Cozen O’Connor: Professional Liability

Professional Liability

Recent News:

100 Cozen O’Connor Lawyers Named to the Best Lawyers in America

Lawyers were selected for inclusion in the 2018 edition based on a rigorous peer-review that has been developed and defined for more than 30 years.

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Professional liability claims, whether directed at an individual, corporation, or partnership, are uniquely unsettling because, in addition to the possible economic burden, they can also pose a direct threat to a defendant’s reputation, brand, or licensure. For more than three decades, attorneys at Cozen O’Connor have successfully represented professionals from a variety of industries in these must-win situations.

Our team focuses on defending accountants, lawyers, insurance brokers, architects, and engineers against a wide range of claims, including breach of contract, errors and omissions, and malpractice. Our clients include the Big Four and super-regional accounting firms, Am Law 200 law firms, regional and boutique law firms, national retail and wholesale insurance brokers, nationally renowned architecture and engineering firms, and high-profile individuals from the legal, accounting, and design fields. Cozen O’Connor attorneys appear regularly before state, federal, and appellate courts, as well as arbitration panels and regulatory boards, and have delivered superior results in cases with damage claims ranging up to $500 million. In addition to trial work, our lawyers provide preventative and advisory counseling to professionals before a dispute crystallizes. In similar fashion, consulted at the first hint of trouble, our attorneys often help resolve disputes through alternative mechanisms that are minimally disruptive to business operations and personal lives.

Cozen O’Connor professional liability attorneys have an exceptionally detailed understanding of the accounting, legal, and construction industries, including industry-specific principles, terminology, operational norms, and market forces. We are as steeped in the nuances of international financial reporting standards, non-equity partnership agreements, and the performance specifications of construction-related systems as our clients, so no time is wasted getting up to speed. Our deep industry knowledge means that our lawyers can immediately and efficiently evaluate the situation and related evidence to assess liability claims. Thus, we are well positioned to effectively resolve pending or threatened claims and defend the essential elements of our clients’ business models.

While most professional liability cases settle, often for good reason, our goal isn’t simply to make a deal; our goal is to achieve the best result for our client. Cozen O’Connor has a distinct advantage in that endeavor, having tried a large number of professional liability cases. Our well-earned reputation as trial attorneys affects our opponents’ settlement posture and incentivizes them to submit more attractive offers. Our courtroom experience also enables us to make more accurate assessments about likely outcomes. When a Cozen O’Connor attorney determines that a case is strong enough to submit to trial—it is. And when a Cozen O’Connor attorney says we are ready for trial—we are.

A strong attorney-client relationship is paramount in professional liability cases because they are often both factually complex and emotionally laden. While our firm has the capacity to process and review substantial amounts of discovery materials and motions, our approach is pointedly not to distribute responsibility among dozens of lawyers with varying degrees of experience. We work in tight teams that are led by our most senior attorneys who know and understand every aspect of the case and are prepared to communicate frequently, knowledgeably, and directly with the client.

Finally, our team’s experience in representing E&O insurers, positions Cozen O’Connor to be able to defend professionals in matters where there is no conflict. The Cozen O’Connor team of attorneys has been involved in most of the significant litigated cases against professionals over the past quarter century, and has a vast array of substantive knowledge in the applicable areas of law, including securities and banking, that traditionally lead to claims against professionals.  Moreover, our team’s experience gives it valuable insight into successful settlement strategies and the personalities of high profile mediators and opposing counsel in this arena.

 

SERVICES

Accounting Liability

  • Represent accounting professionals against claims of negligence, misreporting of financial statements, misallocation of expenses, and flawed internal controls
  • Defend against claims brought by state regulators or the SEC alleging, among other things, failures in tax consulting or involvement in federal securities offerings
  • Represent clients in disciplinary proceedings by the American Institute of Certified Accounting Professionals
  • Defend against subpoenas by third parties seeking audit work papers and testimony regarding audit procedures

Legal Liability

  • Represent lawyers in state and federal courts in actions for malpractice, breach of contract, RICO, breach of fiduciary duty and related claims
  • Appear before state and local grievance and disciplinary committees, serve on bar association ethics and legal malpractice committees, and appear as expert witnesses in malpractice cases
  • Defend law firm clients against corporate claims of malpractice in connection with business transactions, securities matters, real estate transactions, patent and trademark matters
  • Resolve disputes arising out of law firm breakups and dissolutions

Engineering/Architectural Liability

  • Represent and defend construction design and management professionals against claims of errors and omissions, including negligence, misrepresentation, design errors, violation of good faith, and inaccurate advice
  • Counsel clients regarding best practices and professional standards in negotiating contracts and as to their relationships with potential owners and consultants in providing their services
  • Represent these professionals before governmental regulatory boards

Retail and Wholesale Insurance Brokers

  • Represent insurance agents and brokers, general agents, and managing general agents against claims for professional negligence and breach of fiduciary duty arising out of placements in the excess and surplus, personal, commercial, professional, and umbrella excess lines.
  • Counsel retail and wholesale insurance brokerage companies on day-to-day business matters, including best practices relating to the placement of policies, employment practices and policies, and hiring brokers from competitor brokerage companies.
  • Represent retail and wholesale insurance brokerage companies on the enforceability of their competition restrictions. 

Investment Advisers and Broker Dealers

  • Represent and defend investment advisers and securities broker dealers in Financial Industry Regulatory Authority arbitration proceedings and in state and federal courts
  • Defend clients against claims alleging mismanagement of customer accounts, breach of fiduciary duty, ERISA liability, employee fraud, acceptance of invalid investments, and similar errors and omissions in rendering professional services

 

CLIENTS

  • Am Law 200 law firms
  • Big Four accounting firms
  • Large regional or “super” regional legal and accounting firms
  • Engineering and architectural firms
  • Large national retail and wholesale insurance brokers 
  • Investment advisors and broker dealers
  • Senior partners or individual professionals

 

TEAM

Our professional services liability group includes top practitioners in the field, including several fellows of the American College of Trial Lawyers and members of the prestigious American Law Institute. Our attorneys are ranked by Chambers and Partners and have been recognized as among Pennsylvania’s best malpractice defense attorneys. Members of the professional liability group are also intellectual leaders in the field, having served on the boards of professional services associations and authored books and articles on the rules of conduct and professional ethics.

We are acutely aware that part of our job as professional liability legal advisers is to help limit uncertainty and the toll it can take on businesses and human beings. We do that by mastering the facts of a case without delay and providing a candid assessment based on our long experience in the field. Regardless of what that assessment reveals about the proper course of action—be it mediation, settlement, or trial—our goal is to find a solution quickly and enable our clients to get back to business without the distraction of disputes or claims.

Publications

Allocation Clause Held Enforceable in a Duty To Defend D&O Policy [Global Insurance Alert]

March 07, 2016

Angelo Savino and Nicholas Bamman discuss a federal court decision in Louisiana providing a rare analysis of the interplay between a duty to defend in a D&O policy and the allocation clause in that same policy.

Supreme Court Expands Scope of Fiduciary Liability [Global Insurance Alert]

May 28, 2015

In Tibble v. Edison International, the Supreme Court ruled that trustees of ERISA plans owe a continuing duty to monitor trust investments on a regular basis and remove those that become imprudent.

Collectibility in Legal Malpractice Suits - A Required Element in Proving Damages: Schmidt v. Coogan [Commercial Litigation Alert]

November 13, 2012

Collectibility in Legal Malpractice Suits - A Required Element in Proving Damages: Schmidt v. Coogan - Commercial Litigation Alert - In Schmidt v. Coogan, No. 41279-9-II, 2012 WL 5331567 (October 30, 2012), the Washington Court of Appeals held that (1) collectibility is a required component in determining legal malpractice damages and (2) the failure to prove collectibility is fatal to a plaintiff trying to establish damages in a legal malpractice action.

Bank Errors [BEST’S REVIEW]

June 30, 2012

Bank Errors - BEST’S REVIEW - As of early April, the Federal Deposit Insurance Corp. had filed 27 lawsuits against directors and officers of failed banks. In several of these actions, the FDIC also named spouses of some executives, outside professionals and D&O insurers.

The Impact of the Professional Services Exclusion on Negligent Supervision/Sexual Molestation Claims [Claims Management Magazine]

May 17, 2012

The Impact of the Professional Services Exclusion on Negligent Supervision/Sexual Molestation Claims - Claims Management Magazine -

New York Court Upholds Denial of Coverage Where Policyholders Breached D&O Policy's Consent-to-Settle Provision [Insurance Coverage Alert!]

October 17, 2011

New York Court Upholds Denial of Coverage Where Policyholders Breached D&O Policy's Consent-to-Settle Provision - Insurance Coverage Alert! - In Federal Ins. Co. v. Safe Net, Inc., 2011 WL 4005353 (S.D.N.Y. Sept. 9, 2011), a New York federal judge granted partial summary judgment in favor of Federal Insurance Company (Federal), holding that SafeNet, Inc. (SafeNet) and its vice president and chief financial officer failed to comply with the consent-to-settle provision in their D&O policy and were thus precluded from recovering under the policy with respect to their settlement of a securities fraud class action.

Professional Liability: The Yaron Decision and Its Impact on Insurers [Insurance Coverage Alert!]

August 22, 2011

Professional Liability: The Yaron Decision and Its Impact on Insurers - Insurance Coverage Alert! - On July 5, 2011, the Philadelphia County Court of Common Pleas published its decision in Yaron, et al. v. Darwin National Insurance Company, et al., No. 502, a declaratory judgment coverage action brought by two policyholders against their professional liability insurers. The court, in an opinion authored by Judge Arnold L. New, granted summary judgment in favor of the insurers, holding that they were not obligated to pay the policyholders’ defense costs in connection with an underlying action.

When Kovel Letters Spell Trouble for a CFO [BNA]

August 19, 2011

When Kovel Letters Spell Trouble for a CFO - BNA - Cozen O'Connor's Aaron Krauss writes in BNA's Accounting Policy & Practice Repot that an outside accountant's work can be privileged if the accountant is providing new services at the direction of a lawyer under a specific engagement letter with the lawyer. Aaron explains that if the accountant proceeds under a Kovel letter, the accountant will have done everything possible to protect the client's interests.

IMPLICATIONS OF THE GENZYME DECISION: LOSS UNDER A D&O POLICY [PLUS Journal]

April 01, 2011

IMPLICATIONS OF THE GENZYME DECISION: LOSS UNDER A D&O POLICY - PLUS Journal - Recently, in Genzyme Corp. v. Federal Insurance Co., 2010 WL 3991739 (1st Cir. 2010), the U.S. Court of Appeals for the 1st Circuit construed the definition of loss in a D&O policy and a so-called “bump-up” exclusion that precluded coverage for claims seeking an increase or “bump-up” in the consideration for the company’s securities.

New York High Court: "Other Insurance" Clause Relieves D&O Insurer of Obligation to Share Defense Costs with CGL Insurer [Insurance Coverage Alert!]

March 09, 2011

New York High Court: "Other Insurance" Clause Relieves D&O Insurer of Obligation to Share Defense Costs with CGL Insurer - Insurance Coverage Alert! - In Fieldston Property Owners Ass’n, Inc. v. Hermitage Ins. Co., Inc., 2011 NY Slip Op. 01361 (Feb. 24, 2011), the New York Court of Appeals ruled that a D&O policy’s excess “other insurance” clause relieved the D&O insurer of any obligation to reimburse a CGL insurer for defense costs incurred in connection with two underlying tort actions. In Fieldston, Hermitage Insurance Company issued an occurrence-based CGL policy to Fieldston Property Owners Association. Federal

D & O Insurance: Limiting Attorneys' Fee Awards in Derivative Suits [Insurance Coverage Alert!]

June 07, 2010

D & O Insurance: Limiting Attorneys' Fee Awards in Derivative Suits - Insurance Coverage Alert! - On May 6, 2010, the Delaware Court of Chancery approved the settlement of a derivative action captioned In re Cox Radio, Inc. Shareholders Litigation, No. Civ. A. 4464-VCP, and ruled on plaintiffs' attorneys' application for a fee award. The court's decision on the fee award may have a material impact on directors and officers ("D&O") insurers' coverage analysis with respect to such awards.

How Many Accountants Does It Take to Go to Trial? [The Legal Intelligencer]

February 22, 2010

How Many Accountants Does It Take to Go to Trial? - The Legal Intelligencer - I was going to trial. My client was a mid-sized business. I needed to prove damages, and show that my client's internal controls were appropriate. The budget was tight — as it always seems to be — but I had an ace in the hole. My client was audited.

"C.O.O.L." Rule [Insurance Coverage Alert!]

September 30, 2008

"C.O.O.L." Rule - Insurance Coverage Alert! - On September 30, 2008, the U.S. Department of
Agriculture’s (“USDA”) rule for mandatory country
of origin labeling (“COOL”) for certain covered
commodities went into effect. See Mandatory Country of Origin Labeling of Beef, Pork, Lamb, Chicken, Goat Meat, Perishable
Agricultural Commodities, Peanuts, Pecans, Ginseng, and Macadamia Nuts, 73. Fed. Reg. 45106 (Aug. 1, 2008) (to be codified at 7 C.F.R. pt. 65).

Ballard Spahr a Victor in Suit Filed Against it by Potential Client [The Legal Intelligencer]

June 11, 2008

A Montgomery County jury vindicated Ballard Spahr Andrews & Ingersoll Monday in a breach of fiduciary duty suit brought against the firm by a man seeking between $17 million to $30 million in lost profits plus interest and punitive damages.

Events & Seminars

Past Events

2008 Professional Liability Coverage Seminar

April 24, 2008 - New York, NY

In The News

Monetary Offer for Witness Testimony Triggers Suspension

April 13, 2018

Thomas Wilkinson, a member in the firm's Commercial Litigation Department, was quoted in American Bar Association's Litigation News's article, "Monetary Offer for Witness Testimony Triggers Suspension."

Virtual Law Offices Create Ethical Concerns

December 27, 2017

Tom Wilkinson, a member of Cozen O'Connor's Commercial Litigation Department, was quoted in the ABA Litigation News article, "Virtual Law Offices Create Ethical Concerns."

Nonlawyer Gets Chance to Enforce Alleged Legal Fee-Split Pact

December 22, 2017

Thomas Wilkinson, a member of Cozen O'Connor's Commercial Litigation Department, was quoted in the article, "Nonlawyer Gets Chance to Enforce Alleged Legal Fee-Split Pact," for ABA BNA Lawyers' Manual on Professional Conduct.

100 Cozen O’Connor Lawyers Named to the Best Lawyers in America

August 23, 2017

Lawyers were selected for inclusion in the 2018 edition based on a rigorous peer-review that has been developed and defined for more than 30 years.

Cozen O’Connor Continues to Grow West Coast Presence with Addition of William Walsh

March 31, 2014

Cozen O’Connor has hired experienced commercial litigator William Walsh as a member, further expanding the firm’s litigation strengths in its Seattle office. Mr. Walsh has successfully represented numerous clients in court in a variety of areas, particularly with regard to aviation, products liability, and professional liability matters.

Contacts

H. Robert Fiebach

Senior Counsel

rfiebach@cozen.com

(215) 665-4166

People

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