Professional Liability Advocate

On 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.

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.

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 often speak to groups of professionals on how to avoid errors and omissions claims. When I started making such presentations more than 30 years ago, I would hold up a piece of notebook paper and explain that it was a professional’s “best friend” when it comes to avoiding future problems. A memo of a conversation with a client detailing and confirming the services that can (or can’t) be delivered and the realistic outcomes that can (or can’t) result from those services may provide the best defense when a client complains. This is only true to a point. Sometimes, written communications provide a client with ammunition for a claim of negligence.

As part of my blog training, I was asked to review my social media presence in general and in particular my LinkedIn account. My profile, admittedly, had not been reviewed in some time, so I updated my bio and skills section.

This made me think about “puffing,” which I learned about in my Contracts class in law school. For those unfamiliar with the term, it is something we experience daily in sales transactions and advertising. Puffing is the exaggeration of the positives of a service or product or anything else someone is looking to sell. Any advertisement that includes superlatives – such as “greatest,” or “best” – or statements that are clearly not intended as factual representations are not generally actionable if you buy the “product” and find it to be lacking. Consumers dealing with a salesperson should expect some level of “puffing.”