Professional Liability Advocate

Every summer, warm weather prompts millions to flock to bodies of water. While sunbathers likely give little thought to the source of water in which they frolic, design professionals and builders of public and private projects must pay careful attention to how construction will affect stormwater that eventually finds its way into lakes and oceans. Stormwater runoff is rain or melted snow that runs across, rather than seeps into, the ground. Runoff can cause severe damage. Without any type of treatment, runoff also pollutes tributaries and major waterways. Improper design, faulty construction or lack of maintenance of stormwater management systems can create professional exposure to unexpected avenues of liability.

This is my first entry as a regular contributor to the Municipal & Public Entity section of the Professional Liability Advocate blog. Municipal and public official litigation falls under Wilson Elser’s Municipal/Local Government practice group.

Among other topics, this blog will focus on cases and liability under 42 U.S.C. §1983. Section 1983 is a notably short statute – it covers less than a single page in the United States Code – yet is responsible for a very large volume of federal litigation. This is because section 1983 does not provide substantive rights as such, but rather a procedural mechanism, a cause of action, to enforce rights guaranteed elsewhere by the U.S. Constitution and federal laws.

Accounting firms often use post-employment restrictive covenants to prevent their clients and employees from being poached by departing partners and employees. As the number of accountants moving between firms has started to pick up again, so too has the number of disputes concerning the enforceability of the restrictive covenants those accountants signed at their former firms.

When an attorney is requested to act as “local counsel” by an out-of-state attorney in a new lawsuit, the local counsel may have additional duties that flow from Rules of Civil Procedure or Local Rules that govern lead counsel’s admission pro hac vice. For instance, Alaska R. Civ. P. 81(a)(3) states that “local counsel shall be primarily responsible to the court for the conduct of all stages of the proceedings, and their authority shall be superior to that of attorneys permitted to appear [pro hac vice].”

Occasionally, attorneys may get a call from an out-of-state attorney requesting them to serve as “local counsel” in a new lawsuit in their home town. Lead counsel explains, “Yeah, I just need you to file some papers, let me use your office for depositions once in a while, and tell me what the judge is like. I might even need you to attend a discovery hearing if need be.”

It sounds like a tempting opportunity to bring in new work and maybe get some easy billable time without a substantial increase in workload. But when one accepts the responsibility of being “local counsel,” traps await that may result in professional liabilities in surprising and unexpected ways.

Recently, I was preparing my physician-client for his deposition in a medical malpractice lawsuit. At the end of the meeting, he asked me: “How can I do better in the future?” My client was referring to his entries into the electronic medical record (EMR). With the transition to EMRs, this is one question that all medical providers should be asking. My initial blogs will discuss the problems with EMR and how they present in litigation.

As empty nesters, my wife and I ask each other the standard question as we sit down for dinner each night: “How was your day?” We usually exchange small talk about work, the commute and so forth. As an attorney, I am acutely aware of the attorney/client privilege, and therefore careful not to jeopardize my clients’ confidences. Sometimes, however, lawyers and other professionals can’t help disclosing facts about their work that may be deemed violative of confidences. Some may be covered by strict privileges, such as lawyer/client or physician/patient relationships. If the wrong information is disclosed to the wrong person, while not a technical violation of a recognized privilege, the professional can be exposed to claims of an ethical breach, giving rise to licensing issues, negligence claims or damage to business interests.

Attorneys sometimes forget that members of the general public may not share our familiarity with the legal system. The service of a subpoena duces tecum (bring it with you under penalty of punishment) on a “civilian” can generate numerous questions. The subpoena is an imposing, formal document that requires the recipient to produce files, records and documents at a place certain within a limited time period, and often demands that the recipient testifies at a deposition or a trial. There are penalties for failure to comply, and if the recipient is a non-lawyer professional, these issues can be compounded by time pressure, confidentiality/privilege and cost issues.

I am not a statistician. Frankly, I start to sweat when I look at spreadsheets, tables and charts. I don’t, however, need a table, graph or chart to know that there is a perception that insurance brokers and agents have questionable ethics and are generally thought to be untrustworthy. This is borne out by the Gallup poll, which historically places “insurance salespeople” near the bottom of the rankings for honesty and ethics of various jobholders.

With the continuous shift in the construction industry toward green and sustainable design, becoming green-accredited is a great marketing tool for any business. However, programs such as LEED (Leadership in Energy and Environmental Design) and green design accreditations such as GRP (Green Roof Professionals) are changing the standard of care for design professionals.