Archive for September, 2012

The Difference Between Zealous and Zealot

Tuesday, September 25th, 2012

Lawyers have an obligation to zealously represent their clients.  The preamble to the Rules of Professional Conduct specifically states “[a]s advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”  However, there is a line between zealous advocacy and zealotry, as John O. Murrin, III, a Minnesota attorney recently found out.  Mr. Murrin was suspended from the practice of law for six months for his activities in three separate lawsuits he commenced to recover money he and his wife lost in a Ponzi scheme.  The first suit, brought in 2007, included nearly 50 defendants, contained 493 paragraphs on 131 pages, and listed 27 counts.  After several attempts to amend the complaint to make it comprehensible (or more incomprehensible, the proposed Fifth Amended Complaint, named 43 defendants, contained 945 paragraphs on 165 pages, and listed 64 counts), the court dismissed the complaint against all but two defendants with prejudice, and without prejudice against the remaining two.  Among other things, the court admonished Murrin for “cit[ing] to statutes which have been repealed, renumbered, or never existed.”  Following dismissal of the claim, several of the defendants sought sanctions, and sanctions were awarded for over $463,000.

Murrin (through his wife, also an attorney) then filed another complaint in another county which included 30 defendants, 626 paragraphs on 153 pages and listed 35 counts.  Defendants removed to Federal District Court, and the judge compared Murrin’s “litigation strategy” to “peine forte et dure—a method of torture by which heavier and heavier weights are placed on the chest of a defendant until the defendant either confesses or suffocates.”  The court eventually entered a judgment of $1,760,000 against the Ponzi schemer and his company.

Subsequent adversary litigation took place in bankruptcy court in which a 45 page complaint was filed.  According to the court “It is an understatement to note that the wording of the text was dense, repetitious, fervid, and hyperbolic.”

Murrin’s conduct during his disciplinary proceeding caused the referee to find: “that Murrin’s “attitude toward the evidence presented at  [the]  hearing approaches the delusional in its unfailing rejection of the reasoned, learned criticisms of his litigation conduct.”

The opinion on Murrin’s conduct does present some of the more entertaining reading in a disciplinary opinion since Philadelphia’s own Allen Feingold was disbarred for attempting to choke a 74 year old judge pro temp at a settlement conference (among other things).  However, there is an important lesson, while attorneys are to be zealous in their advocacy, zealotry will not be tolerated.

-Josh J.T. Byrne, Esquire

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Defense of Wrongful Use of Civil Proceedings Actions

Thursday, September 20th, 2012

Josh J.T. Byrne, Esquire has published a chapter about defending wrongful use of civil proceedings actions in an e-book on defending professional liability claims.  You can claim your copy at Amazon.com

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Law Firm Sued for Alleged Bad Advice about Bankruptcy Filing

Wednesday, September 19th, 2012

The New Jersey firm of Porzio, Bromberg & Newman has been sued for legal malpractice to the tune of $4.4 million for having allegedly improperly advised their former client, Armanti Financial Services, LLC to file for bankruptcy.  The suit alleges Porzio did not perform sufficient due diligence before making the recommendation.

-Josh J.T. Byrne, Esquire

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Accuracy in Professional Liability Insurance Renewals

Monday, September 17th, 2012

What needs to be disclosed on professional liability insurance renewal forms is a hot button issue in any discussion among professional liability practitioners.  The importance of accuracy on insurance renewal forms is easily seen in a recent case involving the Baylor Jackson law firm.  Claiming that Baylor Jackson did not disclose the existence of two legal malpractice claims when it sought coverage in 2010, the law firm’s professional liability carrier, Navigators Insurance, sought a declaratory judgment to relieve it from the duty to defend and indemnify.  District Judge James E. Boasberg, issued a memorandum opinion in which declaratory judgment was granted to Navigators Insurance.  Not only did the judge find there was no duty to defend and indemnify, but he also required the law firm to pay back $24,838 in defense expenses.

The best practices take away from this case is that it is very important to disclose any legal malpractice cases against you or your firm when you are seeking professional liability insurance.

-Josh J.T. Byrne, Esquire

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Recent Changes in Reporting Misconduct

Wednesday, September 12th, 2012

Earlier this year, the Disciplinary Board of the Supreme Court of Pennsylvania, amended the Rules of Professional Conduct (Rule 8.3), and the Rules of Disciplinary Enforcement (Rule 214) to require attorneys to self report any conviction for an offense that is punishable by imprisonment in the jurisdiction of conviction, whether or not a sentence of imprisonment is actually imposed within 20 days of the conviction.  Under the previous rules, the attorney did not have to report a criminal conviction until the attorney was actually sentenced for the crime.  This is a major change as convictions can happen long before sentencing.

-Josh J.T. Byrne, Esquire

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Best Blawg?

Friday, September 7th, 2012

The ABA has announced: Last Call for Blawg 100 nominations. Submit blawg amici by close of business today using this form.

Nominate us if you have a moment!

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$2 Million Verdict in “Toothless Cootie” Case

Friday, September 7th, 2012

We have said it before, do not put into writing anything you do not want to see blown up and used against you as an exhibit at trial.  A recent Colorado verdict shows why this is so important.  The firm of Anderson Hemmat & Levine was sued for legal malpractice after settling a client’s personal injury automobile case for $92,000.  The client alleged she was pressured into settling the matter, and that inadequate attention had been paid to her case.  Last week, a jury rendered a verdict in excess of $2 million, which included $1.5 million in punitive damages.  The punitive damage award appears to be, in large part, a reflection of an e-mail in which Chad Hemmat, Esquire, one of the firm’s partners referred to his client, Daniell Goff, as a “toothless cootie.”  The “toothless cootie” remark was made in an e-mail to one of Mr. Hemmat’s colleagues, despite the fact that Mr. Hemmat had not met Ms. Goff.

From the different accounts of the verdict, it would appear that the “toothless cootie” remark was central to the plaintiff’s case in the legal malpractice action.  It seems unlikely that a jury would have rendered a punitive damages award of nearly three times what they determined the actual damages were, if not for the e-mailed insult.  Keep in mind that you never know when something you have written in a case may be used as evidence in a subsequent case.  Best practices requires that you do not write it if you do not want a jury to see it.

-Josh J.T. Byrne, Esquire

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Real Estate is the Top Area of Practice for Legal Malpractice Claims

Thursday, September 6th, 2012

According to the ABA, between 2008 and 2011, there were more legal malpractice claims arising out of real estate transactions than any other area of practice.  This is the first time real estate has passed plaintiff’s personal injury claims as the top area of practice for legal malpractice claims.

-Josh J.T. Byrne, Esquire

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