Managing Professional Liability And Construction Risks In The Millennial Age

Architects, engineers, and design professionals face ever-increasing pressure in this instant-gratification Millennial Age to complete construction projects as quickly as possible. As we know, however, fast is rarely best.

Firms that ignore how to effectively manage their workforce in this Millennial Age can expect to experience a significant increase in claims for professional liability and construction defects, according to Ms. Zoe Schneider, an expert on Millennials in the workplace. Ms. Schneider spoke at the ClaimsMillennials Construction Litigation Management Alliance (CLM) Professional Liability Conference in Boston in July.

More than one-in-three American labor force participants (35%) are Millennials, making them the largest generation in the U.S. labor force, according to a Pew Research Center analysis of U.S. Census Bureau data.

As of 2017, the most recent year for which data are available, 56 million Millennials (those ages 21 to 36 in 2017) were working or looking for work.

This represents more than the 53 million Generation Xers, who accounted for a third of the labor force. And it was well ahead of the 41 million Baby Boomers, who represented a quarter of the total Millennials surpassed Gen Xers in 2016. The percentage of Millennials in the workforce will increase to more than 50 percent by 2020, according to the Pew study.

So how can construction industry professionals protect themselves from liability in this Millennial Age of construction when the popular belief remains that Millennials lack the construction industry’s historic commitment to excellence, attention to detail, and job stability that will permit projects to move toward completion at an every-increasing pace?

Dispel The Millennial Myths Among Senior Management:

Companies must make a firm commitment to dispel the popular myths about their Millennial workforce, especially among senior management. For example, Millennials are not lazy, and numerous recent studies debunk this popular myth.

According to a recent study by Psychology Today more than 70 percent of Millennials say that they want economic job security, but they are not motivated by it. Haydn Shaw, a renowned generational expert, found that most surveys show that Millennials rank base pay as the most important factor in selecting and staying in a job, just as the other three generations do. A paycheck, however, simply doesn’t motivate Millennial workers like it may have done past generations.

Younger workers come from a “connected” generation that values collaboration, teamwork, and social opportunities over money. Today’s Millennials are motivated more when they believe they are making a difference in an organization for which they are proud to work rather than simply receiving a paycheck.

The HR Policy Foundation found that far from being lazy, more than two-thirds of companies surveyed reported their Millennial employees immediately made significant contributions because of their drive to innovate and superior ability to use technology.

In the same study, almost 70 percent of the Millennial participants reported they would work well beyond what was required of them to help their employer’s success if they felt like they were being challenged by interesting and meaningful work.

Reward A Firm Commitment To Excellence

Successful architectural, engineering, and design firms in the next generation must establish a top-to-bottom, relentless pursuit of excellence that rewards every employee at every phase of the contract, design, and build phase of construction for their contributions to the company.

For example, historically, the mundane task of developing and reviewing construction contracts is the first step to protecting the company. The contract establishes a scope of services, assigns liability, and addresses issues such as indemnity. Often the contracts are one-sided in favor of the owner or contractor.

Too often, in the rush to get started on a new project, senior management fails to place sufficient emphasis and little recognition of employees involved in this time-consuming and mundane task of contract review. However, it is exactly this detailed contract review and understanding of the contract before the project starts that provides the company’s first-line of defense when something goes wrong.

Going forward, construction industry professionals must make a committed effort to explain to their Millennial workforce how contract reviews fit into the overall goals and success of the company. Those that do will be surprised by the creative and excellent results obtained from their Millennials.

Millennials can be particularly effective in developing and reviewing contracts involving new, innovative project delivery methods, especially those that may involve new technologies little understood by older management.

Strive To Inspire Millennials

To achieve long-term, sustainable success, construction industry professionals and companies must deliver early opportunities for meaningful participation by and contributions from their Millennial workforce, and demonstrate a genuine interest in their careers, families, and personal lives.

A recent study by Fails Management Institute (FMI) revealed that companies that spent the time to inspire their millennial workforce by communicating clearly the company’s vision, and Millennials’ roles in it, saw a 25-percent increase in retention of their younger employees.

We have long known that the more experienced a workforce in the construction industry is, the fewer professional liability and construction defect claims that likely will arise.

Innovative companies should re-evaluate old job descriptions and develop new policies that encourage younger workers to create value for their employers in traditional and non-traditional ways.

Companies have found success when they actively seek ways to put Millennials in charge of projects, no matter how small, and explain how those leadership roles translate into advancement within the company. Numerous studies, for example, have established that smart companies are empowering Millennials to take the lead in community outreach and volunteerism, including paid time off.

For Millennials, respect doesn’t automatically come with age, experience, or job title; it has to be earned. They want to work for a company that listens to everybody’s point of view. Companies’ senior management must explain the factors and thinking that went into a company decision, and how it fits into the big picture.

There also can be significant returns by providing Millennials a seat at the table and getting their input on the decision before its made.

Mentorships are highly valued by Millennials, who truly do want to learn the ropes. But many older works may be surprised they also have something as well to learn from Millennials especially when it comes to technology.

Additionally, Millennials are by far the best-educated workforce in history and place a high value on continued education. Companies in the construction industry that implement ongoing training and education programs develop more loyalty among their Millennial workforce. And it is universally agreed that more training reduces the number of professional liability claims.

The traditionally boring construction industry may be surprised to learn that one study revealed that 56 percent of Millennials will not accept a job from a company that bans social media related to the job, especially opportunities to promote the company. In some circumstances a small company could solve two problems by enlisting younger employees to run its social media.

Companies that fail to consider ways to change their work environments, team configurations, and incentives to inspire their Millennial workforce will find themselves facing high-turnover, low morale, poor performance, unhappy clients, and a corresponding increase in professional liability and construction defect claims.

Four Immediate Steps To Take

Fortunately, construction professionals can implement a few simple steps to address these new problems with Millennials in the construction industry facing increasing pressure to complete projects quickly.

First, resist the trend to speed up. Slow down and focus on what is import. Reinforce for Millennials that within reason, the company values the tortoise over the hare if that is what is required to achieve excellence.

Second, sign a solid contract. Create a company culture that establishes a clear message that contracts that protect the company are a priority. Millennials should be rewarded, not criticized, when they ask more senior staff member or an outside attorney to get involved in the contract review of a non-standard contract or a particular phase of the project itself.

Third, involve Millennials in the negotiations of new, innovative project delivery systems where the old lines of responsibilities and indemnity may be blurred. This is especially true if the project involves new technology where the Millennial may have an advantage.

Millennials asked to provide meaningful contributions and made to feel like they are a part of emerging technology and opportunities in the industry will be more like to stay on board, gain experience, and eventually grow to become the company’s future leaders.

Fourth, make sure that projects are properly insured. We live in a litigious society. Mistakes are going to happen just like they always have. A company can reward its own Millennials for a culture of excellence but it will not prevent lawsuits arising when other companies on the project do not.

The more we learn about Millennials in the workplace, especially in the complex and high-risk construction industry, the more we confirm construction industry professionals and managers must be willing to re-examine antiquated ideas of seniority and archetypes of what makes a “good employee” if they want to manage professional liability and construction risks in the future.

Construction industry professionals and companies that develop and implement a long-term strategy for managing their Millennial workforce by embracing their new perspectives and approaches to loyalty through development, recognition, and trust will experience unrivaled success in this Millennial Age and a corresponding decrease in construction-related claims.

Tim Soefje - 04--09-18Timothy B. Soefje is the Managing Member and head of the professional liability and construction defect group at the boutique firm of Seltzer Chadwick Soefje & Ladik, PLLC based in Dallas, Texas. He is admitted in Texas and Oklahoma. For regular information about professional liability matters, follow him on Twitter at @TimSoefje and search #ProfessionalLiability. For more information, visit us at www.realclearcounsel.com or contact him  at tsoefje@realclearcounsel.com.

sbaldwinSamuel P. Baldwin is Of Counsel at the boutique firm of Seltzer Chadwick Soefje & Ladik, PLLC based in Dallas, Texas. He is admitted in Texas. His practice focuses on the defense of professional liability, construction defect, and complex commercial litigation claims. For regular information about professional liability matters, follow him on Twitter at @Sam_Baldwin5 and search #ProfessionalLiability. For more information, visit us at www.realclearcounsel.com or contact him at sbaldwin@realclearcounsel.com.

Recent Title IX Case Highlights Social Media Remains Minefield Of Liability

Social media continues to be a minefield of professional liability as more and more attorneys come to the defense of their clients on social media without a full understanding of the risks involved.

We have blogged before on the perils of social media, but a recent Title IX case provides an excellent example of what can happen when a well-intention attorney, hoping to protect his client’s interest, posts online to set the record straight only to watch the social media posts go viral with vicious attacks on his client and his own professionalism.

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The case involved a Title IX complaint between  two students at Texas A&M University. The university came under fire after the female student tweeted out a screenshot of an email from the Title IX Coordinator that informed her the university was going to reinstate to both the swim team and the university the male student she accused of sexually assaulting her.

Within hours, the male student’s lawyer took to Facebook with the intent to set the record straight from his client’s perspective, including disclosure of details about the case uncovered during the investigation that previously had not been made widely public.

The attorney’s social media posts exploded nationally into a focal point for the Title IX #MeToo movement.

The attorney immediately came under fire about whether he disclosed confidential information in the Title IX proceeding, and whether his client granted him permission to engage in the social media posts and disclose the facts of the underlying investigations.

In the latest twist to the case, the attorney on behalf of his client last month filed a Title IX discrimination lawsuit against Texas A&M University for gender bias. Whether the attorney’s social media posts will positively or negatively affect the outcome of that lawsuit remains to be seen.

An attorney who violates the attorney-client privilege or discloses confidential information about the client can receive in sever sanctions, including suspension or even disbarment.

In In Re Peshek, an Illinois Supreme Court case decided in 2010, the court suspended an assistant public defender from practice for 60 days for blogging about clients on his social media page and implying in one post that a client may have committed perjury.

Conversely, in 2013, the Virginia Supreme Court held in Hunter v. Virginia State Bar that confidentiality obligations have limits when weighed against First Amendment constitutional protections owed to a lawyer.

In Hunter, the court held that even though the blog posts were considered commercial speech, the Virginia State Bar could not prohibit the lawyer from posting non-privileged information about clients and former clients without the clients’ consent where:

  • the information related to closed cases; and
  • the information was publicly available from court records and, therefore, the lawyer was free, like any other citizen, to disclose what actually transpired in the courtroom.

The principle of confidentiality is set out in the legal ethics rules. ABA Model Rule 1.6 states:

“A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. . . This contributes to the trust that is the hallmark of the client-lawyer relationship.”

Any violation of these rules will impose sanctions on the attorney involved.

(a)  A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation or the disclosure is permitted by paragraph (b).

(b)  A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1)  to prevent reasonably certain death or substantial bodily harm;

(2)  to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

(3)  to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

(4) to secure legal advice about the lawyer’s compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;

(6)  to comply with other law or a court order; or

(7)  to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

(c)  A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

On the other hand, the attorney-client privilege, sometimes referred to as the testimonial privilege, is a concept from the law of evidence and is present in the common law or statutes of the fifty states.  The client, acting through the lawyer, may claim the privilege.

As stated in Model Rule 1.6(c)(3): “The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client.”

The attorney-client privilege protects the communications between the client and lawyer and only pertains to information shared during the attorney-client working relationship. Therefore, all the information shared between the attorney and the client does not necessarily get placed under attorney-client privilege even if it has been told to the lawyer.

By contrast, the ethical duty of client-lawyer confidentiality is extensive and finite. The ethical duty of an attorney not only applies to matters communicated in confidence by the client but also to all information relating to the situation.

In other words, even though a court determines that certain information is not covered by the attorney-client privilege, it still may be covered by the lawyer’s ethical duty of confidentiality. According to Rule 1.6 (c)(20), “confidential information is to remain confidential throughout the representation, and thereafter, even after the death of the client”.

Along with the basic principle of maintaining the privacy of client information, “a key precept of ethically maintaining confidentiality is that the information not be used to the detriment of the client, but rather only to advance the client’s interests.  Even information gained about the client after the representation has concluded is to be kept confidential.”

Once information has become generally known, however, not just known by some few others, it loses the protection of lawyer confidentiality.

The duty of confidentiality continues after the client-lawyer relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such information to the disadvantage of the former client.

Too many attorneys continue to wade into the world of social media with little experience or understanding of how their best intentions can suddenly and unexpectedly explode virally, harming their client’s interest and placing their own licenses and legal future in jeopardy.

No lawyer should ever post on social media about their client or client’s case without first obtaining written permission from the client to do so. Every attorney also should generally not proceed until setting out in writing to the client a clear strategy why social media is a recommended strategy. A failure to do so could unexpectedly subject to the attorney to serious disciplinary consequences.

Tim Soefje - 04--09-18Timothy B. Soefje is the Managing Member and head of the professional liability and construction defect group at the boutique firm of Seltzer Chadwick Soefje & Ladik, PLLC based in Dallas, Texas. He is admitted in Texas and Oklahoma. For regular information about professional liability matters, follow him on Twitter at @TimSoefje and search #ProfessionalLiability. For more information, visit us at www.realclearcounsel.com or contact him at tsoefje@realclearcounsel.com.

Autumn Keefer - 07-13-18Autumn Keefer is a law clerk with the boutique firm of Seltzer Chadwick Soefje & Ladik, PLLC based in Dallas, Texas. She will enroll at Southern Methodist University School of Law in the fall. Ms. Keefer holds a Masters Of Legal Studies from Texas State University.  For more information, visit us at www.realclearcounsel.com or contact her at akeefer@realclearcounsel.com.