Lawyer Malpractice Class #4: The Lawyer's Basic Duties

Posted on June 28, 2010 by Ben Wasserman

 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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NJ: Lawyer's Vicarious Liability for Independent Contractors?

Posted on November 15, 2009 by Krishna Shah

Toth v. Vazquez, 3 N.J. Super. 379 (Ch. Div. 1949) (PDF with permission of Thomson West)

Student Contributor: Anthony J. Forzano

NJ Underlying Real Estate Transaction

Facts: Plaintiff, a potential land buyer, brought an action for legal malpractice against the defendant-attorney, Arthur A. Wolpin, who had been engaged by the plaintiff to examine the title and procure a survey of the premises prior to closing.  Plaintiff alleged that Wolpin failed and neglected to obtain an accurate survey.

Issue: Can an attorney be held liable for malpractice for failing to find a deficiency in the work of another professional, even though he acted in a prudent manner in selecting that professional on behalf of his client?

Ruling: No. Although it is the duty of an attorney who is retained to examine the title to real estate to make a reasonably diligent and zealous investigation of the public records, and to impart to his client all of the observable defects, deficiencies, and imperfections of the title, he is required only to exercise ordinary care, skill and diligence.

Given that Wolpin inspected all pertinent records and rendered an accurate report of record title, he had satisfied the standard of “ordinary care, skill, and knowledge”. The Court further noted:

“Nor is it evident that this defendant in acting for the plaintiffs failed to exercise reasonable care and precaution in the selection of a competent surveyor, even assuming a duty so to do. Assuredly, this defendant did not expressly agree to warrant the precision and accuracy of the survey”.

Lesson: An attorney must act in a reasonably diligent fashion in terms of his investigation of the pertinent issues and retention of other professionals, and cannot be held liable for malpractice as a result of damage incurred by his client owing to the negligence of others involved in the transaction.

Editor's Note: What if the attorney had engaged a process server who negligently failed to properly serve a complaint and the statute of limitations ran?  The lawyer's immunity for the negligence of an independent contractor hired to aid in the representation of a client is not so clear. See, e.g., Kleeman v. Rheingold, 81 N.Y.2d 270 (1993):

As plaintiff's attorneys, defendants had a non-delegable duty to her and, accordingly, they cannot evade legal responsibility for the negligent performance of that duty by assigning the task of serving process to an "independent contractor."

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