The most common forum for malpractice claims is civil litigation. However, a professional may find himself in a potentially worse situation if the appropriate professional regulatory board also gets involved. Take for example a recent case of accounting malpractice that demonstrates the serious side effects that can occur when an accountant falls short of the standards of the profession.
Professionals depend on third-party email services to operate their business. As a result, professionals may assume that the vendor is safeguarding their electronic information and therefore the professional is not exposed. False. Consider an attorney sued recently for malpractice arising from an e-mail hacking scam.
The judicial process is adversarial by definition. That doesn't necessarily mean that every case is contentious but many are. In these cases, particularly when emotions are involved, attorneys and their clients often feel strongly that they have been wronged and search for opportunities to be vindicated. When an attorney believes that the other side is asserting a frivolous claim or acting with an improper purpose it may be tempting to raise the prospect of filing a disciplinary action against the opposing lawyer. However, attorneys must tread cautiously when threatening disciplinary action in litigation. Doing so could violate ethics rules and potentially result in disciplinary action against the attorney making the claim.
Part of running a successful professional practice involves fostering a work environment that is free from harassment. Federal law protects employees from harassment in the workplace, which becomes unlawful where the conduct is so pervasive as to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Many employers train employees about the consequences of harassment and have policies to handle employees who violate the rules. However, managing the conduct of employees is not necessarily sufficient to prevent liability.
Document production is often an arduous task made more so by e-discovery requirements. Electronically stored data results in exponentially more complicated, time-consuming and expensive discovery. Many law firms have protocols to efficiently handle e-discovery or they work with a vendor to lend a hand. However, recent decisions suggest that courts have heightened expectations and are less likely to overlook mistakes by firms who handle sensitive data. A recent decision out of California serves as a reminder that failure to follow reasonable e-discovery standards may result in sanctions.
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.
The good news is that April typically marks the busy season for home sales and the housing market continues to gather strength. The bad news is that increased activity may mean additional professional liability risks face architects and engineers, designers, agents, inspectors and all real estate professionals. With all signs suggesting that the housing market is picking up momentum, and that trend is expected to continue, real estate professionals will find themselves with more work but they must proceed with caution.