JANUARY 2019
PROFESSIONAL LIABILITY MAGAZINE
Emerging Developments, Decisions, and Defense Strategies
The Lawyer
Who Needed a Lawyer
›› When Is It Okay to Share Privileged Information with a Third Party? ›› The Claimant Said She Suffered. Her Medical Records Told Another Story. ›› Do You Know Your X-Y-Z’s?
Attorney Advertising
HOW DO YOU STAY AHEAD?
FOLLOW THE LEADER. Goldberg Segalla’s Management and Professional Liability Practice Group leads the way for analysis and discussion of the trends, decisions, and breaking news impacting the management and professional liability community nationwide.
SUBSCRIBE TO STAY AHEAD: www.goldbergsegalla.com/newsletters-signup BLOG | NEWSLETTER | EMAIL ALERTS
JANUARY 2019
EDITORS
CONTRIBUTORS
Jonathan S. Ziss
Latha Raghavan lraghavan@goldbergsegalla.com
Management and Professional Liability Practice Group Chair
267.519.6820 jziss@goldbergsegalla.com Peter J. Biging Management and Professional Liability Practice Group Vice Chair
646.292.8711 pbiging@goldbergsegalla.com Court Cousins 516.281.9882 ccousins@goldbergsegalla.com
Daniel L. Gold dgold@goldbergsegalla.com Anthony J. Golowski II agolowski@goldbergsegalla.com Whitney L. Allen wallen@goldbergsegalla.com Michael P. Luongo mluongo@goldbergsegalla.com
PLM | JANUARY 2019
TOP FIVE 5 | Do You Know Your X-Y-Z’s? Documentation Tips for Defending (or Avoiding) a Professional-Liability Suit
COVER STORY 6 | The Lawyer Who Needed a Lawyer In Ruling Clarifying NJ Legal-Malpractice Law, Judge Dismisses Suit against Divorce Attorney
7 | What Is Legal Malpractice? CASE NOTES 9 | In Cooling-Apparel Dispute, an Old Trademark Debate Heats Up Supreme Court to Resolve Circuit Split Regarding Rejected Licenses in Bankruptcy Cases
10 | When Is It Okay to Share Privileged Information with a Third Party? The Appellate Division of the Superior Court of New Jersey Weighs In
11 | Pennsylvania Doctors Await Ruling on Evidence of Risk in Malpractice Trials Could Physicians Be Held Liable for Malpractice Even If They Do Everything Right?
INSIGHT 13 | Presenting Criminal Charges to Gain an Advantage in Civil Litigation Beware When Clients in Civil Cases Who Ask Their Lawyers to Intervene in Related Criminal Matters
CROSSOVER Success stories about Goldberg Segalla attorneys in other areas of practice 14 | The Claimant Said She Suffered. Her Medical Records Told Another Story. 14 | The Auto Accident Raised Questions. There Were Answers under the Dash.
The Lawyer
Who Needed a Lawyer PAGE 6
Breaking News • Trends and Legal Developments • Regulations and Decisions • Best Practices Resources
Professional Liability Matters Your online source for the latest news and updates impacting the professional liability community. At Professional Liability Matters, our attorney-first writers discuss a wide range of industries including: • Finance • Medicine • Architecture • Law and Construction • And More • Real Estate Whether you’re an industry professional, insurer, or liability attorney, Professional Liability Matters has you covered.
www.ProfessionalLiabilityMatters.com
TOP FIVE
Do You Know Your X-Y-Z’s?
Documentation Tips for Defending (and Avoiding) a Professional-Liability Suit Latha Raghavan Take notes. Don’t procrastinate. And never confuse x-y-z with z-y-x. These are just a few of the things you should keep in mind when documenting your work and that of clients. Done properly, accurately, and on a timely basis, such documentation can help you defend those named in professional-liability lawsuits and keep you yourself from being named in one. Liability claims are an unfortunate reality for all professionals, including attorneys, and meticulous documentation and maintenance of files is critical in defending or avoiding such lawsuits—for you as well as for other professionals such as doctor and nurses. Establish internal policies for proper documentation of files and follow these tips and you can limit professional liability and defend those accused of it.
1
Document all communications.
Often it’s an alleged lack of communication that drives clients to file a professional-liability lawsuit. An attorney or physician named as the defendant in such a suit may be blindsided, believing that they spoke with the dissatisfied client on the phone, in person, or by some other means. But lacking documentation of these communications, they may find it impossible to definitively prove that they actually occurred, or when, or what was discussed. A simple letter, email, or notation in the file after each client communication is a simpl, but effective way to avoid issues and defend against any lawsuit down the road.
3
Record everything in a timely manner.
Everyone is busy, especially professionals with large caseloads and tight schedules. However, ensuring your documentation is kept and entered in a timely or contemporaneous manner can save headaches down the road. With busy schedules, it can be difficult to remember to enter patients’ vitals into their charts hours after they were taken. And documentation entered at a later time can make professionals seem to be trying to cover their tracks and avoid liability. Contemporaneous entries, on the other hand, paint a clear picture of what was happening at the moment it happened and support in-the-moment judgment calls made by professionals.
4
Document in paper and electronically.
When defending a professional in a malpractice suit, the first thing we do is ask for the entire file. It is important to remember that your file as a whole consists of both paper and electronic records. While many professionals are transitioning to purely electronic file and documentation systems, there often are important and defensible pieces of paper documentation, and vice versa. Without the entirety of the file, the client, and subsequently the professional’s defense team, is left guessing or filling in the blanks.
5
Keep easily accessible records.
Pulling a client’s entire file should be simple. Internal document maintenance should include a record of where all documents are kept. This simplifies and shortens the process of producing a complete file, especially in fields where the various parts of a particular client’s (or patient’s) file may be housed in several departments.
2
Take painstakingly accurate notes.
Keeping accurate documents in some ways speaks for itself. It’s important that everything in a file must accurately and completely reflect each step and decision made. If x, y, and z steps were taken, in that order, the record should reflect exactly that—not that z, x, y happened instead.
www.goldbergsegalla.com
January 2019 | 5
COVER STORY
The Lawyer Who Needed A Lawyer In Ruling Clarifying NJ Legal-Malpractice Law, Judge Dismisses Suit Against Divorce Attorney
y the time Seth L. Laver finished drafting the legal document, he’d put considerable time and effort into it.
SETH L. LAVER
MATTHEW S. MARRONE
6 | PLM
Some of that was at the office. Some of it was at home after putting the kids to bed. And all of it paid off once fellow Goldberg Segalla partner Matthew S. Marrone stepped into a New Jersey courtroom and successfully argued the points laid out in the 26-page brief Seth wrote supporting the attorneys’ motion for summary judgment. In a November 30 ruling expected to help define what constitutes a viable legalmalpractice claim in New Jersey, a state
Superior Court judge granted the Goldberg Segalla attorneys’ motion and dismissed the suit against their client, a lawyer sued for negligence by a woman he once represented in a contentious divorce. The judge’s decision saved our client as much as $500,000—the amount of the plaintiff’s demand based on her trucker ex-husband’s income, which fluctuated between $25,000 and $85,000 annually. It also saved our client the uncertainty and stress of a trial, which was fast approaching as Seth and Matt sought to have the case dismissed based on evidence already presented. With the trial scheduled to start Monday, December 3, Matt successfully argued for summary judgment three days before, on Friday. The clock wasn’t all that was working against Seth and Matt. So were the odds, Matt figured, given the vagaries of legal-malpractice law in New Jersey, which until now hasn’t been clear about what constitutes a legitimate claim. In helping define what rises to the level of provable legal malpractice, Goldberg Segalla’s successful defense of the divorce lawyer should help in future legal-malpractice cases in New Jersey, Seth said. “We think this case would help to define when a legal malpractice claim in New Jersey accrues, or comes into existence as a legally enforceable claim, and what the standards there are to support a legal malpractice case,” he said. The suit, filed November 28, 2016, alleged that the divorce attorney for the plaintiff, a mother of two, should have told her she was entitled to permanent alimony before she agreed to a temporary nine-year arrangement. Though the 2003 divorce settlement that ended her 17-year marriage stated she could go back to court when alimony ended to try and make it permanent, she was unsuccessful when she sought to do so through new attorneys. So she sued the lawyer who had represented her in the divorce, alleging he should have advised her to go to trial rather than to settle for temporary alimony.
T
apped to defend the divorce lawyer, Seth and Matt set about the task with characteristic expertise and skill and the sort of teamwork honed as they work together in Goldberg Segalla’s Philadelphia office and in the firm’s Management and Professional Liability Practice Group.
Seth represents attorneys, accountants, real-estate and insurance professionals, and architects across the country and counsels clients in risk-management, workplace issues, and other matters. Though he seeks to avoid litigation and minimize risk, when necessary he calls on his extensive experience handling individual and class-action cases; for clients who do end up embroiled in disputes or claims, he uses holistic legal strategies customized to their immediate needs and long-term goals and aims to resolve the litigation as quickly and cost-efficiently as possible. Matt, too, has represented clients in many forms of complex litigation, some at risk of losses exceeding $10 million. He has tried
What Is Legal Malpractice? The online law community justia.com defines it as the negligent or intentionally harmful handling of a case. According to the American Bar Association, legal malpractice includes: SUBSTANTIVE ERRORS •• account for almost half of all reported claims •• include negligence, inadequate investigation, failure to meet a filing deadline (“a lawyer’s worst nightmare”), failure to sue within the statute of limitations, and failure to know or properly apply the law to a client’s situation ADMINISTRATIVE ERRORS •• account for more than a quarter of all reported claims •• include procrastination, clerical and delegation errors, and failure to calendar INTENTIONAL WRONGS •• account for about 10 percent of all reported claims •• include fraud, malicious prosecution, abuse of process, libel or slander, and civil-rights violations CLIENT-RELATIONS PROBLEMS •• account for about 10 percent of all reported claims •• include failure to return phone calls (“the most common complaint about lawyers”), failure to explain to the client administrative procedures such as the timing of steps on a matter or fees and disbursements, and failure to obtain the client’s consent or to inform him or her CONFLICTS OF INTEREST •• account for an untold number of reported claims •• fall mostly into two categories: conflicts of interest between an attorney’s clients and internal conflicts stemming from a lawyer’s personal interest in a case Legal malpractice happens when an attorney handles a case inappropriately due to negligence or with intent to harm and causes damages to a client.
(continued on next page)
www.goldbergsegalla.com
January 2019 | 7
(continued from previous page)
numerous cases to verdict and argued before various courts of appeal, including the Third Circuit U.S. Court of Appeals. His experience includes liability matters involving non-profit directors and officers and governments; civil rights and employment issues; product-liability; trademark and copyright infringement; and death or catastrophic-injury litigation. He also frequently counsels and represents insurers in coverage disputes.
to an unacceptable settlement—Seth and Matt decided on a third course of action. They would file a motion for summary judgement seeking to have the suit dismissed. Carefully citing facts of the case already on record from testimony or evidence discovered while investigating the dispute, Seth’s brief supporting the motion drilled down on three main arguments:
As Matt and Seth mounted a defense for their divorce-lawyer client, they were prepared to go to trial, for they didn’t expect the plaintiff to settle for anything less than six figures—an amount to which they wouldn’t agree.
•• She filed her suit after the statute of limitations had run out;
In terms of the damages awarded, legal-malpractice suits—those cases in which a lawyer needs a lawyer—have the potential to be extremely costly professional-liability cases. While a 2018 study shows the number of legal-malpractice claims has remained fairly constant, it also shows that the amounts paid out in them has increased. In 2017, eight major insurers made payouts exceeding $50 million, according to the 2018 study. Though not on that level, the suit against the New Jersey divorce lawyer had the potential to be quite costly in its own right, likely ranging into six figures. Faced with two unappealing options—going to trial or agreeing
•• The plaintiff voluntarily settled the divorce case;
•• Her attorney in the divorce was not liable for malpractice. In the brief, Seth summed up the case in no-nonsense language: “Rather than taking her chances of potentially a greater (or lower) recovery following trial,” he wrote, “[the plaintiff] accepted the certainty of a resolution and expressed her satisfaction with the agreement under oath. It was a great deal [but she] had a change of heart.” After listening to Matt argue the points in court, the judge agreed on all three counts and dismissed the case against our client. The ruling, Seth said, is “a big deal” for legal-malpractice law in New Jersey, which has long been difficult to navigate, especially for defendants.
GLOBAL INSURANCE SERVICES |
WEBINAR SERIES
Opioid Related Coverage Issues
Tuesday, February 12, 2019 | 12 p.m. ET | Michael A. Hamilton and Bradley R. Ryba
Insurance Clause Issues
Tuesday, March 19, 2019 | 12 p.m. ET | Jonathan Schapp
Cooperation Clauses
Tuesday, April 16, 2019 | 12 p.m. ET | Jeremy G. Dongilli and Steven P. Nassi
Mobile Equipment vs. Auto Coverage Issues Tuesday, May 14, 2019 | 12 p.m. ET | Michael Lettiero
Reading the digital version of Professional Liability Magazine? Click each webinar to register!
8 | PLM
CASE NOTE Mission Product Holdings, Inc. v. Tempnology, LLC (In re Tempnology, LLC), 2018 WL 387621 (1st Cir. Jan. 12, 2018)
In Cooling-Apparel Dispute, an Old Trademark Debate Heats Up Supreme Court to Resolve Circuit Split Regarding Rejected Licenses in Bankruptcy Cases Daniel L. Gold Should a company lose the right to make or sell goods bearing a certain trademark if the trademark’s owner goes bankrupt? The U.S. Supreme Court is expected to settle that question this winter, after hearing arguments next month in a landmark dispute over trademarked athletics apparel made of special cooling fabric. The case pits Mission Product Holdings, Inc., which makes, markets, and distributes athletics and other performance apparel, against Tempnology LLC, a now-defunct company that developed, manufactured, and sold sweat-wicking garments until being acquired by Coolcore LLC in January 2016. Coolcore’s “Dr. Cool” sports apparel notwithstanding, Tempnology has had its share of heated moments. Like most legal disputes, this one’s about money. Trademark-licensing agreements are a vital force in many business relationships, helping drive profits for both sides. But what becomes of such an agreement when the trademark owner files for bankruptcy? That’s the central question of the Tempnology case. In September 2015, Tempnology filed for bankruptcy and moved to reject its trademark-licensing agreements. The bankruptcy court in the District of New Hampshire granted the motion, Mission filed suit, and over the next three years the case wended through a succession of appellate courts, each reversing the one before. The dispute’s zig-zag path across the legal landscape will end finally on February 20, 2019, when attorneys for Mission and Tempnology argue their respective cases before the seven justices at 1 First Street NE, in Washington, DC—home of the Supreme Court. The legal debate the Court will settle is rooted partly in Congress’s omission of trademarks when defining intellectual property in the Bankruptcy Code and partly in conflicting court decisions— most recently, those of the Seventh and First circuits. The Seventh Circuit held in Sunbeam Products, Inc. v. Chicago American Manufacturing, Inc. that a bankrupt licensor’s rejection of a trademark contract did not eliminate the rights of the licensee, which could continue using the trademark lest it, too, find itself insolvent. For trademark licensees, the Seventh Circuit noted, often depend on the use of a trademark for the viability of their own businesses.
www.goldbergsegalla.com
The First Circuit rejected that approach in Tempnology, however. Terminating a license agreement outright, the court reasoned, would promote a fresh start by the debtor by freeing it of responsibilities that could interfere with its efforts to reorganize. If the licensee continued to use the trademark in question, the debtor-licensor would have to continue monitoring that use and controlling the sale of trademarked goods or risk losing its own rights to the trademark. The First Circuit ruling was consistent with that of the bankruptcy court but not with that of the Bankruptcy Appellate Panel, which held that the licensee could continue using the trademark even after the debtor’s rejection of the underlying agreement. The First Circuit held that a licensee’s dependence on using a trademark could not be used to protect its rights to that mark because Congress had omitted trademarks from the definition of intellectual property—this despite language in the Senate Report for Section 365(n) encouraging the bankruptcy courts to develop “equitable treatment of this situation.” The question of rejecting intellectual-property licenses in bankruptcy cases first arose in 1985, in Lubrizol Enterprises, Inc. v. Richmond Metal Finishers, Inc. Lubrizol held that rejecting an “executory contract” regarding intellectual property, such as a patent or trade-secret license, would terminate the license, leaving the licensee no longer able to make use of the debtor’s intellectual property. Three years later, Congress enacted legislation that avoided the effects of the Lubrizol decision for intellectual property licenses rejected in bankruptcy cases, adding a section to the Bankruptcy Code that preserves the licensee’s option of retaining its contract rights, including the right to enforce exclusivity provisions related to intellectual property. Congress also defined intellectual property—as trade secrets, an invention, a process, a design, or a plant protected by law, patent application, or variety. There was just one problem: The definition of intellectual property added to the Bankruptcy Code didn’t include trademarks. So the law did not afford to trademark licensees the new protections afforded other intellectual-property licensees. After listening to arguments in Tempnology, the Supreme Court will decide whether to adopt the Sunbeam approach or that of Lubrizol and determine the extent of legal protections for intellectual-property licensees and whether those protections include trademark licensees.
January 2019 | 9
CASE NOTE Peter F. DiPaolo v. New Jersey Physicians United Reciprocal Exchange (Superior Court of New Jersey, Appellate Division, Oct. 26, 2018)
When Is It Okay to Share Privileged Information with a Third Party? The Appellate Division of the Superior Court of New Jersey Weighs In Anthony J. Golowski II This bad faith action was brought by Peter F. DiPaolo, a doctor who sued his medical-malpractice insurer, New Jersey Physicians United Reciprocal Exchange (NJ PURE). DiPaolo alleged in the suit that NJ PURE did not make a good-faith effort to settle a medical-malpractice suit against DiPaolo within the policy limits. In that malpractice suit, Crystal Evans sued DiPaolo, alleging his treatment of her deviated from the applicable medical standard of care. The jury in the malpractice case awarded Evans more than $3.8 million for injuries she sustained as a result of DiPaolo’s malpractice, leading to a judgment against him amounting to more than $5.2 million. NJ PURE unsuccessfully appealed the judgment against DiPaolo. After losing its appeal, NJ PURE then paid the $1 million medical-malpractice insurance policy limits, which still left a judgment against DiPaolo in the amount of $4.8 million, including accrued interest. DiPaolo then brought this action, alleging that NJ PURE did not make a good-faith effort to settle the medical-malpractice case within his policy limits, which resulted in the substantial judgment entered against him. Evans, seeking to collect on her malpractice judgment, intervened in DiPaolo’s bad faith lawsuit. NJ PURE served a subpoena on Evans’s counsel seeking documents and communications Evans’s counsel and DiPaolo’s counsel exchanged after the judgment was entered in the malpractice case. Both attorneys asserted that the common interest privilege barred the production of such communications and documents. In this case, they argued, the common interest was Evans’s and DiPaolo’s desire to recover from NJ PURE the amount of the judgment entered against DiPaolo. NJ PURE filed a motion to compel production of those documents. The trial judge did not find any common interest, as he
10 | PLM
IMPACT: Not every disclosure to a third party of attorney client communication will serve to waive the attorneyclient privilege. The common interest doctrine may protect communications made to a non-party who shares the client’s interests. determined there was no “economic commonality” between DiPaolo and Evans, and ordered the requested documents and communications to be produced. This appeal followed. Relying heavily on O’Boyle v. Borough of Longport, the Appellate Division of the Superior Court of New Jersey found that the “common interest doctrine permits ‘the free flow of information between or among counsel who represent clients with a commonality of purpose’ and ‘offers all parties to the exchange the real possibility for better representation by making more information available to craft a position and inform decision-making in anticipation of or in the course of litigation.’ “ For the common interest doctrine to apply •• the parties must share a common purpose, though it is not necessary for their interests to be identical; •• actual litigation needn’t have started; •• the common interest may arise during civil proceedings; and •• nothing requires the common interest to be legal rather than purely commercial. The Appellate Division agreed that the common interest doctrine protected the post-verdict communications and documents exchanged between Evans and DiPaolo. In ruling in favor of Evans and DiPaolo, the appellate court wrote: “Because Evans and DiPaolo share a common interest in recouping the judgment from NJ PURE, the requested material is privileged, and we, therefore, reverse the September 18, 2017, trial court order.”
CASE NOTE Mitchell v. Shikora (Superior Court of Pennsylvania, May 5, 2017)
Pennsylvania Doctors Await Ruling on Evidence of Risk in Malpractice Trials Could Physicians Be Held Liable for Malpractice Even If They Did Everything Right? Whitney L. Allen The legal twists and turns of a malpractice claim by a woman whose bowel was injured during a 2012 hysterectomy in Pittsburgh have left Pennsylvania doctors wondering if they could be held liable for medical complications even if they did everything right. At issue is whether judges in malpractice trials should allow expert testimony about medical procedures’ known risks and possible complications. Trial lawyers say such information is irrelevant and might confuse jurors whose only consideration should be whether a doctor was negligent. But the American Medical Association says testimony about the riskiness of procedures could keep a physician from wrongly being held liable for malpractice if common complications happen to arise after an otherwise bythe-book procedure. The Pennsylvania Supreme Court plans to review the case. The malpractice claim stems from a May 2012 medical procedure by gynecological surgeon Evan Shikora, who cut a patient’s bowel nearly in half during a hysterectomy. The patient, Lanette Mitchell, sued the doctor in December 2013, alleging he had been negligent. The Court of Common Pleas of Allegheny County denied a pre-trial motion by Mitchell to exclude evidence about the risks and complications of a hysterectomy and allowed testimony about the possibility of bowel injury in particular.
www.goldbergsegalla.com
The jury found the doctor not liable and Mitchell, after filing an unsuccessful motion for post-trial relief, appealed, maintaining that the trial court was wrong in allowing evidence on risks and complications in a case that wasn’t about consent. The appeals court found in Mitchell’s favor, ruling that evidence about risks and complications was inadmissible and not granting post-trial relief a mistake. Reversing the trail court’s judgment, the appeals court ordered a new trial, one without evidence on risks and complications. While evidence of risks and complications generally is admissible to establish the relevant standard of care, the appeals court said, it’s irrelevant in determining whether defendants acted within that standard. It also can mislead a jury into believing a plaintiff’s injuries were simply the result of a procedure’s known risks and complications. The Superior Court ruling was expected to prompt Pennsylvania physicians to buy more malpractice insurance, the cost of which would be passed on to patients, and to deter some doctors from performing especially risky procedures. But the state Supreme Court said in May 2018 that it would hear the case. Because the case is about medical errors, patient safety, and the fairness of the judicial system, it has generated considerable interest in Pennsylvania, especially in the state’s legal and medical circles. Depending on the final outcome of the case, physicians could face an influx of cases of medical complications not resulting from wrongful or negligent conduct, which could have economic implications for Pennsylvania.
January 2019 | 11
ADVERTISEMENT
Presented by:
Professional Liability Defense Federation, in coordination with the ABA's Tort Trial & Insurance Practice Section (TIPS) Committees on Dispute Resolution and Professional Liability Insurance. Co-sponsored by Fordham Law School, which has generously donated space for this event and ABACLE.
DISASTERS: THE EMERGING D&O, E&O AND CORPORATE RISKS What you need to know, and how to manage, mitigate and resolve those risks
Panel Discussion + Wine + Networking
February 05, 2019 Fordham University McNally Amphitheater, New York, NY The program is proud to present distinguished panelists who have dealt first hand in these arenas and will provide pragmatic discussions and take-aways for preparation, response and resolution of disasters. The panelists include corporate Directors of Risk Management, Mediators, Retired Judges, Insurer Broker In-House Litigation Claims Counsel, and Highly Experienced Counsel and Consultants. The focus will be on actual considerations, skills and take-aways for preventative preparation, response and resolution of disasters.
Risk Assessment, Transfer & Insurance: D&O Responsibility and Business Income Loss Disasters: The Increasing D&O Risks and Concerns, and the Risks Presented to Insurance Agents, Brokers, Risk Managers and Insurance Consultants ADR Solution For Disasters
Featured Speakers: Peter J. Biging (Partner, Goldberg Segalla, LLP) and Kiera O'Connell Goral (Assistant Vice President, Specialty Claims, QBE North America)
For more information, or if you’d like to attend, please visit ambar.org/mnd2019 to register.
We would also like to offer you and the members of Professional Liability Defense Federation a discount for 40% off your registration rate. Use promo code PLDF19 at checkout to receive the discount. If you have any issues with registration, please contact Laura Herrera. We look forward to seeing you!
Location:
Fordham University Graduate School of Business McNally Amphitheater 140 W 62nd St. New York, NY 10023
CLE Credit Available Earn up to 3.00 Credits
INSIGHT
Presenting Criminal Charges to Gain an Advantage in Civil Litigation Beware When Clients in Civil Cases Ask Their Lawyers to Intervene in Related Criminal Matters Michael P. Luongo Clients who have been intentionally harmed by someone may want to pursue both civil and criminal remedies alike. Civil litigators, however, must proceed with cau tion if a client asks to pursue a criminal investigation while a civil suit is pending, which could put attorneys at risk of violating ethics rules barring them from using criminal charges to gain an advantage in civil litigation. Consider, for example, a woman who discovers a business partner is stealing money from her company. In retaining an attorney to represent her in a civil suit against the partner to recover the embezzled funds, she asks the attorney to inform the partner that the embezzlement is a crime. Is doing so ethical? The American Bar Association’s Model Code of Professional Responsibility expressly prohibited use of criminal prosecution to gain an advantage in civil litigation, stating, “A lawyer shall not … present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.” But the Model Code was withdrawn in 1983 and replaced by the ABA
www.goldbergsegalla.com
Model Rules of Professional Conduct, an ethics code that doesn’t expressly prohibit a lawyer from presenting criminal charges against the opposing party in a civil matter. Many states’ ethics rules still maintain some variation of the prohibition from the Model Code. The New York Rules of Professional Conduct adopt the Model Code prohibition on presenting criminal charges “solely to obtain an advantage in a civil matter.” And, in New Jersey, attorneys are prohibited from presenting or threatening to present criminal charges “to obtain an improper advantage in a civil matter.” Even in states where the presentation of criminal charges in a civil matter is not expressly prohibited, attorneys assisting a client in this regard walk a fine line. To ensure they remain on the right side of it, attorneys should consider whether the criminal conduct is related to the client’s civil claim; the lawyer has a well-founded belief that the charges are warranted; the lawyer does not attempt to exert improper influence over the criminal process; and the client actually intends to pursue criminal remedies. Attorneys who fail to consider the ethical consequences could be subject to disciplinary action or expose themselves to malpractice claims.
January 2019 | 13
CROSSOVER
Success stories about Goldberg Segalla attorneys in other areas of practice
The Claimant Said She Suffered. Her Medical Records Told Another Story. From the beginning, something about the workers’ compensation claim—indeed, something about the claimant herself—didn’t seem right. Defending a major manufacturer and its insurer against the claim, Goldberg Segalla’s Ryan K. Allen was determined to ferret out the truth. A woman in her 40s who had worked for several years as a brazer for a major manufacturer, repairing cracks in engine parts by filling them with molten metal, was claiming the company hadn’t responded properly to her sexual-harassment complaint against a co-worker. Consequently, she had suffered psychologically, according to her claim, and had been unable to work anywhere ever since. Ryan, a member of Goldberg Segalla’s Workers’ Compensation Practice Group, has handled more than a few such claims. Through experience, he knew that cases involving a plaintiff who alleges suffering mentally because of someone else’s action or inaction call for investigating the plaintiff’s medical history for past or pre-existing psychological issues. Through perseverance, Ryan got what he needed to complete that investigation; after numerous attempts, he compelled the plaintiff, at the direction of the workers’ compensation board, to sign medical releases allowing him to see the woman’s medical records.
Though Ryan’s approach to the case was typically self-assured and methodical, it also was informed by a certain sense of urgency and a commitment to do everything he could for his client. At stake was a lot of money; though the claimant wasn’t asking for a specific amount, she was claiming permanent disability and wage loss. Because of what had happened to her at the manufacturing plant, she maintained, no longer could she work there or anywhere else. Were her claim approved, Ryan’s client would be liable for untold millions of dollars. So what the attorney found in the claimant’s medical records, though not entirely surprising, was a welcome if sad discovery: The woman had been undergoing treatment for mental illness for more than 20 years, since well before she started working at the manufacturing plant. Nothing had changed. At the hearing that followed, the judge—presented with these findings as well as the results of an independent medical examination of the woman, her doctor’s deposition, and her on-the-record, categorical denial of a pre-existing condition—denounced the claimant’s story as an “egregious misrepresentation” of the facts. In June 2018, the workers’ compensation board disqualified all future indemnity benefits and rescinded all of the claimant’s past indemnity benefits as well as the woman’s attorney’s fees. In July, the woman’s appeal failed unanimously.
The Auto Accident Raised Questions. There Were Answers under the Dash. In the end, after all of the he-said-she-said and the country-club records showing the allegedly injured plaintiff playing golf and the video of him scampering about a soccer field, it was a small, silver box from beneath the dashboard of a Ford Escape that likely clinched the case. The box, a computer called a restraints-control module, is an automotive nerve center about the size of a man’s hand. It records starts and stops, impacts and restraint deployments, acceleration, braking, and speed. It holds a record of what was happening around the time of an accident. It’s on virtually all newer cars. And it was in the back of attorney Brian W. Skalsky’s mind as he started defending a driver and insurer facing a potentially big liability claim over a relatively minor accident on Interstate 5 near San Diego. The plaintiff, a former professional soccer player, claimed that because Skalsky’s client had rear-ended him he had back injuries that had required injections and a radiofrequency ablation. At trial he asked for just under $1 million. Skalsky, who recently joined Goldberg Segalla and our General Liability Practice Group, has a
lot of experience litigating such cases and knew just what to do. He retained an accident-reconstruction expert to download data from that restraints-control module. Using special equipment carried in a hard-shell tote the size of a suitcase, the reconstruction expert found data for almost 30 seconds leading up to the accident: The plaintiff’s car was going 11 miles per hour at the time of the accident. Our client, as she rear-ended him, was going 23. The experts in the case used the weights of the vehicles and some math to determine a comparative speed for the accident: 7 miles per hour—barely twice as fast as a man walking. The data from the restraints-control module was, Skalsky recalls, the best and arguably only piece of purely subjective evidence he had for defending the driver and insurer, but, in concert with the other evidence he’d unearthed, it was enough. Though the jury voted 9-3 that Skalsky’s client was somewhat negligent in the accident, it was unanimous in finding that the defendant was not a substantial factor in causing injury to the plaintiff. The stories on this page were published originally on goldbergsegalla.com
14 | PLM
HELPING YOU STAY AHEAD BLOGS
WEBINARS
Asbestos Case Tracker asbestoscasetracker.com
Goldberg Segalla offers free, interactive webinars that explore practical implications of legal trends and developments across a range of practice areas. Learn more and register at:
Data Privacy and Security dataprivacyblog.com Environmental Law Monitor environmentallawmonitor.com The Insurance and Reinsurance Report insurerereport.com Life Science Matters druganddeviceblog.com OSHA: Legal Developments and Defense Strategies osharegulationsblog.com Professional Liability Matters professionalliabilitymatters.com Sports and Entertainment Law Insider sportslawinsider.com
www.goldbergsegalla.com/webinars
ALERTS We actively monitor news and trends in the law and the industries we represent, and we use our practice group-specific alerts to provide clients with critical information and analysis of the latest developments impacting their business.
PODCAST Timely Notice Your on-the-go source for sharp takes and expert analysis of the latest trends, breaking news, and sea-changes in global insurance law and the insurance marketplace.
Workers’ Compensation Defense gsworkerscompensationdefense.com
Visit goldbergsegalla.com/resources to learn more and subscribe.
New York | Illinois | Florida | California Maryland | Missouri | North Carolina | Pennsylvania New Jersey | Connecticut | United Kingdom Attorney advertising. ©2018 Goldberg Segalla.
www.goldbergsegalla.com
Different. Because it makes a difference.
Our firm began with seven attorneys, one vision, and enough spare wood and sawhorses to build the makeshift desks where the firm was born. Today, Goldberg Segalla is an AmLaw 200 firm — and one of the fastest organically growing law firms headquartered in the U.S., with over 400 accomplished attorneys practicing at the forefront of a wide range of fields, from commercial litigation and transactions to employment and labor, construction, cybersecurity, professional liability, retail, sports and entertainment, and more. Most importantly, we’ve never wavered in our commitment to our founding principles of collaboration, professionalism, diversity, and creative client-driven service.
New York | Illinois | Florida | California Maryland | Missouri | North Carolina | Pennsylvania New Jersey | Connecticut | United Kingdom
www.goldbergsegalla.com © 2019 Goldberg Segalla. Attorney advertising. The contents of this document are for general informational purposes only. Nothing in this document constitutes legal advice or gives rise to an attorney-client relationship. Readers should not act upon this information without seeking professional counsel.