Legal Malpractice Law Review : Professional Responsibility Case Summaries & Commentary : Bennett J. Wasserman : LegalMalpractice.com : Lawyer Malpractice & Legal Ethics

LAWYER MALPRACTICE COURSE SYLLABUS

      SPRING SEMESTER, 2012

     Maurice A. Deane School of Law 

      HOFSTRA UNIVERSITY

Prof. Bennett Wasserman
E: Bennett.Wasserman@hofstra.edu or benwasserman@legalmalpractice.com
C: 201.803.6464    Law Office:  (201) 907.5000


Purpose of the Course:

This course explores legal malpractice law, policy, and problems. In addition to studying the civil liability claims and defenses relating to lawyer and law firm malpractice, the course will survey the development of new theories of liability that over the past two and a half decades have expanded the accountability of practicing lawyers for their professional services. In addition, the course will cover approaches to managing risk,  avoiding malpractice claims and defending them.

This course is designed to: 1) enable students to learn the law and policy related to the professional liability of lawyers; 2) expose students to legal malpractice issues encountered by practicing lawyers in a variety of substantive areas of law; 3) familiarize the student about the central role played by expert witnesses in legal malpractice litigation; 4) enable students to identify, analyze, address and prevent common malpractice traps 5) familiarize the students with the litigation process that is unique to legal malpractice litigation and 6) to see how different states have developed their own unique approach to the legal malpractice law. The class will combine lecture and class discussion of assigned reading materials, a substantial portion of which is taken from actual cases in which the professor has been professionally involved as either an advocate or expert witness. By the end of the course, students will have command of the most important concepts involved in legal malpractice from both the plaintiff and defendant perspectives. Moreover, the course will be entirely based on resources and materials that are available on the internet. 

Course Materials:

Almost  all course materials will be posted on line  at www.legalmalpracticelawreview.com under the link entitled "Topics" / "CLE & Law School Course" on the left hand column.  The class will also use this blog to have on line class discussions in addition to in class discussions. Also, the class writing assignments will be posts to the blog in order to continue to build an online archive of reported and important unreported court decisions,  statutes and authorities  that affect the substantive law of lawyer malpractice.

Non-internet based materials that may be referred to during the semester include the following, all of which are available at the Reference Desk of the Law Library or the Bookstore: 

1) Mallen & Smith, Legal Malpractice (Thomson/West) 

2) Restatement of the Law Governing Lawyers (ALI, 2000)

3) Fortney & Johnson, LEGAL MALPRACTICE LAW: PROBLEMS and PREVENTION (Thomson/West, 2008). (Available in the Bookstore).

4) A Concise Restatement of the Law Governing Lawyers (American Law Institute, 2007). (Available in the Bookstore)

Classes:

This class is scheduled to meet on Thursdays between 12:10 and 2:00 pm in KOPPL Room 0206.

Attendance and Preparation:

Students are expected to attend classes regularly and to prepare for classes conscientiously. If you miss class frequently or are unprepared several times, your grade may be lowered. Alternatively, I may ask the Registrar to withdraw you from the course. Sometimes you can’t avoid missing a class. If you know in advance that you will be missing a class for a compelling reason, or if you have missed a class due to illness or emergency, please send me an e-mail at Bennett.Wasserman@Hofstra.edu or at benwasserman@legalmalpractice.com briefly explaining the situation. As required by the Law School’s attendance policy, an attendance sheet will be circulated at each class, which the student must sign. No student is permitted to sign the attendance sheet on behalf of another student who is either absent or late for class. All students must be familiar with the Law School’s attendance policy and abide by it.

Lateness:

Students are expected to be on time to class. However, it is better to come to class late than not at all. You may walk in late if you have a good reason, as long as you don’t abuse this privilege.

Final Grade for the Course:

The final grade for the course will be determined as follows: Twenty percent (20%) will be based on class participation and your level of preparedness for class discussions. Five percent (5%) will be based on the quantity and quality of your postings on line at www.legalmalpractice.com. Seventy-five percent (75%) of the final grade will be based on your final writing assignments.

Final Writing Assignment:

There is no final exam in this course. Instead, students are required to submit their  writing assignments on a regular basis during the course of the semester.  The details of the writing assignment will be discussed at the first class meeting. It is expected that this course will satisfy the Law School's writing requirement #2.

Computer Policy: Because this course is based almost entirely on internet resource materials, access to a  laptop computer with an internet connection is important for class participation as well as for your assignments. During class, please do not use your computers to “surf the net”, email, text message or shop. If any student does not have access to a laptop, please see Prof. Wasserman  so that arrangements can be made to have one available.  

Communications:

The best way to communicate with me is by email at Bennett.Wasserman@Hofstra.edu or at benwasserman@legalmalpractice.com. I will get back to you within 24 hours. While I do not maintain regular office hours at the Law School, if you need to speak with me in person, we can set up an appointment either before or after class. You may also call me at my law office: (201) 907.5000 extension 473. If I am not there, please  ask for my assistant, Renee Schell at extension 471. My cell phone is (201) 803-6464, which you should always feel free to call after first trying to reach me by email.  You can also text me at my cell number. 

Welcome to the Spring 2012 semester and to this exciting course. 

Prof. W. 

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LAWYER MALPRACTICE  

SPRING SEMESTER, 2012 

        COURSE OUTLINE & READING ASSIGNMENTS

                        Maurice A. Deane School of Law

                           HOFSTRA UNIVERSITY

(updated Jan. 9, 2012)

Prof. Bennett  Wasserman

Contact information:
Email:     Bennett.Wasserman@hofstra.edu or benwasserman@legalmalpractice.com
Cell:        201-803-6464  or      Law Office: 201.907-5000

Class Meets on Thursdays, starting January 12, 2012  between from 12:10 to 2:00 pm in KOPPL Room 0202
 

All Required Reading Materials are hyperlinked below in this  Course Outline & Reading Assignment List. Those that are not linked  are not required for class meetings,  but are recommended. You can  access via  the internet, for example through  Google Scholar or your own student Westlaw or Lexis accounts virtually all other  materials. Materials that you cannot readily access will be placed in a Dropbox folder by Prof. Wasserman,  to which all students will receive an invitation to link to the folder.   Obviously, Google provides an excellent search engine to locate anything you might want to find, as do the official judiciary websites in many states, including New Jersey and New York. 

Additional  Reading Materials:.

Fortney & Johnson,  Legal Malpractice Law: Problems and Prevention (Thomson/West, 2008) (Hereafter referred to as "FJ").

 Restatement of the Law Governing Lawyers (ALI, 2000) (Hereafter "RLGL")

 Rules of Professional Conduct NY  (NY RPC)

Rules of Professional Conduct NJ  (NJ RPC)

________________________________________________________________________________
Class #1- INTRODUCTION TO THE LAW OF LAWYER MALPRACTICE

Topics for Class Discussion:

Sources of Lawyer Liability Common Law;  Rules of Professional Conduct: The Overlapping Worlds of Legal Ethics and Legal Malpractice;  Rules of Professional Conduct as Proof of the Standard of Care; The Malpractice Cause of Action: The Basic Elements

Required Readings:

Savings Bank v. Ward 100 U.S. 195 (1880)

Baxt v. Liloia, 155 N.J. 190 (1998)

Additional Readings:

FJ: Chap. 1 (pp. 1-13); Chap 2 (pp.30-32)

 
 _______________________________________________________________________________

Class #2- THE INDICIA OF THE LAWYER-CLIENT RELATIONSHIP

Topics For Class Discussion:
Forming the Relationship: What you need and what you don’t need; The Scope of the Relationship (Limiting the lawyer’s duty to the client); Ending the Relationship; The Enduring Relationship

Procanik v. Cillo, 226 N.J. Super. 132 (App. Div. 1988) cert. denied 113 N.J. 357 (1988)

Togstad v. Vesely, Otto, Miller et al 291 N.W.2d 686 (1980).

Jordan v. Lipsig Sullivan et al 689 F. Supp. 192 (SDNY 1988)

Gilles v. Wiley, Malehorn & Sirota, 345 N.J. Super 119 (App Div. 2001)

Kriegsman v. Kriegsman, 150 N.J. Super (App Div 1977)

Estate of Albanese v. Lolio 393 N.J. Super 355 (App Div 2007) 

Herbert v. Haytaian, 292 N.J. Super 426 (App. Div. 1996)

Lerner v. Laufer, 359 N.J. Super. 201 (App. Div.) cert. denied 177 N,J.223 (2003)

NY Letters of Engagement Rules 

NJ RPC 1.5 (b):

When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated in writing to the client before or within a reasonable time after commencing the representation. 

Additional Readings:

FJ: Ch. 3 (pp.35-50) 

_____________________________________________________________________________

Class #3- The Client’s "Hybrid" Cause of Action against the Lawyer

Topics for Class Discussion: Breach of Contract; Negligence;Breach of Fiduciary Duty;
Intentional Torts (fraud, conversion)

Required Readings:

 RLGL § 48, 49 

Fiorentino v. Rapaport, 693 A. 2d 208 (Pa. Super. 1997)

Hutchinson v. Smith, 417 So. 2d 926 (Miss. 1982)

Hall v. Nichols, 400 S.E.2d 901 (W.Va. 1990)

Estate of Re v. Kornstein, Veisz & Wexlert, 958 F. Supp.907 (SDNY 1997)

Affidavit of Merit  NJ: 2A:53A--§§26,27,29. 

Additional Readings:

FJ: Ch. 2 (pp. 15-33)

______________________________________________________________________________
Class #4- The Lawyer’s Basic Duties to the Client and the Standard of Care

Topics For Class Discussion:
The Duty of Competence;The Duty of Diligence; The Duty to Investigate; The Duty to Communicate; The Standard of Care--for most of us; For specialists; For local counsel

Required Readings:

RLGL §§ 15 (Prospective Clients,) 16 (A Lawyers Duties to a Client--In General), 48 (Professional Negligence), 50 (Duty of Care to a Client), 51 (Duty of Care to Certain Non-Clients) , 52 (Standard of Care).
RLGL § 20 (Duty to Inform and Consult with Client);  

RPC 1.1 (Competence); 1.3 (Diligence); 1.4 (Duty to Communicate)

RPC 1.2 The Scope of the Relationship

Hodges v. Carter, 239 N.C. 517, 80 S.E.2d 144 (1954). (standard of care)

Matter of  Yetman, 113 N.J.556 (1989)  (competence)

Olds v. Donnelly, 150 N.J. 424 (1997)  (diligence, candor with client) (entire controversy doctrine)

Brizak v. Needle, 239 N.J. Super. 415, 571 A.2d 975 (App Div.1990). (diligence, duty to investigate)

Ingemi v. Pelino & Lentz, 866 F. Supp. 156 (DNJ, 1994)  (role of local counsel)

Dixon-Ticonderoga Co. v. Estate of O’Connor 248 F.3d 151 (2001)

Additional Reading

FJ: Ch 3 (pp. 51-78)

_____________________________________________________________________________
Class #5- The Lawyer’s Fiduciary Duties 

Topics for Class Discussion:
The Fiduciary Duty;   Defining the Essence of the Fiduciary Duty-putting the interests of the client ahead of those of the lawyer. Conflicts of Interest Self-Dealing and Disloyalty; Abusing the position of trust (e.g., excessive billing) Misuse of Confidential Information

Readings:

RLGL § 49

RPC 1.6 (confidentiality) 1.7, 1.8, 1.9 (conflicts of interest)

RPC 1.5 (Reasonable Fees)

Traditional Notions of the Fiduciary Duty

 Profit Sharing Trust v. Lampf Lipkind, 267 N.J.Super 174 (L.Div 1993).

Maritrans v. Pepper, Hamilton & Scheetz, 529 Pa. 241,602 A.2d 1277 (1992)

Matter of Silverman, 113 N.J. 193 (1988)

 NJ ACPE Op.684

The New Frontier: Abusive Billing Practices

Charnay v. Colbert, 51 Cal. Rptr.3d 471 (Cal. App.2d Dist. 2006)

Cripte v. Leiter, 184 Ill. 2d 185, 703 N.E.2d 100 (1998) (IL Supreme Court)

Additional Reading:

FJ: Ch. 4 (pp. 101-116) Ch. 11 (pp.421-424).

______________________________________________________________________________
Class #6 and #7 - The Demise of Privity and The Rise of “Quasi” Client’s Causes of Action for Lawyer Malpractice.

Topics for Class Discussion: Privity and What’s Left of it;  The New York perspective; Other States, a sampling; The “prospective” client;The “implied” client; Duties to the adverse parties and their attorneys
Negligence;Negligent Misrepresentation;   Overcoming Privity’s obstacles:  Assigning the Legal Malpractice Cause of Action Conspiracy; Aiding and Abetting Breach of Fiduciary Duty.

Readings:

RLGL §§15, 51

Traditional Exceptions to Privity: fraud and  collusion

Dodging the Privity Blockade  

The Balancing of Factors Test

Biakanja v. Irving, 49 Cal. 2d 647,320 P.2d 16 (1958)

Lucas v. Hamm, 56 Cal.2d 583, 364 P. 2d 685 (1962)

Heyer v. Flaig, 70 Cal.2d 223, 449 P.2d 161 (1969).

Third Party Beneficiaries of the Lawyer-Client Relationship:

NY: Prudential Ins. Co v. Dewey Ballantine, 80 N.Y.2d 377 (1992).

NJ:  Stewart v. Sbarro  142 N.J. Super 561 (App. Div. 1976) cert denied 72 N.J. 459 (1976)

Albright v. Burns, 206 N.J. Super 625 ((1986)

Aiding and Abetting Breach of Fiduciary Duty

Wasserman, “Where Were the Lawyers?” N.J. Law J. 1/23/07

Duties to our Adversaries?

Petrillo v. Bachenberg,139 N.J.472 (1995)

Davin, LLC v. Daham 329 N.J. Super 54 (2000)

              Contract: Assigning the Legal Malpractice Cause of Action

PA: Hedlund Mfg. Co. v. Weiser, Staper & Spivak, 517 Pa. 522(1988)

NY: Oppel v. Empire Mutual Ins. Co., 517 F. Supp. 1305 (SDNY1981)  

NJ: Alcman Serv.Corp. v. Bullock, 925 F. Supp. 252 (DNJ, 1996)

Additional Reading:

FJ: Ch. 5 (133-179); Ch. 4 (pp.117-128)

Martyn, The Accidental Client, 33 Hofstra L. Rev. 913 (2005)
_____________________________________________________________________________

Class#7- Continuation of Class #6

_____________________________________________________________________________
Class#8- The Legal Malpractice Expert Witness: Why is this Witness Different from
All Others?

 Topics for Class Discussion: The Expert’s Qualifications; The Expert’s Opinion and his Report; Daubert, Kumho Tire, etc.; “Net Opinion” Rule

 Readings:

FRCP 26 

NY CPLR 3101 (d)

NJ Court Rule 4:10-2

Wasserman, "On Being an Expert Witness in Legal Malpractice Cases" (January 2012)

The Federal Approach: Killing  "Junk" Science

Daubert v. Merrill Dow, et al. 509 U.S. 579 (1997)

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)

The States' Approach:  No "Net Opinions" 

Celucci v. Bronstein, 277 N.J. Super 506 (App. Div. 1994)

Kaplan v. Skoloff & Wolfe, 339 N.J. Super 97 ( App. Div. 2001)

Froom v. Perel, 377 N.J. Super. 298 (App. Div. 2005) 

Hedinger & Lawless v. Betal, (NJ App. Div. 3-10-2011)

Guarding Against the Expert's "Net Opinion"

Carbis Sales v. Eisenberg, 397 N.J. Super 64 (App. Div. 2007)

Carbis Sales v. Eisenberg  Expert report for Plaintiff

Additonal Reading:

FJ: Chap 3 (pp. 59-70)

______________________________________________________________________________

Class#9- Proximate Cause in Underlying Litigation Cases

Topics for Class Discussion:  Underlying Civil Cases; Proving a Case Within a Case;The “Old Fashion” Way The Streamlined Way;  Underlying Criminal Cases: Constitutional Right to Effective Assistance of Counsel

 Readings:

 RLGL: § 53

The Case Within a Case: "But For the Lawyer's Negligence..."

Hoppe v. Ranzini, 158 N.J. Super. 158 (App. Div. 1978)

Leavy v. Kram, 34 Misc. 2d 479, 226 NYS2d 349 (1962) (collectibility) 

Duncan v. Lord, 409 F. supp. 687 (ED Pa. 1976) (solvency of underlying defendant)

Albee Associates v. Orloff Lowenbach, et al. 317 N.J. Super 211(App.Div.1999)

The Substantial Factor Test

Conklin v. Hannoch Weisman, 145 N.J. 395 (1996)

Burdens of Proof 

Garcia v. Kozlov, 179 N.J. 343 (2004)

Lieberman v. Employers of Wausau, 84 N.J. 325 ((1980)

Pivnick v. Beck 326 N.J.Super 655 (App Div 1999)

Pivnick v. Beck, 165 N.J. 670 (2000)

Vahila v. Hall 674 N.E.2d 1164 (Ohio 1997)

Kelly v. Berlin

Bailey v. Tucker, 533 Pa. 237 (1993)

Fuschetti v. Bierman, 128 N.J. Super 290 (1974) (malpractice jury decides what  a reasonalbe underlying jury would have awarded). 

Additional Readings:

 FJ: Chap 3 C (pp. 79-99);

_____________________________________________________________________________
Class#10-- Proximate Cause in Underlying Transactions

Topics For Class Discussion:
"But for" is alive and well in Commercial Transactions;  Real Estate; Botched  Litigation Settlements as "transactions" and other non-litigation based legal malpractice.

Readings:

Botched Settlements: Litigation Based Malpractice or Transactional Based Malpractice?

 Wasserman, “Holding Lawyers Accountable for Bad Settlements” NJ Law J. Jan 21, 2008)

Muhammad v. Straussburger, 526 Pa. 541 (1991) 

In re New York Diet Drug Litigation, 850 NYS2d 408 (2008)

Ziegelheim v. Appolo 128 N.J. 250 (1992)   

Grayson v. Wofsey, Rosen, Kweskin & Kuriansky 231 Conn. 168, 646 A. 2d 195 (1994)

Puder v. Buechel, 183 N.J. 428  (2005)

Guido v. Duane Morris, LLP  202 NJ 79 (2010)

The Problem of Aggregate Settlements

RPC 1.8(g)

Mass Tort Cases

_______________________________________________________________________

Class#11- Damages and other Remedies for Malpratice

Topics for Class Discussion: “Actual Damages”;Compensatory Damages; Consequential Damages;
Punitive Damages; Emotional Distress; Loss of Liberty; Attorney’s Fees and Expenses to Correct the Malpractice;  Fee Disgorgement

Readings:


 Saffer v. Willoughby, 143 N.J.256 (1996)

Merenda v. Superior Court, 3 Cal App 4th 1 (1992)

Gautam v. De Luca, 215 N.J. Super. 388 (App Div., 1987)

Kohn v. Schiappa, 281 N.J. Super 235 ( L. Div.,1995) 

Campagnola v. Mulholland, Minion & Rice 76 N.Y. 2d 38 (1990)

Strauss v. Fost, 213 N.J.Super 239 (App Div 1986)

Perl v. St. Paul Fire and Marine Ins. Co., 345 N.W.2d 209 (Minn 1984)

Wagenmann v. Adams, 829 F. 2d 196 (1st Cir., 1987)

Snyder v. Baumecker, 708 F. Supp. 1451 (DNJ, 1989).

Smith v. Lewis, 13 Cal. 3d 349 533 P. 2d 589 (Cal. Supt Ct. 1975) ovr'ld on other grounds, Re Marriage of Brown, 15 Cal. 3d 838, 544 P.2d 561 (Cal Sup. Ct. 1976)  (loss of opportunity damages)

Additional Reading

FJ: Chap. 6 (pp.181-203)

_____________________________________________________________________________
Class#12-  Defending Legal Malpractice Lawsuits

Topics For Class Discussion: Insurance Defense- The “triadic” relationshipVicarious Liability: The “art” of blaming others for your malpractice; Affirmative Defenses:  Statute of Limitations;Sharing the Risk: Indemnity and contribution; Judgmental Immunity; Prematurity;  Settlement of the Underlying matter; the Entire Controversy Doctrine; Collateral Estoppel; Mitigation; “The client made me do it”

Readings:

Statute of Limitations-Discovery Rule

NY: CPLR 214 (6)- 3 years whether in contract or tort-overruling Santulli v. Englert, Reilly, et ago, 78 NY 2d 700 (1992)

NJ: 

PA: 

Vastano v. Algier, 178 N.J. 230 (2003)

Covino v. Peck, 

Scope of Engagement

Lerner v. Laufer, 359 N.J. Super 201 (App. Div. 2003)

Prior Settlement

Contributory Negligence

Conklin v. Hannoch Weisman, 145 N.J. 395 (1996)

Caiati v. Kimel Funding Corp., 154 A.D. 2d 639 (2d Dept. 1989)

Judgmental and Strategic Decision Immunity

Charter Oak Fire Ins. Co. v. State Farm Ins. Co., 344 N.J.Super 401 (2001)

Attorneys Fee Award Negates Malpractice

NY: John Grace & Co., Inc. v. Turnstead, Schechter & Torre, 186 A.D.2d 15 (1st Dept 1992)

 

Additional Reading

FJ: Chaps. 8 (pp.255-287) then Ch. 7 (pp.205-252)

 ______________________________________________________________________________
Class#13- New Frontiers in Legal Malpractice

Topics for Class Discussion: The Tension between the Court and the Legislature controlling the practice of law.  Legislative Efforts to Limit the Rights of Victims of Lawyer
Malpractice.

Readings:

Wasserman, The Professional Services Business Enhancement Act: Myths and Realities (Dec. 2011)

Additional Reading: 

FJ: Chap. 9 (pp.289-349)

______________________________________________________________________________

Class#14- Preventing Malpractice and Protecting Yourself and Your Clients from it.

Topics For Class Discussion:
Principles of Risk Management; Professional Liability Insurance Alternate Dispute Resolution (Arbitration and Mediation)

Readings:

Wasserman, Mandatory Legal Malpractice Insurance: The Time has Come  (NJ Law J., Jan. 14, 2010)


Russo, The Consequences of Arbitrating a Legal Malpractice Claim, 35 Hofstra L. Rev. 327 (2006)

Additional Reading:

FJ: Chaps. 10 (pp. 369-401) and 11 (pp.403-420)

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Welcome to Hofstra Law School’s course on “Lawyer Malpractice”

This is the first installment of what will be an effort to make available to all law students  and lawyers the contents of the course materials which I use in teaching this course at Hofstra University  Law School. I have had the privilege and pleasure of teaching this course since 1990. In the process, I've learned a lot about this fascinating and relatively new  area of law. I've even gained a few insights into what it's all about. In addition to academics, I've also been professionally involved as an advocate and expert in over a thousand of these cases. Now, it's time to share whatever I may have learned in the process with a larger "classroom". Why?

The aim of this course is simple:  to teach law students and lawyers how NOT to practice law. Now with the technology of this blog, and the consequential morphing of the classroom into an online lecture hall with no borders or time limits,  my hope remains humble: to do something meaningful that will help make us all better lawyers, if for no other reason than  to help  restore the faith of too many disappointed clients in our legal and judicial system. Learning about how we commit malpractice and how to avoid it is not limited to a course in law school. Nor should it be left behind once new lawyers go out into the real world. That's why we've gone to the internet. It's here. Whenever you want and wherever you are. 

Legal malpractice lawsuits have proliferated in the past couple of decades to the point where it has been called “the tort of the new millennium.” That may well be why it makes sense to learn from the mistakes of others.  And that is what we plan to do here. We are going to be studying court decisions which read like short stories of what, why and how not to practice law. But we're going to learn more. For those litigators among us, we are going to learn how to prosecute legal malpractice actions where that's warranted and necessary and how to defend against legal malpractice actions that should not have been brought.

Actually, legal malpractice is a hybrid type of claim that mixes elements of contract law and tort law with an abundant serving of fiduciary duty law. It also throws in to the mix elements of consumer protection law and legal ethics. It has clearly become one of the prominent subdivisions of one of the newest areas of substantive law called “the law governing lawyers”.

Different states have developed their own unique approach to lawyer malpractice. Some states might be characterized as pro-lawyer others pro-client. Still others seem pro-plaintiff (whether one is a client or some third party  who is outside of the traditional client-lawyer relationship) or pro- defense. Liability insurance is an important driving force in legal malpractice litigation. But the insurance industry is, and should be, essential in helping lawyers learn which professional standards are acceptable and which are not.

There is much debate about many topics in the area of lawyer malpractice. But one thing on which most agree is defining the constituent elements of a legal malpractice claim. In general, here are the elements of the cause of action:

1. An attorney–client relationship (or some other relationship wherein a non-client relies on an attorney and the attorney is aware of that reliance);
2. The relationship gives rise to a duty of care on the part of the attorney which the attorney fails to comply with;
3. That breach of duty is the proximate cause of
4. Actual damages suffered by the plaintiff.

Short of these 4 constituent elements of the cause of action for legal malpractice, the debate rages:

What is an attorney-client relationship? What is the scope of the relationship? Who is entitled to rely on an attorney even though they are outside of the relationship? How to define the duty? Does the duty fall within the scope of the relationship? Can a duty that is provided in, say, the Rules of Professional Conduct be enforced in the setting of a legal malpractice law suit? Does the contract statute of limitations apply or the tort statute? Is the fiduciary duty statute of limitations any different? Does that apply in all legal malpractice cases? How do we define proximate cause? Is it “but for” or is it “substantial factors” or something else”? How do you prove or disprove proximate cause? What’s a “case within a case” anyway”? How do you prove what would have happened in the case out of which the legal malpractice arises? How do you prove what would have happened in a non-litigation (transactional) matter if the lawyer wasn’t professionally negligent?

And these are just some of the questions, for starters. So, where to start is the question. If you choose to read only one case throughout this entire course, here’s where you should begin: Probably one of the oldest and one of the few legal malpractice cases decided by the United States Supreme Court.

Savings Bank v. Ward, 100 US 195  (1880). 

Student feed back is important. That's why we have the ability to post comments to this lesson. Please feel free to do so. In that way, we can have discussions on what I hope will be helpful to you. 

Welcome aboard!

Prof. W.

PS If you prefer not to post publicly, feel free to contact us. There's a "Contact Us" box for your convenience, on the margin to your left. 

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Hofstra Law School: Lawyer Malpractice Class #2.

I.   What does it take to form a client-lawyer relationship?

Restatement of the Law Governing Lawyers (ALI 2000) (hereafter RLGL)

§ 14. Formation of a Client-Lawyer Relationship
A relationship of client and lawyer arises when:
(1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either
a. the lawyer manifests to the person consent to do so; or
b. the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services;
(2) a tribunal with power to do so appoints the lawyer to provide the services.

It really takes very little to start a Client-Lawyer Relationship. That may be good in terms of getting clients.  But it can be very risky in terms of incurring liability for malpractice to the client.  Ultimately,  the question to ask is: Who is my client?  

One party's unilateral beliefs and actions , standing alone, does not necessarily confer upon him or her the status of client. 

Moran v. Hurst, 32 AD3d 909, 822 NY2d 564

Solondz v. Barash, 225 AD2d 996, 639 NYS2d 410

Read Pam Bresnahan's article from the American Bar Association Journal about how little it takes.

Then, read each of the following cases:

In re Palmieri, 76 N.J. 51 (1978)

Procanik v. Cillo, 226 N.J. Super 132 (1988)

Togstad v. Vesely, Otto, Miller et al, 291 N.W. 2d 686 (1980)

Jordan v. Lipsig Sullivan, et al 689 F. Supp. 192 (DNY 1988)

How to you document the start of the Client-Lawyer Relationship ?

Rules of Professional Conduct (hereafter RPC)

RPC 1.5 Fees
(b) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated in writing to the client before or within a reasonable time after commencing the representation.

The New York Rule:

22 NYCRR §1215.1
(a)…an attorney who underakes to represent a client and enters into an arrangement for, charges or collects any fee from a client shall provide to the client a written letter of engagement before commencing the representation, or within a reasonable time thereafter (i) if otherwise impracticable or (ii) if the scope of services to be provided cannot be determined at the time of the commencement of representation. For purposes of this rule, where an entity (such as an insurance carrier) engages an attorney to represent a third party, the term “client” shall mean the entity that engages the attorney. Where there is a significant change in the scope of services or the fees to be charged, an updated letter of engagement shall be provided to the client.

(b) the letter of engagement shall address the following matters:
(1) Explanation of the scope of the legal service to be provided;
(2) Explanation of attorney’s fees to be charged, expenses and billing practices; and, where applicable, shall provide that the client may have a right to arbitrate fee disputes…

(c ) Instead of providing the client with a written letter of engagement, an attorney may comply with the provisions of subdivision (a) by entering into a signed written retain agreement with the client before or within a reasonable time after commencing the representation, provided the agreement addresses the matters set forth in subdivision (b).

§ 1215.2 Exceptions
This section shall not apply to (1) representation of a client where the fee to be charged is expected to be less than $3000, (2) representation where the attorney’s services are of the same general kind as previously rendered to and paid for by the client, or (3) representation in domestic relations matters…, or (4) representation where the attorney is admitted to practice in another jurisdiction and maintains no office in the State of New Yoir, or where no material portion of the services are to be rendered in New York.

CAVEAT: Failure to have a written engagement letter or agreement does not prevent a client-lawyer relationship from coming in to existence. But it can certainly have a negative impact if the client refuses to pay you for any reason and you have to sue the client to pay you (not a good idea in any event, which we'll discuss, soon enough.)

The existence of a client-lawyer relationship does not depend on a formal retainer or the payment of a fee. 

Moran v. Hurst, 32 AD3d 909, 822 NYS2d 564

Tropp v. Lumer, 2005 NY Slip Op. 872 (App. Div.)

Jane Street Co. v. Rosenberg & Estis, PC, 192 AD2d 451, 587 NYS 2d 17. 

 II.   What does it take to define or limit the scope of the client-lawyer relationship?

RLGL § 19. Agreement Limiting Client or Lawyer Duties

(1) Subject to other requirements stated in this Restatement, a client and lawyer may agree to limit a duty that a lawyer would otherwise owe to the client if:

(a) the client is adequately informed and consents; and 

(b) the terms of the limitation are reasonable in the circumstances. 

(2) A lawyer may agree to waive a client's duty to pay or other duty owed to the lawyer. 

                                                          * * *

RPC 1.2 (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. 

How broad is the scope of the client-lawyer relationship? These next linked cases will give you some insight into  how to narrow the  scope of the relationship and whether that can save  save you from liability for professional mistakes outside the scope of the relationship. 

Campbell v. Fine Olin, 168 Misc. 2d 305 (NY 1996)

Greenwich v. Markhoff, 650 N.Y.S.2d 704 (App Div. 1996)

Lerner v. Laufer, 359 N.J. Super. 201, 819 A.2d 471 (App Div. 2003)

Estate of Albanese v. Lolio, 393 NJ Super 355 (App Div. 2007)

III.   What does it take to End the Client-Lawyer Relationship?

RLGL § 31. Termination of a Lawyer's Authority

RLGL § 32. Discharge by a Client and Withdrawal by a Lawyer

RLGL § 33. A Lawyer's Duties When a Representation Terminates

RPC  1.16  Declining or Terminating Representation

Gilles v. Wiley, Malehorn & Sirota, 345 N.J. Super 119 (App Div. 2001)

Disengagement Letters

Suggested Readings: Fortney & Johnson, Legal Malpractice Law, Ch. 3 pages 35-50.  

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 Hofstra Law School: Lawyer Malpractice Class #3

. 

Suggested Readings: Fortney & Johnson, Legal Malpractice Law. Ch. 2 pp. 15-33

Here's a rhetorical question: How many ways are there to sue a lawyer?

There used to be only one: Breach of Contract. But as time marched on, tort law expanded the duties that lawyers were found to have to not only clients with whom the lawyer was in a privity relationship but to third parties who did not fit the classic definition of a client. So, negligence became yet another cause of action. Then there came the concept of breach of fiduciary and, lo and behold a third cause of action was born. Add to those the relatively recent innovation of statutory causes of action, such as Consumer Fraud and Deceptive Trade Practices, the Federal Debt Collection Practices Act, federal securities laws, and other statutes, both state and federal. Add still more Rules that expanded the standards by which lawyers' conduct is governed and measured, such as the Rules of Professional Conduct.

The growth of lawyer liability law closely parallels the law of product liability. It started with breach of contract, grew into negligence, then strict product liability under §402A of the Restatement of Torts, a hybrid cause of action.Then there were state product liability laws that re-defined the common law.

So too legal malpractice. It has all the elements of contract and tort combined and now, we even have an entire Restatement dedicated to the Law Governing Lawyers. We also have court decisions and state statutes that expand and shrink those instances where lawyers are liable for their professional malpractice. 

Let's take them one at a time and try to decipher the elements of each.

1. Breach of Contract

a. Express Contract

It's unusual to see many lawyers sued by their clients on the basis of breach of an express contract. Usually, the contract sued upon is the engagement agreement between the lawyer and client. But unless the lawyer has promised to do something specific or has promised to achieve a certain result, a breach of contract does not usually lie. Here's an example of where a lawyer did promise to do something specific, did not and was sued for the damages incurred by the client:

 Gunn v. Mahoney, 95 Misc.2d 943, 408 NYS2d 896 (1978)

What's to be gained by suing for breach of contract?

1. Sometimes, there's a longer statute of limitations in contract actions than in tort actions.

2. A contract action may be less expensive to litigate because no expert witness is generally required to prove breach of an express term of the contract. For example, if an attorney promises to form a corporation for a client and fails to do so, that's a rather simple breach to prove. 

3. Contract damages, however, may be more restricted than tort damages. 

4. Some states may allow an award of interest on a judgment for contract damages. 

5. Here are the elements of the contract cause of action:

a) a valid contract that can be legally enforceable (i.e., offer and acceptance);

b) plaintiff has performed his/her obligations under the contract (i.e, consideration, usually by way of payment of the attorney's fee and/or cooperation with counsel, etc.);

c) the lawyer breaches an express promise made as part of the contract; and 

d) actual damages suffered by the client. 

Here's a good analysis of the the cause of action for breach of contract against a lawyer for his malpractice in failing to perform a specific task:

Gorski v. Smith, 2002 PA Super 334, 812 A.2d 683 (2002)

And here, a less than contemporary view from another state:

Olyear v. Kerr, 217 Va. 88, 225 SE2d  398 (1976) 

b. Implied Contract

Implied in every attorney client relationship is an attorney's promise that his professional services will comply with  applicable standards of care and the client's acceptance of that implied term as part of the professional relationship. Some consider the implied contract theory as a bridge into the tort claim for negligence. Some states allow plaintiffs to sue for  both the contract claim and the tort claim. Some states apply different statutes of limitations to these causes of action. Others hold that it is a duplicate cause of action and  will dismiss  either the contract or the tort cause of action where both claims are based on the same operative facts. Perhaps the breach of implied contract is more like the negligence claim because expert testimony will invariably be required to prove the applicable standard of care, how the attorney breached that standard of care and whether that breach was the proximate cause of any damages. 

Celentano v. Grudberg, 76 Conn App. 119, 818 A.2d 841 (2003)

Hall v. Nichols, 400 SE 2d 901 (W.Va.1990)

 
 2. Tort: Negligence

This cause of action is the most widely accepted and the one on which most legal malpractice claims are based. Essentially, the question we seek to address is "What did the lawyer do wrong?" There need not be any motive to do anything "wrong". It may have been just a mistake; even an innocent one.  The trick is how do you define what a "mistake" is?

Here are the elements of the negligence cause of action:

a) an attorney-client (or foreseeable non-client)  relationship that gives rise to a duty of care within the scope of the relationship;

b) the attorney's failure to exercise ordinary skill and knowledge thus departing from the standard of reasonable care;

c) that the departure was the proximate cause  of 

d) actual damages suffered by the client (or non-client). 

The essence of negligence is that the lawyer failed to comply with the applicable standard of care in the duties that he has to a client within the scope of the representation he furnishes to the client.  The deviation from the standard in discharging the lawyer's duty is negligence. Of course, whether that negligence caused any damage is quite another question. But for the time being, let's try to understand what the lawyer's standard of care is.

Assume that the lawyer has a duty to do something for the client. (What the specific duties are we will soon learn.)  But for now, here are a few examples of how the lawyer's standard of care is defined:

The Restatement of Law Governing Lawyers:

§ 52 The Standard of Care

(1)...a lawyer who owes a duty of care must exercise the competence and diligence normally exercised by lawyers in similar circumstances.

 New York Pattern Jury Instructions 2:152 Malpractice-Attorney:

An attorney who undertakes to represent a client impliedly represents that (he,she) possesses a reasonable degree of skill, that (he,she) is familiar with the rules regulating practice in actions of the type which (he,she) undertakes to bring or defend and with such principles of law in relation to such actions as are well settled in the practice of law, and that (he,she) will exercise reasonable care. Reasonable care means that degree of skill commonly used  by an ordinary member of the legal profession. [Emphasis added].

But what if the lawyer being sued is not just an "ordinary" member of the legal profession? What if he or she is extraordinary? What if he's a specialist in his field? What if he's rated as a "SuperLawyer" or "Best Lawyer".  That's no ordinary lawyer. What standard applies to such a star in his field?

  Here's one court's view on a case involving the specialized area of Workers Compensation law:

"...a lawyer holding himself or herself out as a specialist in an area of law must exercise the knowledge and skill ordinarily possessed by other specialists in the same area of the law." Celucci v. Bronstein, 277 N.J.Super. 506, 522 (App. Div. 1994). 

Here's what  one of the most popular treatises in the field has to say:

Whether an attorney is a "specialist" may determine not only the standard of care by which the attorney's conduct is to be judged, but also the manner in which liability is to be established. For example, an attorney whose skill and conduct are questioned may find that his or his conduct is to be judged by comparison to the skills of a renowned specialist in the same field...

The recognition of a speciality is simply an acknowledgment of the need for special skill and knowledge that is not part of the ordinary attorney's equipment. It is not unfair to require that an attorney, who practices in a specialty, to exercise the skills and posses the knowledge requied to competently represent a client.

Mallen & Smith, Legal Malpractice, 2008, ed. §20:4, p.1282.

And, especially in these days of aggressive advertising by lawyers, the claim of specialization is all the more important in holding lawyers accountable who claim that they are specialists. One California court held:

One who holds himself out as a legal specialist performs in similar circumstances to other specialists but not to general practitioners of the law. We thus conclude that a lwyer holding himself out to the public and to the profession as specializing in an area of the law must exercise the skill, prudence and diligence exercised by other specialists of ordinary skill and capacity specializing in the same field.  Wright v. Williams, 47 Cal App. 3d 802, 809-810, 121 Cal Rprtr. 194,199 (2d Dist. 1975).

3. Breach of Fiduciary Duty

There's a famous Norman Rockwell painting of 3  young boys building a dog house for their new pup. Above the door,  they've painted the pet's name: FIDO.  Why did they give  him that name? What does it mean?  To those boys, FIDO is the embodiment of their greatest and most trusted friend and companion who would always be there to guide and help them. Is there any wonder what the derivation of the name "FIDO" is? 

The Fiduciary Duty, as it applies to lawyers and the attorney-client relationship has been characterized as a "mega duty" with 4 inherent component-duties:

1. the duty to avoid conflicts of interest;

2. the duty to protect a client's confidential information;

3. the duty to communicate with the client;

4. the duty of competence. 

The fiduciary duty is unique because it expresses the very essence of the lawyer's creed: to put the client's interests ahead of the lawyer's. Even if it harms the lawyer in some way.  It embodies  the importance of loyalty to the client, of serving his interests faithfully, diligently and competently and in never permitting the interests of  one client to clash with the interests of others. The client is the "master"; the lawyer the "servant". Thus the oft stated wisdom that a servant cannot serve two masters at the same time. 

Here's the view of the Restatement of the Law Governing Lawyers:

§ 16 A Lawyer's Duties to a Client--In General

...[A] lawyer must, in matters within the scope of the representation:

(3) comply with obligations concerning the client's confidences and property, avoid impermissible conflicting interests, deal honestly with the client, and not employ advantages arising from the client-lawyer relationship in a manner adverse to the client;...

 § 49. Breach of Fiduciary Duty--Generally

...[A] lawyer is civilly liable to a client if the lawyer breaches a fiduciary duty to the client set forth in §16 (3)...

 

 Justice Cardozo's much quoted words on the nature of the fiduciary conveys the essence of the  duty.  A fiduciary,

"is held to somehting stricter than the morals of the market place. Not honest alone, but the punctilio of an honor the more sensitive, is then the standard of behavior."

 Meinhard v. Salmon, 249 NY 458 (1928).  

With such a high moral, ethical and legal standard applied to lawyers, it's no wonder that the proliferation of legal malpractice suits invoke the fiduciary duty more and more  as one of the theories of liability. Has it been over-used and stretched beyond its intended use? Professor Charles Wolfram has something interesting to say about that.

See,  "Wolfram, A Cautionary Tale: Fiduciary Breach as Legal Malpractice", 34 Hofstra L. Rev. 689 (2006).

Read: 

Fiorentino v. Rapoport, 693 A. 2d 208 (Pa.Super. 1997) 

Santulli v. Englert, Reilly & McHugh, P.C. 586 NE 2d 104 (NY, 1992) (legislatively overruled by NY CPLR 214 (6).

Estate of Re v. Kornstein, Veisz & Wexler, 958 F. Supp. 907 (SDNY 1997) (Sotomayor, J.)

Please share your thoughts and comments with us. Just click the "comment" button. 

Prof. W.

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 Hofstra Law School: Lawyer Malpractice Class #4

Read: Fortney & Johnson, Legal Malpractice Law, Chap. 3, pp. 51-78.

The lawyer's basic duties are enshrined in the Rules of Professional Conduct adopted by each state. But while violation of a rule may provide grounds for a disciplinary proceeding, it does not in itself provide the basis of a legal malpractice action--even though a breach of that rule may cause the plaintiff damage.

See, Baxt v. Liloia, 155 NJ 190 (1998)

Many of the following duties, however, are inherent in and fundamental to the standard of care applicable to the practice of law. These standards have been part of the practice of law even before rules of legal ethics were codified in our present days Rules of Professional Conduct. So, alleging a breach of any of the  standards of practice which also might appear as a Rule of Professional Conduct, will usually suffice to sustain a malpractice claim.  

That being the case, do decisions such as Baxt v. Liloia have some  other rationale for holding that alleging a violation of a Rule of Professional Conduct cannot sustain a claim of legal malpractice ?

 Referring to the Rules of Professional Conduct is just a short cut for understanding what the lawyer's basic duties are. Actually, each of the duties are much broader than the language that the Rules imply. We'll see the true parameters of each of the duties--and how they frequently overlap with one another, in the court decisions relating to each of the duties. 

 Albright v. Burns, 206 N.J. Super 625, 634 (App. Div. 2001):

While violations of ethical standards do not per se give rise to tortious claims, the standards tet the minimum level of competency which must be displayed by all attorneys....Where an attorney fails to meet the minimum standard of competence governing the profession, such failure can be considered evidence of negligence. [citations omitted]

 Gilles v. Wiley, Malehorn & Sirota, 345 N.J. Super. 119, 125 (App. Div. 2001)

...violation of an RPC has essentially the same status and function in a malpractice action as a statute that prescribes a standard of conduct has in a negligence action.  Its breach is evidential of defendant's failure to comply with the required standard of care.

1. The Duty of Competence

ABA Model Rule 1.1 Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. 

Compare with New Jersey's Rule:

NJ RPC 1.1: Competence

A lawyer shall not:

(a) Handle or neglect a matter entrusted to the lawyer in such manner that the lawyer's conduct constitutes gross negligence. 

(b) Exhibit a pattern of negligence or neglect in the lawyer's handling of legal matters generally. 

How do we define "competence" ?

NJ Advisory Committee on Professional Ethics Op. 671 (April 5, 1993)

• "a lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation" (ABA Model Rule 1.1., Comment)
• "includes inquiry into and analysis of the factual and legal elements of the problem"
• "To achieve and maintain the necessary levels of competence...the lawyer should engage in continuing legal study and education" (NJ Supreme Court, Comments to RPC 1.1).

Matter of Yetman, 113 N.J.556 (1989) (Duty to Refer a Matter to Other Counsel)

 2. The Duty of Diligence

RPC 1.3: Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client. 

Restatement of the Law Governing Lawyers § 52 : "...a lawyer who owes a duty of care must exercise the competence and diligence normally exercised by lawyer in similar circumstances..."

Comment c. Diligence.  

A lawyer must devote reasonable diligence to a representation.  The lawyer must perform tasks reasonably appropriate to the representation, including, where appropriate, inquiry into facts, analysis of law, exercise of professional judgment, communication with the client, rendering of practical and ethical advice and drafting of documents.  What kind and extent of effort is appropriate depends on factors such as the scope of the representation..., the client's instructions..., the importance of the matter to the client...the cost of the effort, customary practice, and the time available. A lawyer who informs a client that the lawyer will undertake a specifically described activity is required to do so , as is one properly instructed by a client to take a particular step... Circumstances might make it necessary to provide more than one lawyer for a client's matter or to provide appropriate supervision of subordinate lawyers...or certain corresponding counsel.  When paralegal or other nonlawyers are used, they must be properly supervised. 

Diligence in litigation matters:

Olds v. Donnelly, 291 N.J. Super. 222 (App. Div. 1996) aff''d 150 NJ 424 (1997). 

Watts v. Camaligan, 344 N.J. Super. 453 (App. Div. 2001)

In re Brown, 967 So.2d 482 (La. 2007) (failure to diligently pursue personal injury action) 

Diligence in transactional matters:

Davin, LLC v. Daham, 329 N.J.Super 54, 71-72 (App. Div. 2000) (real estate lawyer)

Matter of Loomos, 90 Wash. 2d 98, 579 P.2d 350 (1978) (failure to complete probate of estate) 

3. The Duty to Investigate

Brizak v. Needle, 239 N.J. Super.415, 517 A.2d 975 (App.Div. 1990)  (personal injury lawyers)

Helmbrecht v. St. Paul Ins. Co., 362 N.W. 2d 118 (Wis. 1985)  (divorce lawyers)

Strickland v. Washington, 466 U.S. 668 (1984)  (criminal defense lawyers)

4. The Duty to Communicate

Communicate: (verb) to inform, advise, apprise, notify, give one to understand; explain; confer, disclose, reveal, consult, convey...

 RPC 1.4: Communication

(b) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. 

(c)  A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation 

Restatement of Law Governing Lawyers [emphasis added]

§ 20: A Lawyer's Duty to Inform and Consult with a Client

(1) A lawyer must keep a client reasonably informed about the matter and must consult with a client to a reasonable extent concerning decision to be made by the lawyer under §§21-23.  

(2) A lawyer must promptly comply with a client's reasonable requests for information.

(3) A lawyer must notify a client of decision to be made by the client under §§21-23 and must explain a matter to the extent reasonably necessary to permit the client to make informed decision regarding the representation. 

Builders Square v. Saraco, 868 F. Supp. 748 (ED Pa. 1994) (duty to communicate settlement offers)

Conklin v. Hannoch Weisman, 145 N.J. 395 (1996)  (duty to explain effect of a mortgage subordination to an unsophisticated seller of real estate).

NJ Advisory Committee on Professional Ethics Op. #684 (3-9-98) (duty to advise client when you may have committed legal malpractice)

Please let us know your thoughts. Post a comment, or two, on any of the cases. Just click the Comment button. 

Prof W.  

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 Hofstra Law School Class #5

Read: Fortney & Johnson, Legal Malpractice Law, Ch. 4, pp. 101-116; 421-424. 

Restatement of Law Governing Lawyers

§49. Breach of Fiduciary Duty--Generally

In addition to the other possible bases of civil liability described in §§48 [professional negligence] 55[breach of contract and equitable relief] and 56 [liability to a non-client], a lawyer is civilly liable to a client if the lawyer breaches a fiduciary duty to the client set forth in §16(3) and if that failure is a legal cause of injury with the meaning of §53, unless the lawyer has a defense within the meaning of §54. 

 

§16  Lawyer's Duties to a Client--Generally

To the extent consistent with the lawyer's other legal duties and subject to other provisions of this Restatement, a lawyer must, in matters within the scope of the representation:

(1) proceed in a manner reasonably calculated to advance a client's lawful objectives, as defined by the client after consultation;

(2) act with reasonable competence and diligence;

(3) comply with obligations concerning the client's confidences and property, avoid impermissible conflicting interests, deal honestly with the client, and not employ advantages arising from the client-lawyer relationship in a manner adverse to the client; 

(4) fulfill valid contractual obligations to the client. 

The Lawyer's Fiduciary Duties: "The 4 C's":

 1. Communicate

RLGL  §20 A Lawyer's Duty to Inform and Consult with a Client

(1) A lawyer must keep a client reasonably informed about the matter and must consult with a client to a reasonable extent concerning decisions to be made by the lawyer... 

(2) A lawyer must promptly comply with a client's reasonable requests for information. 

(3) A lawyer must notify a client of decisions to be made by the client...and must explain a matter to the extent reasonably necessary to permit the client to make informed decision regarding the representation. 

 * * *

RPC 1.4 Communication

(b) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(c) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decision regarding the representattion. 

 

Rizzo v. Haines, 555 A.2d 58 (Pa. 1989). (duty to disclose settlement offers to client)

FDIC v. Clark, 978 F.2d 1541 (10th Cir.1992) (duty to inform board of directors of a corporate officer's fraud).

2. Conflict Avoidance (duty of loyalty)

Maritrans v. Pepper Hamilton & Scheetz, 529 Pa. 241, 602 A.2d 1277 (1992)

Matter of Silverman, 113 NJ 198 (1988) (doing business with clients)

3. Confidentiality

Profit Sharing Trust v. Lampf Lipkind, 267 NJ Super 174 (Law Div. 1993)

4. Competence

Starron v. Weinstein, 305 N.J.Super. 263, 701 A.2d 1325 

Various courts have used other terms synonymous or encompassed by the "4 C's" to describe the fiduciary duty, or at least, the context within which various allegations of the breach of fiduciary duty has arisen. You should be familiar with these terms and recognize them as examples of breaches of the fiduciary duty:  "self-dealing"; "failure to exercise independent professional judgment"; "duty of loyalty"; "duty of candor"; "abuse of a position of trust"; "putting the interests of the lawyer ahead of the clients"; "misuse or abuse of client's confidential information". 

Here's a question to consider: If a lawyer overcharges a client, are there any circumstances where could be considered a breach of fiduciary duty?  I'd like to hear your thoughts on this. 

Share your comments, questions and input.  Just click the "Comment" button.

Prof. W. 

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 Hofstra Law School Class #6 & 7

(Updated Jan. 8, 2012)

Remember the Savings Bank v. Ward decision from Class #1? That case stands for the proposition that there must be a contractual relationship or "privity" between client and a lawyer before the client can sue the lawyer for malpractice.  In other words, no one outside of the client-lawyer relationship can sue. That stringent ruled prevailed in most states, and the only exceptions to the privity bar was fraud and collusion. But the privity barrier in legal malpractice cases has fallen, to a lesser or greater degree,  in most jurisdictions.   Some states have banished privity entirely. Most have modified it in various ways. What seems to have  developed is something of a spectrum along which the states line up between two poles  which might  be called "pro-privity" and  "anti-privity".  There are plenty of in between, which seem to vassilate between those two extremes.  During the course of the next two classes, we'll see how in the words of Judge Cardozo, in Ultramares Corp. v. Touche, 255 N.Y. 170, 180,  174 N.E. 441, 445 (1931) the "assault upon the citadel of privity" has progressed  to the point where it almost seems that our adversary system of justice has been turned on its head. More on that to come...

Let's see where we are today and how and why over the years the "citadel of privity" that once immunized lawyers from liability  has gradually, but most assuredly,  fallen piece by piece. 

Restatement of Law Governing Lawyers

§ 15.  A Lawyer's Duties to a Prospective Client

§ 51.  Duty of Care to Certain Nonclients

The Traditional Rule

Buckley v. Gray, 110 Cal. 339, 42 P.900 (1895) 

The traditional exceptions to privity: fraud and collusion

 The Assualt on Privity Begins

The Balancing of Factors Test

Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16 (1958)

Lucas v. Hamm, 56 Cal. 2d 583, 364 P. 2d 685 (1962)

Heyer v. Flaig, 70 Cal. 2d 223, 449 P.2d 161 (1969)

Third Party "Beneficiaries"

New York:       Prudential Insurance Co. v. Dewey Ballantine, 80 NY2d 377 (1992)

New Jersey:    Banco Popular, N.A. v. Gandhi, 184 N.J. 161 (2005)

Duties to Adversaries

New Jersey:   Petrillo v. Bachenberg, 139 N.J. 472 (1995)

New Jersey:   Davin, LLC v. Daham, 329 N.J. Super54 (App.Div. 2000)

Overview: 

Martyn, S.R., "Accidental Clients" , 33 Hofstra L. Rev. 913 (2005)

Other Ways to Dodge the Privity Barrier

PA: Hedlund Mfg. Co. v. Weiser, Staper & Spivack 517 Pa.522 (1988)

NY: Oppel v. Empire Mutual Ins. Co. 517 F. Supp. 1305 (SDNY 1981)

NJ: Alcman Services Corp. v. Bullock 925 F. Supp. 252 (DNJ 1996)

As you can see, the bastion of privity, which has insulated lawyers from liability has taken some pretty hard hits. Do you think there's anything left of privity? Does it offer negligent lawyers refuge anymore?What do you think? Please let us know your thoughts. Post a comment or tow on any of the cases. Just click the Comment button. 

Prof. W. 

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