When Clients Turn on their Lawyers

Have you heard of the “Pharma Bro”; the CEO who, according to reports, notoriously purchased a drug used to treat AIDS patients only to dramatically increase its price? He’s made considerable press recently and now he’s turning on his lawyers. In a recent hearing, lawyers for pharmaceutical hedge fund manager Martin Shkreli requested a delay in scheduling trial as they contemplate asserting “reliance of counsel” as a defense.
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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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Abuse of Process Examined

Combating bullies has recently become a trending topic, particularly with the rise of bullying on social media. However, in the legal world, bullies also run the risk of being sanctioned, as a recent fashion copyright infringement case illustrates. The suit, filed by graffiti artist RIME against fashion label Moschino, alleges illegal copying of a design. In response to the designers’ motion to dismiss, RIME filed its own motion, based in part on abuse of process. According to RIME, the designers’ motion to dismiss is a tactical and intentional attempt to scare and burden RIME in the hope that he will retract his lawsuit.
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Communication Breakdown = PL Claim

Communication is key. Defining clear objectives, limiting unreasonable expectations, and keeping the client reasonably informed of any developments in the matter at hand all go a long way to maintaining client satisfaction. However, not all professionals prioritize these relatively simple measures for successful representation. According to a recent study investigating malpractice claims against medical professionals, poor communication is a major contributor to liability actions. The study analyzed over 1800 lawsuits against doctors arising between 2007 and 2014, with a focus on the specific elements that led to patient injury.
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To Retain or Refrain?  Legal Record Retention Requirements

Litigation generates a ton of paper – pleadings, motions, drafts, correspondence, legal research – and these materials do not simply vanish once your involvement with a case has ended. What happens to all of this paper is an important question not only in terms of your legal obligations with regard to retention, but also for your bottom line. The necessity of managing and storing records from closed cases adds to the cost of providing legal services. So what happens when a case closes or you pass the case along to another attorney? Must you keep the 500,000 pages of documents generated during your representation? Can you simply send everything to the shredder? How long must an attorney retain client files once the case is closed or the representation is terminated?
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Dangers of Providing Advice Outside of Your Expertise

Today's lesson: stick with what you know. Clients may ask their commercial litigator for an assist with their cousin’s DUI. An estate attorney may feel inclined to advise a longstanding client about a trademark application. It is not uncommon for clients to seek input from their attorneys irrespective of whether the advice falls well outside of the attorney’s area of expertise. As a recent New Jersey case illustrates, the attorney’s best bet may be to refer the client elsewhere.
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Who is Really Writing the Expert Report?

Expert reports are a staple in many litigated matters. A good report should clearly convey the opinion and provide sound reasoning for the basis of the opinion. It is to be expected that an attorney and the expert will work together to formulate the expert opinions and ultimately to author a report. But how much input may an attorney provide? Federal Rule 26 clearly states that the expert report is to be prepared and signed by the witness. Nothing in the rule prohibits counsel from helping the witness. But, it's not completely clear from the rule exactly what level of involvement is permissible. A recent federal case sheds some additional light on this issue.
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Drop Dead Deadlines – Impartial or Indiscriminate? 

The world of litigation is rife with deadlines. Even a meritorious argument or strong case can be derailed by failure to timely file pleadings and motions. This reality was illustrated in the recent case of Connolly v. 129 East 69th St. Corp. In this slip and fall case, a defendant moved for summary judgment to dismiss plaintiff’s case, and the trial court granted the motion. On appeal, however, the decision was reversed, as the court held the motion was filed one day after the motion filing deadline.
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AOM Failure Closes the Door, but for How Long?

To minimize frivolous professional malpractice claims, many states have enacted affidavit of merit statutes. The range and substance of these statutes can be dizzying; indeed, that’s why we recently published a handy table with requirements and resources for each state. The AOM rules provide defense attorneys with an important tool to help defend malpractice claims in certain jurisdictions. In the extreme scenario, dismissal may be appropriate due to a faulty, lacking or late AOM. But, the question remains, whether the plaintiff has the opportunity to cure that defect and continue with the litigation.
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Public and Private E-mails Don’t Mix

Hillary Clinton recently made headlines for using her personal email account for business purposes during her tenure as Secretary of State. This high profile example provides us with an opportunity to reflect upon what is commonplace for some. It can be tempting for employees to use personal email accounts to conduct corporate business, particularly when working remotely. However, the highly sensitive nature of Clinton’s job raised questions over the security of using a non-work email account to transmit information. Depending on the nature of your job or the emails that you send, there are risks when mixing personal and business e-mails.
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