Author Archives: Patrick B. Naylon

Representation Could Go Farther Than You Think  

Hired for A but sued for Z? It may be a more common problem than you think. In overturning a lower court’s decision granting summary judgment, the Appellate Division of the New Jersey Superior Court has added yet more fuel to the fire in the ever-evolving debate as to the scope of representation. In a recent decision, an appellate court held that an attorney tasked with a seemingly simple and defined engagement, may actually be on the hook for much more. This serves as an important reminder to effectively communicate with the client to ensure there is a consensus as to the scope and limits of the engagement.

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Ahoy! Attorney Sunk by File Transfer In Shipwreck Case

Much of our discussion at PLM revolves around duties to clients during the time of representation. However, your professional duties and ethical obligations to a client do not end when the engagement ceases. As illustrated by one recent swashbuckling tale, an attorney has a duty to provide a former client with that client’s file, and may not withhold these materials to leverage other benefits, regardless of the circumstances surrounding the end of the engagement.

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Read It & Weep: Missed Deadline Leads to Significant Consequences

Your friends at PL Matters aim to keep you updated regarding best practices, especially when it comes to professional obligations. However, sometimes best practices just boil down to the basics, including careful reading of court directives. AT&T recently learned this lesson the hard way. Last week, an appeals court ruled that the telecom giant will have to pay $40 million in connection with a case because its attorneys failed to read a court document.

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Restricting Employee Online Activity? Be Careful

Professionals take great pains to develop a positive reputation. Consequently, like all employers, many professionals monitor employee online activity to ensure that it adheres to internal policies and ethical standards. At times, employers may be justified, or even expected, to take action to limit online activity, such as when an employee makes defamatory statements that could be attributed to the employer. On the other hand, however, employers must take care not to infringe upon an employee’s statutory rights to voice legitimate criticism of their employer or to engage in activity to improve the circumstances of their employment. Doing so could violate federal labor laws. Just ask the NLRB.

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Privilege Issues When Attorneys Consult with Attorneys

Attorneys need help too. When issues arise during an attorney-client relationship, attorneys may consult with colleagues about the representation. Some firms rely upon outside counsel to serve this function. Other firms maintain an internal team of attorneys designated to address such issues. Either practice is considered good risk management. But, the application of the attorney-client privilege to these communications is not entirely clear and may vary amongst the jurisdiction. We discussed this issue previously, here. In a recent decision, the Oregon Supreme Court held that such internal communications were not discoverable in a malpractice action.

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Missed Diagnoses is #1 Cause of Medical Malpractice Claims

A recently released study demonstrates that most medical malpractice claims stem from missing serious illnesses and medical conditions. The international study specifically focused on claims asserted against primary care physicians because of their role as the first line of care for patients. The results of the study are noteworthy but not necessarily surprising.

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When Professional Misconduct = Unfair Trade Practices

The California Court of Appeals recently concluded that professional malpractice and ethical violations may give rise to liability for unfair trade practices. In the underlying dispute, attorney Martin Guajardo, the sole shareholder in his own law firm, sold his practice because he faced disciplinary action brought by the state bar. Although Attorney Guajardo ultimately resigned from the bar, he continued to practice law following the sale of his firm. The People of the State of California filed a complaint against Guajardo, and the new firm, alleging unlawful, unfair, and deceptive business practices based upon Guajardo’s unauthorized practice of law. On appeal, the court concluded that Guajardo’s ethical violations also supported a claim under the state’s unfair trade practices act.

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