Professional Liability Advocate

Professional Liability Advocate

The Punishing Effect of Rule 11

Federal courts correct bad litigation behavior, eventually.

People take being sued personally, and lawsuits can take an emotional toll on defendants, whether as an individual or as a representative of an employer. Anger and frustration always lead to the same questions: Can we sanction them for lying? Can I get my fees (or my insurance deductible) back? Won’t the court do something?

Federal courts can and do sanction attorneys for lying, failing to investigate claims and “posturing” a case to get a settlement. But sanctions are reserved for the worst offenders, and it often takes multiple violations before attorneys’ fees, costs or other monetary fines are imposed. Continue Reading

What Attorneys Can Learn from History’s Largest Data Breach

468453132On April 3, 2016, the public learned that millions of client documents from the Panamanian law firm and corporate services provider Mossack Fonseca & Co. (MF) had made their way to an international organization, the International Consortium of Investigative Journalists (ICIJ), and that the information would be used to publish potentially damaging stories. In addition, authorities across the globe, from Japan to Switzerland to the United States, are reviewing the documents and investigating potential tax implications, regulatory violations and criminal activity.

Background
It is estimated that since its inception in 1977, MF has incorporated 250,000 businesses, largely in offshore jurisdictions. MF serves a wide range of clients, including politicians, celebrities and corporations. Incorporating “anonymous” businesses is entirely legal. There is, however, a stigma attached to “shell companies,” and several of the public figures associated with these businesses have already been embarrassed by exposé-style articles. The ICIJ has promised that additional, highly compromising articles will be published. Continue Reading

Negative Online Reviews: The Best Defense

WebA recent Washington Post article examined the issue of patient privacy complaints after medical providers responded to negative Yelp® reviews about medical care. The issue of how a professional can (or should) respond to negative online reviews is not limited to physicians or medical facilities. While attorneys are not subject to HIPAA, they are all well aware that attorney-client communications are privileged and confidential and only the client can waive that privilege.

In 2013, Illinois attorney Betty Tsamis was reprimanded by the Illinois Attorney Registration and Disciplinary Commission for responding to a negative Avvo review by a former client in a manner that publicly revealed confidential client information. Similarly, a public reprimand was issued against a Georgia attorney, Margrett Skinner, after she responded to a negative review by discussing details of her representation of her client in a domestic relations matter.

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The Proof Is in the Password!

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Consider this scenario: A young couple entrusts you, an experienced real estate attorney, to assist them in the purchase of their first home. Days before closing, your unsecured email account gets hacked and your client receives an email, which to all appearances is from you, telling them to wire funds to a third-party account instead of bringing the cash to closing. You only find out about “your” email to your client after the transfer has been made and your clients’ savings, accumulated over many years, is gone. What exactly do you think you can say to your clients to make it better?

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Obamacare in the Courtroom: In the Matter of Double Recovery

The Patient Protection and Affordable Care Act (ACA), a/k/a Obamacare, was drafted to make health care and health insurance more affordable and more available to more Americans as well as to relieve some of the burden on Medicaid. However, the ACA also may have an impact on personal injury litigation. In particular, this legislation may serve to reduce awards for the cost of future medical care, while preventing plaintiffs from obtaining a double recovery as they do often today, consisting of an award of the predicted costs of future care and the benefits of ongoing health insurance that is often available for that care. Continue Reading

Rise in Cyberattacks on Professional Services Firms

iStock_000074015155_LargeWilson Elser’s Cyber Incident Response Team has seen an alarming uptick in cyber-criminal activity targeted at professional services firms, particularly accounting firms. As described in more detail below, the criminal activity follows a very specific pattern. We take this opportunity to remind all professionals of the need to be wary and skeptical of what communications they receive electronically. Consider starting the New Year with training and education for yourself as well as your partners, staff and employees on cyber risk and how to best avoid an attack and mitigate any damages if an attack occurs. In the past three months, we have noticed a pattern of activity targeted at small to midsize professional services firms. Attackers attempt to gain access to computer systems containing sensitive financial information, which may result in a legal duty on the part of the professional to notify their clients that their confidential information was or may have been exposed. Continue Reading

Qualified Immunity and Deadly Car Chases: Is the Pendulum Heading the Other Way?

The past several years have seen a slew of high-profile excessive force cases against law enforcement officers, often highlighted by cell phone video. These cases have placed increasing pressure on local police departments, which continue to struggle with balancing the public interest in community safety against the individual rights of suspects on the street. At the highest level of the legal landscape, however, the United States Supreme Court recently issued a decision that arguably expands the qualified immunity defense, at least in certain kinds of deadly force cases. Continue Reading

When Less Is More: The pitfalls of saying too much in professional contracts

designprofessionalsDesign and other professionals often incorporate their practices in an effort to avoid individual liability. They also add well-crafted limitations of liability and indemnification clauses in their form services contracts to avoid responsibility for problems that arise in the execution of the plans. These strategies are especially important for practitioners in jurisdictions where a design professional may be exposed to liability disproportionate to the limited scope of services, such as where codefendants have no insurance coverage or are underinsured. It is also common for plaintiffs to sue the professional individually to attempt to circumvent favorable clauses in the professional corporation’s standard contract for services.

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Arbitration of Nursing Home Suits: Take Two

151002-Professional-Liability-BlogImagev3Quasi Tort Reform in Nursing Home Litigation Is on the Way!

Last fall, I posted a blog about the national trend of including arbitration provisions in nursing home admission agreements. This trend peaked following the U.S. Supreme Court’s decision in Marmet Health Care Center v. Brown, 132 S.Ct. 1201 (2012), in which the Court determined that the Federal Arbitration Act (FAA) preempts any state law or public policy limiting arbitration, holding that the language in the Act did not limit its application to non–personal injury disputes. The only remaining issue is whether contracts requiring arbitration, like any other contracts, are procedurally and substantively enforceable under New York contract laws. Continue Reading

Welcome to the Digital Age, Officer

California SB 178 Seeks to Apply Warrant Requirement to Electronic Devices and Online Data

Gavel-onKeyboard_iStk-11481160_300x200px (2)The California Senate is currently reviewing the proposed California Electronic Communications Privacy Act (SB 178), which generally requires law enforcement entities to obtain a search warrant before accessing data on an electronic device or from an online service provider. The purpose of the bill is to codify and expand on existing case law pertaining to electronic devices and online privacy. SB 178 is co-sponsored by the Electronic Frontier Foundation and the California Newspaper Publishers Association.

Among other things, the bill requires the issuance of a search warrant or wiretap order before a government entity can (1) compel the production of or access to electronic communication information from a service provider, (2) compel the production of or access to electronic device information from any person or entity except the authorized possessor of the device, and (3) access electronic device information by means of physical interaction or electronic communication with the device.

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