July 2024

LAWYERS' PROFESSIONAL LIABILITY RESULTS*

Samuel Cohen (Philadelphia, PA) and Jeremy Zacharias (Mount Laurel, NJ) obtained an Appellate Division decision affirming the trial court’s order dismissing a fraud and fraudulent concealment case filed against their clients, various attorneys and broker dealers. In its decision, the Appellate Division agreed with the trial court’s orders and opinions dismissing the case based on entire controversy, collateral estoppel and litigation privilege grounds. In this comprehensive decision, the Appellate Division held that the plaintiff’s claims were mirrored claims that had been fully litigated in a prior proceeding, where Sam’s and Jeremy’s clients either represented the litigants in the first case or were directly involved in the first case as defendants.

Alesia Sulock (Philadelphia, PA) successfully defended an attorney in a disciplinary matter arising from the attorney’s alleged failure to properly maintain client funds and records of the attorney’s IOLTA account. By emphasizing the client’s long history of practice without disciplinary history, mitigating factors and remedial measures, Alesia was able to secure dismissal of the disciplinary complaint on behalf of her client.

Jack Slimm and Jeremy Zacharias (both of Mount Laurel, NJ) successfully defended an appeal from a trial court’s order that granted our motion to dismiss a contribution claim filed by predecessor counsel against successor counsel. We represented successor counsel who tried to fix the error of the predecessor attorney in drafting and documenting a complex real estate transaction. This case reinforces the New Jersey Rule that successor counsel owes no duty to predecessor counsel.

Jack Slimm (Mount Laurel, NJ) obtained a dismissal of a complex legal malpractice action on the eve of trial. The case arose out of an underlying New Jersey Department of Environmental Protection claim for remediation of contamination of a commercial site owned by the plaintiff. The plaintiff’s remediation and clean-up costs were estimated in the hundreds of thousands of dollars. Jack then successfully defeated the plaintiff’s motion for re-hearing.

Josh J.T. Byrne (Philadelphia, PA) obtained dismissal on preliminary objections of a legal malpractice claim. The claim arose out of allegations that the attorney improperly created a will for plaintiff’s 90-year-old mother, who allegedly had dementia. The will did not include any legacy for the plaintiff. Josh successfully argued that the plaintiff did not have standing to maintain the action and that the plaintiff was collaterally estopped by prior decisions of the Orphan’s Court on the same issues.

*Prior Results Do Not Guarantee a Similar Outcome

by Whitley V. Smith

In one of the biggest falls from grace in our profession’s recent memory, Rudy Giuliani, former Mayor of New York City (America’s Mayor) and U.S. Attorney for the Southern District of New York, has been disbarred in New York. The Attorney Grievance Committee for the First Judicial Department filed a motion to confirm the Referee’s report and recommendation to disbar Giuliani after findings of misconduct on 16 charges. The Referee’s report found that Giuliani violated rules 4.1, 8.4(b), 8.4(c), 8.4(d) and 8.4(h) of the New York Rules of Professional Conduct. The Supreme Court of the State of New York Appellate Division, First Department, granted the Committee’s motion to confirm the report and recommendation in an opinion and order dated July 2, 2024.

Prior to his involvement with the Trump campaign and subsequent presidency, Giuliani was a well-respected attorney and public servant known in both New York and nationwide. It seems unfathomable that someone like Giuliani could allow himself to behave in such a way as to result in disbarment and a soiled legacy. Giuliani’s downfall began when Trump lost the 2020 presidential election. In his capacity as Trump’s personal attorney, Giuliani made false and misleading statements to the public, judicial officials, and legislators regarding the “stolen election” and voter fraud. As a result, he was suspended from the practice of law in June 2021 based on the above actions (Matter of Giuliani, 197 A.D.3d 1 [1^st Dept 2021]).

In his opposition to the motion to confirm the report and recommendation by the Attorney Grievance Committee, Giuliani asserted a lack of knowledge/good faith basis defense. He took the position that he did not possess the knowledge that his statements were false and that his statements were made with a reasonable basis to believe they were true. The Referee and the court rejected this defense. He also argued that his First Amendment right to free speech and his due process rights were violated. These defenses were also rejected. The opinion and order states:

[T]he Referee’s disbarment recommendation is amply supported cannot be overstated. Respondent flagrantly misused his prominent position as the personal attorney for former President Trump and his campaign, through which respondent repeatedly and intentionally made false statements, some of which were perjurious, to the federal court, state lawmakers, the public, the AGC, and this Court concerning the 2020 Presidential election, in which he baselessly attacked and undermined the integrity of this country’s electoral process. In so doing, respondent not only deliberately violated some of the most fundamental tenets of the legal profession, but he also actively contributed to the national strife that has followed the 2020 Presidential election, for which he is entirely unrepentant.

Giuliani’s lack of candor and remorse, and his brazen abuse of power, was his undoing. This should be a lesson for all attorneys in all stages of their careers. Your professional judgment or lack thereof will make or break your career. More importantly, whatever you do, do not lie to the court. Acknowledge your duties as counsel and be contrite. Giuliani’s arguments may have carried more weight had he presented himself as contrite, instead of defiant. 

June 25—Alesia Sulock (Philadelphia, PA) presented, with the Pennsylvania Bar Association’s Professional Liability Committee, “Avoiding Legal Malpractice” to the Monroe County Bar Association.

June 14—Jack Slimm (Mount Laurel, NJ) joined an all-star panel to present the New Jersey State Bar Association’s CLE program, “Legal Malpractice Update.” The seminar touched on ethical issues in legal malpractice, including claims and proofs involving the New Jersey Lawyers Fund for Client Protection, problems arising from accepting electronic payments, fee splitting and referral fees, emotional distress damages, the impact of artificial intelligence on legal malpractice, and appellate malpractice.

June 4—Jack Slimm (Mount Laurel, NJ), Alesia Sulock (Philadelphia, PA) and Jeremy Zacharias (Mount Laurel, NJ) presented a webinar to firm clients titled “The Defense of Appellate Counsel in Legal Malpractice Actions.” The webinar discussed recent and emerging case law in New Jersey, New York and Pennsylvania, as well as effective strategies for defending appellate counsel when facing legal malpractice lawsuits.

May 29—Alesia Sulock (Philadelphia, PA) joined an international panel of attorneys and members of Insurance Law Global to present the webinar “The Assessment of Damages in Professional Liability Claims.” This panel of experts compared and contrasted how damages are calculated in Argentina, Australia, Italy, Spain, the UK and the USA.

May 22—Josh J.T. Byrne and Alesia Sulock (Philadelphia, PA) presented a CLE for Attorney Protective on the Ethical Use of Social Media in the Practice of Law. The presentation attracted over 1,300 attendees.

May 20—Josh J.T. Byrne (Philadelphia, PA) gave a CLE on communicating with unrepresented parties to the Lawyers’ Club of Philadelphia. This was a panel with Judge Idee Fox, Judge Thomas Street and Robert Tintner of Fox Rothschild.

May 15—The Legal Intelligencer published “Your Well-Being Matters: Attorney Mental Health and Professional Competence” by Alesia Sulock and Josh J.T. Byrne (both of Philadelphia, PA). You can read their article here.