September 2024

LAWYERS' PROFESSIONAL LIABILITY RESULTS*

Josh J.T. Byrne (Philadelphia, PA):

• Josh’s client did not timely respond to the IOLTA Board’s inquiry about an accidental overdraw of the attorney’s IOLTA account because he was out of the office sick and did not receive the correspondence until after a response deadline had passed. Josh achieved a dismissal of a disciplinary complaint against his client.
• Josh received dismissal of a disciplinary complaint made in a matter where the judge’s opinion asserted the client’s filings that sought to remove a guardian were frivolous. The response to the Office of Disciplinary Counsel’s 50-plus paragraph request for a statement of position was more than 23 single-spaced pages and included more than 30 exhibits. Josh received a complete finding for the defense in an arbitration of a Wrongful Use of Civil Proceedings (Dragonetti) claim.

Matthew Flanagan (New York, NY and Long Island, NY):

• Matt successfully defended an attorney from malpractice claims stemming from a missed court appearance which resulted in a default. Matt filed a pre-answer motion to dismiss, arguing the complaint failed to allege the outcome of the underlying proceeding would have been different but for the attorney’s alleged malpractice. He also argued that the damages which the plaintiff sought—including emotion distress and pain and suffering—are not recoverable under New York law in a legal malpractice action.

*Prior Results Do Not Guarantee a Similar Outcome

by Gregory P. Graham, Esq.

Our Lawyers’ Professional Liability Practice Group in Pittsburgh has noticed a growing trend in western Pennsylvania plaintiffs’ practice concerning Wrongful Use of Civil Proceedings tort claims filed by original defendants arising from actions with “split outcomes.” “Split outcome” actions occur when an original plaintiff prevailed on some, but not all, of their claims against an original defendant. The original defendant then sues the original plaintiff and asserts, among other claims, a Wrongful Use of Civil Proceedings count. We have seen a noticeable increase in such filings in 2023 and 2024.

This trend necessitates an important reminder that early dismissal of these counts should be pursued based upon established case law, that the split outcome of the original action can actually result in the dismissal of the wrongful use claim.

The tort of Wrongful Use of Civil Proceedings, commonly referred to as a “Dragonetti Action,” is codified at § 42 Pa.C.S.A. 8351. In order to prove a wrongful use claim, a plaintiff must plead and prove that: (1) the underlying proceedings were terminated in their favor; (2) the defendants caused those proceedings to be instituted or continued without probable cause; and (3) the proceedings were instituted primarily for an improper cause. Sabella v. Milides, 992 A.2d 180, 188 (Pa. Super. 2010).

It is critical to note that multiple courts have found that, when probable cause existed for one claim within an action, probable cause can be considered to have existed for the entirety of the proceeding. Bobrick Corp. v. Santana Prods., Inc., 698 F. Supp. 2d 479, 493-94 (M.D. Pa. 2010), aff’d, 422 Fed. Appx. 84 (3d Cir. 2011); Rosen v. Tabby, 1997 WL 667147 (E.D. Pa. Oct. 9, 1997), aff’d mem., 175 F.3d 1011 (3d Cir. 1999); Laventhol & Horwath v. First Pennsylvania Bank, N.A., 18 Phila. 580, 1988 WL 679860 (Phila. C.P. Phila. Co., Nov. 10, 1988). Put another way, the probable cause/gross negligence prong of a Wrongful Use of Civil Proceedings claim under Pennsylvania law pertains to the entirety of a “proceeding” rather than any individual claims asserted therein.

When facing Wrongful Use claims arising from split outcome actions, Dragonetti-claim defendants should, therefore, seek early dismissal of these counts by arguing the fact that a competent tribunal ruled in favor of the original plaintiff on some of the claims asserted in the original action means that probable cause existed for all such claims. 

• September 10 – Matthew Flanagan (New York, NY and Long Island, NY) was one of the guest speakers at the New York State Bar Association’s statewide “Risk Management for Lawyers” webinar. The issues he addressed included the joint and several liability of attorneys for malpractice under New York law; intra-firm relationships of attorneys; the supervisory obligations of lawyers under the Rules of Professional Conduct; and file retention requirements for attorneys under New York law. 
• August 21 – Yaël Dadoun (Harrisburg, PA) presented “Professional Liability Issues Attorneys, How to Avoid Malpractice and Disciplinary Board Issues,” to the Dauphin County Bar Association on behalf of the Pennsylvania Bar Association. 
• August 20 – Josh J.T. Byrne (Philadelphia, PA) was a panelist on the presentation of a CLE sponsored by the Family Law Section of the Philadelphia Bar Association on legal malpractice and ethics issues facing family law practitioners.
• August 5 – Josh J.T. Byrne (Philadelphia, PA) was a panelist for the Philadelphia Bar Association’s live webcast “Suicide Prevention and the 302 Process: Training for Family Law Practitioners.” Hosted by the Family Law Section, this program was designed to equip family law practitioners with essential knowledge and tools to navigate the delicate intersection of mental health crises and domestic relations legal proceedings. Panelists concentrated on Suicide Prevention and the 302 Process, addressing mental health intervention and legal considerations in the family law context. This program also examined how to handle ethical considerations, such as confidentiality, when a client may be at risk for self-harm. 
• July 24 – Josh J.T. Byrne (Philadelphia, PA) presented “Disciplinary and Reinstatement Cases You Should Know” at the Disciplinary Board of the Supreme Court of Pennsylvania’s training for new hearing committee members. The presentation focused on the disciplinary process from the perspective of respondent’s counsel. 
• July 22 – As Co-Chair of the Pennsylvania Bar Association’s Amicus Curie Brief Committee, Josh J.T. Byrne (Philadelphia, PA) was the primary author of an amicus brief submitted in the matter of Commonwealth v. Stevenson, which urged the Supreme Court of Pennsylvania to reject the “Ohler doctrine.” The Ohler doctrine holds that a defendant who is unsuccessful in persuading a trial court to exclude evidence of a prior conviction in the context of a motion in limine and then preemptively introduces that evidence cannot claim on appeal that the trial court’s admissibility ruling was in error. The Pennsylvania Bar Association, along with several other amici, urged the Supreme Court of Pennsylvania to reject the Ohler doctrine. By unanimous decision, the Supreme Court agreed and reversed the Superior Court decision and remanded the matter with appropriate instructions. As the Bar Association’s brief noted, this ruling has significant implications for all litigators, including those in civil practice. 
• July 18 – InsuranceLawGlobal.com published Alesia Sulock’s (Philadelphia, PA) article “The Assessment of Professional Liability Claims in the U.S.” You can read Alesia’s article here. 
• July 15 – The Legal Intelligencer published “‘But I Could Have Gotten More!’—Damages Speculation in Legal Malpractice Cases” by Alesia Sulock and Josh J.T. Byrne (both of Philadelphia, PA). You can read their article here. 
• July 11 – Gregory Graham (Pittsburgh, PA) presented a CLE on the topic “AI’s Role in Changing the Defense Litigation Landscape of the Future” on behalf of the Pennsylvania Defense Institute (PDI). Greg serves as statewide Co-Chair of PDI’s Professional Liability Committee.