2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

More documents

Recommendations

Info

In Capital Care Corp., the Superior Court was presented with the issue of whether a causeof action for legal malpractice could lie against an attorney who formally withdrew fromrepresentation of a client corporation, but who continued to assist in handling the corporation’slegal affairs. At trial, Plaintiff corporation asserted that Defendant attorney made falserepresentations to the corporation at a shareholders’ meeting prior to its sale, which resulted inthe corporate assets being sold for an inadequate price. The jury found in favor of Plaintiffcorporation and awarded $2.5 million in damages for the claim. Defendant attorney filed forpost-trial relief, requesting judgment notwithstanding the verdict, and the trial court granted therelief.On appeal, Plaintiff corporation asserted that the trial court erred in entering judgmentnotwithstanding the verdict because it had presented sufficient evidence to prove that theattorney provided legal services during the corporate shareholders’ meeting. The Superior Courtagreed, finding that while Defendant attorney had formally withdrawn from representation of thePlaintiff corporation, it continued to provide legal services with respect to matters of corporategovernance, and in representing the corporation in hearings before the United States Securitiesand Exchange Commission. Id. at 83.The court maintained that despite the Defendant attorney’s formal withdrawal fromrepresentation, he continued to assist in corporate legal matters, his area of expertise, and that itwas reasonable for Plaintiff to believe that the attorney was still representing the corporation atthe time of the shareholders’ meeting. Id.In Capitol Surgical Supplies, Inc. v. Casale, 86 Fed. Appx. 506 (3d Cir. 2004) (notprecedential), the United States Court of Appeals for the Third Circuit held that there was noattorney-client relationship when an attorney drafted an exclusive distribution agreementbetween a corporation and a product manufacturer on behalf of the manufacturer, but includedprovisions proposed by the corporation. The Third Circuit reasoned that there was nevercommunication between the corporate representatives and the attorney that indicated an attorneyclientrelationship and that while the attorney added to the agreement the provisions set forth bythe corporate representatives, he had never discussed with them the legal ramifications of thoseprovisions or commented on them. The subjective belief of the corporate representatives that anattorney-client relationship existed was not sufficient to establish privity.In Kirschner v. K & L Gates LLP, 2010 WL 5504811 (C.P. Allegheny Dec. 28, 2010),Gregory Podlucky was the company’s sole shareholder of common stock and its chiefexecutive officer. Three investors owned preferred stock in the company. The defendantlaw firm was hired to provide legal advice to a special committee created in 2003 by Le-Nature’s board of directors to investigate allegations raised by three financial managerswho resigned due to concerns about the accuracy of the company’s sales figures. Thespecial committee and the defendants failed to uncover the fraud being committed byGregory Podlucky. The fraud was not uncovered until 2006.The engagement letter from the defendant to the chair of the special committeestated “[y]ou have asked us to represent the Special Committee . . . of Outside Directors ofLe-Nature’s Beverages, Inc. . . .” The defendant hired an accounting firm to assist in its156
investigation. The retention letter sent to the accounting firm stated “[i]t is understoodthat P&W is being retained to assist K&L as a financial expert related to the specialinvestigation of certain transactions involving Le-Nature’s, Inc. . . . . P&W shall providegeneral consulting, financial, accounting, and investigative or other advice as requested byK&L to assist it in rendering legal advice to Le-Nature’s. . . .” In addition, the letter’ssection governing payment stated, inter alia, “P&W will render monthly invoices to K&L.K&L will then include our charges as part of its regular monthly invoices to LaNature’s.”After the fraud was uncovered, bankruptcy proceedings were instituted. The courtcreated the Le-Nature’s Liquidation Trust, which held Le-Nature’s assets and property.The trustee of the trust initiated the action against the defendants on behalf of Le-Nature’screditors.The Court found no attorney-client relationship existed between the defendant andthe creditors. Kirschner, 2010 WL 5504811. The Court distinguished the case from ahypothetical in which a company appoints a special committee to conduct an investigationinto whether a vice president is purchasing property at inflated rates from her family andto report its results to the entire board. In the hypothetical, the committee hired a law firmwhich failed to discover the vice president’s activities, which were discovered three yearslater. The court noted that in the hypothetical the corporation could bring an actionagainst the law firm because the alleged misconduct impacted each shareholder, noshareholder was involved in the misconduct, and the law firm knew it was being retained toprotect each shareholder from future misconduct. In the present case, however, there weretwo groups of equity holders, Podlucky and the investors. The law firm understood it wasbeing hired to protect only the investors, who were not involved in the operation of thecompany. Therefore, the investors were the only parties that could sue.The Court also found no implied attorney-client relationship existed. It noted animplied “attorney-client relationship exists, absent an express contract, where (1) thepurported client seeks advice or assistance from the attorney; (2) the advice is within theattorney's professional competence; (3) the attorney expressly or implicitly agrees torender such assistance; and (4) the putative client reasonably believes the attorney wasrepresenting it. Kirschner, 2010 WL 5504811 (citing Cost v. Cost, 677 A.2d 1250, 1254 (Pa.Super. 1996)). The court found no implied relationship because an express contract existedand the investigation was not conducted to protect Podlucky’s interests. Rather, it wasconducted to protect the interest of the remaining equity holders.In Solow v. Berger, No. 10-CV-2950, 2011 WL 1045098 (E.D. Pa. Mar. 22, 2011), theplaintiffs alleged a legal malpractice claim against an attorney who prepared a will for theplaintiffs’ step-grandmother. The will did not name the plaintiffs as beneficiaries. TheUnited States District Court for the Eastern District of Pennsylvania dismissed the casepursuant to the probate exception to federal subject matter jurisdiction. The court foundthat even if the probate exception did not apply, the legal malpractice claim would bedismissed for failure to state a claim. The court found no attorney-client relationshipexisted between the plaintiffs and the defendant. The court noted “certain non-client thirdpartybeneficiaries can bring legal malpractice claims on a breach-of-contract theory.”157
Page 3 and 4:
EMTALA CASES ......................
Page 5:
Filing an Affidavit of Non-Involvem
Page 8 and 9:
II.PROFESSIONAL LIABILITY - AN OVER
Page 10 and 11:
The Superior Court reversed the tri
Page 12 and 13:
to a third party pursuant to the st
Page 14 and 15:
After approximately five months, De
Page 16 and 17:
learned the day after the surgery t
Page 18 and 19:
conduct to the delay in colon cance
Page 20 and 21:
court admitted the expert’s testi
Page 22 and 23:
(b)(c)other reasonable causes, incl
Page 24 and 25:
corroborated his testimony. The cou
Page 26 and 27:
husband’s estate. Plaintiff alleg
Page 28 and 29:
Other notable federal cases arising
Page 30 and 31:
The Superior Court found that in re
Page 32 and 33:
§ 1303.512(b). The court, however,
Page 34 and 35:
In Neidig v. United States, No. 07-
Page 36 and 37:
Additionally, the Supreme Court not
Page 38 and 39:
were not indicated for her conditio
Page 40 and 41:
surgeon is the same as it would be
Page 42 and 43:
It should be noted that the Superio
Page 44 and 45:
Finally, the court held that the tr
Page 46 and 47:
The Supreme Court of Pennsylvania r
Page 48 and 49:
nurses deviating from applicable st
Page 50 and 51:
certainty, the court reviews expert
Page 52 and 53:
Under Pennsylvania law, the Court n
Page 54 and 55:
testimony, Defendant presented his
Page 56 and 57:
Following Cooper v. Roberts, 286 A.
Page 58 and 59:
Plaintiff developed chronic diarrhe
Page 60 and 61:
where payment is made by Medicaid w
Page 62 and 63:
accomplished. In Valles v. Albert E
Page 64 and 65:
In 1980, the Pennsylvania Superior
Page 66 and 67:
Plaintiff had a routine monitoring
Page 68 and 69:
Plaintiff’s Contract ClaimsThe Co
Page 70 and 71:
is a failure to report changes in a
Page 72 and 73:
unit to assure post-surgical patien
Page 74 and 75:
sliced his wrist and arm with a raz
Page 76 and 77:
licensed professionals for whom the
Page 78 and 79:
(c)Limitations of Corporate Neglige
Page 80 and 81:
Even more recently, our Superior Co
Page 82 and 83:
(a)HMO IssuesIn McClellan v. Health
Page 84 and 85:
affidavit submitted by Defendants o
Page 86 and 87:
treatments while at VA’s faciliti
Page 88 and 89:
[s]ubstantively, we believe that a
Page 90 and 91:
The party claiming the benefit of t
Page 92 and 93:
deprive (him) of civil rights guara
Page 94 and 95:
found that the District Court was w
Page 96 and 97:
With respect to fraudulent concealm
Page 98 and 99:
would be applied in situations wher
Page 100 and 101:
they had not raised them in the cou
Page 102 and 103:
(a)Informed ConsentUnder MCARE, a p
Page 104 and 105:
civil enforcement provisions and ma
Page 106 and 107:
MCARE also changes the manner in wh
Page 108 and 109:
whose death, in 2005, was allegedly
Page 110 and 111:
vicariously liable if the plaintiff
Page 112 and 113: health center or its equivalent or
Page 114 and 115: In Pennsylvania Medical Society, th
Page 116 and 117: to any professional who is alleged
Page 118 and 119: Since the 2005 amendments, there ha
Page 120 and 121: ule, but who intentionally ignores
Page 122 and 123: the original Complaint was delivere
Page 124 and 125: foreclose all challenges against th
Page 126 and 127: number of boxes), which was support
Page 128 and 129: questions of professional judgment
Page 130 and 131: deviated from any professional stan
Page 132 and 133: The Third Circuit affirmed the Dist
Page 134 and 135: claims and cross-claims remain agai
Page 136 and 137: By an Amendatory Order dated March
Page 138 and 139: The court acknowledged that there i
Page 140 and 141: apply and that the trial court misa
Page 142 and 143: Barbados had enough litigation-spec
Page 144 and 145: E. Preemption of Vaccine Design Def
Page 146 and 147: 2. Pa. R. Civ. Pro. 1036.1 - Reinst
Page 148 and 149: Barrick, at *34-35.Furthermore, the
Page 150 and 151: (b) the utility of the defendant’
Page 152 and 153: 2006). In this case, Plaintiffs bro
Page 154 and 155: B. Elements of a Cause of Action fo
Page 156 and 157: decision in Muhammad precluded Mr.
Page 158 and 159: considered speculative “only if t
Page 160 and 161: underlying cause of action involved
Page 164 and 165: The court found, however, to state
Page 166 and 167: of reasonable diligence. The standa
Page 168 and 169: not be set aside. On July 7, 2005,
Page 170 and 171: complete bar to recovery. Since a l
Page 172 and 173: On appeal, Plaintiffs claimed that
Page 174 and 175: In Liggon-Redding, 659 F.3d at 265,
Page 176 and 177: elieved of those minimum standards
Page 178 and 179: elevant to the proceedings, the com
Page 180 and 181: establish professional misconduct b
Page 182 and 183: Upholding the Superior Court’s Or
Page 184 and 185: Id.Rejecting revocation and suspens
Page 186 and 187: order as a sanction under Rule 4019
Page 188: {1009912]182
show all

2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?