February 2024

Josh J.T. Byrne (Philadelphia, PA)

• Obtained a verdict for the defense following trial on a wrongful use of civil proceedings (Dragonetti Act) claim in the Court of Common Pleas, Philadelphia County. The action arose out of an underlying FDCPA claim.

• Achieved a dismissal of a disciplinary complaint against a family law attorney. The disciplinary complaint arose out of issues relating to the safekeeping of client funds and whether Rule 1.15 funds were properly maintained in an appropriate escrow/IOLTA account.

• Achieved a dismissal of a disciplinary complaint against an attorney who served as the guardian of a disabled person. The 60-paragraph complaint included assertions of multiple violations of the Rules of Professional Conduct arising out of alleged failures to pay bills on behalf of the disabled person and provide timely reports on the guardianship required by the court.

Howard Mankoff and Fred Mason (Roseland, NJ)

• Obtained a dismissal of a legal malpractice claim where we represented an attorney whose client was a housekeeper for the plaintiff. The housekeeper purchased a house from the plaintiff, who later claimed the parties agreed the seller could live in the house the rest of his life (he was 85) and the agreement was not included in the closing documents. The plaintiff sued the attorneys, the housekeeper and the realtors. We moved, in lieu of an answer, to dismiss the complaint. The court accepted our argument that our client did not owe a duty to the plaintiff, based on case law holding that the circumstances in which an attorney owes a duty to a non-client third party are limited to those in which the attorney knows or should know that the non-client third party is relying on the attorney’s work. The court also accepted our arguments, based on the statute of limitations and the entire controversy doctrine.

Jack Slimm (Mount Laurel, NJ)

• With the assistance of Justyn Coddington (Mount Laurel, NJ), successfully handled an extremely complex case involving the value of an ultrasound company in an underlying equitable distribution case. At the close of evidence, the court granted our motion for involuntary dismissal, finding that the plaintiff’s experts had offered net opinions. The court dismissed the claims and took the case away from the jury.

• Obtained a defense jury verdict in a complex legal malpractice action arising out of two wrongful termination trials. The trial took place in Burlington County, NJ. This extremely complicated legal malpractice action arose out of two underlying employment trials for wrongful termination claims, as well as an appeal, and involved intellectual property. Jeremy Zacharias (Mount Laurel, NJ) handled a significant amount of the pretrial and key Motions on this case. In addition, Sydney Larsen (Mount Laurel, NJ) handled the evidence exhibits at trial. There were numerous evidence issues with there being two underlying trials. However, we were successful on pretrial hearing in limiting plaintiff’s proofs and in barring significant damages claims asserted by plaintiff’s expert. The jury rejected plaintiff’s claims, and awarded all of our client’s fees, with interest and costs.

• Obtained an order from the Superior Court in Ocean County, New Jersey, on the eve of trial, granting our motion for summary judgment in a complex legal malpractice action arising out of an underlying equitable distribution arbitration. The case involved $14 million in damages. The court ruled in connection with our argument that the plaintiff’s expert’s opinion was speculative and, therefore, not admissible. Accordingly, the court granted our motion for summary judgment.

• Obtained an order from the Superior Court in Burlington County, New Jersey, on the eve of trial granting our motion to dismiss in a multiparty complex legal malpractice action. This suit was filed against a court-appointed administrator of an estate, the sellers of the property, the beneficiaries of the estate, and the estate itself. The case involved two actions in the Chancery Division, two actions in the Law Division, and an appeal arising out of the same, all involving claims for breach of contract, breach of fiduciary duty, negligence and legal malpractice against the administrator. The case was filed because the property was contaminated, and it was alleged that the estate and the administrator knew or should have known about the unlawful dumping but ignored those activities, allowed the property to become damaged, and kept the information about the contamination from the plaintiff’s beneficiaries. However, the court found that the claims against the lawyer/administrator were barred because in the underlying probate action, the court had held that the administrator fulfilled his duties and was discharged from all duties and obligations under New Jersey’s Probate Code. Accordingly, the court dismissed the Law Division action based upon the Entire Controversy Doctrine, res judicata, collateral estoppel and judicial estoppel.

Jack Slimm and Art Wheeler (Mount Laurel, NJ)

• Won a decision from the Superior Court of New Jersey Appellate Division, which affirmed an order for summary judgment in a complex multi-party legal malpractice action involving financial ventures that led to two legal malpractice actions with economic losses at $11,583,180. The dismissal was affirmed, with the Appellate Division agreeing with the trial judge that the plaintiff’s expert reports were net opinions and inadmissible. Since the plaintiff could not demonstrate his actual damages to the jury, the trial court’s orders were affirmed.

Jack Slimm and Jeremy Zacharias (Mount Laurel, NJ)

• Obtained an order of dismissal on a motion to dismiss for failure to state a claim in the Superior Court in Monmouth County, New Jersey, in a complex legal malpractice action. This action arose out of a remand from the New Jersey Supreme Court in the matter of Schwartz v. Menas, et al., 251 N.J. 556 (2022). The court agreed with our argument, as well as the argument of the co-defendant, a national home builder, that all claims (conspiracy and fraud) for alleging stealing the plaintiffs’ development rights were barred under the Entire Controversy Doctrine and the Doctrine of Res Judicata, based upon the ruling of the court in the reported decision of Schwartz v. Menas, et al., 251 N.J. 556 (2022), which we argued before the New Jersey Supreme Court.



• Obtained a dismissal, prior to trial, of a complex legal practice action arising out of a multiparty medical malpractice failure-to-diagnose case in Burlington County, New Jersey. In this case, Jack and Jeremy represented one of Philadelphia’s most well-known and highly respected plaintiffs’ medical malpractice firms. Prior to granting dismissal, the trial court found that the plaintiff’s expert’s opinion was net. In addition, the court barred the plaintiff’s malpractice expert from testifying at trial. The court also denied plaintiff’s motion for reconsideration, notwithstanding the fact that the plaintiff submitted a new amended expert report, attempting to cure the deficiencies in the deposition we took of plaintiff’s expert. It is significant that in its decision, the court relied upon the Appellate Division’s decision in Morris Properties, Inc. v. Wheeler, et al., No. A-2653-20, 2023 WL 2249975, at *1 (N.J. Super. Ct. App. Div. Feb. 28, 2023) (approved for publication August 22, 2023), an appeal handled by Jack and Jeremy Zacharias. The court found that the Appellate Division decision was dispositive, and required the court to strike the plaintiff’s expert report and precluded his testimony at trial. The court then dismissed the case with prejudice.

Carly Edman (Pittsburgh, PA)

• Obtained a dismissal of plaintiff’s legal and accounting malpractice claims in the U.S. District Court for the Western District of Pennsylvania. The plaintiff filed suit against a number of defendants as a result of tax liability stemming from a prior unrelated legal settlement. The plaintiff claimed that our attorney client was negligent in providing legal and accounting advice in regard to corrective tax filings following a legal settlement with a state entity. The plaintiff asserted claims of legal malpractice, accounting malpractice, fraud, and a host of constitutional violations. Carly sought dismissal via a number of arguments, including a lack of subject matter jurisdiction. After multiple rounds of amended pleadings and briefing, the court entered an order adopting our jurisdictional argument and dismissed the plaintiff’s latest complaint without prejudice based upon a Rule 8 violation for his failure to plead a proper jurisdictional basis. While the dismissal order was without prejudice, the running of the statute of limitations results in our client obtaining the win. 

*Prior Results Do Not Guarantee a Similar Outcome

by Jeremy J. Zacharias, Esq.

In Law Office of Drew J. Bauman v. Hanover Insurance Company, 2023 WL 2238552 (D.N.J. February 27, 2023), the plaintiffs maintained a professional liability insurance policy with the the Hanover defendants from October 2017 to October 2019. The plaintiffs allege the policy was secured through USI, an insurance broker defendant. The dispute pertained to the defendants’ response to an underlying action, the “Woerner Action.”

The plaintiffs contend that they were named defendants in the Woerner Action, a professional malpractice case, where the plaintiff sought damages in a real estate transaction. The plaintiffs purportedly notified the Hanover defendants, but Hanover denied coverage and refused to provide the plaintiffs with a defense or indemnification. According to the plaintiffs, Hanover breached the contract of insurance by “refusing to satisfy or failing to acknowledge its obligation” under the policy.

Also, the plaintiffs claimed that USI was liable should the policy not require Hanover to defend and indemnify them. According to the complaint, USI was “responsible for the procurement of [plaintiffs’] professional liability insurance ... knew the nature of [plaintiffs’] business and knew [their] insurance needs.” The plaintiffs also alleged that USI breached its contract with them to provide the requisite insurance coverage that would have provided coverage.

The District Court granted the motions to dismiss filed by Hanover and USI. With regard to granting dismissal on the breach of contract cause of action against USI, the District Court held that it is well-settled law in New Jersey that breach of contract is not a recognized claim in actions against an insurance broker for failing to provide adequate coverage. See, e.g., Minnesota Life Ins. Co. v. Cooke, 2021 WL 5122070 (D.N.J. November 4, 2021)(“[U]nder New Jersey law, a claim against insurance agents or brokers for failing to obtain the proper insurance is not recognized as a claim for breach of contract but rather for negligence.”); Luzzi v. HUB Int’l Northeast Ltd., 2018 WL 3993450, at *7 (D.N.J. Aug. 21, 2018) (“New Jersey does not recognize a breach of contract claim in connection with the procurement of insurance.”); Call v. Czaplicki, 2010 WL 3724275, at *11 (D.N.J. Sept. 16, 2010) (“[I]t is well-settled that New Jersey does not recognize a breach of contract claim for the negligent procurement of [ ] insurance.”).

By Scott R. Eberle, Esq.

The American Bar Association recently issued a Formal Ethics Opinion addressing the ethics of attorney office sharing arrangements. In Formal Opinion 507, issued on July 12, 2023, the ABA Standard Committee on Ethics and Professional Responsibility opined that office sharing arrangements among non-affiliated attorneys are generally permissible under the Model Rules of Professional Conduct so long as certain ethical duties relating to confidentiality, conflicts of interest and supervision of non-lawyers are observed.

The Opinion recognizes that attorney office sharing arrangements come in many forms. There are traditional office sharing arrangements, where lawyers with separate law practices—mostly solo practitioners—share office space, support staff and equipment. There are office sharing arrangements where law firms rent unused office space to unaffiliated lawyers. Furthermore, lawyers often share an office suite, receptionist and conference room as part of a virtual law practice—an arrangement that has become increasing popular following the pandemic—as more lawyers are working from home offices.

The ABA advises that lawyers working in these type of arrangements must be particularly vigilant to ensure they are complying with their ethical duties. Maintaining confidentiality is a concern in a shared office environment, especially if the lawyers are sharing a receptionist or other support staff. The opinion reminds attorneys that appropriate supervision of non-lawyer assistants is required under Model Rule 5.3 and it is necessary to instruct shared employees on confidentiality obligations, as well as have office procedures in place to guard sensitive client documents and communications.

Conflicts of interest are another concern in shared office environments. The Opinion advises that lawyers must pay attention to avoid imputation of conflicts of interest. Model Rule 1.10(a) imputes conflicts of interest to all lawyers “associated in a firm.” Non-affiliated lawyers in shared office arrangements are not automatically treated as a single law firm for conflicts purposes, but the ABA advises that they could be, depending on the facts and circumstances of each arrangement. In order to avoid the possibility of being treated as a single law firm for conflicts purposes, the Opinion advises attorneys to protect the confidentiality of their respective clients, avoid regularly consulting with each other on client matters, avoid sharing staff with access to client information, and take appropriate steps to clearly communicate the nature of their relationship to the public and to clients.

Representing clients with adverse interests, even in the same lawsuit or transaction, is also discussed by the ABA Standard Committee on Ethics and Professional Responsibility in Formal Opinion 507. Although the Opinion recognizes that some state ethics opinions advise attorneys who share office space to avoid these situations entirely, the Committee opines that it may be permissible. The Opinion states that, although the determination will ultimately turn on the specifics of the office sharing arrangement and the nature of the proposed representation, Model Rules 1.4 (Communication) and 1.7 (Conflicts of Interest: Current Clients) may require the attorneys to adequately disclose the arrangement with the prospective clients and obtain informed consent, in writing, to permit the representation to proceed. The Opinion advises that lawyers considering an office sharing arrangement should discuss the nature of each other’s practices in order to determine whether conflicts of interest are likely to arise and, therefore, whether the arrangement is a good idea in the first instance.

Finally, Formal Opinion 507 addresses consultations between lawyers sharing office space and conflict of interest implications. The Committee opines that occasional informal consultations do not result in lawyers being “associated in a firm” under Model Rule 1.10(a). However, attorneys should avoid divulging confidential client information and use hypothetical facts to avoid the possibility that the listener will be able to ascertain the identity of the client or the situation involved. The Opinion cautions that consultations between lawyers in office sharing arrangements could trigger unanticipated conflicts of interest that restrict the consulted attorney’s ability to represent a current or future client under Model Rule 1.7(a)(2) if that attorney receives too much information. 

On January 27, 2024 - Josh J.T. Byrne (Philadelphia, PA) was part of a panel which presented on avoiding legal malpractice at the Pennsylvania Bar Association’s Mid-Year Meeting. The panel focused on the benefits and risks of generative AI in the practice of law.

January 26, 2024 - Alesia Sulock (Philadelphia, PA) co-presented “The Business and Ethics Basics of Law Firm Management 2024” for the Pennsylvania Bar Institute CLE.

December 1, 2023 - Josh J.T. Byrne (Philadelphia, PA) joined a Pennsylvania Bar Institute panel to record the webinar “Continuity of Legal Services for Solo and Small Firm Attorneys 2023.”

November 21, 2023 - Michael Turner (Philadelphia, PA) presented “Jury Selection: What You Need to Know!” for the Philadelphia Association of Defense Counsel. Participants learned the voir dos (and don’ts) of the voir dire process.

November 17, 2023 - Alisia Sulock’s and Josh J.T. Byrne’s (Philadelphia, PA) article, “Probable Cause as a Matter of Law in Dragonetti Cases,” was published in the The Legal Intelligencer. You can read their article here.

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