New Life to Settle-and-Sue Malpractice in New Jersey?

The settle-and-sue legal malpractice claim has been traditionally disfavored by courts across the country. Courts often cite to practical and legal concerns with the theory, to say nothing of the bind it puts on an attorney looking to resolve a case. In a recent decision from the New Jersey Appellate Division, settle-and-sue may not have been at issue, but that in itself causes some concern in a case remanded for trial to determine the difference between a verdict and what the plaintiff settled for prior …

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Third Circuit Reaffirms Heightened Securities Fraud Standard

One of the most difficult aspects of defending investor misrepresentation claims is that they naturally occur after a financial calamity. In retrospect, there is almost always an argument that a statement here, or omission there, was “misleading” in light of the company’s ultimate fate. It is for this very reason that common law imposes a heightened standard for investors attempting to bring such a claim for what is essentially statutory fraud. In a recent decision from the Third Circuit, the Court reiterated this heightened pleading …

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Are Litigation Funders Exposed?

Third-party litigation funders regularly argue before ethics committees, state bar associations and the media that this burgeoning field is a positive development in the practice of law. Primarily, some assert that their funding allows individuals and companies shut out of the court room by excessive litigation costs to “have their day in court” when they would otherwise have to bow out against the Goliath to their proverbial David. Of course, providing the necessary financial backing for a lawsuit is not done out of the goodness …

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The Importance of Quality IT in Litigation

One of the most important aspects of working with corporate clients is understanding the businesses. From general business functions to the overarching models, this knowledge can be extremely valuable in both transactional and litigation work. However, client technology is becoming more industry specific, often making it infeasible for attorneys to learn. It is in these cases that a quality IT team working on behalf of the firm is not only the most efficient way to service a client, but also may be a litigation requirement.…

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Insurance Agent Liability Limited in Illinois

The Illinois Supreme Court recently issued an opinion which impacts the timing of suits against insurance agents. In American Family Mutual Insurance Co. v. Krop, the policyholders were denied coverage in a lawsuit brought against their son for cyber-bullying. They responded with an action against their insurance agent, alleging that he failed to procure coverage for certain intentional acts despite their request to do so. Although the policyholders sought to impose a heightened fiduciary duty standard, the Court instead viewed the claim as one …

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NYC Issues Key Opinion on Litigation Financing

Litigation funding has grown exponentially in the past few years. However, the NYC Bar recently issued an opinion drawing a line in the sand when it comes to third parties entering into agreements with attorneys. After issuing its opinion, some of the largest financiers of complex litigation responded with sharp criticism of both the substance of the opinion and its effect of stalling progress in this area. However, the opinion also provides an opening that could lead to the eventual change in ethical rules that …

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Attorney Fee Waived for Failure to Advise of Billing Alternatives

The contingency based fee agreement is a common form of representation. There are clear benefits to this arrangement for both attorney and client. Of course there are also risks. In a recent decision in New Jersey, the court concluded that attorneys must properly advise clients about the various billing options before proceeding with an engagement. In this case, despite a written fee agreement, the court struck over $280,000 in legal fees and costs.

In Balducci v. Cige, an attorney handling a discrimination claim entered …

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Data Breach and Insider Trading

Attorneys practicing in mergers and acquisitions are familiar with the sensitive nature of their work and the potential for abuse of the information obtained. In addition to being restrained from trading on that information themselves, they must take extensive precautions to ensure that they do not allow that information to slip to friends, family members, or colleagues. Unfortunately, one cannot assume that others won’t use that information to make trades that could ensnare both the attorney and firm in extensive criminal and civil litigation, regardless …

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Lawyers on a Short Leash: Bar Admission Restrictions

Unlike most licensed professions, the practice of law can significantly restrict an attorney’s geographic mobility. If an attorney wishes to move to another state, it typically requires at least one year of planning before the move is possible. This may include studying for and successfully taking the new state’s bar examination, re-taking the Multistate Professional Responsibility Exam, and going through another character and fitness review. However, the Uniform Bar Examination is now used in the majority of states and there appears to be significant momentum …

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Technological Advancements Complicate Confidentiality

The increase in connectivity has greatly improved an attorney’s ability to represent her clients. From searching a party on social media, to quickly parsing through online materials, saves hours and hours of time. Furthermore, attorneys can leverage professional organization memberships to seek input from thousands of other practitioners on legal questions or strategic decisions. Thus, an attorney can investigate deeper than ever before and easily liaise with other practitioners. But, this cuts both ways. Attorneys must be aware that technological advances also mean that her …

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