipate the consequences of a witness bringing documents or other materials to a deposition and may overlook this issue when preparing the client. This lack of foresight can lead to unintended discovery disclosures.  

Calculating FMLA Leave: What Employers Need to Know

The Family Medical and Leave Act (FMLA) provides job security to employees who require time away from work due to illness or the need to care for family. By some accounts, the FMLA is one of the most difficult employment laws for an employer to administer and therefore is a risk management "legal labyrinth." In particular, the seemingly simple task of calculating the duration of FMLA leave can be daunting.  

Exposure to Disciplinary Action Away From Home

In most circumstances an attorney may only practice law in jurisdictions where she is licensed. Practicing law in a foreign jurisdiction may expose the professional to prosecution for the unauthorized practice of law. The Ohio Supreme Court recently considered whether an attorney who is not licensed to practice in the jurisdiction is subject to the forum state’s disciplinary authority in Disciplinary Counsel v. Harris, 2013-Ohio-4026 (Ohio Sept. 26, 2013).  

Stop; Hammer (Clause) Time

Litigation is big business with big dollar signs. As a result of the large awards that can result from malpractice suits, many professionals, their attorneys, and insurers are interested in early settlement discussions. When considering settlement, the defense team must balance “right and wrong,” pride, defense costs, and other complicated factors that are difficult to quantify. For the professional, the decision may be more about reputation and morals than budgets. As a result, insureds may not always want to follow their insurer’s inclination to settle. Enter the “hammer clause.”  

Arbitrator’s Conflict Voids Arbitration Award

We previously warned of the risk that settlements purportedly achieved at mediation may unhinge due to the failure to document the settlement terms. Along those lines, a recent decision highlights the effect of an arbitrator’s failure to disclose his connection to a party. Many attorneys are chosen as an arbitrator due to their reputation in the community or personal/business relationships. Accordingly, there may be some heightened risks of potential conflicts, as seen here.  

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 its clients in the commission of fraud.  

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.  

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).…  

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.  

NY Attorney’s Attempt to Recover Legal Fees Backfires

Letit 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.  

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 proceedings against the expert.  

Professionals Beware: Unpaid Internships May Prove Costly for Employers

With summer break in effect, many students are utilizing the time off from school to participate in internships. Internships provide students with an opportunity to gain work experience in a particular field and, arguably, make them more marketable upon graduation. However, these intangible benefits may not excuse an employer from failing to pay interns under state and federal labor laws.