Risk Update

Risk News — Lawyer-as-Witness DQ Move, HIPAA Client Confidentiality v. Law Firm PR Update

Posted brbadmin

“Law firm Anderson Kill wants ex-CFO’s lawyer tossed in employment clash” —

  • “U.S. law firm Anderson Kill is seeking to disqualify a lawyer representing its former chief financial officer in an employment lawsuit that accuses the firm of forcing the CFO out after he suffered a fall and concussion last year.”
  • “New York-founded Anderson Kill said Friday it plans to call plaintiff Paul Schwartz’s lawyer Tiffany Ma as a ‘necessary witness’ as part of its defense in the Manhattan federal case.”
  • “Ma began representing Schwartz in his negotiations over his return to work after he hit his head taking out the garbage in February 2022, the firm said.”
  • “Anderson Kill said in its filing that Schwartz stopped talking to the firm in May 2022 and spoke only through Ma until June 2022, when the firm fired Schwartz. Professional rules prohibit Ma from serving as both a witness and as Schwartz’s lawyer, the firm argued.”
  • “‘To the extent plaintiff might be temporarily inconvenienced by the need to retain new counsel if Ms. Ma were disqualified, he has only himself – or Ms. Ma – to blame,’ the firm said.”
  • “Schwartz sued Anderson Kill and two of its employees in August, claiming the firm harassed him into coming back to work before he was ready and then fired him in violation of federal and New York discrimination laws.”
  • “When Schwartz proposed reasonable accommodations in May, the firm allegedly demoted him from chief financial officer — with a $302,000 base salary and significant annual bonus — to billing manager, with a $122,900 salary and a far smaller bonus.”

[Previously on this on.] “Law Firm Did Not Breach Client Confidentiality With Press Release About Med Mal Verdict, State High Court Rules” —

  • “The Illinois Supreme Court disagreed with an appellate court’s finding that a Chicago plaintiffs law firm’s press release, which detailed its former client’s mental health diagnoses in the course of announcing a $4.2 million medical malpractice verdict, violated the Mental Health Developmental Disabilities Confidentiality Act.”
  • “The state high court’s opinion reversed the appellate court’s decision and affirmed the Cook County Circuit Court’s dismissal that alleged the defendant law firm, Burke Wise Morrissey & Kaveny and its former attorney, Elizabeth A. Kaveny, violated the Mental Health and Developmental Disabilities Act by commenting on the case and disclosing details about the mental health history of a former client, John Doe, for an article published in the Chicago Daily Law Bulletin.”
  • “During oral argument before the Illinois Supreme Court in September, Kimberly A. Jansen, a partner at Hinshaw & Culbertson in Chicago who represented Kaveny and the firm, argued that Doe’s complaint was properly dismissed he voluntarily disclosed the information at an underlying medical malpractice trial. ‘[N]othing in the medical malpractice case was sealed,’ she had argued.”
  • “On the contrary, Thomas M. Paris, a solo practitioner, argued on behalf of Doe—who has been identified in court papers as an attorney—that the information about his client’s diagnoses, suicide attempt, the effects of his injuries, and the ‘redisclosure of that information to the press’ violated his confidentiality.”
  • “‘We find that Doe waived his claims of confidentiality under the Act by voluntarily and publicly disclosing his private health information in a public trial, and the qualified protective order under HIPAA did not preclude such waiver,’ Justice P. Scott Neville, Jr., wrote, citing Novak v. Rathnam (1985). ‘We also find that the defendants are not liable under the Act, as the evidence and testimony divulged during Doe’s medical malpractice trial were not records or communications made in the course of mental health services; therefore, the Act does not apply to the defendants’ posttrial discussion of said evidence, records, or communications.'”
  • “Furthermore, contrary to the appellate court’s reasoning in Doe’s case, the state high court said that a qualified protective order under the Health Insurance Portability and Accountability Act privacy rule ‘does not regulate how a person may choose to use his own medical information once it is received from a covered entity.'”
  • “‘Moreover, there is nothing in the HIPAA privacy rule that prevents legal counsel from discussing facts that were voluntarily revealed in a public trial,’ Neville wrote. ‘In fact, the public nature of the proceeding not only removes the confidentiality of the voluntarily disclosed mental health information (Novak, 106 Ill. 2d at 485), but it also exempts from punishment anyone who speaks about the publicly released information. See Craig v. Harney, 331 U.S. 367, 374 (1947).'”