A modern-day offshoot of the contingency fee arrangement is “alternative litigation financing.” Also known as third-party litigation financing, A.L.F. is the practice of making cash advances, usually to a litigant, to be repaid from the proceeds from the litigation. There is plenty of room for debate the pros and cons of this developing trend. Supporters may argue that this practice allows an injured plaintiff to take an “advance” on an anticipated recovery to address financial hardship before reaching a settlement or verdict. This is particularly …
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Closing Arguments: It’s Business, Nothing Personal
If trial is a performance, than the closing arguments is clearly the final act. Attorneys channel their inner-actor and perform for the jury with an eye toward persuading the fact-finders to rule in their client’s favor. Every attorney has a personal style during closings. Some are assertive, some conservative. Many attorneys look for creative ways to convey their points. However, there is significant risk that unusual closings may go too far and jeopardize the case, or worse. Take for example the recent reversal of …
Continue ReadingFailure to Disclose Health Condition is Grounds for Malpractice
Attorneys have an ethical duty to keep a client reasonably informed about the status of the representation. The rules of professional conduct generally require a lawyer to provide the client with sufficient information to participate intelligently in decisions concerning the objectives of the representation. Fulfilling this ethical obligation, however, may sometimes require the attorney to inform the client about personal matters that may affect the attorney’s ability to represent the client’s interest. For example, an attorney may be obligated to disclose her own health condition …
Continue ReadingAre Law Firm Advertisements Covered?
All insurance policies are not created equal. Some policies contain exclusions that many professional may not expect. Take for example a recent decision that evaluated whether a law firm’s advertising practices were covered under a D&O policy. In Rob Levine & Associates, Ltd. v. Travelers Casualty, a Rhode Island federal court considered whether conduct relating to Internet and television advertisements was considered “professional services.”
The declaratory action stems from a series of law firm advertisements that urge would-be clients to “Call a Heavy Hitter …
Continue ReadingCriminal Exposure Arising from Secret Recording
A fundamental risk management pointer is to properly document your file. As a result, many professionals are great note-takers; they follow-up conversations in writing, confirm strategy and clearly document instructions. These are all risk aversion tools to protect the professional, to hold others to oral commitments, and provide clarity in future disputes. But, professionals cannot take this too far. There is a difference between jotting notes or confirming conversations on the one hand, and secretly recording or transcribing conversations on the other. Such secret recordings …
Continue ReadingWinter Wreaks Havoc on Employers
Winter storms create challenges for employees and employers alike, with snow, sleet, and freezing rain adding unwelcome stress and hassles. An employer has certain responsibilities when it comes to responding to weather conditions. To eliminate uncertainty and confusion inside the workplace, employers are advised to create a comprehensive emergency weather plan.
Here are just a few factors to keep in mind when preparing a weather plan:
Fair Labor Standards Act
An employee may be exempted from the FLSA’s wage requirements if the employee is paid …
Continue ReadingDouble Covered but Uninsured
Prudent professionals maintain different types of insurance to protect against various risks. Some typical policies for professionals may include D&O, cyber, and/or E&O policies. The foregoing policies and others may overlap, while others allow gaps for claims that would not be covered. It is incumbent upon each professional to purchase the perfect mix applicable to her practice; there is no one size fits all and more is not necessarily sufficient. Although multiple policies may fit together seamlessly to form a safety net, other policies allow …
Continue ReadingThe Risks of Auto-Reply Messages
One of the consequences of modern technological advances is that many expect 24/7 access to their employees and outside professionals. Today there is really no such thing as unreachable and there are fewer and fewer locales that are “off the grid.” 48 hours without responding to e-mail is not acceptable to some. As a result, when business travel, vacation, or other events preclude timely e-mail responses, many employees and professionals utilize the all-too-familiar auto-reply message. However, some experts suggest that these messages carry considerable security …
Continue ReadingPromptly Disclose…Don’t Promptly Confess
Professional Liability Matters would have little to discuss if professionals were perfect. Needless to say, we are not. Often, it is how the professional responds to the inevitable error that can mean the difference between soon forgotten mistake and malpractice. Upon the discovery of an error, some professionals are confronted with a difficult conflict: their interest in confronting the error and discussing it with the client on the one hand, without making an admission that could jeopardize insurance coverage on the other. This conundrum places …
Continue ReadingManaging Client Expectations – A Must for Professionals
Managing client expectations is a critical risk management skill necessary to ensure a healthy professional relationship. Every communication provides an opportunity to revisit and redefine expectations. A professional who sets and fails to deliver upon lofty expectations is in an uncomfortable and potentially litigious situation. There are several tools available to the professional to help curb expectations and limit the damage when (inevitably) the result doesn’t go as planned.
Various studies, most of which arise in the medical malpractice context, prove how important it is …
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