LATEST INSIGHTS

Social Media Lessons

Serious Sanctions Imposed for Deleting a Facebook Account

A New Jersey federal judge recently ruled that a plaintiff’s deletion of his Facebook account amounted to the sanctionable destruction of evidence. This decision has major implications on social media discovery in all litigation. Some (Law360 – subscription required) experts believe that this result proves that “social media access is fair game in litigation and that workers who try to conceal their online lives will pay a high price.”

In Gatto v. United Air Lines, Inc., the plaintiff sought damages arising from personal injuries allegedly …

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Ethics / Legal Malpractice

When Professional Misconduct = Unfair Trade Practices

The California Court of Appeals recently concluded that an attorney’s professional malpractice and ethical violations may give rise to liability for unfair trade practices.  In the underlying dispute, attorney Martin Guajardo, the sole shareholder in his own law firm, sold his practice because he faced disciplinary action brought by the state bar.  Although Attorney Guajardo ultimately resigned from the bar, he continued to practice law following the sale of his firm.  The People of the State of California filed a complaint against Guajardo, …

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Employment Practices Liability

A Case Study for Employers on Whistleblower Laws

Whistleblower laws are generally designed to prohibit employers from taking retaliatory action against an employee because the employee engages in protected conduct. For example, an employer may not retaliate against an employee for disclosing the employer’s violation of laws or ethics, providing testimony about the employer, or refusing to engage in inappropriate conduct. In a recent decision, the New Jersey Superior Court considered whether an employee’s reliance upon a professional code of ethics not applicable to his employer is sufficient to support a claim under …

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Cyber-Liability

Hollywood Heist Leads to Cyber Liability Suit

The fact pattern sounds like it was ripped from the pages of a Hollywood screenplay.  Two criminals back a trailer to a pharmaceutical warehouse and cut a hole in the ceiling of the facility.  They proceed to utilize the company’s own forklifts to load over $80 million in prescription drugs into the trailer and exit without detection on any security cameras.  All told, authorities estimate that the heist represents the largest known theft of prescription drugs in US history.  The last scene in this …

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Engagement Letters / Risk Management

A Disclaimer of Disclaimers – Limits on Limitation of Liability

Many classes of professionals utilize engagement letters with limitation of liability language.  For example, accountants, real estate agents and home inspectors often include in their engagements a hold harmless or other clause with the goal of limiting potential damages.  Such a clause will establish the extent of exposure, if any, that the professional can be held liable for should problems arise with the engagement.  The question of whether the clause is enforceable is state specific and somewhat unpredictable.

A recent South Carolina decision provides …

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Risk Management

Malpractice Advice from Dr. Oz

Dr. Oz, a well known TV personality, was recently named in a New York lawsuit arising from on-air advice he provided to his viewers.  The doctor allegedly informed his audience about a “heated rice” remedy for insomnia. Dr. Oz called it “my night sleep special” on the April 17, 2012, episode of his NBC show titled “Dr. Oz’s 24-Hour Ultimate Energy Boost Plan.” Unfortunately for 76-year-old Frank Dietl, that Boost Plan left him bedridden for weeks with severe burns on his …

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Director and Officer Liability

How Jerry Sandusky Impacts You

The evolving Jerry Sandusky scandal continues to impact the professional liability community.  Most recently, the Middle District of Pennsylvania reached a decision with major implications on the application of D&O – Director’s and Officer’s Insurance.  In deciding that Sandusky’s acts occurred outside the scope of his role with the Second Mile even though the conduct occurred during Second Mile events, the court may have also exposed directors and officers to increased risk of personal exposure.

A key issue in Federal Insurance Co. v. Sandusky, …

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Risk Management / Social Media Lessons

Social Media Ramifications for Professionals: A Cautionary Tale

The use of social media as a marketing tool for professionals has become increasingly common.  Studies suggest that this trend will continue as more professionals are utilizing social media to develop business.  In an ever-changing technological world, many attorneys and other professionals tweet, post status updates, engage in internet advertising, or blog on a regular basis without considering the legal and ethical ramifications .  Recent decisions serve as a reminder that the outcome of social media activity may result in unwanted and unintended attention.…

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Legal Malpractice

My Lips Are Sealed: No Liability For Attorney’s Non-Disclosure to Non-Clients

Let’s start with the basic principle: an attorney’s duty runs exclusively to the client apart from limited circumstances of fraud when an attorney may be liable to the client’s adversary. The question remains whether an attorney’s decision to keep her mouth shut – i.e. not to disclose key information to the other side – constitutes actionable fraud.  According to a recent decision by the Texas Appeals Court, the fact that an attorney did not disclose information to her adversary does not constitute actionable misconduct.

In …

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