Legal Counsellor
Spring 2011                                      


Welcome to LUCAS and CAVALIER, LLC


We trust you will enjoy this newsletter which reports on two recent favorable case results we obtained for our clients in commercial litigation involving real estate and Constitutional claims of alleged due process and equal protection violations.  We have also continued to follow an issue previously reported on and now clarified by the Pennsylvania Supreme Court concerning the scope of the attorney-client privilege.  We also discuss the interesting issue of litigation privilege.  Lastly, we address a case from New Jersey which provides guidance as to specificity required in settlement agreements, particularly as it relates to the recoverability of attorney's fees. 


In our next edition we will cover different substantive areas to address issues other segments of our client base more frequently encounter.  If you have any comments or questions regarding our newsletter or would like specific topics addressed in the future, kindly let us know.  Thank you.



Robert M. Cavalier,

Managing Partner


Robert M. Cavalier

 Professional Association Contracting with Government Not a State Actor


By: Robert M. Cavalier


Robert M. Cavalier and Jordan S. Tafflin recently prevailed on a motion to dismiss plaintiffs' complaint, on behalf of the International Association of Chiefs of Police ("IACP"), pursuant to Federal Rule of Civil Procedure 12(b)(6).  The Court dismissed plaintiffs' claims against IACP sounding in due process and equal protection violations pursuant to 42 U.S.C. §1983 and breach of contract due to their alleged status as a third party beneficiary.  Moreover, the Court granted IACP's motion to have plaintiffs provide a more definite statement pursuant to F.R.C.P. 12(e) for the only remaining cause of action asserted against IACP, presumably fraud.     Full Story

Daniel S. Strick

Commercial Real Estate - Suing Sole Shareholder Insufficient 


By: Daniel S. Strick


Robert M. Cavalier and Daniel S. Strick successfully argued before the Pennsylvania Superior Court in the matter of Graeber v. Kapuscinski, et al and obtained a reversal of the trial court's decision in litigation involving the potential sale of commercial real property located in Philadelphia, Pennsylvania.
Full Story

Volume 4  Issue: 1
In This Issue
Professional Association Contracting with Government Not a State Actor
Commercial Real Estate - Suing Sole Shareholder Insufficient
Did I Just Waive My Rights to Attorney's Fees?
Third Circuit Holds Communications Between Lawyers Are Actionable Under FDCPA
Second Time is a Charm


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Jordan S. TafflinDid I Just Waive My Rights to Attorney's Fees?


By: Jordan S. Tafflin 


The New Jersey Appellate Division recently reiterated the need for care in addressing the issue of attorney's fees in settlement agreements.  It is commonly assumed by attorneys unless specifically provided by statute, rule or case law, parties bear their own attorney's fees under the "American Rule".  Nonetheless, attorneys routinely provide for a release of claims for attorney's fees in settlement agreements which resolve litigation.  However, Porreca v. City of Millville, 2011 N.J. Super. LEXIS 11 (App.Div.) suggests this should be standard practice, and a failure to clearly and unambiguously waive such fees may lead to exposure for the client.  Full Story

Matthew S. Marrone

Third Circuit Holds Communications Between Lawyers Are Actionable Under FDCPA, Undermines Litigation Privilege In FDCPA Actions Involving Debt Collecting Attorneys


By:   Matthew S. Marrone 



Ruling on an issue that has splintered the United States Circuit Courts of Appeal, the Third Circuit has ruled that communications between lawyers may be actionable under the Fair Debt Collection Practices Act if the information conveyed is false.  Full Story


Dan Strick

 Second Time is a Charm: On Further Review of Issue Pennsylvania Supreme Court Finds Attorney-Client Communications Operates as a Two Way Street to Protect Communications Between Attorneys and Clients 

By: Daniel S. Strick



Prior to the Supreme Court's recent decision in Gillard v. AIG Insurance Co.,  2011 Pa. LEXIS 393 (2011), Pennsylvania courts had been inconsistent in expressing the scope of the attorney-client privilege.   The courts wrestled with the competing interests of the encouragement of trust and candid communication between lawyers and their clients and the accessibility of material evidence to further the truth-determining process.  The Pennsylvania Supreme Court has now determined the privilege is applicable as a two-way street bringing the law in accord with the law in just about every other jurisdiction.  Full Story

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