Thought Leadership

LAWYERS’ PROFESSIONAL LIABILITY RESULTS*

Josh Byrne and Alesia Sulock (Philadelphia, PA) succeeded in having a complaint dismissed with prejudice on preliminary objections in a legal malpractice action in Philadelphia County. This case 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, PA) successfully defeated a petition for allowance of appeal to the Pennsylvania Supreme Court by the Office of Disciplinary Counsel. 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, maintaining his client’s privacy.

Howard Mankoff (Roseland, NJ) successfully defended a legal malpractice suit based on the Texas Citizens Participation Act. Howard represented a Texas attorney who was sued in New Jersey. In a suit pending in Texas, our client had obtained a commission and had asked a New Jersey court to issue a subpoena to a bank. The plaintiff claimed that the bank produced confidential records and the subpoena was improper. We moved to dismiss the complaint filed in New Jersey, arguing that the complaint should be dismissed based on the Texas Citizens Participation Act (TCPA). The purpose of TCPA is to identify and summarily dispose of lawsuits designed only to chill First Amendment rights. Texas case law holds that these rights include lawsuits. A defendant may file a motion to dismiss, subject to expedited review, for “any suit that appears to stifle the defendant’s exercise of those rights.” After receipt of our motion, the plaintiff dismissed its complaint.

Aaron Moore (Philadelphia, PA) prevailed on motions to dismiss in the U.S. District Court for the Eastern District of Pennsylvania in two separate wrongful use of civil proceedings cases filed by a plaintiff against our client law firm and one of its lawyers, who had been representing a school district in the underlying matters. 

Edwin Schwartz (Harrisburg, PA) and Kimberly Boyer-Cohen (Philadelphia, PA) obtained the dismissal of a legal malpractice action. The plaintiff brought a professional negligence claim against our client arising from the law firm’s representation of the plaintiff in a lease agreement dispute. After the deadlines passed for completion of discovery and production of the plaintiff’s expert report, the trial court granted summary judgment in favor of our client on the basis that the plaintiff’s claim for professional negligence failed as a matter of law because the plaintiff failed to produce an expert report to support its allegations of professional negligence. On appeal, the Pennsylvania Superior Court affirmed the dismissal and rejected the plaintiff’s argument that it had been improperly sanctioned for a discovery violation. In support of its affirmance, the Superior Court found that summary judgment was properly granted because the plaintiff had been given ample time in which to satisfy its evidentiary burden of producing an expert report, but failed to act with due diligence and could not substantiate each element of its claim without an expert report. True Railroad Realty v. McNees Wallace and Nurick, LLC, _ A.3d _, 2022 PA Super 70 (April 19, 2022).

Jack Slimm and Jeremy Zacharias (Mt. Laurel, NJ) obtained a summary judgment decision in a legal malpractice matter where the underlying case concerned a matrimonial representation in a highly contested divorce. In the underlying matter, our clients represented the wife in a divorce from her attorney husband, and this divorce was contentious based upon the facts and circumstances in the case. At all times, our clients advised the wife regarding litigation strategy, and the disputes concerning discovery and failure to provide documents, which delayed the matrimonial case even further. At all times, our clients aggressively represented the wife and retained competent experts to evaluate the husband’s law practice for purposes of equitable distribution. When the wife terminated the representation by our clients, they advised the wife of the risks of settling the case with her husband (an attorney) without counsel present, which advice was not heeded by the wife in the settlement of the claims. Jack and Jeremy were successful in arguing that their clients did not deviate from the standard of care and represented the wife adequately up until the point of termination of their representation. This was potentially a multi-million dollar case based on the size of the marital estate, and the judge granted summary judgment on behalf of the attorney defendants.

Jack Slimm and Jeremy Zacharias (Mt. Laurel, NJ) were successful before the Appellate Division, which affirmed the Probate Court’s order granting our motion to dismiss the complaint of the beneficiary. The Appellate Division’s opinion in In the Matter of the Estate of Richard Ehrlich, A-4033-19 (App. Div. March 11, 2022), protects the New Jersey Estates Bar in connection with probate litigation under New Jersey’s Probate Statute, N.J.S.A. 3B:17-8. The Appellate Division affirmed the Probate Court’s order granting our motion to dismiss the beneficiary’s complaint, which alleged that the attorney/administrator of the estate deviated from the standard of care, and erred in connection with sales of the decedent’s properties; in redeeming of tax certificates; and in the failure to investigate assets. Jack and Jeremy successfully argued that the beneficiary’s claims against the attorney/administrator of the estate were barred under New Jersey’s Probate Statute, N.J.S.A. 3B:17-8, which provides that judgments allowing accountings are considered res judicata as to all exceptions that might have been taken. In Ehrlich, the beneficiary filed numerous exceptions to the accountings presented by the attorney/administrator to the Probate Court in the underlying probate action. The Probate Court approved the accountings over the exceptions filed by the beneficiary. Then, the beneficiary filed a complaint against the attorney/administrator. The Appellate Division affirmed the decision of the Probate Court which found that the beneficiary’s complaint was barred under the doctrine of res judicata, as set forth in New Jersey’s Probate Statute, N.J.S.A. 3B:17-8. That is, once an accounting is approved, it serves as res judicata, meaning that later claims arising out of or in connection with the Administrator’s accountings will be barred. 

*Prior Results Do Not Guarantee A Similar Outcome
 

THOUGHT LEADERSHIP

Josh Byrne’s (Philadelphia, PA) article “Sometimes You Have to Fire Your Client to Avoid Issues” was published in the March 18, 2022, edition of The Legal Intelligencer. You can read the article here: https://marshalldennehey.com/articles/sometimes-you-have-fire-your-client-avoid-issues 

Alesia Sulock (Philadelphia, PA) authored the article, “The Attorney-Client Relationship: Keeping the Lines of Communication Open,” appearing on the PLUS Blog. Click here to read: https://plusblog.org/2022/05/09/the-attorney-client-relationship-keeping-the-lines-of-communication-open/ 

_{Legal Update for Lawyers’ Professional Liability – May 2022 is prepared by Marshall Dennehey Warner Coleman & Goggin 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 Warner Coleman & Goggin, 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.}