“Eleventh Circuit Splits Single Lawsuit into Multiple ‘Claims’ When Applying Misappropriation Exclusion and Determining Duty to Defend” —

• “The United States Court of Appeals for the Eleventh Circuit, applying Georgia law, has held that a single lawsuit constitutes multiple ‘claims’ and some of those ‘claims’ fell outside the misappropriation exclusion in a lawyers professional liability policy, thereby triggering the insurer’s duty to defend. Medmarc Cas. Ins. Co. v. Fellows Labriola LLP, 2025 WL 2886733 (11th Cir. Oct. 10, 2025).“
• “A lawyer and law firm represented a husband and wife and their respective companies in a RICO case that settled. Pursuant to the consent order, a receiver was directed to distribute cash from the companies’ bank accounts to the law firm’s IOLTA account for distribution to both companies and to auction off some of the clients’ assets. However, the lawyer and law firm allegedly distributed the funds and auction proceeds only to the husband, who had filed for divorce, and to his company. The ex-wife and her company sued the lawyer and law firm for legal malpractice, breach of fiduciary duty, and breach of contract based on the disbursements and undisclosed conflicts of interest.”
• “The lawyer and law firm sought coverage for the malpractice lawsuit under their lawyers professional liability policy. The insurer denied coverage under the misappropriation exclusion, which barred coverage for ‘any claim[s] or other request[s] involving or relating to any conversion, improper commingling, or misappropriation, whether by an Insured or any other person, and whether intentionally or not, of client funds or trust account funds or funds of any other person held by any Insured in any capacity.’ The policy defined ‘claim’ to include ‘a demand or suit for damages received by the Insured.'”
• “In the ensuing coverage litigation, the district court held that the insurer had a duty to defend the entire lawsuit and the duty to indemnify was not yet ripe. On appeal, the insurer argued that it did not have a duty to defend because the entire malpractice lawsuit was one ‘claim’ and that single ‘claim’ fell under the misappropriation exclusion. In so arguing, the insurer relied, in part, on the ‘When a Claim is Made’ provision, which stated ‘all claims … involving a single act, error, or omission or series of related act, errors, or omissions shall be deemed to be one claim and to be first made when the first of such claims is made.’ The Eleventh Circuit found this argument unpersuasive because ‘an insured would expect that the sentence in question impacts only when a claim is first made and would not expect it to inform the meaning of ‘claim’ beyond that.'”
• “Instead, the Eleventh Circuit held that ‘[t]here are multiple claims in this suit’ and ‘of those multiple claims, at least some fall outside the misappropriation exclusion.’ In particular, the Eleventh Circuit determined that ‘the conflict of interest allegations … have nothing to do with misappropriation, conversion, or improper commingling.’ The Eleventh Circuit refused to construe ‘involving or relating to’ so broadly to include ‘claims [that] simply involve the same parties and are brought in the same lawsuit.’ Affirming the decision below, the Eleventh Circuit held that the insurer had a duty to defend the entire malpractice lawsuit because certain ‘claims’ fell outside the misappropriation exclusion. The Eleventh Circuit also determined that the insurer’s duty to indemnify is not ripe until the underlying malpractice lawsuit is resolved.”

“Ethical Challenges in New York Trust and Estate Practice: Conflicts, Confidentiality and Client Capacity” —

• “In a trust and estate practice, attorneys constantly encounter ethical dilemmas. These challenges often arise because of the ways in which the complex nature of the practice intersects with attorneys’ ethical obligations to their clients.”
• “Trust and estate attorneys often represent multiple family members in the estate planning process, which can quickly lead to conflicts of interest. While oftentimes a couple’s interests are aligned, their ideas about inheritance or end-of-life care very well may diverge. For example, by offering joint representation of a married couple, the attorney may need to navigate differing interests regarding the distribution of assets or care of their children. If a trust and estate attorney’s core client base presents an inherent conflict, a conundrum can present quite early and often in the relationship.”
• “To counteract this issue, waivers and disclosures must identify potential conflicts and ensure informed consent about how they will be addressed. Trust and estate retainers should acknowledge this potential for conflict, and waivers should be comprehensive and clearly disclose the risks that working with the attorney may present to the client. For example, perhaps one spouse reveals information in confidence to his attorney and asks his attorney not to tell his spouse. Where the attorney would be obligated to disclose this sensitive information to the client’s spouse, the waiver should be written so comprehensively as to disclose this protocol. Therefore, the client fully comprehends the obligations under the attorney-client relationship to both parties.”
• “Further, if the conflict is significant enough that the couple reaches a crossroads in their estate planning, the attorney may be presented with questions surrounding representation: moving forward, can she represent neither spouse, or could she represent only one and not the other? Waivers can be written to outline these protocols and ensure informed consent up front.”
• “Trust and estate planning often involves multiple generations of a family, and attorneys may be pressured to share confidential information among family members. Rule 1.6 of the New York Rules of Professional Conduct imposes strict confidentiality requirements, and breaching, whether with a client’s spouse, child, or other family member, can lead to significant ethical violations.”
• “When representing fiduciaries such as executors or trustees, attorneys must remember that their client is the fiduciary, not the beneficiary. This distinction can sometimes blur in practice when beneficiaries attempt to influence decisions or demand information; or, if an attorney frequently communicates with the trustee of a trust, it is essential for the attorney to remember that the grantor, not the trustee, is her client.”
• “Similarly, trust and estate attorneys often work with families in a multigenerational capacity. This dynamic poses additional ethical challenges. For example, if one parent has a health condition that she has not yet disclosed to her children and wants to keep secret, if the attorney also represents her child, she risks breaching attorney-client privilege with the child by disclosing information the child should know.”
• “Challenges also frequently arise when an attorney is asked to represent one family member in a dispute against another, such as in a will contest. In such cases, the attorney must evaluate whether prior knowledge has been obtained in the course of joint representation in planning stages that would create conflict in representing one child and her interests against the other.”
• “In representing a client through estate planning, an attorney may be asked to serve as a trustee, executor, or agent as well, which can create potential conflicts of interest. A key ethical concern may arise regarding whether the attorney can remain impartial while fulfilling both roles as the attorney may earn commission from these additional appointments. In New York, this role is permissible but requires transparency and informed consent from the client.”
• “One way in which such conflicts may rise to the surface is through fee disputes. The attorney must disclose and obtain approval for any fees drawn from the estate and adhere to the ethical guidelines and statutory requirements.”
• “When a client passes away, the estate plan may be challenged on the grounds of undue influence or lack of capacity, opening up will contests and allegations of misconduct. In these situations, the drafting attorney often becomes a witness or may even be accused of impropriety.”
• “Navigating these situations while maintaining professional integrity and avoiding conflicts is a delicate balance. Properly executed waivers, disclosures, and documentation may assuage such concerns. The attorney must also be thoughtful and precise in handling successive representation. If an attorney represented a decedent and is later asked to represent a party in estate litigation, they must carefully evaluate any potential conflicts or duties owed to the former client.”

“Ethical Considerations When a Lawyer Serves as an Expert Witness” —

• “The role of the expert witness in litigation is critical and indispensable, underpinning the facts and theories in diverse litigation across nearly every professional field. While experts typically hail from non-legal disciplines—from medicine to finance—this article will focus on the specialized and often ethically complex area of attorneys who provide expert witness testimony. This intersection is most prominent in legal malpractice cases, where expert evidence is generally mandated to establish the required standard of care and scope of duty (see Unigard Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1239).”
• “Lawyers, even when providing services for which they expressly disclaim the formation of an attorney-client relationship or the provision of any legal advice or services, are still subject to violations of the laws and rules governing lawyer conduct, set forth in Business & Professions and the Rules of Professional Conduct.”
• “Some common ethical issues which can arise include:”
  • “May a lawyer ethically testify as an expert witness adverse to a former client?”
  • “May a lawyer ethically represent the client who is adverse to the party on whose behalf they previously testified as an expert?”
  • “May a lawyer ethically serve as an expert witness against a current client of the lawyer’s firm in an unrelated matter?”
• “Previously, California attorneys engaged as expert witnesses relied solely on their own ethical compasses to answer these and other ethical issues arising from such work. The State Bar’s Standing Committee on Professional Responsibility and Conduct is currently publishing for public comment its Formal Opinion Interim No. 20-0001. If adopted, this guidance will provide a clear roadmap for California attorneys navigating these issues, moving the profession away from reliance solely on an ‘ethical compass’ and toward clear, practical standards.”
• “RPC 1.9 prohibits an attorney from accepting representation that would be adverse to a former client in the same or a substantially related matter. However, because expert engagement is not legal representation, it appears that RPC 1.9 would not be an issue. The fundamental reason an expert engagement is not considered legal representation or the formation of an attorney-client relationship in California is due to the nature of the services provided and the role the expert individual plays in the litigation.”
• “Expert witness role (attorneys): The attorney’s function, when acting solely as an expert, is to provide specialized knowledge, opinions, and analysis to help the trier of fact (the judge or jury) understand complex issues like the standard of care in a legal malpractice case. The expert serves the court by offering impartial (or semi-impartial, as retained) professional opinion. The expert is not acting as an advocate for the client and thus is not engaged in the practice of law.”
• “Legal representation role: On the other hand, an attorney acting as a lawyer serves as an advocate, providing legal advice, negotiating, and making strategic decisions to advance the client’s interests in the matter. This is what creates the confidential, fiduciary, and contractual attorney-client relationship.”
• “Contractual limitation (the engagement agreement) and express disclaimer. In best practice, the attorney-expert explicitly disclaims to prevent the formation of an attorney-client relationship through the expert engagement agreement. This contract typically states that the expert’s role is strictly limited to reviewing materials, forming opinions, and testifying, and that they will not be providing legal advice or representation to the retaining client. An attorney can effectively avoid forming a relationship by express actions or words.”
• “Since no attorney-client relationship is formed, many of the stringent conflict of interest rules (such as Rule 1.7 concerning conflicts with current clients or Rule 1.9 concerning former clients) do not strictly apply to the expert engagement itself. The expert is not ‘representing’ a client within the meaning of these rules. However, although the conflict rules don’t apply, an attorney-expert is still bound by general ethical duties, such as not using confidential information acquired from a current or former client in their testimony.”
• “In summary, the key difference is that the attorney-expert is functioning as a highly qualified, specialized witness—not as the client’s legal counsel or fiduciary advisor—a distinction usually cemented by the specific terms of the engagement contract. But this is not the end of the analysis, because attorneys must always protect their client’s privilege. This obligation is expressly referenced in RPC 1.9(c). (See also B&P §6068(e), RPC 1.6, Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 823.) The onus is on the expert to ensure that requested opinions can be provided without relying on or otherwise using protected information of the former client.”
• “Because engagement as an expert does not create an attorney-client relationship, there is no inherent prohibition on subsequently representing a party, even an adverse party, from the matter in which the attorney acted as an expert. But there are still ethical matters to address.”
• “There may be express or implied contractual limitations imposed on a former expert, such as confidentiality or refraining from accepting subsequent adverse positions. There may be protective orders issued in the prior matter. These limitations may impact the effectiveness of the former expert to adequately represent their potential new client. Any material limitation on an attorney’s ability to represent a client must be disclosed pursuant to RPC 1.7(b).”
• “Acting as both expert and attorney for an adverse party. This is the most problematic scenario and at first seems to be the least likely to occur. However, RPC 1.10(a) imputes the conflicts of a single lawyer to the entire firm. The first step in this situation is to ensure that the attorney acting as an expert will have no access to the adverse client’s privileged information (B&P §6068(e), RPC 1.6).”
• “The separation between an attorney’s role as a testifying expert and as legal counsel is more than a technicality; it is the linchpin that prevents an ethical crisis. An expert—even one who is a licensed lawyer—operates outside the traditional fiduciary bubble, sidestepping the rigid rules of client loyalty and imputed conflicts. This distinction is crucial, yet perilous. Because the expert engagement is not legal representation, it can allow attorneys to avoid conflict-of-interest rules that could otherwise halt litigation. However, this freedom demands vigilance. For the retaining firm, a fuzzy engagement letter is an invitation to disqualification or malpractice; for the testifying lawyer, breaching a former client’s confidentiality, even in an unrelated expert role, remains a career-ending risk.”
• “The lesson is simple: when contracting with an attorney-expert, assume nothing. Similarly, when an attorney-expert enters into an expert engagement, they should be diligent both in their retainer and in their actions, limiting their activities to solely providing opinions based on presented facts and not providing what could be interpreted as legal advice. As an expert, one should generally err on the side of avoiding even the appearance of ethical gray areas, performing conflict checks prior to accepting engagement and declining if there appears to be an ethical conundrum. The only true safe harbor lies in absolute clarity over function, privilege, and the precise boundaries of the relationship.”