May 2024

Jeremy Zacharias (Mount Laurel, NJ) was successful in obtaining dismissal of a legal malpractice case against his client, a local law firm in Moorestown, New Jersey. This case pertained to an order to show cause hearing in a fraudulent transfer case. Our clients, the lawyer and the law firm, obtained an order granting the turnover of funds imposed by a Constructive Trust. The defendants argued that this was conversion of property and tortious interference with the defendants’ business prospects, notwithstanding the court order in place in this case. Jeremy argued that the litigation privilege and the Law of the Case Doctrine applied to the claims against the lawyer and the law firm, which insulate this lawyer from liability since everything done was on behalf of her client and in compliance with the court order.

Josh J.T. Byrne (Philadelphia, PA) and M. Claire McCudden (Wilmington, DE) obtained dismissal of a multi-count legal malpractice action arising out of an underlying multi-million dollar class action settlement. The plaintiff alleged damages exceeding $20 million. The court agreed with Josh and Claire, on an issue of first impression, that a claims administrator’s finding that there was no causal connection between the plaintiff’s injuries and the alleged negligence of the class-action defendant, collaterally estopped the plaintiff from proving the causation element of a legal malpractice claim.

Josh J.T. Byrne (Philadelphia, PA) achieved dismissal of:

• a disciplinary claim arising from the leak of sealed criminal dockets on the internet. The IP address from the account which accessed the sealed dockets was related to our defendant attorney’s address. Josh was able to work with the attorney to explain to the ODC’s satisfaction that the attorney was unaware of the access, and that it appeared that his login information had been compromised. Josh and the attorney explained the steps the attorney had taken before and after the incident to maintain cyber security.  
• a disciplinary claim arising from an alleged failure to communicate with a client. The client asserted he was not informed about what was going on in the case. Josh and the attorney were able to present a narrative regarding the totality of the communications, while acknowledging that the attorney did not do a particularly good job at documenting his many oral discussions with his client.
• a disciplinary claim arising out of an underlying divorce action where it was alleged the attorney did not take action on the divorce and charged an excessive fee. Josh and the attorney were able to explain the breath of the work that had been done and were able to document many incorrect allegations in the complaint.

Scott Eberle (Pittsburgh, PA) achieved dismissal of:

• a punitive damages claim in a legal malpractice action through a motion for partial summary judgment. The plaintiff alleged that the defendant attorney’s failure to properly serve the defendant in the underlying personal injury action and subsequent failure to accept the Office of Attorney General’s offer to accept service out of time resulted in the dismissal of his action. According to the plaintiff, this rose to the level of “reckless” conduct, warranting punitive damages. The trial court reviewed the relevant case law and dismissed plaintiff’s allegation for punitive damages, finding that the alleged conduct did not rise to level of conduct necessary to support a claim for punitive damages in a legal malpractice action.
• an ethics complaint with a letter of concern, which alleged that the attorney violated Pa.RPC 1.9(a) relating to a conflict of interest with a former client.

*Prior Results Do Not Guarantee a Similar Outcome

by Josh J.T. Byrne, Esq.

Law firm breakups are fraught with the potential for attorney misconduct. Attorneys who determine they can no longer work together will often take the additional step of accusing one another of inappropriate conduct. Frequently, we hear about attorneys taking law firm files in the dead of night, or allegations that compensation was at least improperly, if not fraudulently, determined.

Recently, after a seven-day hearing, in an 87-page opinion, an Ad Hoc Hearing Committee of the District of Columbia Bar recommended that the founders of the firm Tully Rinckey each be suspended from the practice of law for 90 days as a result of their repeated use of employment agreements which included “a host of restrictions and penalties they imposed or sought to impose on departing lawyers,” including liquidated damages for leaving the firm without “Good Reason.” The employment agreements also included restrictions on contacting firm clients, working with other former firm attorneys, and hiring firm employees.

Although there is very little information on discipline imposed in Pennsylvania for violations of Rule 5.6(a), the Pennsylvania Bar Association’s Legal Ethics and Professional Responsibility Committee has issued several informal ethics opinions related to restrictions in employment agreements for attorneys. See e.g., Informal Opinion 2017-040, Informal Opinion 2016-024, Informal Opinion 2012-006, Joint Opinion (with Philadelphia Bar Association) 99-100 “Considerations for Departing Lawyers.” All of these opinions are consistent with the determination that engagement agreements for attorneys cannot restrict the rights of the attorney to practice and cannot restrict attorneys from associating with law firm employees. See also, ABA Informal Opinion 1417 (a law firm may not require that a withdrawing partner agree not to hire or be associated with for a period of years any of the firm’s associates who are working for the firm at the time of the withdrawal); Philadelphia Bar Association Professional Guidance Committee, Formal Opinion 96-5 (provision in letter of employment that provides that a former employee may not directly or indirectly solicit or retain current or former employees, restricts the right of a lawyer to practice by restricting the right of association).

While actual discipline arising primarily from violations of Rule 5.6(a) is rare, the Tully Rinckey matter emphasizes the seriousness with which law firms need to treat potential restrictions in employment contracts. Disciplinary matters arising from these issues have occurred in Pennsylvania. According to the Pennsylvania Disciplinary Board’s website, in 2019, an attorney received an Informal Admonition as a result of an employment agreement that included a provision that required departing attorneys to pay reimbursements in connection with departing client matters, including future related matters. The agreement also required departing attorneys to provide copies of client bills that evidenced the legal fees incurred, which included confidential and privileged information in violation of RPC 1.6(a). Law firm managers need to take care in drafting employment agreements to avoid restrictions which may violate the Rules of Professional Conduct.

• May 6, 2024 – Jack Slimm and Jeremy Zacharias (both of Mount Laurel, NJ) presented at the Camden County Bar Association Civil Practice Update hosted by the Civil Practice Committee. Jack provided an update regarding recent civil cases in New Jersey, and Jeremy moderated the seminar, which included Judge Steven Polansky, the Civil Division Manager, and various practitioners in New Jersey.

• April 25, 2024 – Josh Byrne (Philadelphia, PA) co-presented at the Montgomery Bar Association Women in the Law Committee’s seminar “The Importance of Civility in the Law.” This program provided attendees with the tools and information they need to ensure they are practicing with civility, responsibility, and professionalism while also avoiding ethical issues as they navigate cases with challenging opposing counsel, parties, and others.

• April 19, 2024 – Jack Slimm's and Jeremy Zacharias' (both of Mt. Laurel, NJ) article “Strategic Defenses to Appellate Malpractice Claims” was published on PLUSBlog.com. Read their article here.

• April 8, 2024 – Jeremy Zacharias (Mount Laurel, NJ) participated in a panel discussion for Drexel University’s LeBow College of Business to prospective students joining the legal profession. Jeremy spoke about factors to consider in applying to law school, private practice, as well as strategies to effectively maximize law school performance. Jeremy is a recurring speaker at both Rutgers Law and Drexel University on professionals and topics, including ethics, the Rules of Professional Conduct, and the business of law.

• March 21, 2024 – Alesia Sulock’s and Josh Byrne’s (both of Philadelphia, PA) article “Restricting Restrictions: When Attorney Employment Agreements Run Afoul of the Rules of Professional Conduct” was published in The Legal Intelligencer. You can read their article here.

• February 28, 2024 – Jack Delany (Philadelphia, PA) was a featured speaker at the 2024 Federation of Defense & Corporate Counsel (FDCC) Winter Meeting in St. Petersburg, Florida. Jack and fellow speakers addressed how challenges, problems, and even disasters at trial can be transformed into opportunities and, ultimately, successful outcomes for clients.

• February 27, 2024 – Alesia Sulock’s and Josh Byrne’s (both of Philadelphia, PA) article, “Risk Management in the Practice of Law,” was published on AttorneyProtective.com. You can read their article here.