Bennett J. Wasserman

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 the Maurice A. Deane School of Law at Hofstra University. 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 well 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  clients who are disappointed with 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 four 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 may be outside of the relationship? How to define the lawyer’s duty? Does the duty fall within the scope of the relationship? Can a duty that is provided for 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 negligent?

And these are just some of the questions, for starters. So, where to start is the question. You can give your feedback by simply clicking the link to  the “Contact Us” box. 

Prof. W.

 


 

COURSE OUTLINE AND READING ASSIGNMENTS

FALL SEMESTER 2016

CLASS #1  INTRODUCTION and EARLY BEGINNINGS; LINKS TO RESOURCE MATERIALS

Johnson, Vincent R., LEGAL MALPRACTICE LAW IN A NUTSHELL (WEST, Thompson Reuters, 2011) (hereafter referred to as “Johnson”):

Preface and Chapter 1

CASES:

Savings Bank v. Ward, 100 U.S. 195 (1880) (The first reported U.S. Supreme Court decision dealing with lawyer malpractice)

RESOURCES YOU’LL NEED TO REFER TO DURING THIS COURSE:

Rules of Professional Conduct–New York

Rules of Professional Conduct–New Jersey

(RLGL)  Restatement of the Law Governing Lawyers–can be accessed through your Westlaw of LexisNexis subscription.

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


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 to form an attorney-client relationship; How does a lawyer prevent an unwanted attorney-client from forming?  How do we determine the Scope of the Relationship (Limiting or Expanding the lawyer’s duty to the client)? How do we terminate an attorney-client relationship?  Are there any duties inherent in the attorney-client relationship that endure even after the relationship ends?

Required Readings:

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. 

NY Letters of Engagement Rules 

CASES:

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

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)

 


CLASS #3:  THE CLIENTS’ “HYBRID” CAUSE OF ACTION AGAINST THEIR LAWYER  

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

Required Readings:

 RLGL § 48, 49  (Restatement of the Law Governing Lawyers)

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.

Affidavit of Merit NJ (continued)


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:

Johnson, Chapter

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)

 

 


CLASS #5- THE LAWYER’S FIDUCIARY DUTY 

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)


Classes #6 and #7 –  

THE DEMISE OF PRIVITY AND THE RISE OF THE “QUASI CLIENT’S” CAUSE 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 581 (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)

 


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.; The “Net Opinion” Rule.

Readings:

ABA Formal Op. 97-047;

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);

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.

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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)

Milband, Tweed, Hadley & McCloy v. Boon,  13 F.3d 537 (2d Cir.1994)

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, 300 N.J. Super 256 (App Div 1997)

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).

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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:

Malpractice in Underlying Transactions

Lamb v. Barbour, 188 N.J. Super 6 (1982)

2175 Lemoine Ave. v. Finco, 272 N.J. Super. 478 (App. Div. 1994)

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

Levine v. Lacher & Lovell-Taylor, 681 N.Y.S. 2d 503 (1st Dept. 1998).

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

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Class#11- DAMAGES AND OTHER REMEDIES FOR MALPRACTICE 

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)

Innes v. Marzano-Lesnevich, ___N.J.____ (2016)

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)

 

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Class#12-  DEFENDING THE LAWYER WHO IS SUED FOR LEGAL MALPRACTICE

Topics For Class Discussion: Insurance Defense- The “triadic” relationship; Vicarious 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)

 

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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. 2010)

 

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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)