Archive for November, 2012

Doctor Charged In Pill Mill Death

Thursday, November 29th, 2012

A Montgomery County Doctor has been charged in connection with the death of an individual who received oxycodone pills from him without a legitimate medical purpose.  Dr. Normal Werther of Horsham was first indicted in August, 2011, along with 52 others, in connection with an alleged multi-million dollar prescription drug ring.  The superseding indictment charges Dr. Werther of distribution of a controlled substance resulting in death.

Charges against doctors for distribution of prescription drugs resulting in death are not unheard of, and appear to be a particular focus of federal prosecutors.

-Josh J.T. Byrne, Esquire

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Legal Malpractice Arising Out of Political Scandal

Tuesday, November 27th, 2012

The Philadelphia Inquirer has published an update on the Bowman v. K & L Gates legal malpractice action.  The legal malpractice action arose out of representation of Elmer “Al” Bowman by K&L Gates and Buchanan Ingersoll after Mr. Bowman was accused in the corruption scandal that brought down former State House Speaker John M. Perzel and State Representative Brett Feese.  Mr. Bowman was accused of working on tax-payer time to set up a program called Candidate Connect which was a campaign tool for Pennsylvania Republicans (”ComputerGate“).

The legal malpractice claim arose out of Mr. Bowman’s alleged desire to cooperate with authorities, and his counsel allegedly preventing him from doing so.  The malpractice action suggested a serious conflict of interest because Mr. Bowman did not know that K&L Gates was also representing Mr. Feese and Mr. Preski among others.  The Inquirer article notes that prosecutors’ statements during Mr. Bowman’s trial suggest these allegations had merit.  K&L Gates and Buchanan Ingersoll filed preliminary objections to the malpractice action on the basis, inter alia, that Mr. Bowman had not been exonerated, and the Bailey v. Tucker decision prevents legal malpractice claims from criminal defendants unless they establish they have pursued post-trial remedies and obtained relief which was dependent upon attorney error.  The Court of Common Pleas agreed, and sustained the preliminary objections.  Mr. Bowman’s counsel appealed, and the matter was settled on November 9.

In terms of legal malpractice avoidance, this case is a reminder, among other things, of the importance of examining actual and/or potential conflicts of interest.  Conflicts of interest are a major cause of legal malpractice and disciplinary actions.  Pennsylvania Rules of Professional Conduct 1.7-1.10  are good guides for identifying and avoiding conflict.

-Josh J.T. Byrne, Esquire (H.T. B.C.B.)

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Texas Expands Statute of Limitations at Akin Gump’s Expense

Tuesday, November 20th, 2012

Last year Akin Gump Strauss Hauer & Feld won summary judgment in a legal malpractice action arising out of a failed real estate development.  The real estate developer, Riverwalk Cy Hotel Partners, hired Akin Gump to represent it in the purchase of a tract of land.  Riverwalk then contracted with Lyda Sinerton Builders Inc. to build a hotel.  Akin Gump was subsequently retained to defend Riverwalk in a nuisance, business interference and trespass claim.  The nuisance claim arose out of dust and debris at the construction site.

The legal malpractice action was based on a contention that Akin Gump did not seek indemnification for Riverwalk from Lyda.  Riverwalk also alleged Akin Gump overbilled it during the representation.   Akin Gump filed for summary judgment based upon the expiration of the applicable statute of limitations.  Summary judgment was granted, and Riverwalk appealed.  On appeal, the Fourth District Court of Appeals in San Antonio reversed and remanded, holding the statue limitations was stayed until the expiration of all appeals in the underlying action.  While this is been the law in Texas for some time, Akin Gump had argued it was not applicable in this matter because the underlying action did not stem from the alleged legal malpractice.  The Court of Appeals disagreed, noting the legal malpractice claims “arise out of” the underlying lawsuit.

The law on statutes of limitations in legal malpractice cases is different throughout the country.  In Pennsylvania, legal malpractice cases are subject to an occurrence rule, so that the statue limitations begins to run at the time the alleged legal malpractice occurred, and pendency of appeals does not toll the statute of limitations.  See, Robbins & Seventko Orthopedic Surgeons, Inc. v. Geisenberger, 449 Pa.Super. 367, 674 A.2d 244, 248 (Pa. Super. 1996).  When bringing or defending a legal malpractice action, a careful analysis of the applicable statute of limitations is vitally important.

-Josh J.T. Byrne, Esquire

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Client Claims Lawyers Got Him Not Only $104 Million in Pocket, But Also 40 Months in Prison

Friday, November 16th, 2012

In September, Bradley Birkenfeld received the largest whistle-blower award ever paid by the IRS, $104 million.  however, prior to receiving the award, Mr. Birkenfeld spent 31 months in prison for helping a California developer to evade paying income taxes.   While in prison, Mr. Birkenfeld filed a lawsuit in Superior Court in Washington against the lawyers who represented him in the whistle-blower action.  Mr. Birkenfeld claimed the firm mishandled negotiations with the Justice Department in his attempt to be granted immunity.  Mr. Birkenfeld also filed a federal action in Washington alleging the lawyers violated his constitutional rights to free speech, and his right to due process.  The law firm filed a counterclaim seeking 12.5% of the $104 million award.  In November 2011, Mr. Birkenfeld’s new lawyers moved to dismiss the actions Mr. Birkenfeld had brought pro se while in prison.

Mr. Birkenfeld is now again suing the lawyers who represented him in filing the whistle-blower complaint. Mr. Birkenfeld has sued the law firm Schertler Onorato, and attorney David Schertler, Danny Ornorato, David Dickieson and Peter Taylor for legal malpractice.  Mr. Birkenfeld alleges the lawyers mishandled their representation of him by not filing forms with the IRS, not advising him that he was going to be indicted, and not turning over files to his criminal attorneys.  Mr. Birkenfeld alleges his attorneys negligence led to his arrest and conviction, a $30,000 fine, and caused the award from the IRS to be $7.8 million to $15.6 million less than it could have been.  Mr. Birkenfeld is seeking $60 million for legal malpractice, breach of fiduciary duty, and unlawful trade.  Mr. Birkenfeld is also seeking punitive damages.

The lawsuits by both sides promise years of entertaining litigation ahead.  It is difficult at this juncture to say what lessons attorneys may learn from this case, however it is, at the very least, a reminder that up to 70% of all actions against clients for fees result in claims against attorneys for legal malpractice.

-Josh J.T. Byrne, Esquire

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Judge Nocella

Tuesday, November 13th, 2012

In a predictable move, the Pennsylvania Supreme Court has suspended Philadelphia Common Pleas Court Judge Thomas Nocella.  We had recently written about the disciplinary charges against him.

-Josh J.T. Byrne, Esquire

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Making Pennsylvania Look Good, or at Least on Par

Friday, November 9th, 2012

Pennsylvania is well known for difficulties with some of its judges, from ticket fixing to “cash for kids.”  However, Pennsylvania is not alone in dealing with outrageous judicial conduct.  The ABA Journal reports Cook County Illinois Judge, Cynthia Brim, who is currently pursuing an insanity defense in an misdemeanor battery case, has been reelected, despite being currently suspended from the bench.

-Josh J.T. Byrne, Esquire

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Foul Trouble

Monday, November 5th, 2012

Chicago attorney Marc Samotny, and his law firm, Patzik, Frank & Samotny, have been sued by the former owners of the WNBA team, the Los Angeles Sparks, Gemini Basketball Holdings.   The lawsuit alleges Mr. Samotny helped the teams current owner, Williams Holding Group, squeeze Gemini out of ownership.  The complaint alleges legal malpractice, breach of fiduciary duty, fraud and negligent misrepresentation.

-Josh J.T. Byrne, Esquire

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