Professionals owe a duty to their clients to satisfy the standard of care commonly exhibited by others within their profession. Consequently, privity is often required to maintain a malpractice claim; i.e. it is often the client with the exclusive right to sue her professional. This narrow application of standing assumes, however, that clients have retained their exclusive right to sue. In fact, as with many torts, clients may freely assign their right to file malpractice actions to third parties, even those that are adverse to …
Continue ReadingAuthor: Michael P. Luongo
Lawyers are Stressed Out
Running a professional practice can be stressful. To be successful, professionals often must work long hours, under tight time constraints, and respond to the needs of demanding clients, while simultaneously working to manage their business and market themselves to new clients. For many professionals, the challenge of working in a professional practice is part of the reward. However, for others, the work can at times be overwhelming. Statistically, an alarming percentage of the legal profession is stressed and, unfortunately, many are depressed.
Earlier this …
Continue ReadingNo Office? No Right to Practice
Many attorneys are licensed to practice in multiple states. By extending one’s practice across several jurisdictions, lawyers can expand the scope of services offered to their clients and increase their appeal. However, in order to provide this service, lawyers must comply with certain laws requiring that the attorney maintain a physical office within the state in order to practice there.
For attorneys practicing in large firms whose footprint extends across several states, these rules may not pose a limitation. However, attorneys in smaller practices, who …
Continue ReadingLiability for Inadvertent Metadata Disclosure
In the modern practice of law, attorneys are expected to be familiar with discovery of electronically stored information. Often this involves the production of files in their native format, which preserves metadata such as the document author, dates of creation and alterations, and where the document was stored. Production of electronic information thus facilitates document review, but also could lead to the disclosure of information that is beyond the scope of permissible discovery.
In a recent opinion, the State Bar of Texas considered the …
Continue ReadingLiability for Lax Data Security
Clients entrust professionals with personal information. As such, professionals have an ethical duty not to disclose confidential information in a manner not permitted by the client. However, in today’s electronic age, professionals are also expected to take proactive steps to ensure that third-parties do not access confidential client information without authorization. Professionals who fail to prioritize client data security could expose themselves to civil liability.
Recently, a group of clients filed a proposed class action lawsuit against their former law firm, alleging that the firm …
Continue ReadingObjecting to Objections
Attorneys strive to be zealous advocates for their clients. Not surprisingly, when defending depositions, attorneys are often tempted to object to questions that they perceive to be damaging to their client’s case, even if the question itself is not improper. Attorneys should be cautious, however, to avoid making excessive objections that are not likely to be sustained.
In a recent employment discrimination lawsuit, attorneys representing the defendant made hundreds of objections over the course of four depositions that the plaintiff characterized as frivolous and …
Continue ReadingBreach of Contract or Tort? Does it Matter?
The professional-client relationship often begins with a retainer agreement/engagement letter: a contract that defines the terms and scope of professional services. Accordingly, when a client files suit alleging professional malpractice, the claims will generally sound in both contract and tort. Whether a claim is asserted as a breach of contract or tort can have important implications with regard to the statute of limitations and other potential defenses. For instance, depending on the state, a tort claim may be time-barred where a breach of contract claim …
Continue ReadingThe Ethical Obligation of Technological Competence
Competence is essential to a successful practice. Competence requires that professionals develop the skill set and knowledge base to meet their clients’ needs and keep up with changes in their practice area. In the modern age, remaining competent also entails that professionals understand and incorporate new technology into their practice. Utilizing new technologies helps to expand professional capabilities, promotes efficiency, and enables professionals to remain competitive. But keeping up to date with technology is not simply good advice for professionals who want to get ahead …
Continue ReadingProfessional Plagiarism Leads to Copyright Claim
Clients expect professionals to work diligently on their behalf, but also want them to achieve results in a cost-effective manner. Experienced professionals are able to accomplish both ends by drawing from their knowledge base and past work product, rather than attempting to reinvent the wheel each time they undertake a new task. For instance, in the legal profession, it often behooves attorneys to begin legal research on novel issues within their firm to see if others have already addressed the issue and have analysis on …
Continue ReadingToo Reliant Upon Technology?
Recent technological advances have rapidly changed the way professionals operate. Professionals are no longer tied to their offices, have myriad resources at their fingertips to research new issues and handle new tasks, and are able to reach new clients through social media. In general, these advances allow professionals to work more efficiently, increase their output, and broaden their professional footprint. However, professionals must tread cautiously when they employ technologies that do not merely assist with professional services, but actually supplant the professional’s role.
According to …
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