Professional Liability

It is clear that today's business and governmental environment involves increasing regulatory scrutiny, including the recent passage of substantial legislation directly affecting professionals, as well as a groundswell of litigation against lawyers, accountants and other professionals stemming from a volatile business climate. Amidst these developments, professionals are required to make more independent decisions and exercise a greater degree of judgment than ever before, heightening liability concerns. In addition, courts and regulators also have become increasingly willing to impose expanded duties, with attendant liabilities, on the professional and business fiduciary. In today's and tomorrow's world, there is no question that effective legal representation for professionals is not only critical, but essential. Duane Morris has a long history of providing such effective legal representation for the professional, before litigation and in it.

Range of Services

Duane Morris provides counseling, representation and advocacy services to a wide range of professionals and businesses in areas including:

  • attorney and judicial professional responsibility and legal malpractice
  • accountant liability
  • actuary liability
  • insurance agent and broker errors and omissions litigation
  • liability of business and financial planners and consultants
  • real estate agent and broker liability
  • securities brokers' and consultants' responsibilities under applicable laws and regulations
  • cases and investigations prompted by state and federal regulators in insolvencies of regulated businesses
  • civil and criminal RICO exposure
  • insurance implications and risks associated with professional liability

The firm has a long history of counseling individuals, professionals, small businesses and major corporations on issues unique to their professional and business endeavors. By drawing on the depth and breadth of substantive areas of practice throughout the firm, members of the Professional Liability Group collaborate with other Duane Morris lawyers to respond to the particular needs of professionals facing potential licensing or liability risks and concerns.

A brief description of some of our services for particular professions follows:

Services for Lawyers and Judges

Enjoying a long history of being "lawyers' lawyers," Duane Morris has advised and represented judges, inside corporate counsel, private practitioners, law firms and lawyer liability insurance carriers in a myriad of matters, including risk management in the area of malpractice claims.

We have represented clients in cases involving complex constitutional separation of powers issues and high-profile securities and taxation disputes involving "cutting edge" third-party liability principles. Our services as defense counsel for lawyers and law firms accused of professional negligence span many years and all areas of law. We have served as counsel to the Pennsylvania Conference of State Trial Judges, represented judges before state boards in Delaware, rendered legal opinions to malpractice insurers and practitioners on insurance coverage matters and defended lawyers against disciplinary and malpractice claims.

Our attorneys have counseled law firms and both inside corporate counsel and outside lawyers on professional ethics and liability issues in connection with conflicts, discovery, reporting offenses, multistate practices, advertising, professional relationships with public officials, Rule 11 sanction orders and many other issues. In addition, we advise law firms on a variety of employment matters, including employment discrimination, sexual harassment and partnership and compensation procedures and decisions. We have also counseled law firms in connection with separation arrangements with former partners.

Duane Morris lawyers actively contribute to published literature on malpractice issues, ethics, professionalism and other issues of interest to lawyers, law firms and lawyer liability insurers. Likewise, a number of our attorneys are frequent guest speakers and faculty members for law schools, bar associations and other professional organizations on subjects concerning professional responsibility and lawyer liability.

Many of our attorneys are approved faculty members and panelists at continuing legal education courses sponsored by the Center on Professionalism, American Law Institute and American Bar Association, and bar associations throughout the country. Several of the firm's lawyers serve on bar association committees that address professional issues, such as certification of attorney specialists, ethics dilemmas and judicial administration.

Services for Accountants

Duane Morris has represented many large national accounting firms, as well as various regional firms, the American Institute of Certified Public Accountants and the International Federation of Accountants in a variety of matters in a number of different forums. In professional negligence matters, Duane Morris has served as counsel to accounting firms in securities class action lawsuits, as well as suits by acquirers or sellers of business entities, banks and other lenders, bankruptcy trustees and bank and insurance regulators. In addition, we have represented accountants in investigations by professional licensing bodies, the Securities and Exchange Commission, the Internal Revenue Service, state and local governmental units and grand juries.

The firm has also counseled accounting firms on questions concerning the unauthorized practice of law, professional standards, business and professional ethics, firm mergers and dissolutions, and retention orders and fee applications in bankruptcy cases and related matters. In addition, we have represented accounting firms or individuals with respect to covenants not to compete, allegations of employment discrimination and other internal governance matters.

Duane Morris partners have also represented clients in accounting-related disputes, such as the proper interpretation of GAAP in acquisition agreements and various tax-related issues.

A number of our lawyers have been involved in the representation of accounting professionals, and we have a great amount of experience that can be applied to any particular matter. The firm's experience in bankruptcy, tax, employment law and criminal defense can also be brought to bear in any situation that so warrants. In addition, several of our partners also hold C.P.A. designations. Moreover, the firm's intimate knowledge of the terms and application of professional liability policies, directors' and officers' insurance policies, and fidelity policies has been especially helpful in particular representations.

Services for Actuaries

Today, more and more key financial and funding transactions depend upon actuaries. In particular, actuaries play an important role in the administration and funding of ERISA pension benefit plans and retiree medical benefit plans. Duane Morris has been involved in counseling actuaries on questions concerning ERISA compliance, minimum funding requirements, fiduciary responsibility and prohibited transactions.

Services for Business and Financial Planners and Consultants

Financial planners and consultants who provide comprehensive financial advice and strategic business planning services to individuals and businesses find themselves increasingly at risk in potential contemporary business disputes, regulatory investigations and similar matters. Duane Morris lawyers counsel and defend these professionals within the context of diverse settings in which their planning or consultative services may be challenged or questioned.

Services for Insurance Industry Professionals

Duane Morris attorneys provide thorough, sophisticated risk analysis for insurers, in addition to providing creative input toward the development of new insurance programs and coverages. We also provide pre-underwriting risk assessments for a variety of professional organizations and insurers. Our attorneys regularly provide formal and informal risk management seminars and advice to industry professionals.

Our attorneys also defend insurance agents and brokers in all types of contract and negligence actions and actions alleging fraud. Our lawyers represent major insurance brokerage firms, as well as independent insurance agencies, and counsel and represent agents and brokers on behalf of all types and sizes of insurance carriers. Our knowledge of the operations of carriers offering all lines of insurance and the regulatory environment in which carriers and their agents and brokers operate gives us valuable perspectives in evaluating, negotiating and defending claims against insurers and insurance professionals.

Services for Real Estate Agents and Brokers

The firm has represented both real estate agents and brokers in matters involving alleged errors and omissions, state licensing and disciplinary issues, unfair competition matters and other instances of alleged unprofessional conduct. Duane Morris also represents real estate agents and brokers in actions brought by purchasers and/or sellers of residential or commercial properties. The firm serves as counsel to title insurance companies, as well as individual realtors and real estate agencies.

Services for Securities Brokers

The firm counsels securities brokers and firms and others on issues ranging from compliance with state and federal securities, regulatory and licensing laws to litigation resulting from customer disputes, industry arbitrations, initial public offerings, mergers, acquisitions and tender offers.

Services for Other Professionals

In addition to the services specified here, Duane Morris represents directors and officers, employers in a range of industries, sports and entertainment management professionals, architects and engineers, physicians and other healthcare professionals.

Representative Matters

  • Represented prominent law firm and its chairman against allegations of wrongful use of civil proceedings. The Court granted our motion to dismiss.
  • Successfully used the anti-SLAPP statute to defeat, at the pleading stage, malicious prosecution claims arising out of underlying trade secret litigation.
  • Defended national law firm in suit by former client claiming errors in multiple patent lawsuits in Eastern District of Texas against Fortune 50 companies seeking hundreds of millions in damages. After his two-day deposition, the plaintiff dismissed all malpractice claims and paid fees due to the law firm.
  • Representation on a national basis of several professional liability insurers with respect to significant coverage matters (providing coverage advice and litigation representation).
  • Representation of law firm in California action alleging breach of fiduciary duty and malicious prosecution.
  • Representation of national law firm in California legal malpractice action involvement employment litigation.
  • Represents law firm in malpractice litigation in federal and state court in California in which damages in excess of $15 million are sought arising from patent infringement litigation in Texas and California.
  • Defended lawyer in case involving alleged mishandling of a trial of fraud claims against his client resulting in multimillion-dollar verdict against lawyer's client.
  • Represented defendant insurance carrier in a trial arising out of a first party bad faith claim under a CGL policy. Defense verdict.
  • Represented Canadian lawyers in securities litigation arising out of sales of securities in gold mining companies in U.S. and Canada. Case ordered dismissed by Federal Court on motion of defendants.
  • Defended tax lawyers who assisted aviation company in adopting ESOP in suit by one former owner against another. Client was dismissed from suit.
  • Defended national firm based in Midwest in case arising out of alleged aiding and abetting of 1031 Exchange Ponzi scheme causing $130 million in damages.
  • Defended national law firm based in Philadelphia against $60 million malpractice claim arising from alleged loss of critical documents, key evidence in underlying antitrust case. Summary judgment entered for client and appeal dismissed.
  • Defended securities lawyers sued by receiver and bankruptcy trustee for allegedly facilitating a $350 million Ponzi scheme arising out of the collapse of a mortgage lending business in San Diego.
  • Defended national law firm based on the East Coast in federal court litigation brought by liquidating trustee against lawyers, national accounting firms, investment banks, and officers and directors, claiming that a spinoff of a publicly traded company was fraudulent, causing over $500 million in damages. Judgment entered for client law firm after court granted two motions to dismiss.
  • Obtained summary judgment in multimillion-dollar case in favor of estate planning attorney. Prevailed when plaintiff appealed the judgment, on subsequent motion for reconsideration, and ultimately following appeal to California Supreme Court.
  • Defended New York law firm in litigation against claims of fraud, tortious interference with contractual relationships and bad faith in connection with underlying malpractice and insurance coverage disputes. Nonsuit granted in favor of clients one week into trial.
  • Obtained summary judgment for law firm whose former client claimed it had erred in negotiating the settlement of underlying multi-party, multimillion-dollar construction defect litigation.
  • Successfully defended national law firm against $60 million claim involving breach of fiduciary duty, malpractice, and spoliation of evidence; resolved by motion for summary judgment and dismissed by plaintiff on appeal.
  • Successfully moved to dismiss claims against international law firm in $550 million case alleging professional malpractice and fraud from the failure of a publicly traded corporation; affirmed on appeal; petition for review by U.S. Supreme Court denied.
  • Hired by Association of Corporate Counsel to draft white paper subsequently circulated to entire membership of more than 15,000 in-house lawyers.
  • Hired by major New York law firm to review and advise the firm on its internal new Sarbanes-Oxley policy.
  • Hired by numerous major law firms in New York, Texas, Georgia and elsewhere to make lawyer liability presentations.
  • Represented several major law firms sued by former clients or bankruptcy trustees of former clients, alleging professional malpractice and other theories of liability and claiming as much as $250 million in deepening insolvency damages.
  • Represented Atlanta law firm in Georgia federal bankruptcy adversary proceeding filed by trustee of law firm's failed client. Resolved suit on a negotiated basis.
  • Represented major Atlanta law firm in Oregon and Texas litigation filed by former client concerning failed IPO. Claims asserted included professional malpractice, fraud and conflicts claims. Obtained voluntary dismissal of Oregon suit on jurisdictional grounds. Resolved Texas suit on a negotiated basis.
  • Represented national law firm and partner in Georgia litigation filed by heirs of musical recording artist. Claims asserted include professional malpractice, fraud and conspiracy. Two cases are currently pending.
  • Advised Atlanta office of national law firm concerning potential conflict of interest with existing litigation client concerning potential evidentiary spoliation issues.
  • Represented Atlanta office of regional law firm under investigation by federal agency.

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"In my discussions with Duane Morris leaders, they frequently speak about how diversity within their firm has enabled them to better serve their diverse clients. They understand that investing in diversity is a wise business decision that positions them for the marketplace of the future."

Don Liu
Senior VP, General Counsel & Corporate Secretary
Xerox Corporation

At Duane Morris, achieving diversity is paradoxical. By supporting and celebrating the differences of our attorneys - and the individual strengths that they bring - our firm culture expands, fostering creative solutions for our clients. But diversity at Duane Morris does not mean that we have a certain number of diverse attorneys; true diversity means that it is no longer noteworthy to see diverse lawyers leading our practice groups or managing client relationships. Ascending to positions of leadership and greater responsibility and providing the highest levels of client service is simply what is expected of all our lawyers. Diversity is another strong asset that adds to our collective abilities to meet the needs of our clients.

Our vision of diversity at Duane Morris is to realize an environment in which our lawyers' outstanding qualities are not just measured by ethnicity, race, gender and sexual orientation, but more importantly, that our lawyers are remarkable as excellent attorneys above all else. Only then can we celebrate our differences while focusing on the common pursuit of legal excellence which everyone shares at Duane Morris.

To reach this goal, Duane Morris understands that the familiar diversity strategies and policies that most law firms have are needed. Without demanding results from such policies, most law firms are bound to fail in even achieving numerical hiring and retention goals. Duane Morris has been proactive and ambitious in its efforts to improve diversity at the firm, and has set deadlines for reaching the milestones which mark our progress. To create a more diverse law firm, Duane Morris is:

  • Committed to strategically increasing our diversity levels, which is currently at 10 percent.
  • Bringing together our Diversity Committee and our Hiring and Retention Committee to raise diversity as an important factor in our hiring decisions.
  • Dedicated to improving retention by building upon our monitoring and mentoring program for all diverse associates.

Combining new initiatives with our longstanding diversity efforts, Duane Morris has seen increasingly positive results. In the Minority Law Journal's annual diversity survey of the nation's largest 260 firms, Duane Morris continued to improve its regional and national ranking, rising to number 136 of all firms surveyed. Our strides in Philadelphia are encouraging; in a city known for both the racial diversity of its population and the lack thereof in its law firms, Duane Morris is one of only two law firms to exceed the national average of minority partners at all law firms. Additionally, Duane Morris leads all national law firms based in Philadelphia in the number of Latino partners. Nearly 30 percent of all of our attorneys are women, and more than 20 percent of our partners are women.

In our approach to diversity, progress in racial, gender and cultural diversity cannot be measured in numbers alone. Duane Morris has focused our diversity initiatives on both increasing the number of diverse associates and addressing the challenges diverse attorneys face in building lasting careers and rising to senior and leadership positions. While several of our key practice groups are led by diverse partners and female partners, Duane Morris endeavors to create a culture which will foster a deep pool of such attorneys who can then develop into the firm's future leaders. Duane Morris understands that simply hiring diverse associates will not change the diversity of the firm; Duane Morris is working to mentor and retain diverse associates so that our progress in racial, gender and cultural diversity is also reflected at the highest levels of leadership within the firm.

Our progress on gender diversity has been profound. We have no glass ceilings: women hold positions of leadership at all levels of management at the firm. Women lead a number of our key practice groups, including our Energy, Immigration and International practices, and serve on the firm's Executive Committee. The success of our female attorneys at Duane Morris has not gone unnoticed. Barbara Adams was chair of the firm's Finance Practice until her appointment by Pennsylvania Governor Edward Rendell to serve as General Counsel of the Commonwealth. In 2004, our longtime General Counsel, Gene E.K. Pratter, was approved by the United States Senate and is now a judge for the U.S. District Court for the Eastern District of Pennsylvania.

Our efforts to improve diversity extend beyond our firm's walls. The chair of our Diversity Committee, Nolan N. Atkinson, Jr., recognized the lack of diversity in Philadelphia's legal community and formed the Philadelphia Diversity Law Group. Nolan now serves as the chair of the organization, a consortium of 25 law firms and corporations that commits to employing at least one diverse first-year law student each as a summer associate. From this program, law students of diverse backgrounds gain access to what was once an exclusive legal community, and now have the opportunity to learn and develop their legal careers with experience at Philadelphia's top law firms.

In addition to our involvement in the Philadelphia area, Duane Morris has increased our presence at national conferences and events focused on diversity. We sponsor the Hispanic National Bar Association and its job fair. Duane Morris is also a longtime supporter and sponsor of the Equality Forum, a national gay and lesbian rights organization. Duane Morris continues to sponsor the Minority Corporate Counsel Association, and is active in other associations of diverse attorneys including: the Asian American Bar Association of the Delaware Valley; the Charles Houston Bar Association; Cuban Bar Association; Korean American Lawyers Association; National American Indian Housing Counsel and the National Bar Association.

The challenge of improving gender, ethnic and cultural diversity at Duane Morris is an ongoing effort that has the support of the entire firm. Duane Morris has been at the vanguard in supporting gender diversity throughout the firm beginning a generation ago. Our diversity programs are leading to similar success in improving racial and national origin diversity at Duane Morris. But even as we share these examples of Duane Morris attorneys and our involvement in numerous legal events, associations and programs for diversity, our hope is that such examples will no longer be necessary to mention in the future. We hope that through our efforts, and the efforts of other law firms, these stories become so common that they are no longer the remarkable accomplishments they are today, but simply routine aspects of the legal world tomorrow.