State Bar Prohibits Advertising via Text

Professionals are continuously looking for new ways to reach new clients.  Given the popularity of text messaging, many firms have considered incorporating SMS messaging into their marketing plans.  However, sending direct advertising to individuals’ cell phones could violate ethics rules on advertising and implicate federal laws prohibiting certain unsolicited telephone communications.

These issues were recently presented to the Florida Bar’s Standing Committee on Advertising by a criminal defense firm seeking to use text message in its advertising.  Specifically, the firm requested guidance on its plan …

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Risks of Client Indemnification Agreements

Professional consultation doesn’t always go as intended. Despite good intentions, there are always risks facing professionals that the representation will turn sour and lead to a malpractice claim. Clients also face risks and some sophisticated clients take steps to reduce exposure. For example, more corporate clients are attempting to reduce exposure by requiring counsel to sign indemnification clauses within the engagement agreement.  Many firms agree to represent clients pursuant to such clauses in order to develop or maintain business relationships, notwithstanding the additional risk.  However, …

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Are Communications with Experts Privileged? Maybe

In general, the attorney-client privilege protects confidential communications between an attorney and her client when made for the purpose of obtaining or providing legal advice.  The AC privilege applies not only to individual clients, but also to corporations.  In the case of corporations, courts have held that the AC privilege may extend to third parties hired by legal counsel when necessary for the effective consultation between the attorney and the corporate client.  However, the “agent of attorney” exception to the privilege is not unlimited, and …

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Less is More: Lengthy Pleadings Draw Judicial Ire

Federal rules require plaintiffs in a civil action to submit a short and plain statement of the claim showing that she is entitled to relief.  Nevertheless, attorneys often feel compelled to develop their arguments through protracted complaints, and to support their claims with copious exhibits.  In complex cases, thorough pleadings may be necessary to sustain a claim.  However, in the majority of cases, such extensive pleading may produce irrelevant and redundant content that violates court rules and ultimately detracts from the issues at hand.

A …

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Court Clarifies Anti-SLAPP Defense in Malpractice Claims

Strategic Lawsuits Against Public Participation, or SLAPPs, are designed to chill free speech by targeting individuals who speak out on issues of public interest. SLAPP plaintiffs generally do not intend to win on the merits of the lawsuit, but instead seek to harass critics by forcing them to incur legal fees in defending frivolous claims.  Consequently, many states have enacted anti-SLAPP statutes to protect petition and free speech rights.  These statutes protect statements made before a government body or in a public forum in …

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Malpractice Claim Barred due to Mediation Confidentiality

Many litigants want their day in court; however, the vast majority of cases never make it to trial.  Facing heavy dockets, courts are increasingly encouraging parties to resolve claims through ADR methods, like mediation.  In order to foster successful mediation, several states have enacted mediation confidentiality statutes, which prevent mediation discussions from being admitted into court if the mediation is unsuccessful.  While the purpose of these statutes is to encourage parties to speak openly with the mediator, confidentiality may have unforeseen consequences on the …

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NY Ethics Opinion Provides Guidance for LinkedIn Users

LinkedIn is perhaps the go to social media site for professionals seeking to promote their achievements and build their brand.  LinkedIn has carved a niche within the social media landscape by integrating networking capabilities with the specific needs of professionals hoping to build relationships.  Of course, the site also allows users to “endorse” a connection for certain practice areas or to write recommendations as to the user’s skill-set. It is this component of the site that has generated professional ethics issues and opinions. Moreover, the …

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Court Adopts New Test in Harassment Cases

Professionals strive to maintain safe and welcoming workplaces for employees and guests.  To further this goal, many firms have incorporated into their employment manuals anti-harassment policies and training.  Yet, despite such precautionary steps, an employer cannot guarantee an environment free of wrongdoers. In the unfortunate event of a claim, it is up to the court to determine whether an employer that took proactive measures to protect employees is nonetheless liable in employment related harassment claims.

This question was recently presented to the New Jersey Supreme …

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Decision Limits Defenses to FLSA Overtime Claims

You’ve heard it before, here and likely elsewhere, of the risks of FLSA overtime lawsuits. Yet, these suits continue to make headlines. Simply put, qualified employers must pay employees at least 1.5 times their regular wage for every hour worked in excess of 40 hours per week.  This applies to certain professionals who, of course, employee non-exempts personnel. Whether it’s tax season, preparing for trial or meeting a tight deadline, professionals may ask employees to work beyond 40 hours and therefore may be subject to …

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“Friending” Leads to Ethics Complaint

An important aspect of litigation requires counsel to become investigator, to track leads, to turn every stone. Counsel seeks to better understand her adversary. Generally, this discovery process takes the form of formal document production, a long-standing and generally understood method of obtaining information.  In this digital age, many attorneys also take to social media to gain additional information.  However, unlike traditional paper discovery, using social media during litigation is fraught with peril.

Recently, the New Jersey Office of Attorney Ethics filed a complaint against …

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