Showing 12 posts in Professional Liability.

PROFESSIONAL LIABILITY CLIENT ALERT: Attorney Liability Under the FDCPA

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The Fair Debt Collection Practices Act (“FDCPA”) was enacted to protect consumers from abusive and deceptive practices by debt collectors, and to protect non-abusive debt collectors from competitive disadvantage. United States v. Nat'l Fin. Servs., Inc., 98 F.3d 131, 135 (4th Cir. 1996). It is “a strict liability statute that prohibits false or deceptive representations in collecting a debt, as well as certain abusive debt collection practices.” McLean v. Ray, 488 Fed. Appx. 677, 682 (4th Cir. 2012). In addition to its prohibitions, the FDCPA delineates a number of required disclosures and procedures that must be followed when communicating with debtors. Attorneys and law firms who regularly engage in debt collection activities are subject to the requirements of the FDCPA. More »

PROFESSIONAL LIABILITY CLIENT ALERT: The Development of Michigan's Attorney Judgment Rule

The Michigan Court of Appeals, in a recent unpublished decision, Ali, et. al. v. Trivax, et. al., unpub op, Docket No. 343140 (March 21, 2019), clarified the scope of Michigan’s “Attorney Judgment Rule,” which can bar a client from suing his/her attorney in a legal malpractice lawsuit.  The Ali Court held that the Attorney Judgment Rule did not protect an attorney-defendant’s error in judgment when that tactical decision was not “well founded in law” adding that the question of whether the attorney-defendant qualifies for protection under the Attorney Judgment Rule is a question of fact for the jury and not the trial court (which significantly complicates relying on the Attorney Judgment Rule as a basis for summary disposition).  Ali, unpub op, at 6.   More »

An Examination of the Illinois Insurer-Insured Privilege: What is Protected and What is Discoverable?

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Introduction
In today’s litigation climate, cases often not only involve a plaintiff, a defendant, and their attorneys, but also insurance carriers who have vested interests in the outcome of cases involving their insured. Prior to and throughout the course of litigation, an insured will often not only communicate with their attorney, but also with their insurer. It is common, for example, that an insurer will take a statement from their insured while analyzing a potential claim. The threshold question of which components of an insurance claim file are discoverable is crucial in a litigated matter. This Article explores the Illinois Insurer-Insured Privilege. A misunderstanding of this privilege can have severe consequences, including the disclosure of material information that the parties believed, in good faith, was confidential, and would never be subject to production. More »

PROFESSIONAL LIABILITY CLIENT ALERT: Opioid Litigation - The Practitioner's Guide to Managing the FDA's 2019 Roadmap

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On February 26, 2019, FDA Commissioner Scott Gottlieb released a press announcement detailing the FDA’s efforts in combating the opioid crisis. The FDA holds a guarded belief that the opioid crisis is improving but that significant changes to FDA rules and regulations are still needed to resolve the epidemic. While Gottlieb’s statement  considered the FDA’s efforts to curb illicit opioid proliferation, it also discussed the FDA’s plans for new regulations for medical professionals meant to further reduce and limit the use opioids in the U.S. The press announcement included a roadmap for the FDA’s 2019 regulatory plans  which could have substantial implications for medical professionals defending against opioid litigation. This Article analyzes some of the FDA’s proposed changes that could have the greatest impact on opioid litigation and how medical practitioners can prepare for opioid litigation in Illinois in the wake of these regulatory changes. (For more on how medical professionals can prepare for and protect against future opioid litigation and liability, please see Medical Professionals and Opioid Lawsuits: Protecting Against the Coming Storm.) More »

Attorney Termination of the Attorney-Client Relationship in New York

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A client has the unqualified right to terminate the attorney-client relationship at any time, with or without cause, regardless of whether a contract exists formalizing the relationship.  In re Thelen LLP, 24 N.Y.3d 16, 28, 20 N.E.3d 264, 270 (2014); Matter of Cooperman, 83 N.Y.2d 465, 472, 633 N.E.2d 1069, 1072 (1994).1 More »

PROFESSIONAL LIABILITY CLIENT ALERT: Application of Judgmental Immunity in Illinois

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Like other professional malpractice lawsuits, an Illinois plaintiff claiming legal malpractice against a former attorney must allege and prove that the former attorney owed the plaintiff a legal duty of care, that the former attorney breached that duty of care, that the plaintiff suffered an injury in the form of damages, and finally, that the former attorney’s breach of that duty proximately caused plaintiff’s claimed damages. Nelson v. Quarles & Brady, LLP, 2013 IL App (1st) 123122, ¶ 27. However, unlike other professionals, attorneys sued in legal malpractice lawsuits can assert an additional defense to shield themselves from liability—the Judgmental Immunity doctrine. Due to this common law doctrine, an attorney can seek the early dismissal of any legal malpractice claim where an unsatisfactory outcome/damages were allegedly caused by the former attorney’s good faith error in judgment in the underlying matter. More »

REAL ESTATE CLIENT ALERT: Michigan Court of Appeals Held That Non-Tenants May Not Sue Landlords Under Common Theories of Liability

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On September 20, 2018, the Michigan Court of Appeals in an unpublished decision, Morrish v. Sun Communities, Inc., highlighted an important argument available to landlords defending lawsuits brought by a non-tenant occupant of a rental unit who never signed the lease.  The Court in Morrish held that non-tenants, even if identified on the lease as authorized occupants of a rental unit, may not sue landlords under several different common theories of liability. More »

PROFESSIONAL LIABILITY CLIENT ALERT: Physicians Beware: New Jersey Supreme Court Erodes Self-Critical Analysis Privilege

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A recent New Jersey Supreme Court decision has eroded the long held self-critical analysis privilege applicable in New Jersey medical malpractice lawsuits. Health care facilities, physicians and their insurers will likely face increased liability exposure as a result of the Court’s decision in Bugaletta v. Garcia.[1]  Conversely, this decision should benefit patients alleging medical malpractice as they now have a means to obtain a summary of facts relevant to the alleged malpractice.    More »

PROFESSIONAL LIABILITY CLIENT ALERT: Medical Professionals and Opioid Lawsuits: Protecting Against the Coming Storm

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The pharmaceutical industry and medical professionals are facing a crisis over opioid prescriptions – which have been a regular part of medical care and pain management for decades.  In 1977, the New England Journal of Medicine published an analysis of opioid medications and associated addiction which found opioid addiction and death to rarely develop from pain management with opioids. Following this publication, the medical industry began to use opioids with greater regularity throughout the 1980’s, 1990’s, and into the present day given their effectiveness in treating patients with both severe short-term and chronic pain. More »

LAWYERS PROFESSIONAL LIABILITY CLIENT ALERT: Protecting Against Legal Malpractice Counterclaims in New York

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An attorney must proceed prudently in commencing a fee claim, as a counterclaim for legal malpractice will often be asserted by a former, delinquent client. The following article summarizes the procedural mechanisms and litigation strategies an attorney can utilize to protect against the former client’s filing of such a counterclaim.[1] More »

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