Risk Management Archives - Page 8 of 13 - Professional Liability Matters

First Circuit Enforces Arbitration Clause in LPL Suit

Professional Liability Matters has previously advocated the benefits of a well-drafted mediation or arbitration agreement in the professional engagement letter. The judicious application of alternative dispute resolution can help to mitigate costs, expedite conflict, and preserve business relationships. Although an ADR provision can lead to efficient resolution of the substance of a professional liability suit, invoking the provision itself can sometimes lead to contentious litigation in its own right.

The question of the enforceability of an arbitration agreement in a professional engagement letter was recently …

December 31, 2013 Risk Management

New Year’s Resolutions for the Professional

Maybe 2014 will be the year that you stick to your New Year’s resolutions. While weight loss, charitable giving, drinking less, learning something new, and quitting smoking top the list of most common goals for next year, your friends at PL Matters suggest adding a few resolutions. We’ve taken a close look at what has interested you the most in 2013 and based on that data we’ve compiled a list of lessons taken from our collection of posts for you to incorporate into your 2014 …

December 18, 2013 Insurance Products / Risk Management

Application of the Innocent Insured Clause

Professional Liability Matters has repeatedly stressed the importance of accurate, timely and careful reporting of potential claims. Whether it be during the application or renewal process or somewhere down the road, most insureds are contractually obligated to report threatened claims. This requires that the organization solicit responses from all professionals (which can be a logistics problem for larger organizations). Many firms submit a short questionnaire that must be answered by everyone. But how is coverage implicated for the organization when one bad apple knowingly conceals …

November 26, 2013 Legal Malpractice / Risk Management

Who Can Sue Me? Liability to Non-Clients

Generally an attorney only owes a duty of care to her client. Thus, a predicate to a meritorious legal malpractice action is the existence of an attorney-client relationship. But, identifying this relationship and determining to whom that duty extends is not simple. A recent decision demonstrates that an attorney may be exposed to malpractice based on the expectations of non-clients.

In Pete v. Anderson, (Nov. 21, 2013) the Kentucky Supreme Court considered whether the children of a man who died in an auto accident …

November 21, 2013 Risk Management

When Does a Professional Liability “Claim” Arise?

Professional liability insurance policies cover professionals for claims arising within the agreed upon policy period. At first blush this appears to be a relatively simple concept but there is plenty of room for confusion which can result in a lack of coverage. What is a claim? The fact that a lawsuit was filed within a policy period does not necessarily mean that the “claim” giving rise to the lawsuit is covered under a PL policy. A perfect example of this issue was presented to the …

November 19, 2013 Legal Malpractice / Risk Management

Tripartite Relationship Put to the Test

The so-called “tripartite” relationship exists when an insurer retains defense counsel to represent the interests of the insured. Against this backdrop, it is relatively uncommon for an insurer to maintain a successful claim against defense counsel. In the majority of states, direct malpractice claims by an insurer are disfavored. The theory behind these decisions stems from the sanctity of the attorney-client relationship and a hesitation to interfere with defense counsel’s duty to the insured in the tripartite scenario. Accordingly, few claims of this nature succeed. …

November 15, 2013 Risk Management

Leave ‘Em at Home: Don’t Bring Anything to a Depo

Have you ever considered the consequences of a witness bringing her mobile phone to a deposition? May a deposing attorney ask a witness to retrieve information stored on a hand-held device during a deposition? Many lawyers may fail to anticipate the consequences of a witness bringing documents or other materials to a deposition and may overlook this issue when preparing the client. This lack of foresight can lead to unintended discovery disclosures.

Take, for instance, a witness who pulls out a document when questioned and …

November 6, 2013 Legal Malpractice / Risk Management

Attorneys: Don’t be Michael Scott

There’s a great scene from the Office when Michael Scott continues to blindly follow his obviously incorrect GPS device until he has driven his car into a lake. Don’t be Michael Scott. There are times when an attorney must stop and question the client when the representation reaches an uncomfortable level or the attorney suspects wrongdoing.

We’ve previously discussed the allocation of authority between attorney and client. A more recent example of attorney misconduct highlights the potential for ethical ramifications when an attorney blindly relies …

November 5, 2013 Risk Management

Are Deposition Breaks Privileged?

Attorneys should proceed with caution when consulting with a client during deposition breaks. Whether it be a hospitality break, for lunch, or for an overnight adjournment, there is room for trouble when a client and attorney discuss aspects of an ongoing deposition. Depending on the jurisdiction, communication between attorney and client may not be considered privileged and may be fodder for deposition questioning.

One of the more oft-cited cases on the topic of client consultation during deposition breaks is Hall v. Clifton Precision, 150 …

October 15, 2013 Ethics / Legal Malpractice / Risk Management

The Ethics of Billing During Travel

Client billing and fee disputes are at the heart of a significant percentage of all malpractice claims brought against attorneys each year. There are myriad courses and guides for ethical billing available for all professionals yet lawsuits and administrative complaints abound regarding billing issues. However, even the most well-intentioned attorneys encounter situations where the “rules” of client billing are not crystal clear; perhaps none moreso than the debate regarding billing for travel.

Reportedly, in 1965 law firm associates billed approximately 1500 hours annually whereas …