Seth L. Laver, Author at Professional Liability Matters

July 2, 2018 General

Here’s to an Uneventful July 4th

July 4 is not the ideal time to consider insurance but for too many it is a reality. By way of a reminder, after voting for independence on July 2, 1776, in the midst of the American Revolution, Congress turned its attention to the Declaration of Independence. The document was a statement explaining this decision, which had been prepared by a committee led by Thomas Jefferson. Congress debated and revised the wording of the Declaration, finally approving it on July 4, 1776. The following year, …

June 18, 2018 Legal Malpractice / Settlement

The Dreaded Settle and Sue: Alive and Well in New Jersey

It is no secret that parties more often settle than proceed through trial. While courts roundly applaud this as beneficial to both the system and litigants, it sometimes generates second guessing from the clients. As Larry David put it, “a good compromise is when both parties are dissatisfied.” It is therefore no surprise that many legal malpractice claims follow from settlements, despite the general principle that the settlement itself precludes such a suit. In a recent decision from the New Jersey Appellate Division, the court’s …

June 4, 2018 Coverage / Legal Malpractice

Secrets Are No Fun, Especially When It Comes To Malpractice Coverage

The risk of a malpractice claim is real. That’s the bad news. But, now that we have your attention, the good news is that insurance is available to defend and indemnify professionals who face malpractice claims. In order to receive coverage, however, professionals generally must disclose whether they are the subject of any potential claims when completing their applications. If an insurer discovers that a professional had knowledge of a potential claim, but failed to disclose it, it could rely upon the nondisclosure as a …

May 14, 2018 Employment Practices Liability

Whopper of a Tale: Burger King Employee Denied Accommodation

Employees should feel safe at work. But not everyone is that fortunate, including an assistant manager at a Burger King who was attacked at gunpoint when attempting to make a bank deposit on behalf of his employer. He allegedly suffered from PTSD and depression. Burger King denied his request for an accommodation by changing his work schedule prompting an interesting decision.

All of Burger King’s managers rotate among three distinct work shifts. The employee requested a fixed work schedule and to be moved to a …

May 8, 2018 Risk Management / Sanctions

Attorneys Can’t Bury the Smoking Gun

The smoking gun. That key piece of evidence that will conclusively prove your client’s case and guarantee victory may be out there. Truly dispositive evidence is rare, given that most cases turn on a series of events, an application of the law or several facts, as opposed to one document or one line of testimony. But what if you discover that key fact which is harmful to your own claim? It may be tempting to quickly settle the case without disclosing the smoking gun. Not …

April 30, 2018 Ethics / Risk Management

Lawyers Must Admit Mistakes

No one is perfect. In the adversarial arena of litigation, attorneys are rarely willing to admit even having a weak legal argument, let alone an actual error. However, the American Bar Association recently issued an opinion which makes it an ethical duty for attorneys to disclose any material errors in representation to their clients.

The use of “material” in this opinion allows for a sliding spectrum which the ABA provides some general guidance in defining. A material error is defined as one that a “disinterested …

April 23, 2018 Employment Practices Liability

The Equal Pay Act & Salary History

Show of hands: who’d like to receive less pay for performing the same functions as your colleagues? The Equal Pay Act seeks to combat this issue and permits wage disparity only in the most limited of circumstances. In a recent federal decision, the court addressed whether an employer’s computation of salary based on a strict formula violated the Act when it resulted in disparate payment of female and male employees.

In Rizo v. Yovino, the Ninth Circuit addressed whether an employer could rely on …

April 9, 2018 Legal Malpractice

Malpractice from Litigation Funding?

Third-party litigation funding is still in its relative infancy and yet it has blossomed into a massive industry. Litigation funding spans from payday-like loans for personal injury litigation to multi-million dollar intellectual property disputes. Many attorneys across the spectrum have commented on the issues that could arise from this new market, but malpractice lawsuits in connection with the funding itself are extremely rare. However, a recent suit filed in the United Kingdom could be a sign of things to come for those firms who are …

April 2, 2018 Employment Practices Liability

Telecommuting as a Reasonable Accommodation

It’s been said that the first step toward success is showing up. But is that always required in the workplace? More to the point, is physical presence an essential function of an employee’s job? Sometimes. In a recent decision, the Sixth Circuit addressed whether physical presence was an essential job function for an in-house legal counsel employee.

In the decision, found here, the employee – an in-house attorney – was denied a request to work from home for ten weeks while she was on …

March 26, 2018 Risk Management

New Law in PA: Quantum Meruit for Predecessor Counsel

In a recent decision, the Pennsylvania Supreme Court brought the commonwealth into line with the majority of states in allowing predecessor law firms to bring quantum meruit claims against substituted counsel. In the underlying case, the plaintiff’s claim was originally brought by an attorney at Firm A who then left for Firm B. While the plaintiff initially allowed Firm A to remain as co-counsel, the firm was eventually dismissed and the case settled. Firm A then sued Firm B to recoup a portion of …