A recent study reported in the New York Times last week finds that it is usually better for litigants to settle than to risk going to trial. The study also finds that while defendants usually do a better job than plaintiffs at settling when they should settle, plaintiffs’ failures to settle typically result in smaller opportunity losses to plaintiffs than defendants’ failures to settle, which reportedly result in much greater losses to the defendants who should have settled rather than go to court.

What’s more interesting is what the study found about human nature. Simply put, people are generally stubborn but not greedy. When given the 50/50 option to take a chance at winning either $0 or $100, people will generally hedge their bet and settle at half their best chance, or at taking the $50 in the example given here. But if given the 50/50 option either to lose $0 or to lose $100, people typically will run for luck and take the chance at avoiding any loss rather than accepting the loss of having to pay half the total amount they could lose. This could suggest that defendants act less rationally than plaintiffs, but it really suggests that losing carries an emotional cost to people in addition to the money to be paid. In other words, losing is losing whether it is $50 or $100. The paying gambler will look for a greater savings premium (or a “bargain”) when negotiating a settlement than the collecting gambler who will more likely just quit when he or she is ahead.

This stubbornness on the part of defendants (and lack of greediness on the part of plaintiffs) may not be irrational at all, but rather a perfectly rational behavioral instinct that drives people to avoid loss while encouraging people to snatch potentially fleeting opportunities. Losing does not just hurt once but every time one expects to use what had to be paid away, while winning even a little is better than nothing and will only improve one’s ability to position oneself for the next opportunity. Only when a person sees a significant bargain in risk avoidance will he or she accept a settlement requiring him or her to make a payment. That perspective drives defendants to act in what otherwise would appear to be riskier decision-making that what is apparently typical for plaintiffs.

For the New York Times article, click here.

This ABA Journal article( link..see below) on Plaintiffs doing worse at trial than the settlement offer could be effective in mediations. It’s a reasonably broad study which could be given to Plaintiffs and their counsel to insert a little doubt”in their position.

http://www.abajournal.com/weekly/most_plaintiffs_who_reject_settlement_offers_do_worse_at_trial

Robert B. Smith, head of the firm’s College & University Group has provided the following:

Plaintiff’s counsel made over four bankers’ boxes of documents available to defendant for review, including a three-page letter that former counsel had written concerning one of the claims, and reviewing counsel identified the privileged letter with a post-it note marked “copy unless privilege claimed.” Plaintiff’s counsel then produced the document pursuant to a cover letter that said it was subject to a limited waiver of the privilege. Defendants then filed for summary judgment, attaching the letter as a supporting exhibit. Four weeks after receiving the summary judgment papers, plaintiff’s counsel for the first time identified the letter as an “inadvertently produced attorney-client communication.” The United States District Court for the District of New Hampshire found that the privilege was completely waived. In an amusing footnote, Judge LaPlante acknowledged having made a similar error in his (brief) civil career. Industrial Communications and Wireless, Inc. v. Town of Alton, 07-82-JL, August 7, 2008.

E-mail settles the terms, despite one party’s intent to wait for a written settlement document – Massachusetts

In a breach of contract action, the parties’ attorneys exchanged emails during trial concerning settlement terms. Afterwards, while working on a settlement document, one side objected to a proposed attorneys’ award provision. The Supreme Judicial Court joined many recent decisions in holding that the email exchange was a binding agreement as a matter of law, as the material terms of settlement were set and agreed upon. The Court distinguished the cases where the parties were proceeding to memorialize or record settlement terms in another document, from those where the parties were creating terms for the first time in a document. Fecteau Benefits Group, Inc. v. Knox, 07-P-970, July 11, 2008.

Christopher Vrountas, group leader of the firm’s Employment Counseling & Litigation Group has provided the following:

Not Qualified? No Rights.

A prison guard who could do some but not all of the essential functions of his job even with reasonable accommodations was not a “qualified person with a disability” according to the Seventh Circuit, and his employer was not required to engage in any “interactive process” with the guard to explore possible avenues of re-employment as a result. The guard suffered a stroke and eventually came back to work able to perform watch at the guard tower and the front gate, as well as paperwork and computer work, but he was not able to break up inmate fights, search inmate cells or escort inmates in the facility. The Court ruled that the prison was not obligated “to manufacture a job that will enable the disabled worker to work despite his disability.”

Dargis v. Sheahan, (7th Cir. 2008).

No Sexual Harassment Exception to the First Amendment

A masters degree student sued Temple University because he believed its sexual harassment policy chilled free speech and academic discourse in the classroom. While the policy was hardly any different than most workplace policies against harassment, the Third Circuit Court of Appeals noted that the college classroom is a valued “marketplace of ideas” and that the policy’s breadth of coverage over any aspect of college life “in any context” was so broad as to improperly invade free speech rights. Specific concerns centered on the policy’s ban against “gender motivated” speech through which the speaker “intends” to disrupt another’s performance. The Third Circuit insisted that any analysis of the speaker’s motivation offends the First Amendment and that speech can only be regulated in the adult academic context when the school reasonably believes that the speech will actually cause substantial and material disruption and not merely an uncomfortable or even unreasonable environment.

As grandma used to say, “Don’t talk politics or religion in polite company.” While the “marketplace of ideas” may be a rough and tumble arena where nearly anything goes, that is not what the private workplace is designed to be. Employers should carefully consider their workplace policies so that they properly protect the workplace environment while not institutionalizing discrimination against religious practices or other view points, as the increased cultural diversity of the American workforce will continue to bring more “values clashes” to the fore.

DeJohn v. Temple University, et. al., (3rd Cir. 2008).

For more information on these topics, and prior issues of Employment Law Updates, visit our ‘Articles’ topic on our website at www.nkms.com.

NELSON, KINDER, MOSSEAU & SATURLEY, P.C.

Bob Smith the firm’s College & University Practice Group leader, has been invited once again to present at the Stetson University College of Law’s 30th Annual Conference on Law and Higher Education www.law.stetson.edu/conferences/IWLC/ to be held February 21-24 2009 in Orlando, Florida.

(Boston | Manchester, NH) – Four attorneys from Nelson, Kinder, Mosseau, & Saturley, P.C. –Tupper Kinder, Peter Mosseau, William Saturley, and Richard Levine – have been recognized as pre-eminent in their respective fields of law practice, by Chambers USA 2008.

Chambers and Partners have been publishing their world-famous guides to the legal profession since 1990. The Guides list the top lawyers in over 175 countries, providing independent rankings and editorial commentary. Selection to the legal directories is based on in-depth, unbiased research conducted by a team of over 100 highly qualified and experienced researchers.

Rick Levine was recognized for his expertise in Bankruptcy/Restructuring; Tupper Kinder in the field of Environmental Law; and Pete Mosseau and Bill Saturley for their accomplishments in General Commercial Litigation. All four attorneys are also included in Best Lawyers in America, an unrelated but similar ranking system.
“Having four attorneys on the Chambers USA 2008 list is a great honor to both the attorneys and the firm. We are pleased to have our experienced and dedicated professionals recognized for their commitment to providing exceptional legal counsel,” said William C. Saturley, President of the firm.

About Chambers USA
Now in its sixth edition, Chambers USA 2008 is a list of the top lawyers nationwide. Chamber Guides are published in 175 countries, providing independent rankings and editorial commentary. They utilize more than 100 experienced researchers within the legal profession to determine the success of an attorney’s legal ability and client service. In addition to research, top attorneys are selected based on interviews with the attorney, firm, and clients.

About Nelson, Kinder, Mosseau & Saturley, P.C.
Nelson, Kinder, Mosseau & Saturley, P.C. is a firm of trial attorneys, with offices in Boston, Manchester, New Hampshire, and Portland, Maine. The firm serves both regional and national clients. The firm’s attorneys pride themselves on achieving a high degree of knowledge of industry fundamentals and the laws that apply in certain select practice areas, such as medical services, construction, environmental, energy/utility, employment, and higher education. For more information, please call 617.778.7500 or visit www.nkms.com.

(Boston, Massachusetts) – Nelson, Kinder, Mosseau, & Saturley, P.C., is pleased to announce that attorney Joseph Callanan will be speaking at the Boston Bar Association’s Title and Conveyancing Committee’s Brown Bag Luncheon. The presentation will take place at noon on Thursday, May 15th at the Boston Bar Association, 16 Beacon Street, Boston, Massachusetts.

Mr. Callanan will address the interests that private land owners, and the general public, have in coastal beaches. Owners of coastal land, also referred to as littoral land, want to know to what extent they own and control the beach and flats bounding their property. Specific conflicts will be discussed, such as when abutters, neighbors, or members of the public assert “perpendicular” rights of access over littoral land owners to reach the beach and/or flats; when new home construction obstructs access to, or view of, the beach and/or flats; when access and ownership of littoral land is unclear; and possibly when installation of improvements, wind turbines or solar panels obstructs views, access, and use of beaches and tidelands.

“Joe is a highly knowledgeable attorney with valuable insight into coastal property rights,” states William Saturley, President of the firm. “I am confident his presentation will prove educational and compelling for those who attend.”

About Nelson, Kinder, Mosseau & Saturley, P.C.

Nelson, Kinder, Mosseau & Saturley, P.C. is a firm of trial attorneys, with offices in Boston, Manchester, New Hampshire, and Portland, Maine. The firm serves both regional and national clients. The firm’s attorneys pride themselves on achieving a high degree of knowledge of industry fundamentals and the laws that apply in certain select practice areas, such as medical services, construction, environmental, energy/utility, employment, and higher education. For more information, please call 617.778.7500 or visit www.nkms.com.

Robert B. Smith, head of the firm’s College & University Group has provided the following:

URMIA has provided an alert relating to features of the Higher Education Act www.govtrack.us/congress/billtext.xpd?bill=h110-4137 as they relate to risk management issues with helpful links to several other resources.

The full text of the alert is here.

Peter Mosseau, head of the firm’s Medical Services Group has provided the following:

Massachusetts Supreme Judicial Court Recognizes Loss of Chance Doctrine

On July 23 the Massachusetts Supreme Judicial Court (SJC) in companion cases recognized the “loss of chance” doctrine in medical negligence actions. Under this doctrine, as stated by the SJC, the representatives of a deceased patient can recover when the medical negligence of the defendant(s) results in a reduced chance of survival. The SJC contrasted this with the current “all-or-nothing” effect of causation in wrongful death actions, where the plaintiff must show that the defendant’s negligence more likely than not caused the plaintiff’s death, meaning that if the patient began with only a 49% chance of survival, recovery is not possible.

In the first of the cases, Matsuyama v. Birnbaum, the SJC applied the doctrine to a patient who had a less than 50 percent chance to live at the time of the negligence. The jury found the failure to diagnose Mr. Matsuyama’s gastric cancer over a five year period reduced his probability of cure from 37.5% in 1994 to 5% or less in 1999. In the companion case of Renzi v. Padres, the SJC held that the loss of chance doctrine also applied where the patient’s chance of survival was greater than 50% when the negligence occurred. In Renzi, which involved the delayed diagnosis of breast cancer, the SJC held that it would be unjust to allow the doctrine to operate where a patient begins with a 49% chance of survival, but not where she initially has a 51% chance of survival.

These SJC decisions are consistent with the New Hampshire’s Supreme Court’s 1996 opinion in Bronson v. The Hitchcock Clinic which affirmed a plaintiff’s verdict in a wrongful death suit where the decedent alleged the defendant’s negligence caused a six month delay in diagnosing and commencing treatment for Hodgkin’s disease. In Bronson, plaintiff’s expert testified the alleged negligence reduced the decedent’s chances of survival from 75% to “somewhere in the neighborhood of 50%” and “lessened the patient’s chances for a curative outcome.” New Hampshire’s statute that codifies a plaintiff’s burden of proof in medical injury actions expressly permits recovery upon a showing that conduct by the defendant medical providers proximately caused the ultimate harm, regardless of the chance of survival or recovery from an underlying condition. N.H. RSA 507-E, III.

Despite recognizing policy arguments in favor of the loss of chance doctrine, Vermont’s Supreme Court has twice refused to adopt it, noting that it represents a “significant departure from the traditional meaning of causation in tort law, which would pose ramifications for the practice of medicine,” which the felt should be addressed by the legislature rather than the courts. See Wilkins v. Lamoille County Mental Health Services, 990 A.2d 245, 249 (2005).

Pointers for Handling Administrative Proceedings Before State Medical Boards

Medical Services Practice Group members, Pete Mosseau and Stephen Coppolo published an article in the New Hampshire Bar Journal’s Spring 2008 edition that provides an overview of the processes employed by the New Hampshire Board of Medicine when conducting an administrative investigation and pursuing disciplinary action against physicians. While geared towards attorneys planning to represent clients before the Board, the article provides useful information for the medical professionals whose licenses may be on the line when the Board commences an investigation.

About Nelson, Kinder, Mosseau & Saturley, P.C.

Nelson, Kinder, Mosseau & Saturley, P.C. is a firm of thirty trial attorneys, with offices in Manchester, NH, Boston, MA, and Portland, ME. The firm serves both regional and national clients. The firm’s attorneys pride themselves on achieving a high degree of knowledge of industry fundamentals and the laws that apply in certain select practice areas.

For more information on these topics, and prior issues of Medical Services Group Updates, visit our ‘Articles’ topic on our website at www.nkms.com, or contact us at 603.647.1800.

Robert B. Smith, head of the firm’s College & University Group has provided the following:

Bill Saturley and Rick Levine of NKMS will present on “The Elevated Risks Associated with Insolvent Clients” during the September meeting of the ABA Lawyer’s Professional Liability section. Joining them on the panel will be Jo Beth Earl, Specialty Claims Director for Hanover Professionals (formerly Professionals Direct Insurance Company).

Robert B. Smith, head of the firm’s College & University Group has provided the following:

A scallop fisherman lost his boat and license at a sheriff’s sale, after a crewman suffered debilitating injuries and recovered an award far in excess of the insurance coverage. The insurance broker had advertised its expertise in offering appropriate coverage for the maritime industry, and an agent told the fisherman, who had only a 6th grade education, he would “take care of him.” The broker never recommended, however, that the fisherman change the amount of coverage between first placing it (in 1987) and the injury (in 2003). The First Circuit, applying Massachusetts law, found there is no general duty of an insurance agent to ensure that the policies he procures are adequate for the insured’s needs, except under special circumstances of assertion, representation, and reliance. There were insufficient facts to support such a claim in this case. Aga Fishing Group Limited v. Brown & Brown, Inc., etal., No. 07-2408 (July 10, 2008).

Robert B. Smith, head of the firm’s College & University Group has provided the following:

The United States Supreme Court recently ruled in favor of employees asserting disparate impact claims under the Age Discrimination in Employment Act. Disparate impact cases allege that an employer’s actions had a discriminatory result on those protected by the ADEA (versus disparate treatment claims which allege that an employer intended to discriminate based on age). The Court decided that an employer defending a disparate impact claim on the grounds that its action was based on reasonable factors other age, had the burden of proving the reasonableness of those factors. The Court noted that the “reasonable factors” defense makes legal what would otherwise be illegal conduct under the ADEA (verses carving out conduct that is not illegal at all under the ADEA). Meacham et al., v. Knolls Atomic Power Laboratory, et al., Opinion No. 06-1505 (June 19, 2008).

Robert B. Smith, head of the firm’s College & University Group has provided the following:

In IANNACCHINO vs. FORD MOTOR COMPANY (SJC-10059), June 13, 2008, the SJC refines the standard for testing a complaint in Rule 12(b)(6) settings as follows:

“The Supreme Court [recently] ruled that the often-quoted language in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)–"a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"–had “earned its retirement.” Bell Atl. Corp. v. Trombly, 127 S.Ct. at 1969. The Court pointed out that under Conley’s “no set of facts” standard, “a wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some ’set of [undisclosed] facts’ to support recovery.” Id. at 1968. As the Court stated, “While a complaint attacked by a … motion to dismiss does not need detailed factual allegations … a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions…. Factual allegations must be enough to raise a right to relief above the speculative level … [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact)….” Id. at 1964-1965. What is required at the pleading stage are factual “allegations plausibly suggesting (not merely consistent with)” an entitlement to relief, in order to “reflect[ ] the threshold requirement of [Fed.R.Civ.P.] 8(a)(2) that the ‘plain statement’ possess enough heft to ’sho[w] that the pleader is entitled to relief.’ ” Id. at 1966.”

Thus, in defending a specious claim, you can now focus the court on whether the allegations plausibly suggest an entitlement to relief, which must go beyond the speculative level.

Robert B. Smith, head of the firm’s College & University Group has provided the following:

On December 20, 2007, the Internal Revenue Service released a redesigned version of Form 990, for use by non-profit organizations filing in Tax Year 2008 and thereafter. Though one of the IRS’s “guiding principles” in the redrafting process was “minimizing burden on the filing organization,” non-profits should expect much greater disclosure requirements and more inquiries by the IRS.

Part VI of the Form now requires detailed disclosure of an organization’s governance structures and management practices. Non-profit organizations need to self-assess their governance practices in preparation for the new reporting requirements. Listed below are some of the questions that deserve your organization’s attention. A “no” answer to any of the following requires a supplemental explanation by the organization, which will likely be scrutinized closely by the IRS.

Did the organization contemporaneously document the meetings held or written actions undertaken during the year by [the governing body and its committees]?

Ensure and adequately document that all actions taken by the governing body, whether by written consent or in actual meetings, occur in accordance with bylaws.

Does the organization have a written conflict of interest policy?

Non-profits should require the completion of annual disclosure forms by all officers, directors, and staff. A detailed policy, consistently applied, is key to avoiding further, unwanted scrutiny.

Does the organization have a written whistleblower policy?

Non-profits of all sizes need to have written whistleblower policies in place that specify who is covered and what protection is afforded, as well as laying out proper reporting channels for internal complaints.

Does the organization have a written document retention and destruction policy?

A non-profit’s document retention and destruction policy should detail what documents are retained, how they are stored, and for how long. The policy should cover electronically stored information as well.

Did the process for determining compensation [of top management] include a review and approval by independent persons, comparability data, and contemporaneous substantiation of the deliberation and decision?

This detailed question should serve as a strong hint of what the IRS considers good governance when it comes to setting executive compensation.

Visit http://www.irs.gov/charities/article/0,,id=171213,00.html to view the revised Form.

NELSON, KINDER, MOSSEAU & SATURLEY, P.C. 6/2/08 The contents of this message are intended for general information purposes only, and should not be considered legal advice or a legal opinion. Anyone seeking specific legal advice should consult an attorney. The Supreme Judicial Court of the Commonwealth of Massachusetts indicates this may constitute advertising.

Peter Mosseau, head of the firm’s Medical Services Group has provided the following:

$8.2 million verdict against hospital for negligently recommending impaired physician during credentialing process reversed.

On May 8 the Fifth Circuit Court of Appeals reversed a judgment against a Louisiana hospital that had been found liable for failing to disclose a former staff member’s drug dependency to another hospital which inquired about the physician’s qualifications when considering him for staff privileges. Kadlec Medical Center et al. v. Lakeview Anesthesia Associates and Lakeview Medical Center (No. 06-30745). The defendant hospital, LRMC, fired Dr. Berry after discovering he was abusing Demerol while on the job. When he later sought privileges at Kadlec Medical Center, Kadlec requested qualification information from LRMC and Dr. Berry’s former practice group. LRMC’s response affirmed Dr. Berry had been on the medical staff and provided his employment dates. Dr. Berry’s former partners responded with letters stating he was an excellent anesthesiologist whom they recommended highly. The Fifth Circuit’s opinion clarifies a hospital’s duty when responding to credentialing inquiries. Neutral letters that stay clear of affirmative misrepresentations will generally not subject a hospital to liability. In contrast, letters like those provided by Dr. Berry’s former partners will subject providers to liability if known (but not disclosed) problems about a doctor’s qualifications or abilities later result in patient injuries.

Manufacturer’s Reports of Prior Device Malfunctions Held Admissible.

In a recent medical device products liability case, the Tennessee Court of Appeals vacated a trial court’s exclusion of a manufacturer’s reports of more than twenty similar incidents. The case, Sparks v. Mena, No. E2006-02473-COA-R3-CV (Tenn. Ct. App. 2008), involved a cutting tool known as a trocar which lacerated the plaintiff’s aorta. The appeals court ruled the trial judge erred by applying an evidentiary rule limiting admissibility of prior bad acts. Applying the proper standard, the court noted that it was sufficient that the prior similar events were substantially similar, and that the “similarity requirement does not require that the circumstances of the accidents be identical in every particular.” The appeals court also faulted the lower court for excluding the testimony of plaintiffs’ expert mechanical engineer and remanded the case for a new trial.

Suit Against Plaintiff’s Expert by Defendant Doctor Unsuccessful.

The American Association of Neurological Surgeons prohibits its members from offering expert opinions that significantly vary from generally accepted neurological practice. The plaintiff’s expert in an unsuccessful medical malpractice action against neurosurgeon MacGregor implied he negligently punctured the patient’s esophagus by failing to properly place retractors, which the parties depositions revealed had, in fact, been placed. In MacGregor v. Rutberg, No. 06-2829 (7th Cir. Feb. 27, 2007) the plaintiff’s defamation suit was dismissed because the expert’s statements were made in a judicial proceeding and, and were therefore absolutely privileged. MacGregor’s breach of contract claim, based upon the expert’s failure to comply with the Association’s rules, was also dismissed. The 7th Circuit concluded the Association’s rules did not provide a basis for a lawsuit by other Association members.

About Nelson, Kinder, Mosseau & Saturley, P.C.

Nelson, Kinder, Mosseau & Saturley, P.C. is a firm of thirty trial attorneys, with offices in Manchester, NH, Boston, MA, and Portland, ME. The firm serves both regional and national clients. The firm’s attorneys pride themselves on achieving a high degree of knowledge of industry fundamentals and the laws that apply in certain select practice areas. For more information, please call 603.647.1800 or visit www.nkms.com.

For more information on these topics, and prior issues of Medical Services Group Updates, visit our ‘Articles’ topic on our website at www.nkms.com.

Christopher Vrountas, head of the firm’s Employment Counseling and Litigation Group has provided the following:

New ruling creates new claims for employees under old statute.

An employee can bring a retaliation claim against his or her employer even after that claim would have been barred under Title VII’s statute of limitations of 180 days (or 300 days depending on the state jurisdiction), because the employee can bring that same, time-barred, claim under the Civil Rights Act of 1866 (also known as Section 1981), years after the alleged wrongful retaliation, says the United States Supreme Court in CBOCS v. Humphries, No. 06-1431. While Title VII outlaws discrimination and retaliation in the workplace, Section 1981 provides that individuals “make and enforce contracts” on an equal, non-discriminatory basis. Section 1981 does not, however, specifically refer to issues regarding retaliation in any context and certainly not specifically in the context of employment discrimination, yet the Court applied the 3 year statute of limitations under Section 1981 to the plaintiff’s claim of unlawful retaliation in employment, normally handled under Title VII. Employers across the country now should be concerned that they cannot rely on the statute of limitations Congress created for employment claims now that the Supreme Court has ruled that plaintiffs have a duplicate remedy with a much longer time horizon under Section 1981.

What’s your DNA? Don’t ask under new civil rights law.

Starting next year, it will be illegal for health insurance companies to deny coverage or charge higher premiums to individuals based on their genetic predisposition to cancer and other diseases. The Genetic Information Nondiscrimination Act of 2008 (referred to as GINA), signed into law by the president on May 21, 2008, also prevents employers from using genetic information to deny employment or to use genetic information as a basis for promotions or job placement. The law, which goes into effect in 2009, does not apply to members of the military, nor does it apply to life, disability, or long term care insurance.

For more detail, see the House version of the Bill at HR493, as the Text of Public Law No. 110-233 is not yet available. Also, the National Human Genome Research Institute provides answers to frequently asked questions.

For more information on these topics, and prior issues of Employment Law Updates, visit our ‘Articles’ topic on our website at www.nkms.com.

NELSON, KINDER, MOSSEAU & SATURLEY, P.C.

ATTORNEY BOB SMITH OF NELSON, KINDER, MOSSEAU & SATURLEY, P.C. SELECTED TO SPEAK AT UNIVERSITY RISK MANAGEMENT AND INSURANCE ASSOCIATION (URMIA) SOUTHERN REGIONAL CONFERENCE

(Boston | Manchester, N.H.) – The law firm of Nelson, Kinder, Mosseau & Saturley, P.C. (NKMS), of Manchester, New Hampshire; Boston, Massachusetts; and Portland, Maine, is pleased to announce that attorney Bob Smith will be presenting at the University Risk Management and Insurance Associations’ Southern Regional Conference on May 8, 2008 in New Orleans.

Mr. Smith’s presentation, “Understanding Experiential and Service Learning,” will identify experiential and service learning and discuss how and why it is manifesting itself on the nation’s campuses. Mr. Smith will explore the areas of risk and potential liability and provide ways to appropriately analyze and facilitate mutually beneficial activities while protecting institutions.

“We are pleased that Bob is able to share his expertise at the URMIA Southern Regional Conference,” states William C. Saturley, President of NKMS. “His knowledge of College and University Law, paired with his dynamic speaking style, will provide an engaging and informative presentation.”

About Nelson, Kinder, Mosseau & Saturley, P.C.
Nelson, Kinder, Mosseau & Saturley, P.C. is a firm of trial attorneys, with offices in Boston, Manchester, New Hampshire, and Portland, Maine. The firm serves both regional and national clients. The firm’s attorneys pride themselves on achieving a high degree of knowledge of industry fundamentals and the laws that apply in certain select practice areas, such as medical services, construction, environmental, energy/utility, employment, and higher education. For more information, please call 617.778.7500 or visit www.nkms.com.

The University Risk Management and Insurance Association has recently issued its 2007-08 Journal. The lead article, co-authored by Robert B. Smith who leads our College & University practice group, entitled:

Tragedy at Virginia Tech Student Suicide, School Shootings and the Campus Mental Health Crisis is available here.

Massachusetts Attorney General Spring 2008 Conference for Non-Profits & Charities

The Massachusetts Attorney General’s Non-Profit/Public Charities Division is conducting a conference on June 8 on significant issues facing for non-profit institutions of every kind and nature.

Robert B. Smith, who leads our College & University practice, has been invited to serve on a panel in 2 break-out sessions on governance and crisis management described as follows:

“Good Governance/Dealing with Crises: Using real-life examples learn how to respond to incidents of malfeasance or misfeasance in the operation of a NPO. Offered in Sessions One and Two.”

The preliminary conference agenda is linked here.

John C. Kissinger, head of the firm’s Professional Liability Group has provided the following:

Lawyers Barred From Networking Clubs That Mandate Cross-Referrals: Massachusetts

Participation in any networking club that requires its members to refer work to each other violates Professional Conduct Rule 7.3 says the Massachusetts Bar Association Committee on Professional Ethics. The Rule, except in limited instances, forbids lawyers from giving anything of value in exchange for a referral. Networking clubs that require cross-referrals don’t qualify for the limited exceptions. Opinion 2008-01 (March 21, 2008).

Lawyer Who Prepared Will Naming Himself as Beneficiary Suspended For Thirty Days: Maine

A lawyer began a personal relationship with an elderly client, assisting in her routine care. At her request, he prepared a will that included himself as a beneficiary. He refunded the bequest when it was questioned after her death. Because the lawyer’s conduct violated the per se rule against drafting an instrument that directly benefited himself, the Maine Supreme Judicial Court suspended him. Absent the self-dealing, the lawyer’s actions were exceptional, as he “went above and beyond the call of duty in ministering to a troubled and infirm elderly woman.” Given his mixed motives, however, the Court suspended him for thirty days. Board of Overseers v. Clark, BAR-07-02 (January 24, 2008).

Preparation of Divorce Paperwork by Suspended Lawyer Constituted the Unauthorized Practice of Law: Massachusetts

A suspended lawyer prepared a divorce complaint and related paperwork for an acquaintance, who filed the documents pro se. The Supreme Judicial Court rejected the lawyer’s arguments that his work was primarily of a clerical nature. Particularly interesting was the court’s treatment of the divorce work as qualifying as both the practice of law and as paralegal-level activity. In the Matter of Kafkas, SJC-10008 (March 28, 2008).

Lawyer’s Attempt to Criminally Charge Client was Petitioning Activity Protected by the Anti-SLAPP Statute: Massachusetts

A client’s check to pay fees was returned for insufficient funds. The lawyer applied for a criminal complaint against the client, which was denied. The former client then sued the lawyer for malicious prosecution and malpractice. The malicious prosecution count was dismissed under the anti-SLAPP statute. The application for a criminal complaint, while unsuccessful, was not frivolous, and qualified as petitioning activity protected by the statute. Wenger v. Aceto, SJC-10065 (March 27, 2008).

For more information on these topics, and prior issues of Professional Liability Update, visit the ‘Articles’ topic on our website at: www.nkms.com