April 2025

John ‘Jack’ Slimm (Mount Laurel, NJ):

• After four hearings, obtained dismissal of a complex legal malpractice action arising out of litigation in the U.S. District Court over the failed purchase of a Kia dealership in New Jersey. The plaintiff’s claims against our client, a well-known transactional lawyer with one of the largest firms in the United States, involved hundreds of thousands of dollars in fees and losses related to the investment in the dealership. Following the hearings and a re-hearing, Jack obtained the dismissal because the plaintiff’s expert failed to tie in the damages to the alleged deviations in connection with the handling of the underlying transaction. Following the hearings, the court rejected the expert’s opinion on damages and granted our application for a dismissal of the entire case.

Jacob H. Schultz and Josh J.T. Byrne (both of Philadelphia, PA):

• Obtained an order on a motion to dismiss the plaintiff’s claims in a civil rights action brought against their attorney in the Middle District of Pennsylvania. The plaintiff brought claims for Deprivation of Rights (42 U.S.C. § 1983), Conspiracy Against Rights (42 U.S.C. § 1985), and Civil Conspiracy against our client. We filed a motion to dismiss pursuant to F.R.C.P. 12(b)(6), arguing that the plaintiff had failed to state a claim upon which relief could be granted. The magistrate judge agreed, issuing a report and recommendation for the claims to be dismissed, which the district judge then adopted as the court’s decision. No timely appeal has been taken.

Josh J.T. Byrne (Philadelphia, PA):

• Received a unanimous decision from the Supreme Court of Pennsylvania in a matter that both limits the use of offensive collateral estoppel in disciplinary matters and establishes that the standard of proof for disciplinary matters in Pennsylvania is clear and convincing evidence. The Office of Disciplinary Counsel had sought to utilize non-mutual offensive collateral estoppel to preclude the respondent from disputing fact determinations by a bankruptcy judge when she sanctioned the respondent and his client. The Supreme Court determined that the burden of proof for the judge in issuing sanctions was something less than clear and convincing evidence and, therefore, collateral estoppel did not apply. In making its decision, the Supreme Court noted that the previously expressed standard of “preponderance of clear and satisfactory evidence” was confusing and archaic, but is the functional equivalent of “clear and convincing.” A short concurrence by Justice Wecht leaves no doubt that going forward, the standard to be applied is “clear and convincing.”

Jeremy J. Zacharias (Mount Laurel, NJ):

• Successfully secured the dismissal of a counterclaim alleging legal malpractice and ethics violations against his client, a New Jersey matrimonial law firm. The counterclaim accused the firm of violating multiple court orders, committing professional malpractice, and breaching fiduciary duty in connection with a divorce case that ultimately led to the spouses reconciling and voluntarily dismissing their divorce complaint. Jeremy argued that the malpractice claim was merely a pretext to avoid paying the nearly six-figure attorney's fee owed to the firm, which had been the subject of a fee complaint filed against the couple.

Alesia S. Sulock (Philadelphia, PA)

• Won a defense verdict in a legal malpractice case arising from an underlying civil rights claim. The plaintiff was arrested following a physical altercation with her daughter and her daughter’s friends. The plaintiff alleged that, while she was being searched at the police detention unit, a city employee struck her, causing her to fall into a “split” and suffer a hamstring avulsion. The defendant attorneys represented the plaintiff in a lawsuit against the city. The underlying case was filed as an arbitration-level matter, and the plaintiff lost at arbitration. She was never able, during the underlying case, to identify the employee who allegedly assaulted her. She did not respond to communications from the defendant attorneys regarding the arbitration award and the appellate deadline; thus, no appeal was filed. This legal malpractice matter followed. During the trial, we presented evidence that the plaintiff could not have won the underlying case within the case because she lacked corroborating evidence of the alleged assault and that the only medical expert testimony opined she was more likely to have suffered the injury during the fight with her daughter than in the manner of assault described by the plaintiff. We also presented evidence that the plaintiff could not prove damages arising from the alleged injury. The court agreed and entered a defense verdict following a bench trial.

*Prior Results Do Not Guarantee a Similar Outcome

by Alesia S. Sulock, Esq.

In the recent disciplinary matter of ODC v. Anonymous, 2025 WL 524221 (Pa. Feb. 12, 2025), the Pennsylvania Supreme Court established the standard applicable to attorney disciplinary matters, expressly holding that the Pennsylvania Office of Disciplinary Counsel (ODC) is required “to establish attorney misconduct with evidence that is sufficient to satisfy a clear and convincing evidence standard of proof.”

The respondent had represented a corporate creditor in bankruptcy court. During the course of the matter, the bankruptcy court found that the respondent and the respondent’s client had violated the automatic bankruptcy stay. The court awarded sanctions in favor of the debtors and against the respondent and the respondent’s client. Following the bankruptcy court’s decision, the ODC filed a petition for discipline, asserting that the respondent had violated several Rules of Professional Conduct. The ODC filed a motion to apply collateral estoppel to preclude the respondent from re-litigating certain matters that had given rise to the sanctions in the bankruptcy court. However, the standard applicable to the motion for sanctions in the bankruptcy court was “preponderance of the evidence,” not the then-applicable standard for attorney disciplinary matters, “clear and satisfactory.”

In response, the respondent argued that collateral estoppel should not apply because the then-applicable standard for attorney disciplinary matters, “clear and satisfactory,” was more stringent than the standard applied by the bankruptcy court judge. Ultimately, the question of whether collateral estoppel applied turned on the appropriate burden of proof in attorney disciplinary matters. Noting the lack of clarity in the existing burden, “clear and satisfactory,” as well as the quasi-criminal nature of attorney disciplinary proceedings, the Supreme Court held that the standard of proof applicable to attorney disciplinary matters is “clear and convincing.” Collateral estoppel, therefore, could not apply. 

• March 19, 2025 – John J. Hare (Philadelphia, PA) joined a panel of judges and attorneys to present the live webcast “New Voir Dire Rule Pa.R.C.P. 220.3,” on behalf of the State Civil Litigation Section of the Philadelphia Bar Association. On April 1, 2025, the Amendments to Rule 220.3 of the Pennsylvania Rules of Civil Procedure will go into effect and will impact any attorney involved in the Jury Selection and Voir Dire process for Civil Jury Trials in Philadelphia, as well as throughout the Commonwealth. In this timely CLE program, a panel of judges and attorneys addressed how the Amendments to Rule 220.3 will be implemented by the court and practical considerations for attorneys.
• March 17, 2025 – The Legal Intelligencer published an article by Alesia S. Sulock and Josh J.T. Byrne (both of Philadelphia, PA), “'Clear and Convincing' Is the New Standard for Attorney Disciplinary Matters.” You can read their article HERE.
• February 26, 2025 – Josh J.T. Byrne (Philadelphia, PA) participated in a one-day CLE presented by the Villanova University Charles Widger School of Law. The panel provided important information about ethically navigating the use of AI in one’s law practice.