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Professional Liability Litigation


In-depth looks into topics relevant to you. Find all of the Professional Liability Litigation Committee’s articles in this archive.

50-State Survey of Accounting and Auditing Liability Issues

Latest Updates:

By Stanley Parzen & Sara Norval
Mayer Brown LLP

By Matthew W. Breetz & Paige E. Ezell,
Stites and Harbison, PLLC

This survey of accountants’ liability law in Arkansas is the most recent in our ongoing collection of state-by-state articles for each of the 50 states on accounting and auditing liability issues. Each article addresses the elements, defenses, and key issues common to claims against accountants. The 50-state survey is available only to members of the ABA Litigation Section. For other state surveys, please go to our webpage dedicated to our 50-State Survey.


Privilege, Work Product, and Kovel: An Update from Recent Case Law
By Robert Hoff and Chloe Booth – June 11, 2023
All of the attorney-client privilege and work-product doctrine rules and exceptions can be dizzying, and they are land mines for the unwary.


Public Company Accounting Is Serious Business
By Edward A. Marod – December 2, 2022
Orders prohibiting a practitioner from being employed by a registered firm can destroy a career. Two recent orders of the PCAOB illustrate these risks.

Beware of the Risk of Waiver
By Alanna Clair – November 14, 2022
Lawyers and clients alike can take steps to reduce the likelihood that their privileged communications will be subject to waiver.

Ethics Implications of Dobbs for Law Firm Management and Client Counseling
By Richard M. Hunt – August 2, 2022
The Supreme Court’s decision raises important issues of professional responsibility for attorneys and firms whose conduct is perfectly legal in some states and arguably criminal in others.

A Look at the SEC’s Last Decade of Cybersecurity Enforcement Efforts, Part II: Focus on Registered Entities
By Kit Addleman, Tim Newman, and Carrington Giammittorio – February 15, 2022
Enforcement actions have focused on the Safeguards Rule of Regulation S-P.

Auditor Oversight and Enforcement Actions Prioritized for 2022
By Tiffany Rowe, Gelsey Beaubrun, and Dale Kim – February 9, 2022
To address public trust issues, the SEC and the PCAOB are focusing on auditor oversight and enforcement actions.


Ethical Issues and E-Discovery: Practice Pointers for Young Lawyers
By Julia Beskin – August 26, 2021
Tips for balancing ethical responsibilities with client responsibilities in the often-gray areas of e-discovery.

Six Ethical Rules Every Young Lawyer Must Know
By Michael S. LeBoff – August 26, 2021
Keeping these six rules in mind will start you down the right path toward a long and rewarding career.  

Examining the C-Suite: Preparing for and Defending Apex Depositions
By Christina M. Zabat-Fran and Michael S. LeBoff – February 11, 2021
Depositions of your client's president or CEO can make or break your case.

ABA Formal Opinion 492: Confidentiality, Conflicts, and "Significantly Harmful" Information
By Tiffany Rowe – February 11, 2021
The ABA clarifies the obligations resulting from a consultation with a prospective client from those owed to a current or former client.


A Red Line at Last: ABA Formal Opinion 489 (2019)
By Ronald C. Minkoff – January 29, 2020
Law firms must now take care to enable that process to happen smoothly, without overreaching or coercion—or risk the consequences.


Managing the PCAOB Formal Investigation Process
By Robert H. Cox – November 1, 2019
A PCAOB investigation can be time-consuming and expensive, taking years through the investigation, litigation, and appeals process.

Massachusetts High Court Abolishes In Pari Delicto
By Lisa C. Wood and Matthew C. Baltay – November 1, 2019
Massachusetts accountants now on the hook for their clients' fraud.

When a Client Breakup Goes Bad
By Robert H. Cox – November 1, 2019
Three lessons from a recent Virginia Board of Accountancy disciplinary ruling serve as a cautionary tale.

The Business Judgment Rule: A Shield and Sword
By Iván Resendiz Gutierrez– July 22, 2019
Key tips to know about the business judgment rule when litigating shareholder derivative actions.


What Law Firms Can Do to Promote Mental Health for Their Lawyers
By Anne Marie Seibel – June 13, 2018
Tending to the mental-health needs of lawyers is an important professional responsibility.

What to Expect from the New PCAOB Directors
By Jonathan Walsh and Benjamin Woodruff – April 9, 2018
The background of the new directors, the new rules they will implement, and the challenges they will have to overcome.

How to Respond to a PCAOB Informal Request
By Robert H. Cox – April 9, 2018
An overview of the PCAOB’s informal-inquiry process, also known as an Accounting Board Request, which is typically the first step in the PCAOB’s enforcement process.

Tax Preparer Confidentiality: How Far Does the Obligation Extend?
By Justin A. McCarty – April 9, 2018
Section 7216 provides a strong defense for tax preparers, but that defense may not be a complete defense.

Online Legal Referral Services: What’s Allowed and What’s Not
By Ronald C. Minkoff – April 9, 2018
Ethics opinions have clarified best practices for OLRSs.


The Old-Timer’s Approach to Litigation: First, Draft Jury Instructions
By Edward A. Marod – July 12, 2017
Your litigation strategy may be enhanced by drafting a set of jury instructions at the outset of your new case.

Discovery of Privileged Communications in a Different Forum
By Amelia Toy Rudolph – July 12, 2017
What happens when a different forum is called upon to evaluate the privilege issue and the two jurisdictions do not agree on the availability of the privilege?

Georgia Legislature Stands Behind Business Judgment Rule
By W. Scott Sorrels, Yvonne Williams-Wass, and Rebekah Runyon – July 12, 2017
Although Georgia’s Supreme Court began to move in the opposite direction, the state’s legislature has passed a bill to return the state to the traditional business judgment rule.

Are Changes Coming Soon to Rule 11 Sanctions?
By Tyler D. Trew – July 12, 2017
Rule 11 amendments would mandate sanctions, including attorney fees and costs, for frivolous lawsuits.


The Judicial Error Defense in Legal Malpractice Cases
By Ellen E. Oberwetter and Amy Mason Saharia – December 13, 2016
A recent Texas Supreme Court decision provides additional ammunition in support of the judicial error defense in legal malpractice cases.

Disengagement Letter Essential to Dismissal of Legal Malpractice Case
By Carey L. Menasco and Tyler D. Trew – December 13, 2016
Disengagement letters should be part of an attorney’s standard operating procedure.

Understanding the Challenges Posed by Pro Se Litigants
By Saleel V. Sabnis – December 13, 2016
Some lawyers may underestimate and even outright ridicule pro se parties, stemming from a misplaced belief that the litigation will have a shorter shelf life.

Free Ride Ending for Disclosure-Only Settlements in Delaware
By Dylan C. Black and T. Brooks Proctor – December 13, 2016
With the Delaware Chancery Court’s recent opinion in In re Trulia, Delaware courts continue to express skepticism and even hostility toward disclosure-only settlements that provide little benefit to shareholders.

Arbitration of Attorney Malpractice Claims
By Joshua E. Liebman and Alexander L. Berg – June 8, 2016
An overview of some of the positive and negative aspects.

Attorney Ethics in the Age of Social Media
By Saleel V. Sabnis – June 8, 2016
The ABA's decision not to expressly address social media has left attorneys little national guidance.

Enforcement of Arbitration Clauses Against Non-Signatories
By Edward A. Marod and Darlene Barron – June 8, 2016
The federal courts have recognized at least six bases for enforcing an arbitration agreement against a non-signatory.

Tips for Representing Clients Before a State Licensing Board or Regulatory Agency
By Phillip A. Cole – June 8, 2016
Representing professionals in disciplinary matters is an administrative law practice.

Update on Cybersecurity Issues
By Tracey K. Ledbetter – June 8, 2016
Recent cases highlight the dangers of ignoring cybersecurity in the boardroom.


Handling Harmful or Deficient Rule 30(b)(6) Deposition Testimony
By George Denegre and Carey L. Menasco – May 29, 2015
To what extent is it binding, and what can you do about it?

Omnicare Addresses Liability for Expressions of Opinion under Section 11
By Patricia A. Gorham and Samuel J. Casey – May 29, 2015
The decision creates an ambiguous and potentially shifting landscape.

P.F. Chang's Cyber Breach Raises CGL Coverage Concerns
By Michael Luongo – May 29, 2015
The Travelers lawsuit makes clear that consumer general liability policies alone may not provide coverage for cyber incidents.


Taking Preventive Care to Avoid Legal-Malpractice Suits
By Saleel V. Sabnis – November 11, 2014
Recognize malpractice risk and implement prevention procedures.

An Introduction to Auditor Independence Rules
By Amelia Toy Rudolph – November 11, 2014
A basic orientation to the sources and framework of the rules.

Illinois Appeals Court Reinterprets Aspects of Accountant-Client Privilege
By Dana S. Douglas and Thomas P. Evans – November 11, 2014
The court rejected a line of federal cases that generally have been considered authoritative on the matter.

Seven Lessons for Litigating Your First Case Through Trial
By By Michael Luongo – November 11, 2014
Universal lessons to help you to manage your case and obtain a favorable verdict.

Protecting Against Cyber-Attacks
By Matthew J. Hafey and Allen G. Haroutounian – March 27, 2014
How a law firm can defend itself from liability for cyber-security breaches.

Home Is Where the Office Is: Ethical Implications of the Virtual Office
By Seth L. Laver and Jessica L. Wuebker – March 27, 2014
While technology changes, the rules of ethics remain firm.

Practical Implications of the Dodd-Frank Whistleblower Program
By Dana S. Douglas and Kathleen M. Przywara – March 27, 2014
What the SEC's new approach to enforcement means for accounting and auditing firms.

Chinese Accounting-Firm Units Suspended from Auditing U.S.-Listed Companies
By Sarah Scott Peters – March 27, 2014
A recent SEC ruling is likely to affect ongoing and future cooperation efforts between U.S. and Chinese securities regulators.

Practice Tips: The "Settle and Sue" Legal-Malpractice Case
By Saleel V. Sabnis – March 27, 2014
When clients are feeling classic buyer's remorse.


Users of LinkedIn, Beware!
By Karen Painter Randall and Steven A. Kroll – October 30, 2013
Attorneys need to understand the state ethics rules governing lawyer social media before implementing a LinkedIn page.

Miranda v. Said: No Need to Get "Emotional"
By Saleel V. Sabnis – October 30, 2013
The recent Iowa Supreme Court ruling permitting emotional-distress damages in a legal-malpractice case is closer to the exception and not the new rule.

PCAOB Proposes New Auditing Standards to Expand Reporting Obligations
By Joshua D. Maggard – October 30, 2013
The board proposed new standards that, if adopted, would expand the nature and scope of disclosures in the auditor?s report on financial statements.

PCAOB Proposes New Auditing Standards to Expand Reporting Obligations
By Amelia Toy Rudolph – October 30, 2013
The board proposed new standards that, if adopted, would expand the nature and scope of disclosures in the auditor's report on financial statements.

PCAOB and SEC Alter Audit Landscape for Broker-Dealers
By Gabriel A. Mendel, Sarah S. Peters, Gregory S. Amoroso, and Mac Knox – October 30, 2013
The lingering consequences of Sarbanes-Oxley, Dodd-Frank, and the Bernie Madoff scandal continue to reverberate in both the accounting profession and the broker-dealer industry.

SEC Discusses New Task Force and Changes to Settlement Policy
By Elissa Preheim and Bret Finkelstein – October 30, 2013
The SEC's new Financial Reporting and Audit Task Force will use analytical tools to identify and incubate cases in six focus areas, resulting in more fraud investigations.

"Related Acts" Language in Professional Liability Policies
By Kenneth L. Baker and Carl J. Pernicone – May 13, 2013
Insurers and policyholders should determine at the earliest stage whether the relevant jurisdiction has ruled that the phrase "related to" is ambiguous.

Section 11 and Auditors' "Opinion" Statements
By Dana S. Douglas and Michael Rowe – May 13, 2013
A plaintiff's inability to plead both objective and subjective falsity may bar many claims under section 11 of the Securities Act against outside auditors.

Gunn v. Minton: Supreme Court Removes Federal Court Welcome Mat
By Ray Pinkham – May 13, 2013
The Court holds there is no federal question jurisdiction over patent-related legal-malpractice claims.

Gunn v. Minton: The End of Legal-Malpractice Actions in Federal Court?
By Justin J. Fields and Allison Lane Cooper – May 13, 2013
The Supreme Court's recent clarification of the contours of "arising under" jurisdiction may signal a shift in federalism.

Common Discovery Disputes in Accountant-Liability Litigation
By George J. Coleman – May 13, 2013
An overview of common arguments for and against the production of certain categories of documents.


Business Interests Outside Law Practice May Preclude Duty to Defend
By Anthony Corleto and Samuel Reich – December 11, 2012
The business enterprise exclusion in lawyers' professional liability policies may absolve the carrier of both its duty to defend and its duty to indemnify.

A Dangerous New Twist in the Tripartite Relationship
By Karen Painter Randall – December 11, 2012
The litigation privilege may not protect an attorney from malpractice claims when he or she reveals potentially damaging information about the client to the liability carrier.

The Impact of Insolvent, Bankrupt, or Defunct Insureds
By Wendy Keenan – December 11, 2012
Payment of deductibles or self-insured retentions is the most significant financial implication for a professional-liability insurer when its insured cannot meet obligations under the policy.

A Meaningful Rule 30(b)(6) Deposition Is Not Always Possible
By George Denegre and Carey L. Menasco – December 11, 2012
Courts may restrict the ability to take such a deposition when the entity being deposed does not have, and has never had, personal knowledge of the information requested.

Second Circuit Limits Use of Post-Disclosure Share Price Recovery
By Tammy P. Bieber and Sarah Mendola – December 11, 2012
The court rejected the holdings of every district court to decide this securities fraud class action question.

Defending Audit-Malpractice Cases: The Audit-Interference Rule
By James H. Bicks and Robert S. Hoff – March 26, 2012
The rule may restrict the type of client conduct that counts for purposes of apportioning fault.

Damages: You Can't Always Get What You Want
By James A. Brown and Erin L. Delatte – March 26, 2012
Recent case developments prove the vitality of the familiar principle that malpractice plaintiffs may recover what is needed to make them whole, but nothing more.

Key 2011 Decisions in Shareholder Derivative Litigation
By Scott B. Schreiber, Andrew T. Karron, and Kavita Kumar Puri – March 26, 2012
Courts last year generally reaffirmed well-established corporate-governance principles protecting directors and officers.

Criticism and Self-Criticism: Law and Compliance in a Revolutionary Time
By John H. Walsh – March 26, 2012
Regulated entities seeking recognition of their proper conduct should expect to receive criticism and be ready to engage in self-criticism.


Ethical and Liability Risks Posed by Lawyers' Use of Social Media
By Merri A. Baldwin – July 28, 2011
The increasing use of social media to grow legal practices has led to concerns about ethical violations and liability.

New York Reaffirms the Vitality of In Pari Delicto
By Kenneth Y. Turnbull and J. Emmett Murphy – July 28, 2011
Third parties may be able to assert a fraud claim free from imputation-based defenses, but they may not recover in negligence against those professionals.

Class Certification Requirements in 10b-5 Cases
By Scott B. Schreiber, Kavita Kumar Puri, and Robert Alexander Schwartz – July 28, 2011
What does it take to certify a securities fraud class? Three circuits have varying views on the prudential and equitable concerns invoked by securities fraud class certifications.

What Makes Securities Class Actions with Accounting Allegations Different?
By Elaine Harwood, Adoria Lim, and Laura Simmons – July 28, 2011
Accounting allegations affect both the likelihood of dismissal and amounts paid in settlements.

Constitutional Developments in Lawyer Advertising in 2010
By Erin L. Delatte – July 28, 2011
Lawyer advertising developments in 2010 focused on the constitutionality of restrictions on lawyer advertising under the First Amendment.

The "I Am Not Your Lawyer" Case
By James A. Brown and Carey L. Menasco – July 28, 2011
When an attorney-client relationship is inferred, there is almost always an attendant issue of conflict of interest.

Causation and Case-Within-the-Case Developments in 2010
By Erin L. Delatte – July 28, 2011
Recent cases support the widespread use of the case-within-the-case method to attack proximate cause.