chevron-down Created with Sketch Beta.
Professional Liability Litigation

Practice Points

What you need to know in a quick-to-read format. Find all of the Professional Liability Litigation Committee’s practice points in this archive.


Hidden Clients: When Do Lawyers Owe Nonclients a Duty of Care?
By Michael S. LeBoff – April 14, 2023
It will depend on clear evidence that the nonclient was an intended beneficiary of the client’s direction to the lawyer.


Beware of “the Cheetah”—The SEC’s Increased Scrutiny of Rule 10b5-1 Plans
By Kurt Gottschall, Kit Addleman, and Timothy Newman – October 11, 2022
The commission’s concern was evident in recent insider trading charges filed against two senior executives of a technology company based in China.

Considerations in Outsourcing: Direction and Oversight of Contract Attorneys and E-Discovery Vendors
By Tiffany Rowe – July 28, 2022
Outsourcing e-discovery analysis and document review provides clients with significant discovery-related cost reductions, but also creates potential pitfalls for the firm.

Reporting Unethical Conduct: Understanding Your Obligations under Model Rule 8.3
By Michael LeBoff – April 14, 2022
There are few things worth jeopardizing your law license for, so if you have to report a violation, then report it.

Three Mistakes Clients Make When Hiring an Attorney
By Michael LeBoff – February 28, 2022
Many bad attorney-client relationships are doomed to fail from the very beginning because the client simply hired the wrong lawyer.

Ethical Issues Working from Home: How to Protect Confidentiality in an At-Home Practice
By Alanna Clair – February 18, 2022
One's home may not have the same inherent structural protections as an office. Proceed with caution.


Language Access in the Client-Lawyer Relationship: Summary of ABA Formal Opinion 500
By Amy Bomse – November 2, 2021
A recent ABA opinion stresses that bridging the communication gap with a client is essential to competent representation.

Reflections on My First Post-COVID Jury Trial: What a Difference a Year Makes
By Michael S. LeBoff – June 17, 2021
Being able to get back in front of juries will go away long way toward getting justice for our clients.

Model Rule 1.4: Communication Is Key to Avoiding Malpractice Lawsuits
By Michael S. LeBoff – March 23, 2021
It is easy to give clients good news. It is much harder to give clients bad news. That is part of the job.


Ethical Obligations in Technology Assisted Review
By Tyler Trew – December 7, 2020
TAR can result in drastic savings for clients but practitioners must be mindful of the relevant ethical pitfalls that may ensue.

Five Tips for Handling Costly Fee Disputes
By Michael S. LeBoff – November 18, 2020
If your clients do not pay, your firm will not survive.

PCAOB Modifies Inspection Plan in Light of COVID-19
By Tiffany Rowe – October 27, 2020
The board will extend the window for conducting audit inspections to five quarters to assess how the coronavirus pandemic has affected audit quality.

Receiver Litigation—Through the Looking Glass, Smoke-Filled Rooms, or Wild West?
By Edward A. Marod – April 29, 2020
Takeaways from our April Roundtable.

Expanding Nonlawyer Practice of Law: Increasing Access to Justice or Endangering the Public?
By Michael S. LeBoff – January 7, 2020
An overview of recent proposals to expand the nonlawyer practice of law and whether these changes will achieve the goal of increasing access to justice.


What Is Getting Lawyers Into Trouble
By Richard G. Douglass – October 17, 2019
Key takeaways from a recent panel discussing pitfalls and how lawyers can avoid them.

Georgia Supreme Court Holds Joint and Several Director Liability Remains
By Kaitlin Carreno – October 17, 2019
FDIC v. Loudermilk serves as a cautionary tale for bank officers and directors.

Avoiding Unintended Contractual Obligations: Are You a Party to Your Client’s Settlement Agreement?
By Michael S. LeBoff – September 30, 2019
What happens when the attorney for one of the settling parties spills the beans?

Beware of These Seven Common Attorney Malpractice Traps
By Michael S. LeBoff – June 20, 2019
Basic considerations to help prevent claims.

When a Third Party Pays the Legal Fees
By Paula M. Bagger – May 21, 2019
Attention to these issues at the outset will help you avoid ethical issues and get paid.


Ethical Obligations in Electronic Discovery
By Tyler D. Trew – June 5, 2018
The age-old adage of leaving it to the IT department when it comes to issues related to electronic discovery is a thing of the past.

1933 Act Class Actions Can Stay in State Court, Unanimous Supreme Court Says
By Dylan C. Black and Tiffany A. Rowe – April 19, 2018
The Court’s unanimous decision in Cyan clarified the appropriate jurisdictions in which certain securities class actions can proceed.

ABA Reminds Lawyers That Confidentiality Obligations Apply to Online Public Commentary
By Amelia Toy Rudolph – April 3, 2018
A formal opinion from the ABA serves as a reminder that care must be taken when posting online.

DOJ Adopts New FCPA Corporate Enforcement Policy
By David A. Silva – March 22, 2018
The DOJ has expressed a heightened commitment to prosecuting individuals for corporate misconduct.

Cooperation with the SEC: Waiver of Work-Product Protection?
By Yvonne Williams-Wass and Rebekah Runyon – March 22, 2018
A recent decision will likely impact the analysis of those weighing the pros and cons of cooperation with a regulator.

District Court Holds Company Not Required to Disclose CEO’s Misconduct at Another Company
By Jennifer Wieboldt – March 22, 2018
Fries illustrates that the duty to disclose is not a requirement to confess all misconduct.


Voices of Recovery Podcast Series
By ABA CoLAP – November 10, 2017
The ABA Commission on Lawyer Assistance Programs debuted the first of a series of podcasts that will address substance use disorders, mental health issues, addiction, and recovery issues. Episode 1 features attorney Laurie Besden, the Executive Director of Lawyers Concerned for Lawyers of Pennsylvania, who shares her battles with alcohol and drug addiction.

Department of Justice Adopts New FCPA Corporate Enforcement Policy
By David A. Silva – December 21, 2017
The revisions largely formalize existing practices but feature a significant expansion of the incentives previously available under its voluntary disclosure pilot program.

Supreme Court Applies FAA Preemption to Contract Formation
By Margaret Flatt, Tom Byrne, Patricia Gorham, and Stacey Mohr – July 26, 2017
State courts have struggled with the interplay between the Federal Arbitration Act and the application of state law regarding contract formation.

The Perils and Pitfalls of Emailing and How to Avoid Them
By Jonathan J. Walsh and Benjamin C. Woodruff – July 12, 2017
Lawyers are more susceptible than ever to making mistakes that are captured forever in electronic form.

Controlling Your Client’s Discovery Costs with Proportionality
By Joshua Maggard – May 19, 2017
This new language of Fed. R. Civ. P. 26(b)(1) provides a valuable tool for counsel and clients looking to reduce discovery costs.

Engage(ment letters) with Your Clients
By Joshua Maggard – May 19, 2017
An engagement letter is a powerful tool for identifying key issues that will likely arise in a matter.

Indiana Court of Appeals Recognizes Exception to Economic-Loss Doctrine in Accounting Malpractice Actions
By Alexander I. Passo – April 20, 2017
A recent decision has interesting implications because it potentially increases the amount a plaintiff may seek in the form of their damages by bringing a tort claim.

The Ethics of Cloud-Based Storage
By Karen Painter Randall – January 31, 2017
Just as technology has evolved rapidly in recent years, so too has the need to address ethical ramifications surrounding new technologies.

The In Pari Delicto Defense in an Accountants' Liability Action: A Changing Dynamic
By Anthony J. Constantini – January 31, 2017
The Southern District of New York reached a curious conclusion.


Cross-Examination of the Expert Witness in Deposition
By Phillip A. Cole – December 14, 2016
“No substitute has ever been found for cross-examination as a means of separating truth from falsehood, and of reducing exaggerated statements to their true dimensions.”

NC Supreme Court Holds Independent Auditors Do Not Owe Fiduciary Duty to Clients
By Sean Hennessy, James Thomas, and Arthur Luk – November 29, 2016
CommScope explains that the determination of whether a fiduciary duty exists is based on the specific facts of any given case.

Illinois Supreme Court Affirms Accountant, Not Client, Is Holder of Privilege
By Alexander I. Passo – September 28, 2016
This decision has a significant impact on malpractice suits brought against accountants by their clients.

Effectively Handling Experts
By Alexander I. Passo – September 28, 2016
Counsel should tread lightly when communicating about the case with the expert.

SEC Renews Focus on Non-GAAP Financial Measures
By Professional Services Liability Litigation Committee – June 30, 2016
Companies should give serious consideration to the questions raised by SEC Chair White and review the new C&DIs to ensure compliance.

The Second Circuit Clarifies Liability Standard for Audit Opinions
By James Thomas, Arthur Luk, and Said Saba – June 30, 2016
The court summarily affirmed the district court's decision recognizing that auditors' reports are statements of opinion, not statements of fact that would subject auditors to liability.

Administrative Errors Are Legal-Malpractice Traps for the Unwary
By Carey L. Menasco – May 31, 2016
Cross Your T's and Dot Your I's.

Best Practices for Avoiding Attorney Liability to Non-Clients
By Carey L. Menasco – March 31, 2016
There are several measures an attorney can and should take to prevent unintended attorney-client relationships.


PCAOB Adopts Rules Requiring New Disclosures for Audit Firms
By James W. Thomas Jr., Arthur Luk, and Lindsay Vance Smith – December 30, 2015
Attorneys advising public accounting firms and individual engagement partners should be aware of the potential issues that may arise as a result of the new required disclosures.

Recent SEC Enforcement Actions Reinforce Focus on Independence Violations
By James W. Thomas Jr., Arthur Luk, and Lindsay Vance Smith – December 30, 2015
The SEC’s enforcement actions reiterate its ongoing focus both on audit failures and on conduct that jeopardizes the independence of audits.

Know Your Bench Strength
By James Goldschmidt – November 23, 2015
Your association with your firm may be more powerful than you realize.

Increase Your Exposure Through Community Involvement
By James Goldschmidt – November 23, 2015
No other form of professional development is so effective and so enjoyable

Party in Privity Barred by Collateral Estoppel from Establishing Causation Element of Legal Malpractice Claim
By Carey L. Menasco – August 31, 2015
The Scherer decision, and others like it, confirms that collateral estoppel may be a viable defense to a legal malpractice claim when the underlying issues have been fully and fairly litigated.

PCAOB Seeks Public Comment on 28 Proposed Indicators of Audit Quality
By Dylan Black – July 15, 2015
The list of audit quality indicators raises a number of questions on which audit firms or audit committees might wish to comment.

New York Embraces "Likely to Succeed" Standard for Appeals
By Saleel V. Sabnis – May 9, 2015
Exhaustion of appeal options is unnecessary.

Recent SEC Publications Address Cybersecurity
By James Thomas and Laura D'Allaird – March 2, 2015
These publications provide tips to investors, and also may be useful for broker-dealers and investment advisors to consider in addressing cybersecurity issues at their firms.

PCAOB Provides Observations in Broker-Dealer Audits Subject to New Standards
By James Thomas and Laura D'Allaird – March 2, 2015
A reminder for accounting professionals performing audit and attestation engagements of broker-dealers to familiarize themselves with the applicable PCAOB standards.

PA Court Holds Legal-Malpractice Claims Barred by Collateral Estoppel
By Carey L. Menasco – February 26, 2015
A recent decision nevertheless serves as an important reminder to all attorneys that they should not dabble in practice areas with which they are unfamiliar, given the substantial risk of malpractice exposure.

Malpractice Action Allows Discovery of Underlying Matter after Suit Settles
By Mandie E. Landry – February 25, 2015
New Jersey federal court addresses the “suit within the suit.”

Another Court Finds Privilege Applies to Firm In-House Counsel Communications
By Merri A. Baldwin – January 15, 2015
A new California opinion is the latest to reject the "fiduciary" or "current client" exception and uphold the attorney-client privilege.