Legal Updates for Lawyers’ Professional Liability – April 2023

Legal Update for Lawyers’ Professional Liability - RESULTS & THOUGHT LEADERSHIP

LAWYERS' PROFESSIONAL LIABILITY RESULTS

Jack Slimm (Mount Laurel, NJ) obtained, on pretrial motions, an order of dismissal of a legal malpractice action involving $12 million in liquidated damages. This case arose out of two underlying Law Division actions, two bankruptcy matters, a Federal District Court action, an appeal to the Third Circuit, an underlying foreclosure and note action, and an appeal to the Appellate Division. Jack represented a well-known bankruptcy practitioner in connection with claims made by the plaintiff-borrower against the lending bank, the bank officers and counsel. 

Josh Byrne (Philadelphia, PA) received the following results: 

  • February 14, 2023 – The Superior Court affirmed an order of the trial court sustaining preliminary objections handled by Josh, who successfully argued that the wrongful use of civil proceedings [Dragonetti] claim, which arose out of an underlying wrongful use of civil proceedings claim, was barred as a matter of law by the applicable statute of limitations. 
  • February 7, 2023 – Josh had preliminary objections sustained in a legal malpractice case on the basis that the plaintiff’s breach of contract claim was barred by the gist of the action doctrine and the statute of limitations had expired on any potential negligence claim. 
  • January 30, 2023 – Josh achieved dismissal of a disciplinary complaint. In this matter, our client was the victim of a sophisticated scam which caused the client to send IOLTA funds belonging to another client out of the country. 
  • January 25, 2023 – Josh achieved dismissal of a 99-paragraph disciplinary complaint which alleged lack of communications with clients over the course of a 12-year-long underlying matter. The response to the disciplinary complaint was over 100 single-spaced pages setting forth the details of the underlying matter and included more than 150 exhibits. 

Aaron Moore (Philadelphia, PA) obtained a nonsuit at the beginning of trial in a legal malpractice case. In the underlying matter, our client represented a subcontractor in connection with its efforts to collect payments on a project. The contractor who hired the subcontractor was terminated from the project. The project owner orally promised payment to the subcontractor if it completed the work. The work was completed, and the subcontractor did not get paid. Thereafter, the subcontractor retained our client to prosecute a civil action. Our client sued the owner by its trade name, and the subcontractor was awarded all amounts owed at the underlying trial. The subcontractor stopped paying our client’s legal fees; thus, execution on the judgment was not completed. The subcontractor then sued our client, claiming that its judgment was uncollectible because it was against a trade name. Before the jury came into the courtroom, the court granted Aaron’s motion for nonsuit based on the court’s orders granting our motions in limine seeking to preclude certain evidence and arguments. 
 
Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) were successful on February 28, 2023, before the New Jersey Appellate Division, which affirmed a decision dismissing a complex legal malpractice action arising out of an underlying first-party coverage action in the U.S. District Court involving hundreds of thousands of dollars in building damage caused by Super Storm Sandy. The plaintiffs filed a complaint against alleging claims for legal malpractice. At the close of discovery, a motion for summary judgment was filed on behalf of the defendants, asserting that an order for dismissal was entered. Upon affirming the trial court’s decision, the Appellate Division, reviewing de novo the grant of summary judgment, held that the plaintiffs had not established proximate cause as a matter of law and that expert testimony was necessary to prove proximate causation and damages. The causal relationship between the defendants’ alleged malpractice and plaintiffs’ asserted loss was not obvious and, therefore, the trier of fact could not resolve the issue as a matter of common knowledge without the assistance of expert testimony. The court held that the expert’s opinion was an impermissible net opinion with no evidential weight since the expert failed to explain the why and wherefore behind the opinion. 
 
*Prior Results Do Not Guarantee a Similar Outcome
 

THOUGHT LEADERSHIP

Kim Berman (Fort Lauderdale, FL) co-presented “Insurer Malpractice Claims Against Defense Counsel: Recognizing, Defending, and Preventing Potential Claims” on January 24, 2023, on behalf of Strafford. This webinar guided insurance defense counsel through the increasingly important topic of insurer claims against defense counsel for legal malpractice committed while defending the insured. The program reviewed common errors, whether a cause of action exists and who may assert it, how liability is established, whether and how work restrictions and counsel guidelines imposed on defense counsel affect liability, how damages are proved, and whether and how the attorney-client privilege or work product protection of the insured affects the case. 
 
Alesia Sulock and Josh Byrne (Philadelphia, PA), authored the article “When Disciplinary Counsel Knocks on Your Door, How Do You Respond?” in the Legal Intelligencer 
 
Josh Byrne (Philadelphia, PA) participated in the presentation “Ethics and Malpractice Avoidance” at the Pennsylvania Bar Association’s Mid-Year Meeting along with Justice Sallie Updyke Mundy and Michael Furlong of CNA. 
 
Josh Byrne (Philadelphia, PA) presented at the Philadelphia Bar Association’s Bench-Bar meeting on “Practicing with Integrity” with Chief Disciplinary Counsel Thomas Farrell, Judge Tiffany Palmer, and Judicial Candidate Kay Yu. 
 
Jeremy Zacharias (Mount Laurel, NJ) and Danielle Robinson (Fort Lauderdale, FL) presented a webinar on negotiation skills to a client’s national team of claims professionals. 
 
Jack Slimm (Mount Laurel, NJ) provided a case law update on recent civil cases that impact the Bench and Bar at the Camden County Bar Association Civil Practice Update. 

Jeremy Zacharias (Mount Laurel, NJ) moderated this panel discussion, which included practitioners and judges. 
 

Legal Update for Lawyers’ Professional Liability – April 2023 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.