Professional Liability Matters, Author at Professional Liability Matters

January 13, 2020 Legal Malpractice

Attorney or Scrivener? LPL Claim Dismissed Due to Non-Representation Clause

A recent decision rendered by the New York Appellate Division, First Department, on October 17, 2019, held that the lower court properly dismissed a legal malpractice complaint on the ground that documentary evidence established there was no attorney-client relationship. In Seaman v Schulte Roth & Zabel LLP, 176 A.D.3d 538 (1st Dep’t 2019), the dispute centered on the enforceability of a “non-representation clause” disclaiming the existence of an attorney-client relationship and reaffirmed the importance of providing such clauses where an attorney seeks to limit …

July 29, 2019 Settlement

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 …

April 22, 2019 Long Term Care

NY Nursing Home Litigation: Double Recovery?

An alarming trend has emerged among the plaintiff’s bar in Long-Term Care litigation. Plaintiffs are alleging a right to recovery for death, or other injuries, under both the negligence/wrongful death standards (i.e. pain and suffering and pecuniary loss), and the Public Health Law (§2801-d). Historically, when there is a death resulting from negligence, the recovery is limited to pecuniary loss, but, now the plaintiff’s bar is arguing that when an elderly person who was a resident of a nursing home dies, as a result of …

April 15, 2019 Defenses

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 …

March 19, 2019 General

South Carolina High Court Allows Malpractice Claim by Insurer Against its Assigned Defense Counsel

Early March, in a narrow, carefully worded opinion, a divided Supreme Court of South Carolina ruled that a liability insurer may sue an attorney it retained to defend its insured where the attorney’s breach of its duty to the insured proximately causes the insurer damage. The decision adds South Carolina to the growing list of states that recognize a malpractice cause of action by an insurer against its assigned defense counsel. See Sentry Insurance Co. v. Maybank Law Firm, LLC, — S.E.2d —, 2019 WL 1119977, at …

March 11, 2019 Engagement Letters / Risk Management

Limiting Malpractice through Scope of Engagement

A recent NY Appellate Division decision serves as another reminder of the importance of carefully defining the scope of engagement in an engagement letter. This is because, under New York law, an attorney may not be held liable for failing to act outside the scope of their retainer.

In Attallah v. Milbank, Tweed, Hadley & McCloy, LLP, 168 A.D.3d 1026 (App. Div. 2d Dep’t 2019) a client brought an action against a law firm alleging legal malpractice in a case where the client had …

March 4, 2019 Ethics / Risk Management

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 …

February 4, 2019 Law Practice Management / Risk Management / Technology

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.…

December 27, 2018 General

Professional Liability Matters Named Best Niche and Specialty Blog of 2018!

We are pleased to announce that the Professional Liability Matters blog has been named among the best niche and specialty blog in the country earning 3rd place overall in The Expert Institute’s Best Legal Blog Contest for 2018!

The Expert Institute — a leading legal service provider for identifying, verifying, and retaining expert witnesses — holds this annual contest to vet and recognize the best legal blogs out of the thousands that are on the web. In the 2018 Best Legal Blogs Contest — what …

December 17, 2018 Agents and Brokers

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 …