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Professional Liability

Legal Updates for Lawyers' Professional Liability

Legal Updates for Lawyers’ Professional Liability - RESULTS & THOUGHT LEADERSHIP*

Presented by the Lawyers’ Professional Liability Practice Group

May 1, 2024

LAWYERS’ PROFESSIONAL LIABILITY RESULTS

Jeremy Zacharias (Mount Laurel, NJ) was successful in obtaining dismissal of a legal malpractice case against his client, a local law firm in Moorestown, New Jersey. This case pertained to an order to show cause hearing in a fraudulent transfer case. Our clients, the lawyer and the law firm, obtained an order granting the turnover of funds imposed by a Constructive Trust. The defendants argued that this was conversion of property and tortious interference with the defendants’ business prospects, notwithstanding the court order in place in this case. Jeremy argued that the litigation privilege and the Law of the Case Doctrine applied to the claims against the lawyer and the law firm, which insulate this lawyer from liability since everything done was on behalf of her client and in compliance with the court order.

Josh J.T. Byrne (Philadelphia, PA) and M. Claire McCudden (Wilmington, DE) obtained dismissal of a multi-count legal malpractice action arising out of an underlying multi-million dollar class action settlement. The plaintiff alleged damages exceeding $20 million. The court agreed with Josh and Claire, on an issue of first impression, that a claims administrator’s finding that there was no causal connection between the plaintiff’s injuries and the alleged negligence of the class-action defendant, collaterally estopped the plaintiff from proving the causation element of a legal malpractice claim.

Josh J.T. Byrne (Philadelphia, PA) achieved dismissal of: 

  • a disciplinary claim arising from the leak of sealed criminal dockets on the internet. The IP address from the account which accessed the sealed dockets was related to our defendant attorney’s address. Josh was able to work with the attorney to explain to the ODC’s satisfaction that the attorney was unaware of the access, and that it appeared that his login information had been compromised. Josh and the attorney explained the steps the attorney had taken before and after the incident to maintain cyber security. 
  • a disciplinary claim arising from an alleged failure to communicate with a client. The client asserted he was not informed about what was going on in the case. Josh and the attorney were able to present a narrative regarding the totality of the communications, while acknowledging that the attorney did not do a particularly good job at documenting his many oral discussions with his client. 
  • a disciplinary claim arising out of an underlying divorce action where it was alleged the attorney did not take action on the divorce and charged an excessive fee. Josh and the attorney were able to explain the breath of the work that had been done and were able to document many incorrect allegations in the complaint.

Scott Eberle (Pittsburgh, PA) achieved dismissal of:

  • a punitive damages claim in a legal malpractice action through a motion for partial summary judgment. The plaintiff alleged that the defendant attorney’s failure to properly serve the defendant in the underlying personal injury action and subsequent failure to accept the Office of Attorney General’s offer to accept service out of time resulted in the dismissal of his action. According to the plaintiff, this rose to the level of “reckless” conduct, warranting punitive damages. The trial court reviewed the relevant case law and dismissed plaintiff’s allegation for punitive damages, finding that the alleged conduct did not rise to level of conduct necessary to support a claim for punitive damages in a legal malpractice action. 
  • an ethics complaint with a letter of concern, which alleged that the attorney violated Pa.RPC 1.9(a) relating to a conflict of interest with a former client.

 *Prior Results Do Not Guarantee a Similar Outcome


 

LAWYERS’ PROFESSIONAL LIABILITY THOUGHT LEADERSHIP

  • May 6, 2024 – Jack Slimm and Jeremy Zacharias (both of Mount Laurel, NJ) presented at the Camden County Bar Association Civil Practice Update hosted by the Civil Practice Committee. Jack provided an update regarding recent civil cases in New Jersey, and Jeremy moderated the seminar, which included Judge Steven Polansky, the Civil Division Manager, and various practitioners in New Jersey.
  • April 25, 204 – Josh Byrne (Philadelphia, PA) co-presented at the Montgomery Bar Association Women in the Law Committee’s seminar “The Importance of Civility in the Law.” This program provided attendees with the tools and information they need to ensure they are practicing with civility, responsibility, and professionalism while also avoiding ethical issues as they navigate cases with challenging opposing counsel, parties, and others.
  • April 19, 2024 – Jack Slimm’s and Jeremy Zacharias’ (both of Mt. Laurel, NJ) article “Strategic Defenses to Appellate Malpractice Claims” was published on PLUSBlog.com. Read their article here:
  • April 8, 2024 – Jeremy Zacharias (Mount Laurel, NJ) participated in a panel discussion for Drexel University’s LeBow College of Business to prospective students joining the legal profession. Jeremy spoke about factors to consider in applying to law school, private practice, as well as strategies to effectively maximize law school performance. Jeremy is a recurring speaker at both Rutgers Law and Drexel University on professionals and topics, including ethics, the Rules of Professional Conduct, and the business of law.
  • March 21, 2024 – Alesia Sulock’s and Josh Byrne’s (both of Philadelphia, PA) article “Restricting Restrictions: When Attorney Employment Agreements Run Afoul of the Rules of Professional Conduct” was published in The Legal Intelligencer. You can read their article here.
  • February 28, 2024 – Jack Delany (Philadelphia, PA) was a featured speaker at the 2024 Federation of Defense & Corporate Counsel (FDCC) Winter Meeting in St. Petersburg, Florida. Jack and fellow speakers addressed how challenges, problems, and even disasters at trial can be transformed into opportunities and, ultimately, successful outcomes for clients. 
  • February 27, 2024 – Alesia Sulock’s and Josh Byrne’s (both of Philadelphia, PA) article, “Risk Management in the Practice of Law,” was published on AttorneyProtective.com. You can read their article here.

Legal Update for Lawyers’ Professional Liability – May 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.

Firm Highlights

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent

Event

Pennsylvania Appellate Update 2025-2026

On August 21, 2026, Casey will serve as a panelist for the live webcast program, “Pennsylvania Appellate Update 2025-2026” presented by the Appellate Advocacy Committee of the Pennsylvania Bar Association and Pennsylvania Bar Institute. The program is divided into three parts—Criminal, Civil, and Administrative. Casey will serve as a panelist for the Civil portion, along with Christina McKinley of Blank Rome, Ben Baer of Injury Law Partners, John Masslon of Keller Postman, Jonathan Bruno of Bruno Litigation LLC, and moderator, Ezza Ahmed of Buchanan Ingersoll.  Registration and more information: https://www.pbi.org/product/pennsylvania-appellate-update-2025-2026/

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

News

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

Portrait of Carolyn Schweizer, with text below: Philadelphia Office Managing Attorney

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

Thought Leadership

A Unified, Single Claim for Damages Requires Apportionment in a Joint Proposal: What the Decision in 'Trace Elements' Means for Property Insurance Claims

Kimberly and Seth, shareholders in the Insurance Services Practice in our Fort Lauderdale office, break down the Florida Supreme Court's decision in 'Trace Elements v. MacKensen' and what it means for property insurance claims in the state. Read the article here.

Jason Banonis Holds PDI Attorney of the Year Award with the PDI President

News

Jason Banonis Named Attorney of the Year by the Pennsylvania Defense Institute

Thought Leadership

Appellate Division Affirms Dismissal of Legal Malpractice Counterclaim Against Martin Law Firm

In Martin v. Loury, 2026 N.J. Super. Unpub. LEXIS 1617 (App. Div. July 15, 2026), Martin Law Firm represented Kirk Loury in an employment matter Mr. Loury filed against his former employer, Concord Equity Group Advisors LLC (“Concord”). The allegations included, among other things, that Loury was not fairly compensated for his employment with Concord. After a bench trial finding in Loury’s favor, the Appellate Division remanded this matter in February 2016 for a second trial. During the second trial, Concord CEO, Lee Argush, testified to lower compensation estimate than first trial. On remand, the second trial judge awarded Mr. Loury the same damages as the first judge, finding Mr. Argush not credible. After the findings during the second trial, Martin Law Firm filed an action against Mr. Loury to recover legal fees and costs of representing Mr. Loury in a second bench trial and Mr. Loury filed a counterclaim against Martin Law Firm for legal malpractice, alleging he should have received an even higher award in the second bench trial. In this allegation, Mr. Loury, through his expert, claimed that Martin Law Firm should have recalled Mr. Loury to the stand to rebut Mr. Argush’s testimony to allege an alternative theory of damages. Mr. Loury’s expert admitted that the second judge already rejected Mr. Argush's theory and accepted Loury's damages theory. The trial court barred Mr. Loury’s expert and dismissed Loury's counterclaim with prejudice before convening the collection trial, and the jury ruled in Martin Law Firm’s favor. Mr. Loury appealed the trial court's pretrial rulings barring his liability expert from testifying in support of his legal malpractice counterclaim, denying his motion for summary judgment on that counterclaim, and denying his motion to amend his counterclaim by adding attorney Joseph A. Martin as a codefendant. In affirming the trial court’s decision, the Appellate Division held that the trial court properly excluded Loury’s expert testimony in the counterclaim against Martin Law Firm because the expert could not explain how calling Loury as a rebuttal witness would have increased damages when the second judge already rejected Mr. Argush's testimony and accepted Loury's damages theory, making the expert’s causation opinion speculative. The Appellate Division also held that the trial court properly denied Mr. Loury's summary judgment motion on his malpractice counterclaim because reasonable minds could differ on whether Mr. Martin's alleged failures would have changed the second judge's damages award, given the judge already found Mr. Argush not credible, creating genuine factual disputes precluding summary judgment. Also, the Appellate Division held that the trial court properly denied Loury's May 2023 motion to add Joseph Martin individually because the statute of limitations expired in February 2022, six years after the 2016 appellate remand when Mr. Loury incurred new legal costs, and relation back did not apply because Mr. Loury knew Mr. Martin's identity throughout and strategically chose to sue only Martin Law Firm in his 2019 counterclaim.

Thought Leadership

Fla. Workers' Comp Physician Dispensing Ruling Could Produce New Legislative Fight

In a significant decision issued on February 25, 2026, the First District Court of Appeal (DCA) ruled in Publix Super Markets, Inc., et al. v. Department of Financial Services, et al., 430 So. 3d 252 (Fla. 1st DCA 2026), that while injured workers have an absolute right to choose their own pharmacy or pharmacist, that right does not extend to physicians who dispense medications directly to their patients.  Read Blake's article in Insurance Journal: https://www.insurancejournal.com/news/southeast/2026/08/05/880229.htm.