Professional Liability Litigation

Practice Points

2019

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.

2018

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.

2017

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.

2016

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.

2015

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.