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September 2019

 

Welcome New Section Members!  

 

We welcome new section members:

 

·         Ellen Brinkman of Briggs and Morgan in Minneapolis, Minnesota,

·         Belinda May Arambula, a partner with Burns, Anderson, Jury and Brenner LLP in Austin, Texas

·         Larry W. Johnson from Cobb Martinez Woodward PLLC in Dallas Texas, and

·         Lara Zaroski, Senior Vice President of Law Firm Practice with Gallaher in Chicago, Illinois

 

We look forward to working with you this year! 

 

2019 Vice-Chairs

 

            Our 2019-2020 Vice Chairs are Neil Ekblom, Beth McMillan, Jodi Briandi, and Angie Cameron Smith.   Lee Hall will continue to serve as the section chair in 2019.   Please reach out to me (Lee) any of our vice-chairs if you are interested in getting involved in our section! 

 

 

2019 Insurance Industry Institute – November 6-8, 2019

 

                The 2019 Insurance Industry Institute in November 6-8, 2019 in New York.  We already have over 90 attendees registered, 50 of which are industry members.   The I-3 is a program for insurance leaders, professionals and attorneys. This can’t miss event will equip, empower and offer you new solutions to the challenging issues you face each day in the insurance industry. Space is limited at this event so register now! 

Like many FDCC events, there is no registration cost for industry members; please spread the word about this outstanding event to all of your colleagues in the insurance industry.  Some highlights from the program include keynote speaker Dr. Steven Weisbart, Chief Economist of the Insurance Information Institute; Randy Maniloff, author of the book Insurance Key Issues and monthly newsletter Coverage Opinions; Todd Presnell, author of Presnell on Privileges; and a roundtable discussion on regulatory issues between four state insurance commissioners.

 

If you are an outside lawyer who represents insurers (or you have partners in your firm who do such work), please consider attending. Attendance is not limited to FDCC members, so feel free to invite others in your firm to join us.  I-3 is a great way to introduce people to our organization.

 

The complete program brochure and PDF registration form are attached, or you may click here for electronic copies. Click Here  

For Online Registration: Click Here

Hotel Reservations: A limited number of rooms still available  under the FDCC I-3 room block at The Wagner Hotel for $339 per night (plus tax). Reservations will be accepted at this rate through October 4, 2019 or until the room block is filled.  For reservations, please call The Wagner Hotel at 212-344-0800. To make your hotel reservations online, please click this link: The Wagner Hotel FDCC Online Reservations  (Access code: FDCCG)

 

Settling Professional Malpractice Claims: Be Wary of Agreements to Not Report Alleged Violations to Licensing Boards

Frank Gassler

Banker Lopez Gassler P.A.

 

It is not uncommon for an individual facing a professional malpractice claim to request that there be some agreement that no complaint may be lodged with a state licensing authority if a disputed matter is amicably settled.  However, may a lawyer draft such an agreement on behalf of a client who may face discipline if a violation be reported?  Maybe not.

It is somewhat well-established that agreements to waive professional grievances in legal malpractice cases “are against public policy, unenforceable, and unethical.”  Noah Jon Kores, The Ethics of Threatening, 43 No. 3 Litigation 42, 46 (Spring 2017).  The Florida Supreme Court, for example, has held that agreements seeking to prevent someone from filing a bar complaint are unenforceable and unethical.  Florida Bar v. Fitzgerald, 541 So.2d 602, 605 (Fla. 1989); Florida Bar v. Frederick, 756 So.2d 79, 86 (Fla. 2000).  In Frederick, the court held that these agreements violate Florida Rule of Professional Conduct 4-8.4(d) (“A lawyer shall not … engage in conduct in connection with the practice of law that is prejudicial to the administration of justice”).  Frederick, 756 So.2d at 86.  The Florida Supreme Court has interpreted rule 4-8.4 to apply to “conduct that prejudices our system of justice as a whole,” not just conduct that affects a specific proceeding.  Id. at 87 (quoting Florida Bar v. Machin, 635 So.2d 938, 939-40 (Fla. 1994)).  Rule 4-8.4 “certainly includes [a lawyer’s] coercive dealings with his clients in an effort to preemptively thwart the Bar’s disciplinary involvement in this case.”  Frederick, 756 So.2d at 87. 

The Supreme Court of South Dakota cited Florida Bar v. Frederick favorably when disciplining an attorney for asking opposing counsel to withdraw a bar complaint if the attorney promised not to file an appeal.  In re Discipline of Eicher, 661 N.W.3d 354, 357-59 (S.D. 2003).  “Attempting to bargain away a disciplinary complaint also constitutes ‘conduct that is prejudicial to the administration of justice.’”  Id. at 365 (citing S.D. Rule of Prof’l Conduct r. 8.4; Frederick, 756 So.2d at 86). 

While Fitzgerald, Frederick and Eicher pertain to bar complaints, could the same reasoning be applied to disciplinary complaints involving other professionals, such as architects, engineers, accountants, appraisers and real estate agents?

Commentary, case law, and statutes addressing or distinguishing other professionals from lawyers in these circumstances is difficult to find.  Guidance on this issue may be found in rules dealing with an attorney’s ethical obligations to act with fairness and not to engage in conduct prejudicial to the administration of justice.

Model Rule of Professional Conduct 3.4(f) prohibits an attorney from requesting that a person other than a client (or a relative or agent of a client) “refrain from voluntarily giving relevant information to another party unless . . . the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.”  Model Rules of Prof’l Conduct r. 3.4(f) (Am. Bar Ass’n 2018).  Model Rule of Professional Conduct 8.4(d) states that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.”  Model Rules of Prof’l Conduct r. 8.4(d) (Am. Bar Ass’n 2018).  (Rule 8.4, as adopted by Florida and South Dakota respectively, was discussed in Frederick and Eicher.)  It appears that both rule 3.4(f) and rule 8.4(d) could serve as justification for prohibiting non-reporting provisions in settlement agreements.  Nearly all the states and U.S. territories have adopted some form of the ABA Model Rules. See, American Bar Association, Alphabetical List of Jurisdictions Adopting Model Rules, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/alpha_list_state_adopting_model_rules/ (last visited Aug. 12, 2019).

California has not adopted the Model Rules, but its Bar has enacted rules similar to Model Rules 3.4 and 8.4.  More significantly, the State of California clearly prohibits the types of agreements that seek to prevent someone from making a disciplinary complaint.  California law provides that settlement agreements cannot include a provision “that prohibits the other party in that dispute from contacting, filing a complaint with, or cooperating with the department, board, bureau, or program within the Department of Consumer Affairs that regulates the licensee or that requires the other party to withdraw a complaint.”  Cal. Bus. & Prof. Code § 143.5(a).  The Code states that such provisions are “void as against public policy, and any licensee who includes or permits to be included a provision of that nature in a settlement agreement is subject to disciplinary action by the board, bureau, or program.”  Id.  California appears to be the only state that has enacted legislation that unequivocally and directly addresses this issue.

Like many states, the State of Illinois has adopted Model Rule 3.4.  In response to questions regarding a confidentiality provision in a proposed settlement agreement, the Chicago Bar Association has informally interpreted Rule 3.4 to prohibit these types of agreements.  Chicago Bar Ass’n Informal Ethics Op. 2012-10 (2012).  (This Opinion is not binding on the members of the Illinois Bar, and merely represents the judgment of the members of the committee.) The Professional Responsibility Committee of the Chicago Bar Association suggested:

[W]hen negotiating a settlement agreement, a lawyer cannot ethically request that the opposing party agree that it will not disclose potentially relevant information to another party.  The Committee believes that “another party” in Rule 3.4(f) means more than just the named parties to the present litigation.  Rather, it should be interpreted more broadly to include any person or entity with a current or potential claim against one of the parties to the settlement agreement.  A more narrow interpretation would undermine the purpose of the rule and the proper functioning of the justice system by allowing a party to a settlement agreement to conceal important information and thus obstruct meritorious lawsuits.

There is minimal commentary on waivers of nonlawyer professional complaints in settlement agreements.  California law prohibits such provisions.  Model Rules 3.4(f) and 8.4(d), which have been adopted by most states, may provide rationales for excluding these waivers from settlement agreements.  Non-reporting provisions could be interpreted as requesting a person other than a client to refrain from voluntarily giving relevant information to another party or engaging in conduct that is prejudicial to the administration of justice.  These provisions could also be compared with confidentiality agreements, which may violate ethics rules in certain circumstances.

Assuming that you do not practice in California, it may be advisable to consult with your local bar association before you are asked to draft an agreement to not report to a licensing authority.  Perhaps your bar association takes a different view.  However, at a minimum, an ethical practitioner may want to carefully consider this issue before being confronted with a request.  Hopefully, you will be well-advised before meeting with a professional liability client, engaging in settlement negotiations or attending a mediation.

 

*This article was prepared by FDCC Professional Liability Section Member, Frank H. Gassler, Banker Lopez Gassler P.A., with the assistance of an Associate at his firm, Sarah Papadelias.

   

June 2019

 

1.       We are offering a 2-for-1 special within our section programming at the Annual Meeting. 

Thursday, August 1, 2019 at 8:00 and Friday, August 2, 2019 at 8:00

 

Professional Liability members Neil Ekblom and Caroline Berdzik will be presenting a two-part session involving the impact of private equity investment in healthcare.  At the outset of these relationships, careful attention must be paid to the terms of any agreement and how the new ownership structure impacts service, reinsurance, insurance policies, rates and the corporate structure. Litigation risks and handling of cases by defense counsel are also impacted with potential bigger pockets to handle losses and working with financial entities that may not be familiar with the day-to-day operations of a healthcare provider. This session will discuss the private equity transaction, the structure, and the “cashing-out”, what in-house counsel, insurance professionals and defense attorneys need to know about these emerging issues.

 

 

2.       NEW MEMBER!  Meet Tom Oliver, from Birmingham, Alabama, our newest section member. 

 

 

Tom defends clients in professional liability actions throughout the Southeast.  Fortunately, we had a chance to catch up with him and question him about some hard-hitting legal issues! 

 

1.       Twitter or LinkedIn?  LinkedIn

2.       Music or Podcast?  Music

3.       IOS or Android?  IOS

4.       Netflix or YouTube?   Netflix

5.       DC or Marvel?  Marvel

6.       Dogs or Cats?  Dog

7.       Text or Call?  Call

8.       Bohemian Rhapsody or Rocketman?  Bohemian Rhapsody

9.       Best Music Decade? 80s

10.   Best Superpower?  Flight

11.   Favorite Podcast?  13 minutes to the Moon

12.   Favorite App?  ForeFlight

13.   Binge-worthy recommendations?  House of Cards

 

3.       Plenary Program- Annual Meeting

 

Changing Times:  Does #MeToo Affect #YouToo?

August 2, 2019

9:00 – 10:00

 

Our section program on whether #MeToo affects #YouToo received an upgrade to the big tent!  Join Stuart Simon, Helen Holden and Lee Hall as they explore jury opinions, research and verdicts post #MeToo.  Stuart Simon will be sharing the results of his original research into the opinions of potential and actual jurors, as we explore how the developments over the past two years have translated into filings, settlements and verdicts.  Spoiler Alert:  while the backlash may be coming, we haven’t seen it yet…

 

 

4.       Professional Liability Section Happy Hour 2.0

 

If you missed our section happy hour in Austin, don’t despair.  We are planning one for Sun Valley and it promises to be bigger and better than ever!  Stay tuned for details on where and when.  As with before, I have to actually arrive in Sun Valley and find a spot before I can send details. 

 

5.        Do you want your name in lights? 

 

We will feature you in our next section email blast with an introduction, picture and your take on  hard-hitting issues similar to those that Tom addressed above.  Just email me at lmh@jenkinsfenstermaker.com  and I will include you in one of our upcoming section updates! 

 

March 2019

Greetings from your Professional Liability Section!  We have two logistical updates, a timely article with practice management (or non-management) advice from Vice-Chair Ashley Campbell  (Raleigh, N.C.) and a case summary from Vice-Chair Gerry Toner (Louisville, Kentucky) about a case arising out of medical care rendered in 1997.   

Winter Meeting – March 25, 2019 at 9:00

If you have not already registered for the Winter Meeting, sign up now!  We have a terrific section program lined up for Austin.  We have teamed up with the Law Practice Management and Reinsurance, Excess and Surplus Sections to present on (what we hope will not become) a trend of legal malpractice claims asserted by carriers against retained defense counsel.  Gray Culbreath has been handling a claim in South Carolina, so he, Oscar Cabanas and Lauren Curtis are going to talk about this trend, the legal theories used to support or state a claim, and best practices for avoiding a claim.    Please join us Monday, March 25, 2019 at 9:00 for our program. 

Social Hour – Winter Meeting - Monday, March 25, at 5:30

One of FDCC’s 2019 Goals is Fellowship, which we ALWAYS support!  Not that we don’t love Visibility and Membership (our other goals), but Fellowship has a special place in our hearts.  So, in furtherance of this stated goal, we are going to meet for a Section Happy Hour on Monday at 5:30, immediately before the President’s Reception.  So if this is your first meeting or your 50th, please come and say hello and join us for a little Fellowship.   

The Best Management Decision You Ever Make May be to Let Someone Else Manage

 

By:      Ashley Campbell, Raleigh, N.C.

            Ragsdale Liggett PLLC

 

“Those who build great companies understand that the ultimate throttle on growth for any great company is not markets, or technology, or competition, or products. It is one thing above all others: the ability to get and keep enough of the right people. The management team.” ― James C. Collins, Good to Great: Why Some Companies Make the Leap... and Others Don't (2001).

 

Lawyers are often notoriously bad managers.  Business journals and bloggers love to write about this.  They correctly note that many lawyers have never been trained to lead or manage others. The skills that produce a successful lawyer do not always make a successful manager. 

 

“Most law firms are led by attorneys who have never been formally trained to manage others. According to Riskin, even the best lawyer can turn out to be a terrible leader. ‘You can’t manage using lawyer skills,’ he says, adding that partners need ‘to accept that the approach to management is entirely different than the practice of law.  The best engineer isn’t necessarily the best manager or team leader.’ As these professionals climb the ladder, they have to rely more on other people to help them and ‘that’s a different set of skills.’  Deena Shanker, Why are lawyers such terrible managers?, Forbes, January 11, 2013.

 

Despite this, almost all law firms are managed by lawyers.  This occurs in part due to ethics rules that prohibit the corporate practice of law.  Also, lawyers are, in some cases, excellent managers.  See Todd Henderson, Do Lawyers Make Better CEOs than MBAs, Harvard Business Review, October 30, 2018.  Oftentimes, however, firms default to the idea that the manager of the firm must be a lawyer.

 

Law schools and scholars are beginning to challenge this idea.  They are asking the profession to re-imagine the future of law firm management. 

 

The George Washington College of Professional Studies is leading the way.  It offers a Master’s Degree in Law Firm Management, meant to provide students with “the perspective of senior partners” and prepare them “to take leadership roles in the management” of law firms.  Students admitted into the program must have a bachelor’s degree and “professional administrative experience in a law firm or related setting.”  Students graduating from the program will “help law firms maintain their edge” and lead around issues related to strategic planning, consensus building and business development.

 

The benefits of this management structure are obvious.  Hire a professional manager to manage.  Delegate operational decisions to her.  Allow her to plan and execute employee reviews, oversee the development and implementation of the strategic plan and handle the financials and audits.  Allow her to focus exclusively on growing the business, without the burden of managing her own client files. 

 

But, there are challenges as well.  Law firms are heavily regulated, and nonlawyers may not hold an equity position in the firm.  This creates compensation challenges especially in a plaintiffs’ firm where revenue is based on contingency fees.  Also, will lawyers ever truly cede authority to manage their practices to someone who never went to law school?

 

Apparently, they will.  Scott Green, a Harvard Business School graduate and certified public accountant, was hired as CEO of Philadelphia law firm Pepper Hamilton in 2012.  His appointment, called a “shrewd business move” by some, was believed to be the first time a nonlawyer was selected to run one of the country’s largest law firms.  Although Green stepped down some years later, the trend continues.  The ABA Journal noted this month that Angela Hickey was named CEO of Chicago-based Levenfield Pearlstein in 2018 allowing “the lawyers at her firm [to] stick to legal work while the nonlawyers handle the nonlegal stuff.”  Daniel Braff, Law firms hiring CEOs without law degrees reignites debate about turning over the reins to business professionals, ABA Journal. March 2019.

 

There is no way to know now how professional liability claims against law firms could be impacted by nonlawyer management.  But it is certainly something to be aware of as legal practice grows and modernizes.

 

 

Ries v. Oliphant, Et Al.

 

By:      Katherine Kerns Vesely

            Gerry Toner

            O’Bryan, Brown & Toner

           

On February 14, 2019, the Kentucky Supreme Court effectively ended a malpractice case involving the 1997 birth by emergency C-section of a baby girl that went to trial in 2010 following years of discovery.  The medical emergency presented was that of a vasa previa with a velamentous insertion of the umbilicus, and one of the ultimate factual/causation questions was whether the bleed/rupture occurred before or after the mother arrived at the hospital.

 

Four and a half weeks of trial ended with a defense verdict after approximately forty-five minutes of deliberation—yet appeals would last for another nine years.  Why?  First, all appeals stemmed from a co-defendant’s expert neonatologist’s (Dr. Jay Goldsmith) testimony about a human fetus’s rate of equilibration following a hemorrhagic blood loss—and whether it was comparable to that in sheep fetus studies.  Plaintiff raised two issues on appeal: 1) a Daubert challenge to this expert’s testimony, and 2) a challenge to the trial court’s decision to not allow plaintiff to use a rebuttal expert to address this equilibration testimony.  While this issue and this expert were not part of Dr. Oliphant’s defense, plaintiff chose on appeal to voluntarily dismiss the defendant (a neonatologist) and to appeal solely against Dr. Oliphant (Ms. Ries’ OB/GYN).  The Court of Appeals reversed the jury verdict effectively substituting its own ad hoc Daubert assessment for that of the trial judge.  Dr. Oliphant petitioned for discretionary review (ordinarily rejected), which was granted by the Supreme Court.  Subsequently, in a 7-0 opinion, the Supreme Court reversed the Court of Appeals on the Daubert issue, BUT then referred the second unaddressed, unresolved appellate issue back to the Court of Appeals. 

 

That issue involved the adequacy of a CR 26.02 expert witness disclosure, when combined with two subsequent discovery depositions of Dr. Jay Goldsmith, the expert in question.  While the mathematical calculation of a fetus’s blood equilibration (following a hemorrhagic event) was first raised in the deposition of plaintiff’s neonatology expert, Dr. Carolyn Crawford, it was subsequently discussed by defense expert neonatologist, Dr. Jay Goldsmith, in two lengthy depositions that were completed four months before trial.  Plaintiff still complained of prejudice and surprise.  

 

At trial, Plaintiff’s counsel did not choose to address equilibration with either her neonatology expert, Dr. Crawford, or her maternal-fetal expert, Dr. Zane Brown, though this would have been permissible by the court. Instead, plaintiff gambled on the trial court permitting her late-announced and surprise rebuttal expert neonatologist—the ubiquitous Dr. Jeff Phelan—to address this issue.  The trial court denied her permission to address equilibration with Dr. Phelan.

 

This denial was held as “error” by the same Court of Appeals panel that had already once reversed the trial court, although one of the Court of Appeals’ Judges strongly dissented. 

 

Dr. Oliphant was granted discretionary review a second time and for a second time, just a few weeks ago, the Supreme Court again reversed and this time reinstated the defense verdict rendered almost a decade before.  The Supreme Court determined that the defense expert’s equilibration opinions were no surprise to plaintiff as the opinions has been thoroughly explored in two discovery depositions completed months before trial. Under these circumstances, a supplemental expert disclosure following this expert’s depositions was simply not necessary.

 

Beyond the courtroom appellate drama of the case—along with a cast of expert witnesses familiar to anyone engaged in malpractice defense—the two Supreme Court opinions are extremely helpful in defining the nature of scientific evidence permitted in a medical malpractice case and the breadth of discovery required to comply with the need for full and adequate disclosure.

 

 

Thank you, and we hope to see you in Austin!

 

Lee Hall

Jenkins Fenstermaker, PLLC

lmh@jenkinsfenstermaker.com

 

December 2018

 

Professional Liability Applications:  You are only as Strong as Your Weakest Link

Lee Murray Hall

Jenkins Fenstermaker, PLLC

It is that time of year, or so says ALPS, our professional liability carrier.    Like many of you, I spend my evenings with prebills, year-end associate reviews, collections and professional liability applications.  Our 2019 renewal application contained a new question that caught my eye – the FICO score of each attorney seeking coverage.  Now, most of us have long appreciated that our FICO scores are used to establish our automobile, homeowners and umbrella rates.  On an individual basis.  I am going to go out on a limb and speculate that most FDCC members are not terribly concerned about their individual FICO scores.  In fact, many of us may benefit from lower premiums as a result of excellent credit ratings. 

However, this application must be completed by each attorney in our firm, so I started thinking about our young, often debt-laden attorneys and wondering whether even completing the application would create an issue.  We followed up with ALPS and learned that the FICO score question is optional for the 2019 renewal, but will be mandatory beginning in 2019.  Our broker told us to expect other professional liability insurers to follow suit within the next year or two and include this question on their applications.  At least in a firm of 30 attorneys in West Virginia, I suspect that our bargaining power with ALPS regarding its application and underwriting process is pretty low.  We have, however, alerted all of our attorneys that this question is coming.  If our firm’s professional liability rates depend in part on their FICO scores, this is a good opportunity to get their financial houses in order and improve their credit scores, if necessary.    

 

Longstanding Relationship Standing Alone is Not Sufficient to Establish a “Special” Relationship with Insurance Broker

Caroline Berdzik

cberdzig@goldbergsegalla.com

Goldberg Segalla

 

In Hefty v. Paul Seymour Insurance Agency, 163 A.D. 3d 1376 (3rd Dep’t 2018), a New York appellate court reaffirmed that a special relationship is necessary to give rise to a duty to advise an insured on coverage limits.     Here, the insureds, Kenneth Hefty, et al, sued Hefty’s insurance broker, Paul Seymour Insurance Agency, for breach of contract and negligence for failing to recommend higher coverage limits under a homeowner’s policy. 

The insureds had spent a Hefty $200,000 on home renovations of the subject property without any increase in their homeowner’s coverage.  The insureds testified that they had informed their broker of the improvements to the property and requested a reassessment.  The insureds acknowledged, however, that at no point did they ever make a specific request for an increase in coverage.

Citing longstanding precedent, the appellate court held that, absent a special relationship, “to set forth a case for negligence or breach of contract against an insurance broker, a plaintiff must establish that a specific request was made to the broker for the coverage that was not provided in the policy.” American Bldg. Supply Corp. v. Petrocelli Group, Inc., 19 N.Y.3d 730, 735 (2012). Here, the appellate court held that, at best, the insureds expressed a general interest in increasing coverage on the subject property, which is insufficient as a matter of law. 

With regard to whether a special relationship existed that may give rise to a duty to advise or direct an insured to procure additional coverage, the appellate court held that this could not be established on the facts of the case. The insureds owned Hefty 10 properties, and secured coverages for their properties as they saw fit, sometimes rejecting their broker’s advice and intentionally procuring insurance in an amount less than what their broker recommended. Although the broker handled nearly all of the insureds’ insurance needs for over decade, that fact alone was insufficient to raise an issue of fact as to the existence of a special relationship. 

Hefty illustrates that under New York law, the “specific request” from an insured must be explicit to constitute a specific request for coverage. The decision also makes clear that the insured has a Hefty burden to establish this relationship:  a special relationship will not likely exist where an insured regularly rejects the advice of its broker, despite a longstanding relationship.

September 2018

 

The Professional Liability Committee is off to a good start with great input from Vice-Chairs Oscar Cabanas, Caroline Berdzik, Ashley Campbell, Beth McMillan, Neil Ekblom and Gerald Toner.   For those of you who will be at the I-3 Meeting in Philadelphia, we are planning to grab drinks after the cocktail reception Sunday evening, just to say hello and talk about plans for our section.  Please join us!  

On October 5, 2017, less than a year ago, the New York Times first published detailed allegations of sexual harassment against Harvey Weinstein.  Five days later, the New Yorker followed with its own story, which included allegations by 13 more women.  Within weeks, the Weinstein scandal snowballed into a global trend: a cascade of allegations against powerful men in media, politics, business, and law. The trend continues: CBS CEO Les Moonves resigned today and CBS agreed to donate $20 million dollars to organizations that support the #MeToo movement. 

The legal community has responded to this increased awareness of workplace harassment.  We developed and taught presentations, recommended more robust reporting mechanisms and hotlines, and initiated mandatory training seminars for ourselves and our clients.  I question, however, whether we, and our clients, need to do more to be fully equipped to respond to this movement.  The ripple effects of #MeToo may require a fundamental pivot in our defense strategy,  not just in employment and sexual misconduct cases, but in any case in which we need, however delicately, to suggest complicity on behalf of the plaintiff or claimant.  This movement originated in the media and entertainment industry, so in this media and entertainment obsessed age, it affects people that our jurors know, or at least think that they know.  Regardless of how many CEOs, priests, physicians, or congressmen are forced to resign, their resignations and scandals will never resonate with and empower jurors the way allegations against once-beloved celebrities like Matt Lauer or Kevin Spacey do.  What does this have to do with Professional Liability?  Spoiler Alert:  we are planning a program on this issue and the broader implications of the #MeToo movement for the Idaho seminar next July. 

#MeToo also raises insurance coverage considerations for our firms, our clients, and the agents and brokers who advise them.  We should review of employer liability policy terms for sexual misconduct exclusions, and consider whether those exclusions contain non-imputation clauses.   It requires a review of the policy limits and the associated SIR or deductible, and an understanding of “loss”, batch and “related wrongful acts” clauses.  If a single person harasses multiple employees, will this be considered a single act or multiple wrongful acts, and are these acts related or unrelated for purposes of limits?   How will insureds and carriers respond if the SIR is $25,000 and will the response differ if the SIR is $250,000 or more?  In addition, because many EPLI policies are claims made policies, which include a defense within limits, the defense costs could easily erode the entire policy limit, particularly if multiple claims are asserted.  Does the policy contain a defense outside limits endorsement? 

Clients purchase EPLI coverage with the assumption that a single claim would be a rarity, and multiple claims within a single policy year would be unheard of.  Are these still valid assumptions?  Finally, most EPLI policies have retroactive dates, so expect an inquiry about early knowledge or notice of the claim.  Coverage may be affected if evidence developed in the underlying case reveals early reports of misconduct, particularly if the reports predate the retroactive date in the policy.   Expect a comparison of the retroactive date with the alleged reports of misconduct and a critical review of the policy application and accompanying questionnaires for accuracy.  D & O policies have also been triggered by the corporate liability, stock drop, and securities claims that can result particularly from sexual harassment claims against high-profile officers or employees.  Board members face increased pressure to identify patterns of conduct within the company and take corrective action.  

These are but a few of the coverage issues that our clients may face in the next year.   We will be exploring these and other issues within the next few months, so stay tuned for our section meeting in Sun Valley.  Meanwhile, welcome to our section – we look forward to working with you in 2018-2019! 

 

April 2018

Submitted by: Michael J. Denning

 

 

FDCC lawyers are defense lawyers and defense leaders. FDCC lawyers are trial lawyers. Fundamentally, we are story tellers. I was reminded of that while attending the FDCC’s inaugural Tech-U program in Philadelphia over the weekend of April 6-8, 2018. Tech-U was an ambitious project, with the goal of teaching its students to learn to use the most advanced technology in trial presentations, mediations, depositions and other presentations in a compressed time period of just a few days. Led by Bob Christie, and with the assistance of instructors Jack Delaney, Steve Embry, and Scott Kreamer, the group learned to master presentation by iPad. As students, we prepared opening statements and closing arguments in a fictional case, using no fewer than 7 pieces of technology for each. The students learned to use 3D timelines, TrialPad, advanced PowerPoint and Keynote applications, document management applications and numerous other “tech” to deliver compelling presentations, which were later broken down and studied by the whole group to foster an intense but valuable educational process. The power of the collective experience of the lawyers, paralegals and other support personnel was, in this writer’s experience, unmatched by any other educational program. The program was intense, hands on and valuable. Each student left on Sunday afternoon having completed the course work and earning the coveted FDCC certification of Technology Master Advocate. We are certain that this program will grow into another “can’t miss” FDCC event.

 

 

Many of the most seasoned trial lawyers handle professional liability cases, and many of those cases pose significant financial and professional exposure to the clients. These cases also attract the best-of-the-best Plaintiff’s lawyers. If you aren’t using technology to tell your client’s story, you’re not communicating with your jurors as effectively as you could be. Also, it’s not true that you can’t teach an old dog (or horse) new tricks, as many of the Tech-U students had more than 30 years of experience in practicing law.

 

 

Until the next Tech-U is announced, do yourself a favor and spend time on the FDCC’s Evolve website.www.FDCCEvolve.com

 

 

Primarily built by tech guru Bob Christie, the subjects presented for consideration on the Evolve website will give any lawyer a decided advantage over their opponent. Begin mastering the concepts there, and plan to attend the next FDCC Tech-U. You, and your clients, will be glad you did.

 


 

January 2018

Submitted by: Clark R. Hudson & Michael J. Denning

 

 

FDCC, Civility and Mentors

 

Lack of civility has been a popular topic at most legal conferences. It is debatable whether civility in the legal profession is improving, staying the same or getting worse. Lack of civility is certainly not an issue isolated to the legal profession. Poor behavior in our communities seems to headline nightly news. Indeed, over the recent holiday season, multiple news outlets were featuring a psychologist who had left a box of horse manure on the walkway to a public official’s home. While the box of manure was more about making a political statement, the act certainly lacks civility.

 

In the legal profession, a lack of civility is not isolated to any specific area of practice. It is not unique to men or women. The State of California included an affirmation of acting civil in the language for new admittees to be sworn into the California Bar. In May of 2014, following lobbying efforts from the American Board of Trial Advocates, the California Supreme Court adopted Rule 9.4 of the California Rules of Court to supplement the attorney oath. The oath to be taken by every person on admission to the California Bar is to conclude with the following: “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.” And yet, civility continues to be an issue. (Don’t get me wrong it is a nice step – but we can do more).

 

If a child or adolescent is acting up in school, that poor behavior often is attributed (right or wrong) to “his parents not raising him/her right.” That sentiment is supported by a rather strong belief that our environment, and those that we associate with, impact how we turn out as individuals. It is not always the parents that provide a child the leadership and guidance. Brothers and sisters, relatives, neighbors, family friends, church groups, teachers and coaches also provide mentorship that mold young adults into who they will become, and how they will behave, as they mature.

 

So, what does any of this have to do with the FDCC? Borrowing a phrase from President Reagan, “Some people spend an entire lifetime wondering if they made a difference in the world. But, the Marines don’t have that problem.” The members of the FDCC don’t have that problem either. Not only do our admission criteria weed out individuals with less than desirable behavior, those same admission criteria search for individuals that conduct themselves with dignity, courtesy, integrity and respect for the legal system. Great attorneys typically make for great mentors. Great mentors typically show a fair amount of respect for those they mentor, and receive a great deal of respect in return.

 

The FDCC prides itself on a membership of the preeminent defense lawyers throughout the United States, and internationally. What is the motivation for preeminent defense lawyers to associate? That is a question that has been asked time and time again by our leadership, membership committees and convention planning. Consistent responses in terms of why members seek to associate are due to the fellowship and camaraderie with other members.

 

After I became an FDCC member, I attended my first meeting with the excitement of associating with individuals who were the best of the best in the defense industry. I have continued to attend nearly every meeting since because of the opportunities to learn from other outstanding members in the defense industry. After the conferences, I have an obligation to take information from the conference back to the firm. Not only does it enrich me as an individual, but the law firm practice as a whole also improves. In a way, the FDCC is helping to mentor the entire practice.

 

When you think about it, mentorship occurs at all levels of an individual’s career. It does not end simply because an attorney has gained a certain number years of experience. In the legal profession, mentorship can be a two-way street – with seasoned attorneys learning from younger attorneys, and vice versa.

 

The FDCC stands at the forefront of the legal profession in providing mentorship opportunities. In addition to our annual meetings, Litigation Management Conference, Corporate Counsel Symposium and Insurance Industry Institute - we now are intimately involved in the Ladder Down Program, Professional Women’s Forum, Deposition Boot Camp’s and FDCC Evolve. There are a lot of moving parts in the FDCC organization, and our membership deserves every opportunity the organization provides.

 

I would hope many of us made a New Year’s resolution for 2018 to become better mentors. Not only mentors to our family, our law firm, but our communities in general. Think about this: If an attorney is acting badly during a deposition, does that mean the individual is a bad attorney? He/she may just need a better mentor. Better mentors will help improve the practice of law more efficiently than simply adding text to an attorney oath. 

 

 


 

 

December 2017

Submitted by: Neil H. Ekblom, Esquire

 

SEXUAL HARASSMENT:

WHEN IS THE EMPLOYER LIABLE?

 

                  Our client businesses may call us any day now asking for an opinion on whether they are liable in an employee’s sexual harassment claim.  To answer this question, you need to know the two general fact patterns used to analyze harassment in the workplace, whether the employer’s sexual harassment program installed at the workplace provides an affirmative defense and whether any unique state laws are applicable. 

 

              Sexual harassment is recognized as actionable discrimination under Title VII. Civil Rights Act of 1964, Sec. 701 et seq., 42 U.S.C.A. Sec. 2000e et seq. An employer is liable for a supervisor’s actions under two fact patterns.  In the first, called quid pro quo or economic harassment the victim is presented with an ultimatum of sexual favor by a supervisor in return for action affecting the victim's employment status, position or compensation.  An example would be an offer of promotion in return for sexual favor or sexual favor as a condition of a recommendation for advancement.  This type of harassment can be more secretive and therefore more difficult to prove for the victim, but once proven the employer is vicariously liable for the supervising employee's actions.

 

                  The second type of harassment has been referred to as hostile work environment sexual harassment, where there are multiple instances of bad behavior offensive to those of reasonable sensitivities.  Bad behavior here includes off-color sexual jokes, comments on dress, unwelcome touching and/or exposure to explicit or suggestive images.  The behavior is actionable if severe or pervasive, regardless of who is offended, man or woman.  The distinction as to the type of sexual harassment dictates whether a defense is available. In quid pro quo harassment the supervisor is an agent of the employer, which is vicariously liable for the employer’s actions regardless of harm, whereas hostile environment harassment can be defeated by showing that the employer’s actions were reasonable in response to a negligence-based claim.

 

                  Employers can avoid liability in state or federal court Title VII cases for hostile work environment-type harassment by installing a program for dealing with this type of activity and then utilizing that program.  In the summary judgment motion or proof at trial the employer must show (1) that no employment-related action was taken against the accuser as retaliation; (2) the employer acted with reasonable care to prevent and correct the harassing behavior; and (3) the plaintiff failed to utilize opportunities provided by the employer to correct or prevent the offensive behavior. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct 2257, 141 L.Ed.2d 633 (1998) See Also Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct 2257, 141 L.Ed2d 662 (1998). In order to comply with the proof needed to avoid liability, employers would need to have a sex harassment program installed at the workplace before the claim arose and the allegations commenced.  An effective program includes notice in writing to all employees of what constitutes offensive behavior, written confirmation of receipt of that notice, periodical sexual harassment training, and a publicized grievance procedure that is beefed up with investigation and corrective action.

 

                  While employers are liable for sexual harassment by supervisors, courts are not strict on the definition of “supervisor”.  Essentially an employee who has the authority to influence employment-related decisions or is a senior employee who has authority to change employee assignments can be termed a supervisor.

 

                  Accusations of sexual misconduct most often in the press relate to hostile work environment.  This would include most of the current news fact patterns alleged against celebrities such as Harvey Weinstein, Matt Lauer and more recently Garrison Keillor.  According to various press releases each of these individuals exhibited sexually harassing behavior on multiple occasions while in front of other employees.  In the case of Lauer, who works in New York, quid pro quo harassment may have also occurred. However, New York requires a plaintiff pursuing a discrimination claim under Title VII to file charges with the Equal Employment Opportunity Commission (EEOC) within 300 days of the date harassment occurred. We may see new case law and statutes to enhance sex harassment claims as a result of the current climate at the state and federal levels.

 

                  State case law must also be examined to determine if a Faragher and Ellerth defense is available in the workplace harassment context.  In New York State plaintiffs can sue under either the Civil Rights Act of 1964 or under New York's own confusingly drafted New York City Human Rights Law (NYCHRL).  This law imposes strict liability on an employer for discriminatory acts of supervisors regardless of the employer's knowledge and vicarious liability for non-supervisor co-workers if the employer knew or should have known of the coworker's actions.  According to state case law, reasonable actions in the form of abstaining from employment retaliation and a working compliance program do not provide a defense to the NYCHRL where supervisory harassment is found. Zakrzewska v. The New School, 14 N.Y.3d 469, 902 N.Y.S. 2d 838, 928 N.E.2d 1035 (2010).

 

                  Sexual harassment is only one type of actionable harassment against employees.  Other categories include race, religion, sexual orientation and disability.  Effective employer harassment programs deal with all forms of harassment and it is often up to attorneys, particularly those in-house, to keep their programs current and meaningful.

 

 


 

November 2017

Submitted by: Beth McMillan

 

 

Expanding Claims Against Insurance Brokers and Agents

 

As most people involved with the insurance industry have observed over the past five to ten years, claims against brokers and agents are on the rise and there is no indication these types of claims will decrease in the near future.  One of the primary defenses posited in many cases has been that the agent or broker does not have a duty, let alone a fiduciary duty, to advise a plaintiff about the specific types or limits of insurance coverage to obtain absent a showing of some special request or special trust placed by the plaintiff in the broker or agent.  This defense argument is being eroded by the continuing quest of brokers and agents to expand their market share and to advertise about their abilities to service their clients.    The more they advertise their unique abilities to place the right coverage, the more they open themselves up to claims that they are professionals or trusted advisories who owe their customers a heightened duty.

 

An even more alarming trend, however, is the growing number of claims against brokers or agents when the carrier does not pay the full limits of a policy after they have adjusted the claim.   These claims often appear when plaintiffs’ counsel are primarily targeting the carrier for breach of contract and bad faith claims, but also bring in the insurance agent or agency as a co-defendant to defeat diversity jurisdiction so that the case cannot be removed to Federal Court.  The negligence theory asserted against the agent is that he failed to advise the plaintiff that the carrier may not pay out the maximum amount of coverage or that he did not obtain a policy that would guarantee full payment of the policy limits.  Thus, when an adjuster evaluates a claim and fails to offer the maximum amount of coverage, plaintiffs’ counsel will assert claims against the agent for failing to obtain a guaranteed amount of policy limits.

 

Although these types of claims appear to be patently deficient and not likely to survive a motion to dismiss, there are some courts that are allowing these types of claims to gain traction.  Just recently, plaintiffs filed suit in South Carolina state court against a carrier for breach of contract and bad faith in failing to pay the total replacement cost of their home after it burned down in a fire.  Plaintiffs’ counsel also filed a claim against the agent for negligence, negligent misrepresentation, and breach of fiduciary duties, among other claims, for advising them that he had obtained full replacement coverage for their home.  Defendants removed the case to Federal Court arguing the plaintiff had brought in the agent as a sham defendant to defeat diversity jurisdiction.  On the plaintiffs’ motion to remand, the Federal judge rejected the agent’s arguments that the he did not owe any duty to guarantee the amount of coverage that would ultimately be paid on a claim. The court held that although there may not be a general duty on insurance agents to procure a policy that guarantees the insurer will pay to the insurance limit, there is, in some circumstances, a duty to procure a policy in which the insurer guarantees it will do so if the agent undertook to procure such a policy on behalf of the insured.

 

This decision is cause for concern about the ever evolving and expanding nature of what is accepted by the courts as the duties owed by a broker or agent to a customer.  Attorneys who represent brokers and agents need to be on the alert for these types of claims and be prepared to argue against the expansion of the duties owed by brokers and agents to their customers.  

 

 

 

OCTOBER 2017

 
 By: Lee Hall

 

I recently had the opportunity attend the Fall 2017 Keeneland meet with the CEO and General Counsel of a regional healthcare system and posed the same question to both:  What keeps you up at night?  They responded immediately, and in unison:  “Mass (fill in the blank).”   Fires, shootings, sexual misconduct, events that involve a large number of potential patients or victims pose a unique challenge, from a patient care, public relations, insurance coverage, and cost standpoint.   The following day, Steven Paddock killed 58 and injured 490 concertgoers in a mass shooting spree in Las Vegas.  Consistent with the concerns expressed by the CEO two days earlier, all of the businesses nearby face the same issues:  victims’ medical care, public relations, costs, and ongoing operations.  Most business are set up to deal with a single shooting, a single incident of disease, a single incident of sexual misconduct, but when a large number of people are affected, the impact on the organization can be crippling. 

 

The last five years have seen record high mass shootings.  2016 saw a record 366 shootings, surpassing the 333 mass shootings in 2015 and the 227 recorded shootings in 2014.  Most of the mass shootings have resulted in some form of civil litigation in an effort to recover compensation for the victims.  Because the perpetrator generally has few assets, counsel explore alternative targets.

 

 After the Columbine massacre, parents brought 17 lawsuits against the school district, law enforcement officials and parents of the shooters.  Similarly, after the shootings at Virginia Tech, families brought suit against the administration.  The jury returned a verdict in favor of the plaintiffs, though it was subsequently overturned on appeal. Similar suits have been filed against school districts in Marysville (18 million dollar recovery), Springfield, Bremerton (1.2 million), New Mexico (2 million) and numerous others.  A jury awarded $46 million in compensatory and punitive damages against Kraft Nabisco and its security firm after two women were shot in a plant in Philadelphia in 2002.  Similarly, counsel recently filed suit against UPS and Allied Universal, its security company, for the death of 28 employees in a San Francisco shooting in July. 

 

Attorneys have become more creative in determining who to sue.  Parents of children killed in Newtown, for example, brought suit against gun manufacturer Remington, challenging its claim of legislative immunity.  They also included firearm distributors and retailers as defendants.  Although the case was dismissed, it is currently on appeal before the Connecticut Supreme Court nearly 5 years after the shooting.   Plaintiffs in Aurora brought suit against Cinemark, the premises owner and theatre operator.  The claims against Cinemark were also dismissed at the trial court level based upon the lack of foreseeability. 

 

In response to the Pulse Nightclub in Orlando, Florida, claimants did not sue the nightclub or its owners, but instead elected to sue the wife and the employer of the shooter for failing to disclose the shooter’s mental health issues.  Plaintiffs have recently amended their complaints to name Google, YouTube, Facebook and Twitter as defendants on the theory that social media platforms offered terrorist organizations an opportunity to recruit and train new members, all with the social media hosts’ knowledge.  The first plaintiff has filed suit in the Las Vegas shooting on October 11, naming Paddock, MGM, the owner of Mandalay Bar, Live Nation Entertainment, Inc. and Slide Fire Solutions, LP, a company that manufactures bump stock devices to convert semi-automatic into fully automatic weapons.  Counsel have similarly filed suit against the building owners and managers of a Power Ultra Lounge nightclub in Little Rock, Arkansas, where 28 people were shot on July 1, 2017.    

 

Even where there is no recovery, the emotional and physical toll on the communities, organizations and families involved are impossibly challenging.  The Newtown school was demolished and rebuilt in a new area of the property four years after the shooting; the Cinemark theatre remained closed for nearly 6 months following the attack. 

The emerging theories and increasing number of claims raise almost immediate coverage issues.  Coverage issues range from the fairly straightforward issues, such as whether there is an occurrence, the applicability of the criminal actions exclusion, the assault and battery exclusions, the intentional injury exclusion, the terrorism exclusion to more unique issues such as the and issues regarding the number of occurrences to more challenging issues, such as the interpretation of “terrorist” as defined by a liability policy.  Terrorist, for example, can be groups or individuals with a demonstrated link to an extremist organization, but could also be the increasingly common solo actor who swears his allegiance to an organization in the moments before death, or more recently, a person who leaves no manifesto and has no known affiliation with any organization.    

 

In addition, liability policies do not address first party coverage issues and business interruption losses that follow the downtime after mass shootings.  In Aurora, for example, the theater was closed for nearly six months following the incident.  Most speculate that the Mandalay Bay suite where Paddock staged his attack will never be used again.  Moreover, many business interruption policies do not respond unless the event results in damage to a building or the contents.  While there may be superficial damage to some of the buildings, the damage could be easily repaired long before the building is in a position to reopen from an emotional or public relations standpoint. 

 

Coverage issues associated with worker’s compensation issues are also thorny.   While most states provide that workers compensation is an exclusive means for recovery for workplace injuries, there are numerous exceptions for management misconduct, management knowledge of specific risks, claims of dual capacity, and intentional misconduct. 

 

The insurance market has responded by offering programs specifically targeted to active shooter or workplace violence risks.  While each program is unique, they have common features.  Most provide elements of both first and third party coverages.  The liability coverage acts as primary coverage for workplace violence/active shooter/deadly weapon events.  The first party coverage provides business interruption and extra expense coverage.  Some also provide remediation expenses and coverage for public relations consultants.     

 

Many programs feature coverage for expenses related to hiring additional staff, counseling, crisis management, burial and body returns, forensic analysis and extra security measures.  Many also provide benefits for employees and victims such as counseling, psychiatric care, rehabilitation expenses and emergency medical care.  Many of these programs also include broad definitions of weapons to include firearms and explosive devices, knives, medical instruments and corrosive substances.  While the programs overlap with some aspects of a CGL policy, they provide a comprehensive approach to managing the overall health of the insured in the days and weeks following an attack. 

 

 

 

SEPTEMBER 2017


By now, every experienced defense lawyer has been introduced to “The Reptile” strategy at trial. The authors of these tactics advertise that by appealing to the concept of safety and protection from danger, Plaintiff’s lawyers can convince a jury to award outstanding verdicts in their favor, because doing so keeps the jurors and the community safe from harm by eliminating dangerous or unsafe conduct or actors. These methods are being taught by plaintiffs’ lawyers and jury consultants to plaintiffs’ lawyers in trial advocacy courses around the country.  

 

The professional liability defense lawyer must be aware of these tactics so that defense witnesses are not tricked into agreeing with these safety/danger concepts that lack specificity and any real relation to the applicable standard of care. In fact, the failure to address this strategy both in witness preparation and in pretrial motion practice is the real danger.

 

Defense practitioners should be on the lookout for authority – any authority – holding that these tactics are inadmissible. The West Virginia Supreme Court of Appeals recently provided the defense with another arrow in its quiver to use to attack Plaintiff’s deployment of these tactics at trial.

 

In Brown v. Berkeley Family Medicine, the court affirmed the trial court’s limitation on the use of certain terms used in common reptile strategies. Although court did not refer to the “reptile” at any point in the decision, it is clear that that is exactly what was at issue. Brown was a medical malpractice case involving alleged misdiagnosis leading to the patient’s death. The case was tried before a jury to a defense verdict.  The court in Brown affirmed the trial court’s decision to grant a motion in limine restricting the plaintiff from using common reptile strategies. Specifically, the defendant moved to prohibit the plaintiff “from arguing that jurors had the power to improve the personal and community safety of jury members by reaching a verdict that would reduce or eliminate allegedly dangerous or unsafe conduct.” The trial court actually denied the motion, but allowed the defense to raise the issue by way of objection at trial. 

 

During his opening, the plaintiff’s counsel compared the standard of care to a “rule.” Defense counsel objected and the court ruled that the standard of care must be described to the jury, by both parties, simply as the standard of care, not as “a rule.” Additionally, in response to another objection made by the defense, the plaintiff’s lawyer was cautioned by the court to refrain from using the term “danger” or “dangerous” to describe the decedent’s medical condition.

 

The Supreme Court of Appeals found that the trial court did not abuse its discretion by placing “limits on petitioner’s ability to present her case by arbitrarily selecting words and phrases petitioner’s counsel could not use, such as ‘rule,’ ‘danger,’ and ‘dangerous.’”  The court further held that “the circuit court did not err in prohibiting petitioner from using certain terms that were potentially confusing and misleading to jurors. Petitioner was not prejudiced and manifest injustice did not result from the circuit court’s ruling. Petitioner was afforded the opportunity to present her arguments and her case in a fair and impartial manner, free from arguably confusing or misleading inferences.” 

 

The case is Brown v. Berkeley Family Medicine Associates, No. 16-0572, 2017 W. Va. LEXIS 629 (Sep. 1, 2017)

 

 

JULY 2017

 

Service on a Non-Profit Board of Directors

 

"I don't know what your destiny will be, but one thing I do know: the only ones among you who will be really happy are those who have sought and found how to serve."         -        Albert Schweitzer

 

Service on a non-profit board of directors can be a transformative professional experience.  Although we all have the benefit of a law degree and the educational and experiential benefits that come with practicing law, board service requires us to learn and develop new skills – governance, fundraising, performance measurement and strategic planning among others.   

 

Board service builds strong leaders.  I often say that I got my law degree from UNC Chapel Hill and my PHD in leadership from StepUp Ministry, a non-profit in Raleigh, North Carolina, that helps low income people find employment, where I served as board chair for two years.  That experience changed my life, and I constantly encourage others towards board leadership. 

 

But lawyers who are board leaders must be careful not to take on the role of “board lawyer.”  Naturally, other board members will look to the lawyer on the board for legal advice, just as you would look at the accountant for financial advice and the insurance professional for insurance advice.  The lawyer on the board, however, faces liability exposure if she gives legal advice that the board then relies upon to take board action.

 

What exposure does the lawyer board face?  First, if there is a claim that implicates a directors and officers liability policy, the D&O policy covers may exclude coverage for professional malpractice of the board lawyer.  The board lawyer’s professional liability policy may then be implicated, and, depending on the insurer, the professional malpractice policy may limit coverage for advice that the lawyer has provided to the non-profit board.  Although a lawyer on a non-profit board is rarely compensated for his service, thereby making it difficult to bring a negligence misrepresentation claim against him, a professional malpractice claim could easily lie where it is shown that the lawyer had a fiduciary duty to the organization, provided legal advice and was negligence in doing so.

 

To avoid these risks, a lawyer serving on a non-profit board should do the following:

  1. When recruited for board membership, make it clear that you are not agreeing to serve as the board’s legal counsel, but rather, you intend to serve in the same capacity as all other board members;
  2. If the board asks that you serve as legal counsel, share this information with your law partners and your insurer – ensure that you have sufficient professional liability coverage for the engagement;
  3. Determine what, if any, conflicts may arise with your firm’s current or future clients; run conflicts checks as appropriate; and
  4. Recuse yourself from all board action, and wall yourself off, for any matter that could pose a professional conflict for you and your firm.

Service on a non-profit board is deeply meaningful.  It undoubtedly makes us better people, better citizens and better leaders.  Just approach the role with the understanding that other board members and non-profit staff will instinctively look to you for legal advice, and prepare appropriately.

 

 

APRIL 2017

Don’t Underestimate The Jurors Personal Bias, Or Overestimate Your Ability To Persuade Change

By: Clark Hudson:

 

All of us during jury selection are typically looking for a jury that will hopefully be sympathetic to our client’s defense.  During the voir dire process, we attempt to develop a rapport with the jury, gain some level of credibility, and to some extent pre-condition the jury on issues surrounding the claims and defenses involved in the trial.  If during the voir dire process we identify a juror’s potential bias that may be against our client’s case, the normal response is to strike that juror by either developing a challenge for cause, or using a peremptory challenge.  However, should we ever consider keeping that prospective juror in our panel, and try to persuade them from a stated bias through the evidence presented during trial?  As described more thoroughly below, my answer is NO!

 

Several years ago, I was involved in a jury trial where the defendant was accused of causing an injury to a minor plaintiff as a result of prescribing a therapy device following surgery.  The device was offered to most patients following surgery, but it was by no means mandatory.  The device was rented to the patient for $5 to $10 per day, with the patient being told to use the device as long as they felt it was beneficial.  The physician acknowledged during his deposition that the price point for the rental was intended to cover his costs for the device, the cost for his staff keeping them on hand and maintaining the devices and a profit for his business.  While the profit was not very large, the doctor’s position was that it was a service he was providing to his patients, for a fee. 

 

The minor patient alleged that she was injured as a result of her use of the device.  There were certainly issues of whether the injury was caused by reasonable use of the device.  However, there was no denying the fact the patient’s injury was indeed related to the therapy device.  One of the plaintiff’s counsel’s themes, therefore, was the doctor was placing profit over this patient’s welfare in prescribing the device.

 

The defense position was essentially that nothing in medicine is done for free.  When a doctor is providing services, those services (whether in consultation, in surgery or post-operatively) are performed so the doctor and his staff can make a living.  Similarly, if the doctor is renting equipment to his patients, the money paid for rental is likewise being used to cover the costs of the medical practice, and if there is any excess, it is profit for the medical practice.

 

During voir dire, the jury panel was questioned about whether any of them would have an issue with a doctor renting therapy equipment to his patients, and receiving a profit for that service.  Most of the prospective jurors appeared to have no issue with the circumstances; several indicated they would simply need to have more information. However, one particular juror who was an extremely well-educated and successful business man, stated that he may have an issue with the doctor making a profit when providing a service that was not fully explained to the patient, or to the patient’s parents.

 

The prospective juror’s background in business, and education level, made him extremely attractive for the defense.  In all other respects, he appeared as though he would have a conservative attitude in evaluating the plaintiff’s claims.  The only mark against the prospective juror was the fact the juror acknowledged he may have a problem with the undisclosed profit from the therapy equipment.

 

The decision was made to keep the juror on the panel for trial.  The belief was that the juror would understand after listening to all the evidence that all of the physician services that were billed, including the rental, were done so the physician and his staff can earn a living.  Further, while the rental equipment was a service to the physician’s patients, it was not a huge money maker.  Rather, the amount of the rental was done at a price point which would ensure the doctor was not losing money in providing the service.  In other words, we believed in the course of the trial that we could sway the juror’s mind on whether it was appropriate for the doctor to rent equipment to a patient while not disclosing that he may be making a profit from the rental. 

 

Needless to say, after weeks of trial, the juror’s perspective did not change.  In retrospect, we should never have expected that we could change the juror’s perspective while listening to a contested case in the courtroom.  Assuming the defense witnesses and defense arguments could change a juror’s perspective that had developed over a period of years was simply not a reasonable belief.

 

While the juror appeared to be ideal in every other circumstance, in retrospect, he had an innate bias on a key issue that we had identified in advance.  Rather than presuming your abilities of persuasion will be able to convince jurors that acknowledge a bias, the more prudent course is to challenge the prospective juror in hopes that you will end up with a replacement that does not have a pre-conceived bias on the issues involved in the litigation.

 

 

 


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3/3/2020 » 3/8/2020
2020 FDCC Winter Meeting

3/3/2020
FDCC Insurance Coverage Training Academy

7/25/2020 » 8/1/2020
2020 FDCC Annual Meeting

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