February 2025

Matthew Flanagan (Melville, NY and New York City) and Jack Yau (New York City)

• Secured dismissal of Judiciary Law § 487 claims against an insurance defense firm and its attorneys. The plaintiffs sued our clients—a partner and associate at a well-known insurance defense firm—alleging violations of Judiciary Law § 487(1), which provides that an attorney who engages in “deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . . is guilty of a misdemeanor and may be liable to the injured party for treble damages in a civil action.” The plaintiffs alleged the defendants engaged in deceit in asserting false positions on behalf of their clients in the underlying action and in falsely representing to the court that the plaintiffs had not opposed a motion to dismiss, even though they had. Matt and Jack argued that mere advocacy does not give rise to a cause of action under Judiciary Law § 487 and, even if a misstatement had been made to the court regarding whether the plaintiffs had opposed a motion, there was no indication it was intentional or that it caused the plaintiffs any damages. The court agreed and granted the pre-answer motion to dismiss.

Aaron Moore and Claire McCudden (both of Wilmington, DE)

• Obtained a summary judgment dismissal on behalf of their client, a law firm, that was sued by its former clients for legal malpractice. The plaintiffs, seven affiliated companies and their owners in the business of developing property, had been sued by their bank for defaulting on multiple lines of credit. The bank filed several lawsuits against the property developers, claiming approximately $7 million in damages, plus attorneys’ fees, recoverable pursuant to the terms of the promissory notes. The property developers retained our client to defend the lawsuits, arguing the amounts claimed owed to the bank were significantly overstated. Our client vigorously defended the bank’s underlying lawsuits. Ultimately, the property developers settled the bank’s lawsuits for the entire amount owed, plus interest and the bank’s legal fees. The developers argued its attorneys should have advised them to settle the bank’s claims after the lawsuits were commenced and that, had they done so, they would not have had to pay the bank’s legal fees ($825,000), our client’s legal fees ($485,000), expert witness fees ($335,000) or the additional interest on the loan. The property developers also claimed that not settling with the bank earlier caused them lost business opportunities valued at nearly $1 million. The plaintiffs’ legal malpractice claims were dismissed because their expert witness, a Maryland attorney with no business litigation experience, was not qualified to serve as an expert and because their damages claims were speculative.



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

• Obtained dismissal of entire action against an attorney. The plaintiff’s complaint alleged dissatisfaction with our client’s underlying representation. Preliminary objections were filed, arguing the plaintiff did not allege that our client’s conduct fell below the applicable standard of care, did not assert what the outcome of the underlying matter was, and had not filed a certificate of merit. The preliminary objections were sustained, and the plaintiff’s complaint was dismissed in its entirety. Also, the plaintiff did not timely file an amended complaint, although he was granted leave to do so. After the plaintiff did not respond to a notice of intent to enter judgment of non-pros, we filed a praecipe to enter judgment of non-pros, which the court granted.
• Obtained dismissal of entire action against an attorney and his law firm. The plaintiff alleged he had suffered mentally because he was forced to work while on his vacation to respond to a certification for a discovery motion our client had purportedly improperly filed. In our preliminary objections, we argued the plaintiff had not identified any cause of action and, moreover, the allegations solely arose from conduct which occurred in connection with our clients’ representation of the plaintiff such that dismissal was warranted under the doctrine of judicial privilege. We further argued the matter should be dismissed under the doctrine of collateral estoppel because the plaintiff had brought a motion for sanctions in the underlying matter which was denied and the discovery motion upon which the plaintiff based his complaint was granted. The court agreed with our preliminary objections and dismissed the complaint with prejudice.

*Prior Results Do Not Guarantee a Similar Outcome

by Matthew K. Flanagan, Esq.

In a first-of-its-kind move, the California State Bar endorsed a plan to expunge attorney discipline records—other than disbarment—after eight years. The practical effect of the move is that public discipline would no longer appear on the lawyer’s state bar website profile.

The change is intended, in part, to lessen the impact of what was perceived as racial disparities in attorney discipline in California. A 2019 state bar-commissioned study had found that Black male attorneys in California—who currently make up just 1% of the state’s lawyers—were more than three times as likely to be placed on probation than white male attorneys.

Will other states follow? Many of the actions taken by the Attorney Grievance Committees in New York are not public. The Committees issue Letters of Advisement, which are not considered discipline, or Admonitions, which are considered discipline but are not public. The public forms of discipline—censure, suspension and disbarment—are only taken after formal proceedings are initiated in one of the four Appellate Divisions. There have been no studies in New York addressing racial disparities in the administration of public discipline against attorneys in New York, and with a recent rollback in DEI initiatives (AP has reported that McDonald’s is the latest company to eliminate diversity goals), it seems unlikely that there will be anytime soon.

The California proposal was not universally supported. In fact, Reuters reported that 445 comments were received during the public comment phase and 74% of those comments opposed the change. “Non-attorney members of the public [were] most heavily against it,” according to Reuters.

Some may argue that the public is entitled to complete transparency when hiring an attorney. Others may argue that the measure does not address the root cause of the problem it purports to address. What are your thoughts? 

by Scott R. Eberle, Esq.

In October 2024, the Pennsylvania Supreme Court adopted a series of amendments to the Rules of Professional Conduct for legal services communications. The new rule changes, which went into effect on November 14, 2024, are part of an effort to update the attorney advertising rules, which many believed were outdated and unworkable.

Among the many changes that recently went into effect is the addition of new commentary to Rule 7.3(b), which explains that the prohibition of “live person-to-person contact” to solicit work includes text messaging.

Rule 7.3(b) prohibits a lawyer from soliciting professional employment by live person-to-person contact except in a few enumerated circumstances. “Live person-to-person contact” is defined in comment [2] to the Rule as “in person, face-to-face, live telephone and other real-time visual or auditory person-to-person communications where the person is subject to a direct personal encounter without time for reflection.” The new comment further specifies, “[s]uch person-to-person contact includes text messages.”

The prohibition of text message solicitation was an unexpected change to the new rules. The inclusion of texting in the definition of “person-to-person contact” was not part of the amendment initially proposed by the Pennsylvania Disciplinary Board. The version of the rule published for public comment in February 2021 specifically stated that text messaging was not prohibited. Moreover, the ABA Model Rules of Professional Conduct—which the new Pennsylvania Rules were intended to mirror—permit text messaging. The ABA Model Rules exclude text messages from the definition of “person-to-person contact” on the basis that they are written communications recipients can easily disregard.

A Pittsburgh-based legal marketing company, Text Ads and Marketing, LLC, has already filed suit, alleging the change to Rule 7.3(b) prohibiting text message solicitation violates First Amendment protections for commercial speech. Text Ads asserts that texts should not be considered “person-to-person contact” because recipients can easily opt to read them at a later time or simply ignore them. The lawsuit will be closely monitored for the impact it may have on the future of attorney advertising in Pennsylvania. 

• January 16, 2025 – Josh J.T. Byrne (Philadelphia, PA) was a featured speaker in the Philadelphia Bar Association’s webcast “Recent Ethics Developments 2024.” Hosted by the Professional Guidance and Responsibility Committee, the program highlighted key cases, ethics opinions, disciplinary decisions and changes in the rules of professional conduct from 2024.

• January 10, 2025 – Josh J.T. Byrne (Philadelphia, PA) co-presented “Dealing with Difficult Opposing Counsel 2025” for the Pennsylvania Bar Institute.

• Congratulations to Jeremy J. Zacharias, RPLU, shareholder in our Mount Laurel, NJ office, on his election to the Board of Trustees of the Professional Liability Underwriting Society! Jeremy has been an active member of PLUS since 2016. Read about his practice, professional activities and leadership experience: https://lnkd.in/epTNmXS5

• December 18, 2024 – Josh J.T. Byrne (Philadelphia, PA) presented “Legal Malpractice Avoidance” at a Dauphin County Bar Association CLE webinar.

• November 25, 2024 – John “Jack” Slimm (Mount Laurel, NJ) presented along with an all-star lineup of some of the most experienced and respected trial attorneys and jurists in the region at the New Jersey State Bar Association’s Regional Trial Boot Camp. Presenters walked attendees through the framework of a trial by conducting the comprehensive trial of Al Capone for the St. Valentine’s Day Massacre.



• November 18, 2024 – The Legal Intelligencer published “What Are Forbidden Sexual Relations With Clients?,” by Alesia Sulock and Josh J.T. Byrne (both of Philadelphia, PA). You can read their article here.