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Professional Liability

Legal Updates for Lawyers' Professional Liability

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

Legal Updates for Lawyers’ Professional Liability – September 2023

September 1, 2023

LAWYERS’ PROFESSIONAL LIABILITY RESULTS*

Scott Eberle (Pittsburgh, PA) received dismissal of a disciplinary complaint in a matter involving allegations that the attorney improperly terminated a non-refundable, flat-fee representation and collected an excessive fee. Scott successfully argued that the attorney, our client, complied with Rule 1.16 when he terminated the representation after his client failed to pay the entire amount of the agreed upon flat fee. Scott also argued that the fee our client did collect was clearly not excessive under Rule 1.5 due to the amount of work our client performed on the matter prior to termination. 

Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) obtained an order on the eve of trial in a complex legal malpractice action that rose out of a serious multiparty, multimillion-dollar medical malpractice action which was handled by our clients. Our clients are an extremely well-respected plaintiff’s medical malpractice firm in Philadelphia. The court entered an order on our motion to strike the plaintiff’s expert’s report and opinions as net. The court also entered an order precluding the plaintiff’s expert from testifying at trial in the legal malpractice action. 

Jack Slimm (Mount Laurel, NJ) obtained an order on a motion to dismiss for failure to state a claim in a complex legal malpractice action arising out of an underlying ongoing probate action in the Superior Court, Chancery Division, Camden County. Jack’s client is a well-known probate expert who represented the co-executor in contentious probate litigation over several properties and funds which the co-executor plaintiff claimed he did not receive as a result of the conduct of Jack’s client. The court rejected the claim and granted the motion specifically with prejudice.

*Prior Results Do Not Guarantee a Similar Outcome
 

LAWYERS’ PROFESSIONAL LIABILITY THOUGHT LEADERSHIP

Alesia Sulock and Josh Byrne (Philadelphia, PA) published in The Legal Intelligencer the second part of a series of articles of risk management tips of attorneys titled “You Diligently Protect Your Clients; What About You? Part 2 (The Middle and the End).” The article discusses the importance of client communication, file management, and good disengagement practices. You can read their article here.

Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ) presented on the current New Jersey law on the New Business Rule after the Supreme Court’s decision in Schwartz v. Menas, a case Jack and Jeremy have been handling on behalf of their clients, a well-known law firm in New Jersey handling real estate and land use matters. Jack and Jeremy went through certain jurisdictional approaches to the New Business Rule, as well as New Jersey’s current rule after the Supreme Court decision in Schwartz v. Menas, 246 N.J. 145 (2021). This presentation was attended by various claims professionals and underwriters, and crosses multi-dimensional practices between professional liability and casualty.

 

Legal Update for Lawyers’ Professional Liability – September 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.

Firm Highlights

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.

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.

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

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

News

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

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

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

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

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. 

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/

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent