Troy A. Bataille

All articles by Troy A. Bataille


Are Communications with Experts Privileged? Maybe

In general, the attorney-client privilege protects confidential communications between an attorney and her client when made for the purpose of obtaining or providing legal advice. The AC privilege applies not only to individual clients, but also to corporations. In the case of corporations, courts have held that the AC privilege may extend to third parties hired by legal counsel when necessary for the effective consultation between the attorney and the corporate client. However, the “agent of attorney” exception to the privilege is not unlimited, and may lead to the unintended discovery of information when used for an improper purpose.  

Less is More: Lengthy Pleadings Draw Judicial Ire

Federal rules require plaintiffs in a civil action to submit a short and plain statement of the claim showing that she is entitled to relief. Nevertheless, attorneys often feel compelled to develop their arguments through protracted complaints, and to support their claims with copious exhibits. In complex cases, thorough pleadings may be necessary to sustain a claim. However, in the majority of cases, such extensive pleading may produce irrelevant and redundant content that violates court rules and ultimately detracts from the issues at hand.  

NLRB: Limiting Limits on Employee E-mails

If you frequent Professional Liability Matters than you’ve heard us rant about the importance of up-to-date computer use policies. An employee’s use of workplace computers and other company provided devices may trigger employer liability. As a result, employers must be careful to tailor policies that protect the employer but don’t go too far. It may be tempting for an employer to consider an outright ban of non-work related e-mail use by employees. Tempting, maybe, but improper according to the NLRB. The NLRB’s recent decision very well could have major implications on an employer’s right to restrict employee e-mail communications.  

Overzealous Advocacy Leads to Sanctions

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. To this end, lawyers are expected to protect clients during discovery by properly counseling them in anticipation of depositions and objecting to requests that are truly improper without crossing the line. However, overzealous advocacy, which obstructs legitimate discovery requests, may draw judicial ire and potentially lead to disciplinary action. Consider the following example.  

Professionals Targeted in Shareholder Suits

It is generally well settled that shareholders may sue a corporation’s board of directors. When business transactions go awry or in the wake of questionable (or certainly fraudulent) business practices shareholders have standing to sue directors and officers under theories of breach of fiduciary duty and the like. But shareholders may have other targets as well. Many corporations rely upon third-party advisors before making corporate decisions. May a shareholder target financial advisors, accountants, attorneys and other third-party professionals in this scenario? A recent decision suggests that shareholders armed with an “aiding and abetting” theory may sue the professional along with the board of directors.  

Attorneys: Don’t be Michael Scott

There’s a great scene from the Office when Michael Scott continues to blindly follow his obviously incorrect GPS device until he has driven his car into a lake. Don’t be Michael Scott. There are times when an attorney must stop and question the client when the representation reaches an uncomfortable level or the attorney suspects wrongdoing.  

Wrongful Death Suit Questions Medical Treatment of Professional Athletes

Derek Boogaard was a professional hockey player known for his fists more than his skill with the puck. His unexpected death in 2011, and the recent lawsuit that followed, renews questions concerning the obligations of the physicians tasked with treating professional athletes. While publicity over this litigation trend is largely focused on the NFL’s safety precautions, this recent suit has ignited a firestorm of questions over the adequacy of medical care provided to all athletes and may open the door to increased liability.