November 2024

LAWYERS' PROFESSIONAL LIABILITY RESULTS*

Carly Edman (Pittsburgh, PA):

• Obtained a dismissal with prejudice of all claims in a Dragonetti action in federal court in the Western District of Pennsylvania. Our clients, a family law attorney and her law firm, were sued after they filed a series of emergency motions on behalf of a mother embroiled in a contentious divorce. The emergency motions concerned the welfare of children and contained sensitive allegations relating to purported abuse. Following the disposition of these motions, the husband and his current partner sued our clients for wrongful use of civil proceedings, abuse of process and defamation. In a motion to dismiss, Carly successfully argued that all claims should be dismissed. Notably, the court’s opinion quoted Carly’s brief in support directly for its analysis of the controlling cases. The court dismissed all claims against our clients with prejudice.

John ‘Jack’ Slimm (Mount Laurel, NJ):

• In a case with $10 million in damages on the line, Jack was successful in having a complex legal malpractice action dismissed. The plaintiffs, a group of entities created for the estate planning of a married couple (now deceased), appealed the trial court’s decision to deny their request to extend the time for gathering evidence (discovery) and to dismiss their claims against several defendants, including lawyers and law firms. The plaintiffs accused these defendants of negligence, breach of trust, misuse of funds, and legal malpractice related to a previous settlement and the handling of family business matters. The court found that the plaintiffs did not provide the necessary evidence or expert testimony to support their legal malpractice claims. On appeal, the plaintiffs argued that the court used the wrong standard when denying their request to extend discovery and claimed they had valid reasons for needing more time and that the court unfairly dismissed their claims. However, the appeals court reviewed the trial court’s actions and found no mistake in how the court handled the case. In agreement with Jack, the appeals court affirmed the trial court’s ruling, emphasizing that the plaintiffs’ inability to meet court requirements and present strong claims warranted the dismissal of their case.
• The New Jersey Appellate Division’s decision came after a decade of litigation in various courts stemming from a judgment in a financial services division of a multinational conglomerate obtained against the plaintiff and his partners in which litigation ensued over debt collection. The plaintiffs alleged, as a result of the statements and arguments made by the defendant attorneys in the underlying litigation regarding the debt, the attorneys committed fraud and misrepresentation that led to the plaintiffs’ damages, which they claimed were well in excess of $10 million. Jack argued that the assignment agreement actually reduced the amount owed to the corporation and asked the court to dismiss the case, arguing that his client was protected by legal privilege, the statute of limitations had passed, and it had no legal duty to the plaintiff. The trial court agreed to dismiss the case, finding that the plaintiff’s claims were not supported by evidence. On appeal, the court once again agreed with Jack and upheld the decision, rejecting the plaintiff’s arguments. The Appellate Division found that our clients owed no duty to the plaintiff-debtors as non-clients since the attorneys’ alleged misrepresentations were made during adversarial litigation and, thus, were not intended to induce reasonable reliance by a specific non-client. In addition, the Appellate Division rejected the plaintiffs’ reliance on the Rules of Professional Conduct (RPC) to sustain their cause of action since in New Jersey a violation of the RPC, standing alone, does not create a cause of action for damages. Further, the court rejected the plaintiffs’ request to permit malpractice claims by non-clients in the presence of fraud, collusion, or malicious acts. This decision is extremely important to the trial bar and provides attorneys with a level of protection/immunity in connection with statements and arguments they make as adversaries in litigation.

Aaron Moore (Philadelphia, PA and Wilmington, DE)

• Obtained dismissal of wrongful use of civil proceedings claims brought against our clients, two attorneys who were alleged to have wrongfully prosecuted a professional negligence claim against the plaintiff, a real estate agent. The plaintiff would not accept any settlement that was less than the policy limits. After five years of litigation, the court granted our summary judgment motion, concluding the plaintiff failed to adduce facts reflecting that the attorneys prosecuted the underlying action in a grossly negligent manner or without probable cause. The court also held the plaintiff was unable to demonstrate that the underlying lawsuit was prosecuted for an improper purpose.
• Obtained a dismissal of claims brought derivatively and directly by a corporation, including aiding and abetting, breach of fiduciary duty and tortious interference with contract, against our client, an out-of-state attorney who previously represented the corporation and its former director. The court granted our motion to dismiss, concluding the plaintiffs failed to sufficiently allege facts that would confer personal jurisdiction over the attorney under a conspiracy theory.

Matthew Flanagan and Jamie Sanderson (New York, NY)

• Secured a decision granting our motion to dismiss in full in Orange County on an attorney malpractice matter. The plaintiff and daughter of co-defendants sued her parents and our client for breach of contract, breach of fiduciary duty denominated as promissory estoppel, and constructive trust. She sought damages of $800,000. The co-defendants allegedly purchased a property for the plaintiff to live and work in and had agreed to deed the property to the plaintiff once she paid the mortgage in full. Our client created a family trust for the family, naming the plaintiff as trustee, in which the property would be transferred to the plaintiff following the death of both parents. However, following a family dispute, the co-defendants replaced the plaintiff as trustee with our client. Upon the request of the co-defendants and in accordance with the terms of the trust, our client transferred the house to another beneficiary. We filed a motion to dismiss on all counts which the court granted in full.

Dante Rohr (Orlando, FL)

• Won a motion to dismiss in a case arising from our client’s representation of a plaintiff in a criminal matter. The plaintiff claimed that, due to his attorney's negligence in failing to notify him of his pretrial hearing, he was incarcerated for 437 days based on his failure to appear at the hearing, resulting in the revocation of his bond. The court granted Dante's motion to dismiss because the plaintiff could not establish a necessary element of his claim—actual innocence. Although the court released the plaintiff based on a showing that counsel failed to notify him of the hearing, thereby exonerating him from the failure to appear, the plaintiff could not meet the actual innocence element. Therefore, the State entered a nolle prosequi and dropped the case.

Carol VanderWoude (Philadelphia, PA)

• Successfully defended on appeal the trial court’s grant of compulsory nonsuit in a legal malpractice action following the trial court’s rulings on various motions in limine. The trial court granted our clients’ motions in limine to preclude the plaintiff from introducing into evidence that its attorney sued the wrong parties, that its attorney obtained an uncollectable judgment, and that the plaintiff would have prevailed in a lawsuit against other parties. Following the motion in limine rulings, trial counsel moved for nonsuit—arguing the plaintiff could not carry its burden of proof without the precluded evidence. On appeal, the plaintiff argued the trial court’s evidentiary rulings violated the law of the case set forth in the Superior Court’s decision reversing the trial court’s order sustaining our clients’ preliminary objections and dismissing the amended complaint, and that the trial court erred in granting the motions in limine. The Superior Court rejected both arguments and affirmed the trial court’s denial of the plaintiff’s motion to remove compulsory nonsuit. The Superior Court held that the trial court did not abuse its discretion in granting the motions and that it properly concluded the plaintiff failed to present evidence to meet its burden of proof.

*Prior Results Do Not Guarantee a Similar Outcome

by Alesia S. Sulock, Esq.

Effective November 8, 2024, Rule 1.8(j) of the Pennsylvania Rules of Professional Conduct is amended to include “communications of a sexual nature” within the definition of prohibited sexual relations between lawyers and their clients. Comment [17] to the Rule elaborates:

For purposes of this Rule, ‘communications of a sexual nature’ means requesting or transmitting any content, images, audio, video or messages that contain sexually explicit material or that are intended to arouse or gratify the sexual desire of the sender or recipient. Communications that contain sexually explicit content but are related to the client’s legal matter and are made in furtherance of the representation are not ‘communications of a sexual nature’ for the purposes of this Rule.



This change follows an increase in disciplinary investigations over “sex with clients,” where the matters involve sexual communications, such as “sexting,” rather than actual physical relationships. The intent of Rule 1.8(j) is, of course, to require professionalism in the relationship between lawyers and their clients, and the engagement in sexual communications as an alternative to prohibited physical conduct undermines this intent. Thus, in August 2023, an amendment to Rule 1.8(j) was proposed that would add a statement in the comments to the Rule that sexual communications are sexual relations. The proposed amendment did not include any changes to the text of the Rule, but it also did not provide any context or explanation as to what constitutes sexual communications. The final change provides attorneys with additional guidance as to what, exactly, is prohibited and also allows for protection against disciplinary repercussions for conduct that is not invited by the lawyer. 

In sum, attorneys may not request from or transmit to their clients sexually explicit communications. Attorneys may not engage in inappropriate relationships with their clients by way of electronic communications only, even where there is no physical contact. On the other hand, attorneys should not be subject to discipline for unsolicited sexual communications sent by their clients where the attorney does not engage. Finally, of course, where sexually explicit content is related to a client’s legal matter and transmitted for purposes of the representation, there is no violation of Rule 1.8(j).  

• October 29 – "Attorney Well-Being Doesn’t Have to Be Spooky: Steps Attorneys Can Take to Support Mental, Emotional and Physical Health," by Dana Gittleman and Alesia Sulock (both of Philadelphia) was published by PLUS Blog. You can read their article here.
• October 10 – Gregory Graham’s (Pittsburgh, PA) article “Don’t Reinvent the Wheel: Approaching Gen AI Usage in Litigation” was published in the October 10, 2024, issue of The Legal Intelligencer. You can read his article here.
• September 26 – Dana Gittleman and Alesia Sulock (both of Philadelphia, PA) participated in the panel discussion “Attorney Well-Being as a Matter of Professional Competence” at the PLDF Annual Meeting.
• September 20 – Josh J.T. Byrne (Philadelphia, PA) participated in a panel discussion, "Emergency Planning for Attorneys," at the annual Philadelphia Bar Association Bench-Bar Conference.
• September 19 – Stuart Sostmann and Gregory Graham (both of Pittsburgh, PA) made a client presentation on the excitement and potential pitfalls of the use of “AI in the Legal Profession.”
• September 18 – Alesia Sulock’s and Josh J.T. Byrne’s (both of Philadelphia, PA) article “Socially Responsible Lawyers: Why You Need to Understand Social Media to Competently Represent Your Clients (Part 1)” was published on September 18 in The Legal Intelligencer. You can read their article here.