Author Archives: Seth L. Laver

Thou Shalt Timely Report All Claims

A recent decision before the Nevada Supreme Court highlights the importance of timely reporting all claims. The issue: is a carrier’s “constructive notice” of a potential claim sufficient to trigger coverage? Lesson: all professionals must have a firm grasp of the reporting requirements under their professional malpractice policy or risk denial of coverage. The Nevada Supreme Court’s decision in Physicians Insurance Co. v. Williams raises the all-important question: must all professionals, even pill-poppers and cocaine abusers, provide their insurance representative with timely notice of a claim? This decision also clarifies that the reporting requirement is not excused even if the insurer had independently learned of a potential claim.

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Why Avoiding the ‘Fiscal Cliff’ May Have Caused Increased Risks to CPAs

We avoided the fiscal cliff. That is old news and, for most Americans, it is also good news. But, the developing fallout and the impact of Congresses’ eleventh-hour solution has particular implications on accountants gearing up for tax season. On January 2, 2013 Congress enacted the American Taxpayer Relief Act of 2012; a fiscal cliff tax package whopper which effectively changed the rule-book. At a time of year when accountants across the country are typically saying "so long" to their families to prepare for the hibernation that is tax-season, this year’s crop of tax-preparers is stuck in its tracks waiting for the IRS to issue updated software. From a professional liability and risk management standpoint, this is troublesome.

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The Importance of Record Retention

All professionals must maintain and follow a clearly documented record retention policy. These policies are more stringent and regulated for some professions. Each of the 50 states maintain regulations governing work-paper ownership and record retention for accountants, for example. Attorneys, too, may be guided by fairly specific record retention policies pursuant to the applicable Rules of Professional Conduct governing lawyers state-by-state. Despite these regulations, all classes of professionals routinely face legal woes as a result of poor record retention compliance. This risk intensifies as a result of cyber risk and associated liability from electronically stored information.

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Chinese Walls Are No Longer High Enough

The New Mexico Supreme Court recently entered a decision with ramifications regarding conflicts of interest in law firms. The issue: may a firm cure a clear conflict of interest by erecting a “Chinese wall.” The lesson: Chinese walls are not as strong as they used to be and some conflicts may only be cured through the disqualification of counsel, and maybe the entire law firm.

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Colorado Shooter’s Psychiatrist Sued for Medical Malpractice

The widow of a man killed in last year’s mass shooting in Aurora, Colorado has filed a lawsuit against the alleged gunman’s psychiatrist claiming she knew of his threats to harm others and failed to warn of the imminent danger. Issue: When is a psychiatrist obligated to warn the public of her client’s threats to the public? Lesson: Threats of imminent harm cannot be taken lightly and preventive measures should be taken despite the application of doctor-patient confidentiality.

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When Your Client Lies: What we can learn from Lance Armstrong

Lance Armstrong’s legal team played a part in each of the racing metals, the Livestrong brand, the endorsements, the accusations, the denials and of course the many lawsuits he filed to defend his reputation. Frankly, in light of the recent confession on Oprah, Armstrong’s attorneys may be feeling a bit uncomfortable.

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Engagement Letters 101 – The Professional Rule Book

The first rule of engagement letters: obtain a signed engagement letter. The second rule of engagement letters: obtain a signed engagement letter. The remaining rules are a bit more complicated. A well written engagement letter is absolutely critical to managing risk. It defines the scope of the engagement and, as a result, sets appropriate expectations with the client. An engagement letter may help to discourage meritless malpractice claims and may serve as “Exhibit A” in a dispositive motion. On the other hand, the lack of an engagement letter may result in an undefined engagement and may promote meritless, protracted litigation.

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Lawyers Found Liable For Fabricating Asbestos Claims

A jury in West Virginia just awarded nearly $500,000 in favor of a transportation company for claims arising from an alleged conspiracy between two plaintiffs attorneys and a radiologist who fabricated asbestos claims. The issue: may an attorney be held liable for unfounded claims? The lesson: completely research the applicable law and facts before accepting an engagement to provide legal services.

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Continuing Fallout – The Penn State Scandal Spawns a Legal Malpractice Lawsuit

At least one of Penn State’s former attorneys is now under fire for her role in the investigation into the Jerry Sandusky scandal. The issue: did the attorney represent the University or its administrators? The lesson: document the scope of your representation.

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