Risk Update

Interesting Conflicts Cleared — Expert Malpractice Opinions from Partners, Independent Contractor Clash

Appeals Court Revives Legal Malpractice Suit, OK’s Same-Firm Lawyer’s Expert Affidavit” —

  • “Ruling in a case of first impression, the Georgia Court of Appeals revived a legal malpractice lawsuit after finding the trial judge improperly dismissed it simply because the expert affidavit supporting the complaint was written by an attorney who also was a law partner of the filing attorney. The defendants had argued there was an “inherent conflict” in allowing the affidavit, but the Court of Appeals said the lawyer who wrote it met all the requirements of the law.”
  • “Far from creating a conflict with the client’s interests, the lawyer’s affidavit actually ‘serves to advance those interests,’ wrote Presiding Judge Anne Elizabeth Barnes, with the concurrence of Judges Elizabeth Gobeil and John Pipkin III on Friday.”
  • “Plaintiffs attorney William Ney of Ney Rhein said of the ruling, ‘It just confirms what the ethics rules are: That members of the same firm can provide pretrial affidavits on behalf of each other’s clients and still comply with [the statute].'”

May 2020 Independent Contractor Misclassification and Compliance Law News Update” —

  • “The new complaint filed in federal court in Pennsylvania alleges that the drivers and other personnel making deliveries for the ISP are actually employed by FedEx through intermediary employers – the ISPs – to perform delivery services for FedEx and that FedEx is the joint employer of the drivers along with the ISP companies. Because the drivers’ counsel, Lichten & Liss-Riordan, P.C., also represent a group of ISPs claiming that they are employees who have been misclassified as ICs by FedEx, the company brought a motion to disqualify the law firm.”
  • “FedEx argued that the law firm’s representation of the drivers in this case against the company and its representation of a class of ISPs against FedEx in another pending federal court case has created a conflict of interest for the law firm under the applicable Rules of Professional Conduct because the new lawsuit asserts that FedEx is a joint employer with the ISPs of the drivers and helpers.”
  • “The Pennsylvania federal court denied FedEx’s motion to disqualify the drivers’ counsel. The court concluded that although the plaintiffs will attempt to prove that FedEx is a joint employer under the FLSA, the ISPs are not a party to the action and ‘there is no circumstance wherein this Court or a jury will be required to find that [Independent] Service Providers are Plaintiffs’ employers.'”
  • “It further found that ‘[w]hile FedEx may pursue indemnification and contract termination following the conclusion of the action, a finding of liability on FedEx’s part in no way establishes FedEx’s right to recover from [Independent] Service Providers,’ and that the court would not be required to determine whether the ISPs, who are not parties to the action, are liable for FLSA violations in order for the drivers to recover.”