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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

July 28, 2022

RESULTS *

Christopher Block and Erica Goldring (Roseland) prevailed on a motion to strike the plaintiff’s expert in a complicated New Jersey professional malpractice matter. Following two rounds of briefing and two rounds of oral argument, the court agreed that the plaintiff’s expert’s opinion was a net opinion and did not provide any substance or evidence of a lack of a duty of care.

Lara Bream and Edwin Schwartz (Harrisburg) were successful in obtaining a dismissal of a complaint filed in the Middle District of Pennsylvania against a New York attorney for alleged malfeasance regarding the appointment of a guardian of an elderly woman that is alleged to have resulted in the dissipation of $2.2 million in assets.

Josh Byrne and Alesia Sulock (Philadelphia) succeeded in having a complaint dismissed, with prejudice, on preliminary objections in a legal malpractice action in Philadelphia County. Josh and Alesia had preliminary objections sustained on this multiple-count legal malpractice claim that arose out of representation in a hotly-contested divorce matter. The plaintiff's complaint was dismissed, with prejudice, as to all defendants.

Josh Byrne (Philadelphia) successfully defeated a petition for allowance of appeal to the Pennsylvania Supreme Court by the Office of Disciplinary Counsel that sought to change a private reprimand to a public reprimand. In a highly unusual move, the Office of Disciplinary Counsel filed a petition for allowance of appeal seeking to have the decision of the Disciplinary Board changed from a private reprimand to a public reprimand, in a case with potential national implications. Josh successfully defeated this petition, thus maintaining his client's privacy.

Josh Byrne (Philadelphia) recently achieved dismissal of a disciplinary complaint against an attorney. The complaint involved allegations of multiple violations of the Rules of Professional Conduct arising from an underlying representation. After Josh responded to the complaint, the Office of Disciplinary Counsel exercised its prosecutorial discretion to dismiss the complaint, despite determining that there were potential violations of at least three Rules of Professional Conduct.

Josh Byrne (Philadelphia) achieved dismissal of a complaint before the Bureau of Professional and Occupational Affairs against a home appraiser based upon allegations of an improper appraisal.

Josh Byrne (Philadelphia) succeeded in getting a joinder complaint brought by an AM Law 100 firm against his client in a legal malpractice/breach of fiduciary duty action arising out of a multi-million dollar business transaction dismissed on preliminary objections in Philadelphia.

Edwin Schwartz (Harrisburg) achieved a successful dismissal of a Disciplinary Board complaint against an attorney who had been involved in a complex and messy family dispute regarding the creation and operation of brewery and events venue.

Yael Dadoun and Edwin Schwartz (Harrisburg) obtained a dismissal of a Disciplinary Board complaint filed against a York County attorney by a sitting judge on the Court of Common Pleas of York County related to the attorney’s representation of a client an underlying hostile divorce action.

*Prior Results Do Not Guarantee A Similar Outcome

 

THOUGHT LEADERSHIP

Josh Byrne, chair of our Disciplinary Board Representation Practice Group, weighs in on potential red flags for banks in use of IOLTA accounts. Read the article here: https://news.bloomberglaw.com/business-and-practice/wells-fargo-ponzi-suit-airs-bank-risk-in-law-firm-trust-accounts

Josh Byrne (Philadelphia) presented at the Pennsylvania Bar Association’s annual Spring 2022 Avoiding Legal Malpractice Program on June 24th. “Avoiding Legal Malpractice” was presented by the PBA Professional Liability Committee and featured information on a variety of issues that have been identified as common areas where attorneys can be exposed to liability or malpractice claims and focuses on steps we can all take to avoid, or at least mitigate, potential claims.

Josh Byrne’s (Philadelphia) article “Mental Health, Malpractice Avoidance and Ethical Conduct” was published in the July edition of The Legal Intelligencer. You can read the article here: https://marshalldennehey.com/articles/mental-health-malpractice-avoidance-and-ethical-conduct

Josh Byrne (Philadelphia) presented the seminar “Dealing with Difficult Opposing Counsel 2022” for the Pennsylvania Bar Institute. Josh co-presented this program with other experienced lawyers and professional liability professionals, including the Chief Disciplinary Counsel for the Disciplinary Board of the Supreme Court of Pennsylvania. This session offered tools, techniques, and insight into practical and effective methods of dealing with difficult opposing counsel while complying with the Rules of Professional Conduct.

Charlene Seibert (Pittsburgh), a shareholder and member of the firm’s Lawyers’ Professional Liability Practice Group, has been appointed to a three-year term as a Hearing Committee Member of District IV or the Disciplinary Board of the Supreme Court of Pennsylvania. Hearing Committee Members perform essential roles in Pennsylvania’s disciplinary system, chief among them to review Disciplinary Counsel’s recommended dispositions and to conduct hearings into formal charges of attorney misconduct and petitions for reinstatement. These efforts, which include reviewing pleadings and briefs, weighing evidence, and writing reports, are critical to guiding the Board and the Supreme Court in their determinations.

Jack Slimm and Jeremy Zacharias (Mount Laurel) presented a webinar entitled “Virtual Trials in New Jersey: The Good, the Bad, and the Ugly.” This was presented to an audience comprised of claims professionals, attorneys and various insurance companies. Jack and Jeremy explained their experience with trying cases in a virtual and hybrid setting, and gave practical pointers and strategies in trying a case, picking a jury, and presenting evidence in a virtual format. Jack and Jeremy introduced the firm capabilities in a technological standpoint and the staffing that is needed for trying a virtual or a hybrid case.

 

Legal Update for Lawyers’ Professional Liability – July 2022 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 © 2022 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

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

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. 

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.

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

News

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

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/

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

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

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.

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial