January Roundtable – What’s New: A Review of 2021 and Recent Cases Involving Design Professionals

This new year let’s look back to see what’s ahead!   Join us Thursday, January 27, 2022,  for this timely case study presentation focused on common legal issues faced by design professionals including:

  • Statute of Limitations
  • Duty to Defend
  • Indemnification
  • Risk Exposure
  • Contractual Provisions
  • COVID-19 Impact


Eric Howard, Partner, Donovan Hatem LLP

Stephen Willig,

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David Hatem published in Tunnel Business Magazine

David Hatem was published in the December issue of Tunnel Business Magazine. His article, titled “Should Geotechnical Baseline Reports Be The Universal And Exclusive Contractual Basis For Subsurface Conditions Risk Allocation?,” addresses the potential pros and cons of using Geotechnical Baseline Reports as the standard for subsurface conditions risk in Owner and Contractor in Design-Bid-Build projects.  To read the entire article, click here.

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Donovan Hatem LLP Elevates Brendan Malvey to Partner

Boston, MA (January 3, 2021) – Donovan Hatem LLP is pleased to announce that Brendan T. Malvey is now a partner of the Firm.

Brendan Malvey joined the Firm’s Professional Practices group in 2020 as Of Counsel, bringing significant experience in commercial litigation, professional malpractice, employment law, and insurance coverage matters.  Brendan specializes in representing design professionals in complex projects and claims throughout North America.

Since joining Donovan Hatem LLP, Brendan has exhibited leadership and expertise in addressing the issues of concern facing the Firm’s clients and delivering exceptional results.

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Eric Howard and Patricia Gary Named to 2021 Top Lawyers List by Boston Magazine

Boston, MA (December, 2021) – Donovan Hatem LLP is pleased to announce that Eric A. Howard and Patricia B. Gary have been listed in the inaugural edition of Boston Magazine’s 2021 Top Lawyers list. The publication recognized over 1,000 best lawyers in the region that are chosen and voted on by their peers.

Eric Howard, Partner and Co-Chair of the firm’s Litigation Department was recognized in the area of Civil Litigation/Defense.

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Should Geotechnical Baseline Reports be the Universal and Exclusive Contractual Basis for Subsurface Conditions Risk Allocation?

David J. Hatem, PC


Geotechnical Baseline Reports (“GBRs”) are a critically important mechanism intended to clearly, objectively, effectively and contractually allocate subsurface conditions risk between Owner and Contractor in Design-Bid-Build (“DBB”) projects. (Sanders & Eagles 2017; Hatem & Corkum 2010; Hatem & Gary 2020).

The GBR is intended to provide a reasonably comprehensive scope of statements that articulate in clear and objective terms selective physical subsurface conditions reasonably anticipated to be encountered in the performance of the work. 

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November 2021 Roundtable – Who Owns the Designs? Copyright Protection for Architects and Engineers

Intellectual property rights encourage innovation and benefit the community through leadership, research, and investments. New technologies and discoveries have impacted innovation and are changing the ways that we design and build our roads, bridges, and other structures. Now more than ever it’s important to protect your work in every capacity including down to something seemingly simple such as your copyright.  

Join us for our November Roundtable on Thursday, November 18, 2021, as we discuss:

  • Architectural Works Copyright Protection Act and other Copyright Laws
  • Fair Use
  • Ownership and Work for Hire
  • How to Assert a Copyright


Stephen F.

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Team of Donovan Hatem Attorneys to Present at the 2021 ACEC National Conference

Two Donovan Hatem attorneys will be presenting at the upcoming ACEC National Conference to be held October 27-30, 2021 in Marco Island Florida.

Gwen Weisberg will present on Thursday, October 28 “Strategies for Effectively Defending and Resolving Claims Through Alternative Dispute Resolution” where she discusses the various elements of a successful negotiation, including how to prepare for and develop a strategy for negotiation and more.

Patricia Gary will present on Friday, October 29 “Climate Change and the Built Environment: Current Thinking for Engineers“,

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October 2021 Roundtable – Top Ten Contractual Issues

Join us for our October Roundtable on Thursday, October 21, 2021, as we focus on the top ten key contract provisions to assist design professionals to avoid and manage professional liability risks.

In this presentation, David will discuss:

  • Recommended Contract Approaches Design Professionals Should Use;
  • Key Contractual Provisions and Principles;
  • Risk Management Through Contracts – Pitfalls to Avoid;
  • How to Descend Risks to Subconsultants.
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Article: Supreme Judicial Court Clarifies That “All” Statutes of Limitations Were Tolled By Its COVID-19 Tolling Orders

Click here for a PDF printable copy.

In a case of first impression, the Supreme Judicial Court (“SJC”) clarified in Shaw’s Supermarkets, Inc. v. Melendez, that its Third Updated COVID-19 Order, dated June 24, 2020, is a tolling order that applies broadly to all statutes of limitations – and does not just apply to those civil statutes of limitations that were set to expire between March 17, 2020 and June 30,

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Donovan Hatem Welcomes Two Of Counsel Attorneys to the Firm

Boston, MA (September 28, 2021) – Donovan Hatem is pleased to announce that Samuel J. Muir and James N. Worden have both joined as Of Counsel to the Firm. 

Samuel J. Muir joins the Firm’s Litigation practice as a trial attorney based out in California, who specializes in construction litigation with an emphasis on the representation of design professionals. For over 30 years, Sam has successfully represented clients in jury trials, bench trials, binding arbitrations,

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Team of Donovan Hatem Attorneys Lead Full Day Seminar on Law for Massachusetts Architects

Join a team of our attorneys on Monday, September 13, 2021, for a live webinar on Laws for Massachusetts Architects.

Topic Discussions Include:

  • Understanding the Law of Professional Liability
  • The Architect’s Standard of Care
  • Understanding the Law of Architectural Copyright
  • Architects and Construction Liens
  • Overview of Contract Law for Architects
  • Complying with Massachusetts Rules of Professional Conduct
  • Understanding Massachusetts Building Design Law
  • Climate Change and Recent Developments in Massachusetts Law

List of Speakers:

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Retail Tenants Continue To Seek Relief From Leases Due To Covid Induced Business Interruptions, While Results Remain Favorable For Landlords

To view a PDF copy of the article, click here.

In the New York area, litigation has continued between commercial landlords and tenants of all sizes seeking relief from, or changes to, lease terms due to hardships resulting from COVID-19 business interruption.  While the volume of cases are diminishing, there remain some noteworthy decisions that reflect how landlords and tenants have fared in seeking relief.

In The Gap v. Ponte Gadea, Judge Laura Taylor Swain of the Southern District of New York was presented with a case of a commercial tenant seeking relief on a wide array of theories. 

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Surfside Condominium Collapse: Is There a Path Forward to Mitigate Risk of Catastrophe?

by David J. Hatem, PC
August 2021

On Thursday, June 24, 2021, Champlain Towers South, a 12-story beachfront condominium in the Miami suburb of Surfside, Florida, partially collapsed.  As of July 22, 2021, a total of 98 people are confirmed dead, all of whom have been identified. 

I have been involved in several high profile – and tragic – events like the Surfside condominium collapse. Notably, the Minnesota I-35 Bridge Collapse in 2007,

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MA Appellate Courts Issue Two Important Decisions Impacting Professional Liability Claims

Architects, engineers, and other design professionals should take note of two recent Massachusetts opinions which underscore the need to consider the complexities professionals face when evaluating supposed errors in judgment, and whether those errors even caused harm. The first, Doull v. Foster, SJC 12921 (February 26, 2021), eliminated the confusing “substantial contributing factor” test in favor of adopting the “but for” standard for proximate causation. This  requiring plaintiffs prove their harm would not have occurred “but for” the defendant’s conduct.

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June 2021 Roundtable – Claims Investigation, Documentation, and Dispute Resolution

A notice of a design issue or design claim is a serious matter.

A serious matter merits, and requires, a serious response. When an issue or claim is asserted, a number of steps should be taken, and a thorough, meaningful investigation should be conducted.

Join us for our June Roundtable on Thursday, June 24, 2021 presentation as we will:

  • Address the steps to be taken to evaluate an allegation that a design error or omission was made.
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Paul Muniz Authors Chapter in the Design Professional’s Guide to Construction Law

Paul Muniz authored the chapter, titled “Design Professional Legal Responsibilities – Construction and Completion Phases” in the recently published Design Professional’s Guide to Construction Law by the American Bar Association.

The objective of Paul’s chapter is to explore the legal responsibilities of design professionals providing construction administration services to bring a project through to final completion once the ground is broken. This chapter provides guidance on site visits to verify conformance with the Contract Documents,

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Client Alert: Full Staff of New York Courts Due Back May 24, But Some COVID19 Changes In Litigation Are Here To Stay

The difference in how civil litigation was conducted in New York before COVID and now could not be greater.  Overnight, the system where the vast majority of court business was conducted live inside a courthouse was shut down.  After a hiatus, as everyone scrambled to enhance their technical capabilities, court proceedings finally resumed via remote means.  While the pace of pre-trial proceedings and appeals had increased over time, all civil jury trials were initially postponed indefinitely and have resumed only in very limited numbers. 

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Eric Howard Serves as Professional Development Faculty for ACEC/MA Courses

Donovan Hatem is excited to announce that Eric Howard, Partner and Co-Chair of the firm’s Litigation practice is sharing his specialty legal expertise within the architecture and engineering professions in Massachusetts.  As part of the ACEC/MA Leadership Education curriculum, Eric brings his 30+ years experience to help design professionals manage risk and avoid legal pitfalls through careful contracts, eye-opening understandings, and precise writing to avoid “wording-dangers”. 

Eric is the instructor for two courses: Emerging Leaders – Risk Management session,

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Now Available! Public-Private Partnerships and Design-Build: Opportunities and Risks for Consulting Engineers. P3 3rd Edition

Click Here To Purchase!!

As P3 and DB approaches on bridges, roads, transit, water supply and treatment, tunnels, rail, and other public infrastructure projects continue to increase, consulting engineers need access to vital knowledge and reliable expertise to make conscientious and prudent decisions about P3 and DB project opportunities and risks.

The third edition of Public-Private Partnerships and Design-Build: Opportunities and Risks for Consulting Engineers presents new industry information and experience on P3 and DB approaches,

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Retail Tenants Assert Frustration Of Purpose To Avoid Lease Payments Based On Covid-Related Closing

The New York Appellate Division in Manhattan recently issued an important decision for commercial landlords and retail tenants suffering through store closings and diminished business as a result of the COVID-19 pandemic.  In The Gap v. 44-45 Broadway Leasing, the Court affirmed the lower court’s issuance of a “Yellowstone” injunction (issued to maintain the status quo) which permitted continued occupancy of two high profile retail locations while the parties continue to litigate the question of whether the doctrine of “frustration of purpose” applies to terminate or alter leases as a result of state-mandated closure orders due to COVID-19. 

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