Legal Updates for Lawyers’ Professional Liability – RESULTS*

Carly Edman (Pittsburgh, PA):

• Obtained a dismissal with prejudice of all claims in a Dragonetti action in federal court in the Western District of Pennsylvania. Our clients, a family law attorney and her law firm, were sued after they filed a series of emergency motions on behalf of a mother embroiled in a contentious divorce. The emergency motions concerned the welfare of children and contained sensitive allegations relating to purported abuse. Following the disposition of these motions, the husband and his current partner sued our clients for wrongful use of civil proceedings, abuse of process and defamation. In a motion to dismiss, Carly successfully argued that all claims should be dismissed. Notably, the court’s opinion quoted Carly’s brief in support directly for its analysis of the controlling cases. The court dismissed all claims against our clients with prejudice. 

John ‘Jack’ Slimm (Mount Laurel, NJ):

• In a case with $10 million in damages on the line, Jack was successful in having a complex legal malpractice action dismissed. The plaintiffs, a group of entities created for the estate planning of a married couple (now deceased), appealed the trial court’s decision to deny their request to extend the time for gathering evidence (discovery) and to dismiss their claims against several defendants, including lawyers and law firms. The plaintiffs accused these defendants of negligence, breach of trust, misuse of funds, and legal malpractice related to a previous settlement and the handling of family business matters. The court found that the plaintiffs did not provide the necessary evidence or expert testimony to support their legal malpractice claims. On appeal, the plaintiffs argued that the court used the wrong standard when denying their request to extend discovery and claimed they had valid reasons for needing more time and that the court unfairly dismissed their claims. However, the appeals court reviewed the trial court’s actions and found no mistake in how the court handled the case. In agreement with Jack, the appeals court affirmed the trial court’s ruling, emphasizing that the plaintiffs’ inability to meet court requirements and present strong claims warranted the dismissal of their case.
• The New Jersey Appellate Division’s decision came after a decade of litigation in various courts stemming from a judgment in a financial services division of a multinational conglomerate obtained against the plaintiff and his partners in which litigation ensued over debt collection. The plaintiffs alleged, as a result of the statements and arguments made by the defendant attorneys in the underlying litigation regarding the debt, the attorneys committed fraud and misrepresentation that led to the plaintiffs’ damages, which they claimed were well in excess of $10 million. Jack argued that the assignment agreement actually reduced the amount owed to the corporation and asked the court to dismiss the case, arguing that his client was protected by legal privilege, the statute of limitations had passed, and it had no legal duty to the plaintiff. The trial court agreed to dismiss the case, finding that the plaintiff’s claims were not supported by evidence. On appeal, the court once again agreed with Jack and upheld the decision, rejecting the plaintiff’s arguments. The Appellate Division found that our clients owed no duty to the plaintiff-debtors as non-clients since the attorneys’ alleged misrepresentations were made during adversarial litigation and, thus, were not intended to induce reasonable reliance by a specific non-client. In addition, the Appellate Division rejected the plaintiffs’ reliance on the Rules of Professional Conduct (RPC) to sustain their cause of action since in New Jersey a violation of the RPC, standing alone, does not create a cause of action for damages. Further, the court rejected the plaintiffs’ request to permit malpractice claims by non-clients in the presence of fraud, collusion, or malicious acts. This decision is extremely important to the trial bar and provides attorneys with a level of protection/immunity in connection with statements and arguments they make as adversaries in litigation.

Aaron Moore (Philadelphia, PA and Wilmington, DE):

• Obtained dismissal of wrongful use of civil proceedings claims brought against our clients, two attorneys who were alleged to have wrongfully prosecuted a professional negligence claim against the plaintiff, a real estate agent. The plaintiff would not accept any settlement that was less than the policy limits. After five years of litigation, the court granted our summary judgment motion, concluding the plaintiff failed to adduce facts reflecting that the attorneys prosecuted the underlying action in a grossly negligent manner or without probable cause. The court also held the plaintiff was unable to demonstrate that the underlying lawsuit was prosecuted for an improper purpose.
• Obtained a dismissal of claims brought derivatively and directly by a corporation, including aiding and abetting, breach of fiduciary duty and tortious interference with contract, against our client, an out-of-state attorney who previously represented the corporation and its former director. The court granted our motion to dismiss, concluding the plaintiffs failed to sufficiently allege facts that would confer personal jurisdiction over the attorney under a conspiracy theory.

Matthew Flanagan and Jamie Sanderson (New York, NY):

• Secured a decision granting our motion to dismiss in full in Orange County on an attorney malpractice matter. The plaintiff and daughter of co-defendants sued her parents and our client for breach of contract, breach of fiduciary duty denominated as promissory estoppel, and constructive trust. She sought damages of $800,000. The co-defendants allegedly purchased a property for the plaintiff to live and work in and had agreed to deed the property to the plaintiff once she paid the mortgage in full. Our client created a family trust for the family, naming the plaintiff as trustee, in which the property would be transferred to the plaintiff following the death of both parents. However, following a family dispute, the co-defendants replaced the plaintiff as trustee with our client. Upon the request of the co-defendants and in accordance with the terms of the trust, our client transferred the house to another beneficiary. We filed a motion to dismiss on all counts which the court granted in full. 

Dante Rohr (Orlando, FL):

• Won a motion to dismiss in a case arising from our client’s representation of a plaintiff in a criminal matter. The plaintiff claimed that, due to his attorney's negligence in failing to notify him of his pretrial hearing, he was incarcerated for 437 days based on his failure to appear at the hearing, resulting in the revocation of his bond. The court granted Dante's motion to dismiss because the plaintiff could not establish a necessary element of his claim—actual innocence. Although the court released the plaintiff based on a showing that counsel failed to notify him of the hearing, thereby exonerating him from the failure to appear, the plaintiff could not meet the actual innocence element. Therefore, the State entered a nolle prosequi and dropped the case.

Carol VanderWoude (Philadelphia, PA):

• Successfully defended on appeal the trial court’s grant of compulsory nonsuit in a legal malpractice action following the trial court’s rulings on various motions in limine. The trial court granted our clients’ motions in limine to preclude the plaintiff from introducing into evidence that its attorney sued the wrong parties, that its attorney obtained an uncollectable judgment, and that the plaintiff would have prevailed in a lawsuit against other parties. Following the motion in limine rulings, trial counsel moved for nonsuit—arguing the plaintiff could not carry its burden of proof without the precluded evidence. On appeal, the plaintiff argued the trial court’s evidentiary rulings violated the law of the case set forth in the Superior Court’s decision reversing the trial court’s order sustaining our clients’ preliminary objections and dismissing the amended complaint, and that the trial court erred in granting the motions in limine. The Superior Court rejected both arguments and affirmed the trial court’s denial of the plaintiff’s motion to remove compulsory nonsuit. The Superior Court held that the trial court did not abuse its discretion in granting the motions and that it properly concluded the plaintiff failed to present evidence to meet its burden of proof.

*Prior Results Do Not Guarantee a Similar Outcome 

^{Legal Updates for Lawyers’ Professional Liability – November 2024 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 © 2024 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.}