Professional Liability

Court RulingThe United States Supreme Court declined a petition for certiorari on Monday, January 9, in the matter of Ascira Partners, LLC v. Daniel, dashing hopes that the Justices would resolve conflicting federal law on jurisdiction under the Class Action Fairness Act. The petition involved a massive medical malpractice action in Ohio which originated from medical care provided by a single doctor working at multiple medical care facilities. Originally, plaintiffs filed 226 individual lawsuits against the doctor and various medical providers in several different Ohio counties before the cases were consolidated before a single judge. At that point, the various plaintiffs requested that the court set all of the cases for one combined trial, or several smaller group trials. The court ultimately set four smaller trials and one large group trial which combined the claims of over 400 plaintiffs into a single case.

Following this consolidation, defendants sought to have the case removed from Ohio state court to federal court under 28 U.S.C. § 1332(d), otherwise known as the “Class Action Fairness Act.” Among other provisions, this statute gives federal courts jurisdiction over certain monetary relief claims of 100 or more persons so long as the plaintiffs’ claims involve common questions of law or fact. The Ohio state court, however, determined that the case should stay in state court, as the “100 plaintiff” element of the statute was not satisfied. Under the state court’s view, federal jurisdiction under the statute is proper only when a single complaint contains at least 100 plaintiffs, not when where multiple suits are combined for trial to encompass the claims of more than 100 plaintiffs. Defendants asked the federal Sixth Circuit Court of Appeals to review this interpretation, arguing that the Seventh, Eighth, and Ninth Circuits had all previously determined exactly the opposite, that the 100 plaintiff threshold was, in fact, satisfied when plaintiffs decide to combine multiple cases for trial. When the Sixth Circuit implicitly adopted the state court’s interpretation by declining to weigh in, defendants sought review from the United States Supreme Court.

These “Circuit splits”, where Circuit Courts disagree on the interpretation of the law, are not uncommon. And it is certainly not uncommon for the Supreme Court to deny a party’s petition for review. The Supreme Court receives approximately 7,000 petitions each year, and accepts roughly 80 for oral argument and review. The Supreme Court’s denial of review in Ascira Parnters is nevertheless significant for mass tort defendants across the country.

It is no secret that, in many instances, injured tort plaintiffs would prefer to file their cases in state court as opposed to federal court. One of the many reasons for this preference is that the Federal Rules of Civil Procedure place express limits on the amount of discovery available to both parties.  Further, the Federal Rules of Evidence tend to be more stringent, as are requirements for expert witnesses.  These, and the notion that federal courts tend to grant motions to dismiss and motions for summary judgment more
Continue Reading Class Dismissed: Supreme Court Declines to Resolve Circuit Split on Class Action Jurisdiction

How one small San Francisco case may cause significant change for the Internet and its users

2016_07_27-yelp-law-suit_homepage-3-22527971222Ever rely on a negative review on Yelp? Ever write a negative review on Yelp?  Well, one small dispute in San Francisco has set precedent in place that such a review can be found defamatory and ordered removed by not only the reviewer but Yelp itself – even when Yelp was not a party to the action. The decision, which was recently upheld up by the California Court of Appeal (Hassell v. Bird (2016) 247 Cal.App.4th 1336), is currently being reviewed by the California Supreme Court. An opinion is expected next year; however, the decision is a departure from the common understanding that user generated content is not only unequivocally protected by the First Amendment but that the online publisher is immune from any liability for such content under Section 230 of the Communications Decency Act.

This decision is intriguing on its face because apparently a business has recourse and potential legal support to seek certain comments be removed from online sites like Yelp (or Google, or Facebook, or Trip Advisor etc.) but what is also of import to the likely reader of this blog are the underlying facts, which involved review of an attorney’s handling of a personal injury case. Yes, you can post a review of your lawyer on Yelp.

San Francisco attorney Dawn Hassell’s firm represented Ava Bird for 25 days in a simple personal injury case in 2012. Hassell withdrew as counsel because her firm had difficulty communicating with Bird and Bird expressed dissatisfaction with Hassell’s firm. Hassell produced evidence of dozens of direct communications with Bird, at least one in-person meeting, and efforts made to resolve Bird’s claim with the insurance company involved. At the time Hassell withdrew, Bird had 21 months to file her claim before the statute of limitations expired. A few months later, on January 28, 2013, Bird posted a “one-star” (the lowest rating) review on Yelp.com about her experience with Hassell. Thereafter, Hassell sent Bird an e-mail (after telephone calls were apparently not returned) requesting she remove “the factual inaccuracies and defamatory remarks” from Bird’s review to which Bird refused.

Hassell then filed suit in February 2013 allegedly after seeking Yelp’s assistance and after she was advised by counsel for Yelp that the only recourse was legal action against the actual reviewer, Bird. Of course that recollection is disputed by Yelp. After filing suit, Bird posted yet another review (to which Hassell responded to on Yelp). It is also alleged by Hassell that Bird then posted at least one other review under another pseudonym.

Hassell prevailed because Bird never showed up in any of the proceedings and thus, a default was entered against her. At the default prove-up hearing Hassell was sworn and testified. Bird again did not appear. The Court found the reviews defamatory and awarded approximately $555,000 in damages and costs as well as an injunction ordering Bird to remove her posts
Continue Reading Court Orders “One-Star” Yelp Review of Attorney Removed but Non-Party Yelp Refuses

File Cabinet_iStock_000022952167Small(Purchased 8-4-14)Last summer the Massachusetts Supreme Judicial Court (SJC) made several significant changes to the Massachusetts Rules of Professional Conduct (Mass. R. Prof. C.). Previous posts highlighted some of these changes, including to the Rules pertaining to jury contact following trial and the duty to remain current on technologies which impact the practice of law. The Rule discussed herein relates to a trend often seen in the service sector, and which has over the past years become more prevalent in the legal sector – outsourcing.

According to the American Bar Association, “globalization, technology-driven efficiencies developed and utilized by many providers of outsourced services, and the demand by clients for cost-effective services” are some of the factors that have contributed to the significant growth of outsourcing. Many firms have taken advantage of (or been directed by their clients to take advantage of) lower rates charged by companies which conduct document reviews, provide legal transcriptions, conduct research and process patents. These companies are often located outside of the United States in countries such as India and Malaysia. Several authors have noted that these efficiencies can be attractive to firms by enabling them to better compete for large matters without fear that they lack adequate resources to perform legal work and to clients by bolstering the affordability of legal services.

When lawyers outsource activities traditionally performed by them or their staff, several ethical considerations are implicated, including the protection of privileged and otherwise confidential information, and of course, quality control. See e.g., Mass. R. Prof. C. Rules 1.1 (competence); 1.2 (allocation of authority); 1.4 (communication with client); 1.6 (confidentiality); 5.4(a) (professional independence of the lawyer), and 5.5(a)(unauthorized practice of law).

To protect clients from inadequate representation the American Bar Association provides detailed guidance on the retention of lawyers and non-lawyers from outside the firm setting. See Model Comments 6 and 7 to ABA Model Rule 1.1 and Model Comments 1-4 to Model Rule 5.3. The SJC, clearly concerned about the evolution of lawyering and the growing practice of outsourcing client work followed suit, and adopted the following comments to Mass. R. Prof. C. 5.3:

3. A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. Examples include retaining an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information. When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to


Continue Reading Legal Ethics 2.0: Massachusetts Makes Changes to its Rules of Professional Conduct – Outsourcing Client Work

As previously reported, following the 2012 and 2013 American Bar Association’s amendments to its Model Rules of Professional Conduct, many jurisdictions began to reexamine their own rules.  Massachusetts followed suit, and on July 1, 2015, the Supreme Judicial Court (SJC) adopted several revisions to the Massachusetts Rules of Professional Conduct (Mass. R. Prof. C.) recommended by its Standing Advisory Committee.  This blog post is the second in a series designed to inform practitioners of several important changes to the Massachusetts rules.

The Duty to Remain Current on Latest Technologies

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Before an attorney can accept a matter, he or she has to comply with the competency standards found in Mass. R. Prof. C. 1.1.  According to said Rule, competent representation requires “the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”

In response to the rapidly changing technologies impacting the practice of law, the SJC adopted Comment 8 to Rule 1.1, which states:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . (emphasis supplied).

With the rise of e-discovery, this Comment is particularly appropriate.  The State Bar of California Standing Ethics Committee on Professional Responsibility and Conduct in its Formal Opinion No. 2015-193, noted that “[I]n today’s technological world almost every litigation matter potentially involves [e-discovery],” and failing to have a “basic understanding of, and facility with, issues relating to e-discovery” can eliminate an attorney’s competency for a case.

We expect Massachusetts to follow the guidance provided by California’s Committee, and interpret the new Comment to allow an attorney who is not competent in this regard to nonetheless perform legal services competently by: 1) associating with or consulting technical consultants or competent counsel; or 2) acquiring sufficient learning and skill before performance is required.  Lawyers must decline the matter when they cannot meet these two provisos, and when they do not, Comment 8 gives the Board of Bar Overseers an additional tool to sanction lawyers who mishandle e-discovery by producing confidential or privileged information, or by failing to locate and produce electronically-stored discoverable data.

Comment 8 should not, however, be viewed solely in the e-discovery prism.  The headlines scream about the latest hacking attacks and disclosures of personal information.  Failing to maintain proper firewalls and other security features, notwithstanding a lack of bad faith conduct, may also viewed as a disciplinary rule violation.  Given that the use of computers and e-mail are unavoidable, lawyers should follow the same guidance applied to e-discovery.  That is, engage technical consultants or acquire sufficient learning and skill.  It may cost a few dollars, but it’s worth it, particularly in light of the potential the risks associated with Comment 8 to Mass. R. Prof. C. Rule 1.1.

For more information on the revised rules visit:

http://www.mass.gov/courts/docs/sjc/docs/rules/a-sjc-order-rules-of-professional-conduct-adopted-march-2015.pdf
Continue Reading Legal Ethics 2.0: Massachusetts Makes Changes To Its Rules Of Professional Conduct – The Requirement To Be Technologically Savvy

Despite efforts to increase efficiency and save money, most businesses set aside substantial budgets for litigation costs. With the ever-changing landscape of litigation, discovery is usually one of the most expensive line-items. In fact, Inside Counsel points out a Gartner forecast showing, “revenue in the enterprise e-discovery software market will grow from $1.8 billion in 2014 to $3.1 billion in 2018”.

Although discovery costs are necessary, the way a business operates can have a significant impact on its bottom line.  The following list provides six steps companies should consider implementing to make the discovery process more efficient and save money.

1. Determine Which Parties Are Most Important to the Case

In discovery your attorney needs to determine where essential documents can be located and who has knowledge most relevant to the case.  This can result in attorneys having to interview several people within a company to determine: (a) who is the best candidate to represent the entity as the Person Most Knowledgeable; (b) where crucial information can be found; and (c) who has access to that information.  Doing some of the initial legwork yourself can save your business many hours of attorney fees and will allow your legal counsel to hit the ground running.

2. Be Aware of Deadlines

When attorneys receive discovery requests from opposing counsel, they are on the clock.  In California for example, attorneys have 30 days to respond to most forms of written discovery.  This entails analyzing the discovery requests, determining which objections should be made, drafting responses, and providing the client time to review and approve the responses.    To prevent delays, tell your attorneys at the outset of the case how much time you will need to review discovery responses.  You can also request to be notified when discovery requests are received to plan ahead and set aside time in your schedule to review the responses.

3. Provide Reliable Modes of 24/7 Communication

Poor communication results in increased costs in all industries, and litigation is no exception.  Unanswered emails, missed telephone calls, and other communication misfires can quickly rack up fees.  This is especially true when a discovery deadline is approaching and counsel needs to reach you to acquire information for discovery responses or verification forms.  Inform your counsel of the best ways to reach you.  If you do not typically respond to work emails or phone calls after a certain hour, let your attorney know.  Consider creating an email chain with all parties involved in the case copied to ensure information is communicated simultaneously rather than multiple times.

 

4. Determine Your Theme

Litigation can be an art, but usually benefits from an organized, structured presentation of the legal issues raised in a case.  A company theme, or Good Company Story, is often used to provide a common thread during a jury trial to help counteract opposing counsel’s efforts to vilify a company.  By creating a theme at the outset of a case, companies can often maintain
Continue Reading Discovery Costs: How Companies Can Increase Efficiency and Save Money in the Process