David E. Leach

All articles by David E. Leach


Til Death Do Us Part: Prenuptial Agreements for the Professional

Engagement letters are a must. In case that wasn’t clear enough: all professionals should document the scope of the client relationship for each and every engagement. New clients and long-standing clients alike, engagement letters are a must. It’s a key aspect of best practices that is often overlooked. "My client and I have developed a trusting, professional relationship over the years and therefore it is entirely unnecessary to propose an engagement letter." It may feel a bit like a prenuptial agreement. Why plan for the worst when things are going so well?  

No Concurrent Causation = No Coverage

The doctrine of concurrent causation can apply in many different insurance coverage scenarios. The doctrine provides that if two causes - one covered by an insurance policy and the other excluded by the policy - both contribute to a loss, then coverage should be afforded under the policy. The doctrine would seem to expand coverage in scenarios where a potential exclusion might otherwise preclude it. Seems simple, right? Not always. Take for example the following APL case where the court found the concurrent causation doctrine did not apply and coverage was denied.  

Negligence Claims Against Insurance Adjusters?

Claims professionals, a/k/a "adjusters" play an important role in evaluating and defending an insured claim as part of the tripartite relationship. When something goes wrong, it is not uncommon for the insured to turn on her attorney but the adjuster is never a target, right? Maybe not. At least two jurisdictions, New Hampshire and Alaska, permit claims of negligence against individual insurance adjusters on the theory that they owe a duty of ordinary care to conduct adequate investigations into an insured’s claim. Pennsylvania recently considered the issue and concluded that the Pennsylvania Supreme Court may permit such a claim against an insurance adjuster.  

High Times: Marijuana in Today’s Workplace

America’s evolving perception of marijuana use is impacting the office setting. While the use of marijuana in the US is illegal under federal law, a state may pass laws permitting recreational or medical use so long as it maintains a proper regulatory system. Does this present a conflict amongst the courts and a headache for employers? You bet. Today, twenty-one states and DC permit the use of medical marijuana, and four more states have medical marijuana legislation pending. Given these developments and others on the horizon, employers must adapt to a workplace that may include recreational pot smokers.  

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.  

Facebook Discovery Infraction Leads to Attorney Sanction

The proliferation of social media has altered the litigation landscape. Most attorneys on both sides of the v. understand the implications of social media, particularly during the discovery stage. Nonetheless, the law governing social media and discovery is still in its infancy. The result is troublesome: practitioners encounter social media issues but the rules governing those scenarios are not entirely clear. One rule that is well established is the requirement that a legal hold be implemented for all relevant materials, including social media content. The failure to abide by this rule could be dire.  

Social Media Ramifications for Professionals: A Cautionary Tale

The use of social media as a marketing tool for professionals has become increasingly common. Studies suggest that this trend will continue as more professionals are utilizing social media to develop business. In an ever-changing technological world, many attorneys and other professionals tweet, post status updates, engage in internet advertising, or blog on a regular basis without considering the legal and ethical ramifications . Recent decisions serve as a reminder that the outcome of social media activity may result in unwanted and unintended attention.