Professionals are only human. Even the most cautious professional is not immune from the occasional mistake. Whether the mistake gives rise to a claim of professional malpractice, however, will often depend not on the error that was made, but on what actions the professional took to resolve the error after it occurred. Professionals are generally reluctant to admit responsibility for a personal mistake. Traditional wisdom suggests that doing so would amount to an admission of guilt that could provide damaging evidence in a future lawsuit. …
Continue ReadingAuthor: Seth L. Laver
Yellow Flag: Employers Need to Exercise Caution When Disciplining Employees for Off-Duty Conduct
NFL star Ray Rice was the subject of a recent media storm when he was suspended by the NFL due to allegations of domestic violence. Many have questioned the response by the NFL and the Ravens’ ownership’s to the Rice saga. This incident provides an opportune time to consider an employer’s obligations when it comes to an employee’s non-work related misconduct and underscores the debate over public and professional spheres. Can an employer discharge an employee for private conduct that has nothing to do with …
Continue ReadingDon’t Judge a Client by its Cover
Clients come in all shapes and styles, backgrounds and personalities. Some are needy; they are less knowledgeable and require handholding, they have a litany of questions and need more attention. Others are more sophisticated, understand the subject matter, have been there before and therefore ask less from you. The sophisticated client is a treat because she understands general concepts and allows you to focus elsewhere, right? Nope! The professional that takes her client lightly, hits the autopilot switch and relaxes her attention is asking for …
Continue ReadingThe Continuous Treatment Doctrine: A Doctor’s Nightmare
Every jurisdiction maintains a series of statute of limitations which set the amount of time a litigant has to initiate a claim before it expires. Some of the purposes of these statutes is to prompt reasonable diligence by the plaintiff to initiate claims and to prevent exposure for long dormant claims. Attorneys are familiar with the various exceptions that act to toll the limitations period, and establishing when the statutory period begins to run can sometimes lead to protracted litigation in its own right. Here, …
Continue ReadingWhat E&O Means to the Real Estate Professional
Attorney or accounting malpractice makes the headlines. Certainly we’ve all heard of high profile medical malpractice cases. But the real estate professional community faces its own challenges. Real estate professionals face significant exposure to claims that may fall under E&O coverage. In particular, E&O coverage is useful when a buyer brings suit against an agent/broker for failure to disclose a property defect, for misleading the buyer about the purchase, or for breach of contract. Most commonly, E&O policies are useful for the real estate professional …
Continue ReadingLiability to Non-Clients: Rule Put to the Test
The general rule: attorneys are not liable to non-clients. Accordingly, apart from limited exceptions, privity is required to pursue a malpractice claim against an attorney. Despite this rule, plenty of non-clients file suit against attorneys. Are courts receptive to these all-too-common claims? A recent decision reinforces the general principle that privity is a must to proceed against an attorney.
A recent case, decided by the District of Columbia Court of Appeals suggests that courts are enforcing the general rule. In Scott v. Burgin, …
Continue ReadingCyber Lessons from Jennifer Lawrence
As you’ve no doubt heard, hackers recently accessed dozens of female celebrities’ personal cloud-based storage accounts, releasing hundreds of nude photographs and videos onto the web. Many of the photographs were taken by cell phones, which automatically backed up the files to popular cloud services, such as iCloud and Dropbox. Some suspect that the hackers then employed targeted attacks in which “brute force” programs were used to randomly guess weak passwords for a given username until it found a match. Once inside the celebrities’ cloud …
Continue ReadingOverzealous Advocacy Leads to Sanctions: Part II
Attorneys have an obligation to provide zealous advocacy on behalf of their clients and to pursue a client’s interests within the bounds of the law. We recently posted an example of an attorney that crossed the line. Here’s another example which resulted in sanctions imposed upon an attorney for discovery abuse. In both cases, sanctions were levied against attorneys defending a deposition. Accordingly, we’ll take the opportunity to provide some tips to avoid a similar result in your practice.
In this recent example, a U.S. …
Continue ReadingWell Documented Advice Defeats Malpractice Claim
The best is not always good enough. Clients sue their professionals, whether justified or not. So, while there is no way to eliminate malpractice exposure, there are plenty of steps to avoid or help to defend such a suit. One of the golden rules of risk management is to properly maintain a written record of communications with the client. In particular, documentation is especially important when the client and professional may disagree. A well-documented file will not prevent all lawsuits but, as exemplified in a …
Continue ReadingInteresting Take on the Common-Interest Privilege
Generally, we’re encouraged to share, to cooperate, and to collaborate. But, that’s not always the case for lawyers. Attorneys may shy away from these niceties because open communication may result in the unintended disclosure of non-public information during discovery. The attorney-client privilege obviously protects those communications between professional and client. The common-interest privilege goes further. The common-interest privilege protects the confidentiality of communications passing amongst attorneys for different parties, often in the context of a joint defense effort. This privilege affords all parties the opportunity …
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