22 January 2013

Financial Regulators Propose Guidance on Social Media

The Federal Financial Institutions Examination Council ("FFIEC") today released proposed guidance on the applicability of consumer protection and compliance laws, regulations, and policies to activities conducted via social media by banks, savings associations, and credit unions, as well as non-bank entities supervised by the Consumer Financial Protection Bureau and state regulators.

From the FFIEC press release:
The FFIEC is responding to requests for guidance in this area from various industry and consumer interests. The guidance is intended to help financial institutions understand potential consumer compliance, legal, reputation, and operational risks associated with the use of social media, along with expectations for managing those risks. Although the guidance does not impose additional obligations on financial institutions, the FFIEC expects financial institutions to take steps to manage potential risks associated with social media, as they would with any new process or product channel. 
The FFIEC invites comments on any aspect of the proposed guidance. It is specifically seeking comments on the following questions:
  • Are there other types of social media, or ways in which financial institutions are using social media, that are not included in the proposed guidance but that should be included?
  • Are there other consumer protection laws, regulations, policies or concerns that may be implicated by financial institutions’ use of social media that are not discussed in the proposed guidance but that should be discussed?
  • Are there any technological or other impediments to financial institutions’ compliance with applicable laws, regulations, and policies when using social media of which the Agencies should be aware?
The proposed guidance can be accessed here. Comments must be received 60 days from publication in the Federal Register.

21 January 2013

The Importance of Leadership and Differentiation in Attorney Marketing

Let’s not beat around the bush. The end business goal of any attorney in private practice is to make a living by gaining knowledge and then distributing it. Attorneys are the original ‘knowledge workers’ -- people who add value to clients by processing existing information to create new information that can be used to define and solve problems. To read more, click here.

10 January 2013

Medical Professional Liability When Told To Draw Blood By Law Enforcement

Yesterday, the United States Supreme Court heard arguments in Missouri v. McNeely, No. 11-1425. The issue in the case is whether police need a warrant to get a blood sample from an individual suspected of drunk driving. The case 
began in the early morning of October 3, 2010, when a state highway patrolman, Corporal Mark Winder, pulled over a truck that he had clocked speeding eleven miles over the limit. The truck was driven by Tyler G. McNeely of Cape Girardeau. As he got out of the truck, he was unstable. The officer put McNeely through several field sobriety tests, which he failed. McNeely was put into the officer’s patrol car, and the officer asked him if he would take a breath test; McNeely refused. The officer then drove to a hospital, where McNeely refused to consent to a blood test. Corporal Winder told a hospital lab technician to take a blood sample anyway. 
An analysis of the sample showed that McNeely’s blood alcohol level was 0.154 percent, almost double the legal limit of 0.08 percent. Before he went on trial, McNeely and his lawyer sought to block the use as evidence of the test result, contending that the involuntary taking of the sample was a warrantless search that violated his Fourth Amendment rights. The patrolman testified that, at the time of the incident, he did not believe that he needed a warrant, although he said he had obtained a warrant in similar situations in the past.  
He testified that he had since read a magazine article which said that, under Missouri state law, drunk driving meant that a driver had given implied consent to be tested.  
The trial judge ordered the blood evidence barred from the case . . . . The trial judge found no “exigency” that justified the blood search. While that result was overturned by a middle-level state appeals court, the Missouri Supreme Court ruled for McNeely, and barred the test result.
[(emphasis added.)]

The above facts were posted on SCOTUSBlog, which has an excellent preview and recap of the argument here and here. According to Lyle Denniston, the Court did not appear too pleased with the notion that police anywhere in the country could force a lab technician to stick a needle in your arm without a neutral judicial officer granting permission to do so. Makes sense.

The case is interesting, but I am intrigued also that McNeely refused a blood test and the officer told a hospital lab technician to take a blood sample anyway. 

What kind of liability could a health care provider face in such a situation?