Seth L. Laver, Author at Professional Liability Matters

March 19, 2018 Employment Practices Liability

Obesity and The ADA

Is obesity a disability? No. Well, can obesity lead to an ADA-defined disability? That’s where things get tricky. In Ronald Shell v. BNSF Railway Co., a federal court in Illinois addressed these questions and others when a prospective employer denied employment due to its belief that the would-be employee could develop a disability resulting from his obesity.

Mr. Shell applied to work as an equipment operator position that was deemed safety-sensitive because it involves using heavy equipment. Shell had years of experience working in …

March 9, 2018 Employment Practices Liability

What Does Daylight Saving Mean to Employers

At 2 a.m. on Sunday, March 11, 2018, people across the United States will set their clocks forward one hour to begin Daylight Saving Time (DST). The change is intended to align the average workday more closely with the hours that the sun is visible, which studies have shown to cut energy consumption, reduce instances of seasonal affective disorder, and even boost regional economies. Often perceived as a holdover from a simpler and more agrarian U.S. culture, the practice actually enamors some contemporary lawmakers: the …

March 5, 2018 Advertising / Ethics

Court Castigates the Solicit-Then-Refer Model

Attorneys referring cases amongst each other is as old as the practice itself, with referral fees embedded in state and model ethical rules. Whether a conflict exists or the attorney who receives the case is not adept at handling that type of matter, a referral can be a way for attorneys to be rewarded for successful marketing while ensuring proper client representation. However, when a firm appears to focus solely on marketing, and not on the legal matters advertised, significant ethical concerns arise.

The issue …

February 26, 2018 Privileges

A-C Privilege Not Extended to Third Parties

It’s generally known that communications between attorney and client are privileged absent waiver. Often, the client may waive the privilege by sharing an otherwise confidential communication with a third-party. But what if the third-party was engaged by counsel? Parties to a transaction rely on multiple outside professionals to advise on legal and business matters. In such cases, otherwise confidential communications are sometimes shared by counsel with third-party consultants hired to assist with the matter. However, the mere fact that a third-party consultant was engaged to …

February 16, 2018 Coverage

Alleged Crimes Are Not Covered, Right?

For most professionals, renewing your policy is a matter of fact that includes little thought beyond answering a questionnaire. However, it is incumbent upon both insurers and policyholders to regularly review policy language to determine what is, is not, or only may be covered. For example, there is often an assumption that most policies will not cover certain criminal or intentional acts, but that is not always the case. For example, in a recent New Jersey District Court decision, the court found that an insurer …

January 31, 2018 Cyber-Liability

Standing Battles Rage on in Data Breach Litigation

One of the primary points of contention in data breach actions is when, and whether, sufficient damages exist to meet the standing requirements under Article III. Circuit courts across the country have come to different conclusions, with some requiring a showing of actual damage and others allowing the existence of the breach to essentially serve as confirmation that the data will be used illicitly. According to a recent brief in support of certiorari, the DC Circuit falls into the latter category and a review by …

January 24, 2018 Accountants

Accountants Still Targeted a Decade after Recession

Similar to the fallout from Enron, the Great Recession of 2007 saw many accounting firms back in the cross-hairs for allegedly failing to warn of the impending financial doom. Many of these entities (turned plaintiffs) were massive companies with billions in assets, leading to protracted and expensive litigation. While some cases settled to avoid further legal costs, one major accounting firm was recently found liable for violating audit standards for one of its major bank clients prior to the Great Recession. The presiding judge is …

January 17, 2018 Accountants / Defenses / Legal Malpractice

How Long Is Too Long to Wait for Malpractice Actions?

One of the most common problems facing a would-be plaintiff considering a malpractice case is when to file suit. Similarly, those that defend professionals must consider whether to move to stay proceedings if applicable. Especially with accountants and attorneys, causation and damages are difficult to calculate until the underlying matter has concluded. This means that the notoriously long legal process can often come into conflict with the statute of limitations, or create evidentiary problems. The decision is whether to wait many years for the underlying …

January 10, 2018 Defenses

Electronic Notifications for Affidavits of Merit?

The New Jersey Supreme Court recently declined to dismiss a medical malpractice case for an attorney’s failure to file a timely affidavit of merit (AOM). The court based its decision in large part on the trial court’s failure to schedule a preliminary conference (called a “Ferreira” conference in NJ) to discuss the sufficiency of the AOM. The court further stated that it would order improvements to the courts’ automated case management system to ensure the electronic notification of both the AOM filing obligation and the …

January 2, 2018 Legal Malpractice

Is a Client’s Criminal Prosecution Foreseeable?

Professionals assume a duty of care to their clients. Accordingly, professionals may be held liable for damages to clients that are proximately caused by their negligent acts. In many cases, the link between the professional’s negligent act and the client’s injury is clear, such as a missed deadline that waives a client’s rights. The limits of foreseeability become more difficult to define when the professional’s alleged misconduct triggers independent acts by third parties, such as a government investigation of the client.

In Kumaraperu v. Feldsted…