Legal Malpractice Law in a Nutshell
Author:
Johnson, Vincent R.
Edition:
2nd
Copyright Date:
2016
23 chapters
have results for Legal Malpractice Law in a Nutshell
Preface 7 results (showing 5 best matches)
- Legal Malpractice Law in a Nutshell
- The initial chapters of the Nutshell focus on key features in the dynamic field of lawyer professional liability. The topics include prominent causes of action (such as professional negligence, breach of fiduciary duty, and fraud), the role of experts in malpractice litigation, theories of liability to nonclients, affirmative defenses, damages, and fee forfeiture.
- This book started in Professor Thomas L. Shaffer’s Professional Responsibility class at Notre Dame Law School decades ago. As a student, I left that class worried that malpractice liability lurked around every corner in law practice. History has proven that concern to be correct. Today, news related to professional liability claims is reported daily by legal publications across the country.
- This new edition of the book has had an equally peripatetic genesis. In addition to work performed at St. Mary’s University School of Law in Texas, the updating of the Nutshell took place at Jagiellonian University in Krakow, at the London School of Economics and Political Science, and at an American Bar Association conference in Paris.
- The later chapters of the book explore issues of considerable practical significance. Those subjects include the vicarious liability of lawyers and law firms, conflicts of interest, strategies for reducing errors and claims, and the role and limits of malpractice insurance.
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Chapter 8. Vicarious Liability 168 results (showing 5 best matches)
- Unless individual partners are named and served as parties in a malpractice lawsuit, they are not liable for a judgment and their personal assets are not subject to execution. The failure to name law firm partners as defendants in a legal malpractice action may itself be malpractice because many law firms are thinly capitalized and carry little or no malpractice insurance.
- In , 122 Ohio St.3d 594, 913 N.E.2d 939 (2009), the Supreme Court of Ohio, by a divided vote, held that because a firm does not engage in the practice of law, it cannot commit legal malpractice directly. Further, according to that court, a law firm cannot be vicariously liable for malpractice unless one of its principals or associates is liable for malpractice. Whether all courts would agree with this analysis is open to doubt. Lawyer-client contracts often name the law firm, not individual lawyers within the firm, as the party responsible for providing legal services. Moreover, a law firm undoubtedly will be liable for malpractice if a paralegal, not licensed to practice law, tarries on the way to the courthouse and arrives too late to file a lawsuit before the statute of limitations elapses. This is true even if it was entirely reasonable ( , not negligent or in any other way tortious) for the lawyers in the firm to entrust the filing of the suit to the paralegal, and regardless of...
- The ordinary course of business of a law firm includes the practice of law and various activities normally related to it. Thus, liability is imposed for legal malpractice * * * by any firm lawyer; * * *; misapplication of funds in the custody of the firm or its personnel * * *; and torts committed by a principal or employee while acting in the scope of employment, for example for the negligent driving of an employee who is on firm business.
- The existence of an extensive and comprehensive Code of Professional Responsibility that governs the obligations of attorneys to their clients reinforces our conclusion. Under the Code, a lawyer may not “seek, by contract or other means, to limit prospectively the lawyer’s individual liability to a client for malpractice” * * *. Moreover, the Code forbids lawyers from “[n]eglect[ing] legal matter[s] entrusted to [them]” * * *, enjoins them to assist in “secur[ing] and protect[ing] available legal rights” * * * and requires them to represent their clients as zealously as the “bounds of the law” permit * * *.
- Of course, most legal malpractice insurance policies are self-liquidating ( Chapter 11). Amounts spent on the defense of a case reduce the amount of coverage available to pay a settlement or judgment. Therefore, it is important to consider whether naming a broad class of defendants under a supervisory-liability theory will adversely impact the availability of insurance coverage for the alleged malpractice.
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Acknowledgments 5 results
- Certain examples and ideas mentioned in this volume are drawn from my Torts books:
- Excerpts from the various Restatements of the Law quoted in this book are reproduced with the permission of the American Law Institute, which holds the copyrights to those works. All rights are reserved by the American Law Institute. Those works include:
- Preparation of the manuscript for this book was ably assisted by several students at St. Mary’s University School of Law in San Antonio, Texas. Those talented assistants included: Colin Brogan, Jennifer Bruning, Michael Finley, Sophia George, Lamar Hailey, Juan Laurents, Rebecca Page, Raymond Torres, and Monique Wimberly. With attention to detail and plain hard work, these students greatly improved this book.
- Kevin Faherty and Benjamin Mathews did particularly outstanding editing. I greatly appreciate their services, and the support for this project provided by St. Mary’s University, law school dean Stephen M. Sheppard, and the Dean’s Research Fellows.
- By her example, my wife Jill Torbert is a constant reminder of what it means to be a good lawyer and active citizen. She deserves my thanks every day.
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Chapter 11. Legal Malpractice Insurance 108 results (showing 5 best matches)
- Sophisticated clients sometimes require their lawyers to maintain a minimum level of malpractice insurance. Various state laws may also mandate that lawyers have malpractice insurance in order to offer legal services through lawyer referral agencies or to enjoy the legal protections from vicarious liability afforded by practicing law as a member of a limited liability entity. ( Chapter 8 Part C.) In some states, a lawyer subject to disciplinary sanctions can be required to maintain adequate malpractice insurance as a condition of any further practice of law.
- Legal malpractice insurance is important for a variety of reasons. From the perspective of potential defendants, insurance can reduce the costs of settling a claim or paying an adverse judgment. Insurance can also reduce the temptation for defendants to represent themselves in a malpractice lawsuit. Malpractice policies typically cover the costs of defense, as well as liability. ( Part C–2–d of this Chapter.) As the previous chapters of this book suggest, legal malpractice law is a complex subject. Lawyers with no particular expertise in this difficult area of the law should not dabble with defending a claim, particularly when their judgment may be impaired by the fact that their own honor and fortune are at stake because . It is a great advantage in answering malpractice charges to be represented by a lawyer who specializes in this field.
- In
- In the legal malpractice field, nondisclosure of malpractice is unlikely to lead to liability independent of the underlying malpractice. This is true because in order to be actionable, the nondisclosure must cause damage. That is likely to be the case with respect to nondisclosure of malpractice only if the underlying errors caused harm and were actionable.
- Malpractice insurance also protects clients. Coverage tends to ensure that money will be available to compensate losses resulting from errors that occur in the practice of law. In addition, the cost of obtaining malpractice insurance, and the requirements insurers sometimes impose on policy purchasers, may focus a lawyer or law firm’s attention on the types of mistakes that give rise to malpractice claims. Heightened awareness of such risks often results in improved business practices, and protects clients by reducing the overall amount of malpractice.
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Chapter 3. Negligence 283 results (showing 5 best matches)
- If the alleged malpractice relates to the mishandling of a legal malpractice case, there may be a third layer of complexity. For example, in , 769 S.E.2d 7, 11 (Va. 2015), the court found that the legal malpractice claim before it implicated “a case (the initial criminal matter) within a case (the criminal malpractice matter) within the case (the legal malpractice matter that is now before us).”
- One practical consequence of the “trial within a trial” process is that legal malpractice cases can be exceedingly complex. This is particularly true if the underlying matter involves a sophisticated area of law practice that is ordinarily difficult to understand even without the added issues of a legal malpractice claim. This may be so, for example, in a case where the lawyer was allegedly negligent in representing a subsidiary in a dispute with the subsidiary’s parent corporation. In that situation, malpractice liability may turn on careful assessment of the actions, statements, and expectations of numerous entity representatives and stakeholders.
- Expert witnesses play a special role in legal malpractice litigation. Their job is neither zealous advocacy of a party’s interests, nor determining who should win the lawsuit. Rather, the duty of an expert witness is to assist the judge and jury in understanding how the law governing lawyers applies to the facts of a dispute giving rise to a malpractice claim.
- Second, exceptions to informed consent obligations should be recognized in the law of legal malpractice. In medicine, a physician need not disclose a risk if it ought to be known by everyone or is in fact known to the patient; if there is an emergency and the patient is incapable of determining whether treatment should be administered; or if full disclosure would be detrimental to the patient’s care and best interests. These exceptions are narrowly construed so that they do not undercut the policies behind the informed consent doctrine. Presumably, similar exceptions will apply to informed consent rules in the legal malpractice field.
- Expert testimony plays an important role in almost every legal malpractice lawsuit. Not surprisingly, a considerable body of law has developed relating to the necessity for, and legal sufficiency of, such evidence.
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Chapter 1. Introduction to Legal Malpractice Law 31 results (showing 5 best matches)
- Legal malpractice law is the emerging body of principles that governs the civil liability of lawyers for losses incidental to the practice of law. In some cases, these rules work to hold lawyers accountable for harm to persons resulting from errant practices. In other cases, the relevant principles insulate lawyers from damage awards when it would be unfair to impose legal responsibility. Thus, legal malpractice law attempts to strike a fair balance between the public’s interest in consumer protection and the legal profession’s need to exercise discretion in representing clients.
- Legal malpractice law is now its own specialized area of the law. Some lawyers devote all or part of their law practices to suing other lawyers or to defending lawyers charged with wrongdoing. Many law professors serve as expert witnesses in legal malpractice litigation. This is particularly true of professors who teach courses in both professional responsibility and torts because, substantively, legal malpractice law lies at the intersection of those two major fields of study.
- Not surprisingly, there has been an explosion of legal literature bearing upon issues of lawyer liability. Treatises, textbooks, and numerous law journal articles and symposia now focus on the standards that animate the law of legal malpractice. The leading treatise is Ronald E. Mallen, Jeffrey M. Smith, and Allison D. Rhodes,
- Prior to the 1970s, there were relatively few reported cases holding lawyers accountable for legal malpractice. For a variety of reasons, injured persons faced obstacles in mounting a successful legal malpractice action. On one hand, an aggrieved client (let alone a nonclient) faced difficulties in securing counsel to handle a malpractice claim. In a day when the legal profession was much smaller and more homogeneous than it is today, lawyers were reluctant to represent persons suing other lawyers. On the other hand, the judiciary was not yet receptive to legal malpractice actions. Because professional liability was something of a novelty, the malpractice principles applicable to lawyers were simply underdeveloped.
- The dramatic shift of legal malpractice law from an obscure supporting role in civil litigation to center stage undoubtedly has many causes. However, two contributions are indisputable. The first is the increased attention now accorded to issues of lawyer professional responsibility generally. The second involves developments relating to the fields of medical malpractice and accounting malpractice.
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Chapter 9. Important Malpractice Issues 135 results (showing 5 best matches)
- Negligence by the initial lawyer handling a case may not only force a client to settle, it may limit the options of successor counsel. In a Pennsylvania legal malpractice suit, a client followed the advice of her successor counsel and settled her underlying medical malpractice case for $1 million, despite having received a $2.5 million verdict. The settlement was recommended because the complaint had pleaded the wrong theory of liability and, on the facts of the case, amending the complaint was not feasible. The initial attorney, who had filed the deficient complaint, was held liable for malpractice, but the successor attorney who recommended the acceptance of the settlement was not. Amaris Elliott-Engel, “Pa. Jury Awards $1.8 Million in Legal Malpractice Suit,” www.law.com, Sept. 3, 2010.
- Many legal malpractice cases—perhaps half or more of all claims that are filed—include allegations of conflicts of interest. It is therefore essential for a malpractice lawyer to have a confident grasp of this area of the law.
- In , the plaintiff client was initially represented in litigation by a law firm named Haight. Armstrong was a partner in the Haight law firm who continued to represent the client in the same litigation after he left Haight and became “of counsel” to a new law firm. Unhappy with the resolution of the litigation, the client sued Armstrong for breach of fiduciary duty. The client alleged that, based on his prior affiliation with Haight, Armstrong had a conflict of interest which kept him from considering whether the Haight law firm had committed malpractice and from disclosing that information to the client. More specifically, the client alleged that if the Haight law firm’s malpractice had been disclosed, the client would have sought other counsel to handle that malpractice claim, and would have litigated the claim against the Haight law firm within the applicable period of limitations.
- Put differently, if the conflicted lawyer acted reasonably despite the conflict, a malpractice action will fail. For example, in , 678 F. Supp. 2d 203, 211–13 (S.D.N.Y. 2010), a legal malpractice plaintiff alleged that the lawyer representing him in litigation had an undisclosed conflict of interest arising from his relationship with a title insurance company. A federal court in New York held that the alleged conflict was insufficient to establish a claim for legal malpractice because the defendant lawyer had acted reasonably and appropriately at every stage of the litigation. Therefore, the alleged conflict could not be found to have caused damage.
- In , 312 Wis. 2d 251, 752 N.W.2d 800 (2008), a cheese manufacturer (Berner) was sued by an outside law firm (Brennan) for unpaid legal fees. The manufacturer then filed a third-party complaint against its former corporation counsel (Krug), who was a member of another law firm. The manufacturer alleged that Krug committed legal malpractice and breach of fiduciary duties relating to an underlying dispute, which the manufacturer had settled with a third-party cheese brokerage (Dairy Source). A release drafted by the Brennan law firm to implement the settlement relinquished the manufacturer’s claims against various parties, including corporation counsel Krug. According to a member of the Brennan law firm, Krug was released “because ‘[w]e wanted to make sure that everybody in the civil action that was a party defendant or a possible party defendant’ would be insulated from further legal liability.” .... Nor did Krug pressure the Brennan law firm to include language releasing him from...
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Chapter 5. Duties to Nonclients 292 results (showing 5 best matches)
- In , 115 S.W.3d 26, 28–29 (Tex. App. 2003), a Texas court held that a former client’s allegations that his attorney falsely represented that he was prepared to try a case, and that an expert witness was prepared to testify, were actionable under a theory of “legal malpractice.” Many states equate the term “legal malpractice” with professional negligence.
- Because an attorney-client relationship is an essential element in a legal-malpractice claim, and because Great American failed to plead sufficient facts to establish an attorney-client relationship, we reverse the Court of Appeals’ decision on this issue and affirm the trial court’s dismissal of any direct legal-malpractice claim against Quintairos.
- These three views are important in the law of legal malpractice only with respect to claims by nonclients. Clients are owed duties of care by their lawyers under generally applicable principles of negligence law. Therefore, clients can sue their lawyers for harm caused by negligently false statements, as well as for losses caused by other forms of negligence. Lack of privity is not a problem.
- If a bankruptcy trustee abandons a legal malpractice claim, the person whose debts are discharged in bankruptcy sometimes has a right to prosecute the malpractice action, provided that the claim is not time-barred.
- [While the] * * * courts of other jurisdictions generally recognize such a cause of action, they differ markedly on the theory of liability under which such a claim may be brought. In most jurisdictions, the retaining insurer may sue the law firm directly as its client. * * * [Some cases] reflect the view that a “tripartite relationship” exists among insurer, insured, and counsel, with both insurer and insured as co-clients of the firm in the absence of a conflict of interest. * * *. Some courts and the recognize an additional or substitute cause of action by the insurer as a non-client beneficiary of the firm’s legal services. Both theories of liability, of course, depend on the existence of a duty of care running from the firm to the retaining insurer, and acknowledge that such a duty disappears when a conflict of interest threatens the firm’s ability to represent the insured. Some jurisdictions go one step further, however, and reject outright the idea of a duty owed by the firm...
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Chapter 7. Defenses and Obstacles to Recovery 161 results (showing 5 best matches)
- Nevertheless, courts sometimes find that statements connected to litigation are not protected by the absolute judicial proceedings privilege. For example, in , 580 Pa. 245, 860 A.2d 67 (Pa. 2004), a lawyer (Bochetto) was sued for malpractice based on conduct related to the defense of a client in quiet-title actions. In the legal malpractice action, the client (the malpractice plaintiff) was represented by a new lawyer (Gibson). The malpractice complaint alleged that Bochetto had breached fiduciary obligations by failing to disclose an expert report to the client and by misconduct related to the procurement of a substitute expert report. After filing the legal malpractice complaint for his client, Gibson faxed a copy to a reporter with the
- In many respects, the principles of legal malpractice law protect lawyers from liability. Consider, for example, the rules that permit lawyers to reasonably exercise discretion without risk of Chapter 3 Part B–2) or that impose demanding causation requirements on malpractice plaintiffs that necessitate a trial within a trial ( Chapter 3 Part C). A lawyer who elects to include a malpractice claim arbitration provision in a lawyer-client contract cannot be sure that the usual substantive rules will be followed by the arbitrator. Moreover, if the arbitrator departs from well-established malpractice principles, there will be little opportunity to appeal a resulting adverse ruling. Consequently, choosing arbitration over litigation has risks. Arbitration may not minimize a lawyer’s exposure to liability.
- In , 245 S.W.3d 51 (Tex. App. 2007), a Texas appellate court found that former clients who had failed to identify a potential legal malpractice action as an asset in their bankruptcy proceeding were thereafter precluded from prosecuting the malpractice claim.
- In certain jurisdictions, the statute of repose is part of the same legislative provision that establishes the statute of limitations for a malpractice claim. For example, legislation in Montana provides that a legal malpractice action:
- Texas applies a bright-line tolling rule to a broad category of legal malpractice cases: “When an attorney commits malpractice in the prosecution or defense of a claim that results in litigation, the statute of limitations on a malpractice claim against that attorney is tolled until all appeals on the underlying claim are exhausted or the litigation is otherwise finally concluded.” court concluded that, on the facts of the case, the two-year statute of limitations began to run when the court of appeals issued an order dismissing an appeal in the litigation that was the basis for the malpractice claim. This was true despite the fact that the plaintiff had previously hired a new attorney and ultimately settled the litigation. limitations for a legal malpractice action may be tolled until resolution on appeal of the underlying case if the client has not become aware of the injury prior to the decision on appeal”).
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Chapter 2. Overview of Theories of Liability 42 results (showing 5 best matches)
- Lawyers participating in malpractice cases may have a similar obligation to report misconduct, at least after the malpractice litigation has concluded. Vincent R. Johnson, “Legal Malpractice Litigation and the Duty to Report Misconduct,” 1
- The provisions in the are not the law anywhere until they have been adopted by a court or other legal authority. Nevertheless, the represents the considered wisdom of the country’s most prestigious legal organization. Even if a court has not adopted a may serve as persuasive authority in a legal malpractice case. For practitioners, the
- In certain situations, a breach of contract claim is viable even though other theories of malpractice liability are not. For example, in one case, a former client, who had settled a claim against an insurance company, was told several years later that its law firm had discovered that the “lawyer” who had represented it was not licensed to practice law. In a subsequent suit against the law firm, the New York Appellate Division affirmed dismissal of the client’s legal malpractice claim because there was no evidence that the nonlawyer’s lack of a license caused damage. However, the court allowed the client’s breach of contract claim to go forward because the firm had continuously held out the nonlawyer as a licensed attorney and had billed for his services. , 67 A.D.3d 541, 891 N.Y.S.2d 321 (2009).
- In , 50 A.D.3d 667, 854 N.Y.S.2d 536 (2008), a lawyer engaged in an impermissible conflict of interest by representing both the buyers and the sellers in the sale of a closely held corporation. An appellate court in New York found that the aggrieved sellers stated a legal malpractice claim because the lawyer, as a result of the conflict, had allegedly failed to disclose to the plaintiff information critical to determining the purchase price of the business. However, the court dismissed the plaintiff’s claims for fraud and negligent misrepresentation because those causes of action arose from the same facts as the legal malpractice claim and the plaintiff did not allege distinct damages.
- In contrast to discipline, a legal malpractice plaintiff usually seeks monetary redress for harm caused by a lawyer’s misconduct. The representation of a malpractice plaintiff is commonly handled on a contingent fee basis by a lawyer in private practice. If the suit is successful, a lawyer with a contingent fee typically receives a percentage (perhaps one-third) of the resulting settlement or judgment. The fee may escalate depending on the point at which the matter is concluded. For example, the plaintiff’s lawyer may be entitled to 25% if the matter is resolved before trial, 30% after the litigation commences, and 35% if the matter requires an appeal. In most states, disciplinary rules set forth specific requirements for documenting the terms of a contingent fee contract and accounting for the proceeds of that kind of representation.
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Chapter 6. Remedies for Legal Malpractice 112 results (showing 5 best matches)
- Whether a malpractice plaintiff can recover attorney’s fees depends on the reason they were incurred. In this regard, it is possible to distinguish at least four categories: (1) fees paid in the legal malpractice action itself; (2) fees paid in the earlier representation giving rise to the malpractice claim; (3) fees that would have been recovered in earlier litigation but for the malpractice; and (4) fees paid to remedy or mitigate the consequences of the defendant lawyer’s malpractice.
- “New Jersey * * * is arguably the only state where the plaintiff’s cost of successfully prosecuting a legal malpractice claim is [routinely] added to the compensatory damages recovered from the negligent lawyer.” Bennett J. Wasserman, “Recovering Damages in Legal Malpractice Cases,”
- Laws in some states make a party who rejects an offer of settlement liable for the offeror’s attorney’s fees if the offeree proceeds to trial and ultimately obtains a less favorable judgment. Fla. Stat. Ann § 768.79 (Westlaw 2016). These laws may protect lawyers as well as legal malpractice plaintiffs. For example, in , 532 F.3d 1146 (11th Cir. 2008), an estate was held liable for almost a quarter of a million dollars in attorney’s fees incurred by a law firm defending a malpractice action.
- Compensation for emotional distress is generally not available in a legal malpractice action based on . Thus, if a lawyer provides negligently incorrect advice about a child visitation order, a client ordinarily cannot recover compensation for mental anguish, even if emotional distress in fact results. P.3d 1015, 1019–20 (2002). This is not surprising for, in the law of torts generally, negligent infliction of emotional distress is actionable only in a narrow range of cases.
- Some states allow malpractice plaintiffs to recover lost punitive damages as an element of compensation. However, other courts reject this approach. , 222 Ill. 2d 218, 856 N.E.2d 389, 305 Ill. Dec. 584 (2006). The courts in the latter group generally reason that there is no entitlement to punitive damages; that making a merely negligent lawyer liable for a lost punitive award would punish the wrong party and exacerbate the costs of legal services and legal malpractice insurance; and that efforts to assess the size of a lost punitive award would amount to sheer speculation.
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Table Of Authorities 30 results (showing 5 best matches)
- Elliott-Engel, Amaris, “Pa. Jury Awards $1.8 Million in Legal Malpractice Suit,” www.law.com, Sept. 3, 2010, 446
- Johnson, Vincent R., & Stephen C. Loomis, “Malpractice Liability Related to Foreign Outsourcing of Legal Services,” 2 St. Mary’s J. Legal Malpractice & Ethics 262, 313–14 (2012), 390
- Johnson, Vincent R., Legal Malpractice Litigation and the Duty to Report Misconduct, 1 St. Mary’s J. Legal Malpractice & Ethics 40 (2011), 25
- Johnson, Vincent R., “Legal Malpractice in A Changing Profession: The Role of Contract Principles,” 61 Cleve. St. L. Rev. 489, 526 (2013), 393
- Johnson, Vincent R., “Legal Malpractice in International Business Transactions,” 44 Hofstra L. Rev. 325, 337–338 (2015), 47, 77
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Outline 121 results (showing 5 best matches)
Chapter 10. Preventing Legal Malpractice 55 results (showing 5 best matches)
- Many lawyers who specialize in the law relating to legal malpractice, lawyer discipline, or bar admissions belong to the American Bar Association’s Association of Professional Responsibility Lawyers (APRL). One advantage of membership is that it is possible to obtain almost instant advice, at no charge, from ethics experts across the country simply by posting a question on the APRL listserv.
- Consultants specialize in law firm risk management. Money spent on this type of expertise can often greatly reduce the costs that a firm incurs in connection with malpractice claims.
- If representation of a prospective client is declined, it is important to confirm that fact in writing. Doing so will dispel any expectation on the part of the person seeking legal services that the lawyer will provide representation. This will make it virtually impossible for the person to sue the lawyer for malpractice by alleging there was an attorney-client relationship created by mistake. ( Chapter 3 Part A–1–a–(3).)
- In , 400 N.J. Super. 220, 946 A.2d 1051, 1065 (2008), the court noted that there are at least four conceptual possibilities in estate-related representation. A lawyer could represent (1) the executor in the performance of his or her duties; (2) the estate itself; (3) the beneficiaries of the estate; or (4) some combination of the first three alternatives. The court observed that, under New Jersey law, when a lawyer is retained to perform specific tasks in connection with an estate, the lawyer’s client is ordinarily the executor, rather than the estate. Nevertheless, the court found that, on the facts of the case, the defendant lawyer, who failed to clarify in a retainer agreement whom he represented, owed duties to the estate as a client. Gerry W. Beyer, “Avoid Being a Defendant: Estate Planning Malpractice and Ethical Concerns,” 5
- Many of the problems that give rise to legal malpractice actions can be avoided by the exercise of care right at the beginning of a possible lawyer-client relationship. By screening prospective clients carefully, checking for conflicts of interest, documenting which proffered engagements have been accepted or declined, and clarifying who is being represented, a lawyer can greatly minimize the chances of being sued.
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Copyright Page 4 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
- © 2016 LEG, Inc. d/b/a West Academic
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Index 83 results (showing 5 best matches)
- Legal Malpractice; Malpractice Insurance; Multiple Claims; Preventing Malpractice
- In legal malpractice, 102–106
- Contract Law; Damages; Defenses; Expert Testimony; Informed Consent; Laypersons; Malpractice; Multiple Claims; Nonclients; Preventing Malpractice; Scope of Representation; Theories of Liability
- Relating to legal malpractice claims, 339–341
- LEGAL MALPRACTICE
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Chapter 4. Breach of Fiduciary Duty 99 results (showing 5 best matches)
- Damages and forfeiture are different remedies, but are frequently asserted together in a legal malpractice action. A claim for damages is a request for compensation for harm caused by the lawyer’s misconduct. Fee forfeiture, in contrast, is essentially a request for a refund, or for forgiveness of nonpayment, because the client did not get what was bargained for, namely representation by a lawyer faithful to important duties. Forfeiture is a restitutionary remedy designed to prevent unjust enrichment of the lawyer.
- No useful distinction can be drawn between negligence and breach of fiduciary duty with respect to statutes of limitations. Different limitation periods may apply to the two actions. However, which statute is longer depends on the law of the jurisdiction. It is not possible to generalize. Moreover, in some jurisdictions, the same statute of limitations governs all legal malpractice claims, regardless of the theory of liability asserted (
- Support for the proposition that mere negligence, not amounting to breach of fiduciary duty, is sufficient to cause loss of attorney’s fees can be found in , 357 N.J. Super. 352, 815 A.2d 496 (App. Div. 2003). In , an American lawyer failed to “sustain contact” with an Italian law firm that he was using to handle an international tort claim for the plaintiff. As a result, the claim was not timely filed and became time-barred. There was no evidence that the failure to sustain contact was the result of disloyalty to the plaintiff. Therefore, the case involved mere negligence. In a subsequent malpractice action against the American lawyer, the fundamental question was whether the plaintiff could recover the full value of the lost claim ($90,000) or only a reduced amount ($60,000) reflecting reduction for the one-third contingent fee the client would have had to pay if the claim had been timely prosecuted and successful. The court surveyed New Jersey law and found that it stood for the...a
- However, some courts have gone to great lengths in distinguishing negligence from breach of fiduciary duty. For example, in , 2007 WL 1600052 (Conn. Super. Ct. 2007), lawyers purportedly represented a medical practice group and several of its physicians individually, in violation of applicable conflict of interest rules. In a subsequent malpractice action, one of the physicians asserted a variety of claims, including, among others, legal malpractice ( , professional negligence) and breach of fiduciary duty. A Connecticut court struck the breach of fiduciary duty claim because there was no evidence that the lawyers were dishonest or disloyal. Thus, the court distinguished between conflicts of interest arising from the lawyers’ own interests, and conflicts arising among the interests of clients. Only the former, the court found, is sufficient to establish a breach of fiduciary duty. The court concluded that “the plaintiff’s allegations that a conflict of interest existed between the...
- The reason that a high degree of candor is required in the context of business transactions is because the interests of lawyer and client are adverse. Whenever there is such adversity, there is reason to think that the lawyer may be less than fully faithful to the client or protective of the client’s interests. Consequently, the heightened disclosure obligations under fiduciary duty law are not restricted to business transactions. They apply to other situations where the interests of lawyers and clients are at odds. This is why a lawyer must inform a client when the lawyer’s negligent conduct gives the client a substantial malpractice claim.
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Advisory Board 12 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, the Ohio State University
- Robert A. Sullivan Professor of Law Emeritus,
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Yale Law School
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Table Of Cases 19 results (showing 5 best matches)
- Breen v. Law Office of Bruce A. Barket, P.C., 202, 235, 325
- Carolina Casualty Insurance Co. v. L.M. Ross Law Group, LLP, 486
- Goodman v. Holmes & McLaurin Attorneys at Law, 355, 356
- Home Insurance Co. v. Law Offices of Jonathan DeYoung, P.C., 487
- LaFleur v. Law Offices of Anthony G. Buzbee, P.C., 339
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Table Of Statutes 5 results
- Mich. Comp. Laws Ann. § 450.226(6)............................. 374
- 11 U.S.C.A. § 523(a)(2)(A) ................................................ 21
- 11 U.S.C.A. § 523(a)(4) ..................................................... 21
- 11 U.S.C.A. § 523(a)(6) ..................................................... 21
- La. Rev. Stat. 9:5605(A) .................................................. 301
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Table Of Rules And Restatements 45 results (showing 5 best matches)
- Restatement (Third) of the Law Governing Lawyers (2000) ......................................................................... 5, 74
- Restatement (Third) of the Law Governing Lawyers § 4 (2000) ............................................................. 392, 393
- Restatement (Third) of the Law Governing Lawyers § 9 (2000) ..................................................................... 345
- Restatement (Third) of the Law Governing Lawyers § 9(3) (2000) ................................................................. 168
- Restatement (Third) of the Law Governing Lawyers § 11 (2000) ................................................................... 368
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- Publication Date: August 19th, 2016
- ISBN: 9781634602822
- Subject: Professional Responsibility/Ethics
- Series: Nutshells
- Type: Overviews
- Description: Legal Malpractice Law in a Nutshell charts the dynamic field of lawyer professional liability. With reference to recent cases and statutory developments, the book covers prominent causes of action (including professional negligence, breach of fiduciary duty, and fraud), the role of experts in malpractice litigation, theories of liability to nonclients, affirmative defenses, damages, and fee forfeiture. The book also explores the vicarious liability of lawyers and law firms, conflicts of interest, strategies for reducing errors and claims, and the role of malpractice insurance.
