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.
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
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:
(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?
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.
Procanik v. Cillo, 226 N.J. Super. 132 (App. Div. 1988) cert. denied 113 N.J. 357 (1988)
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)
RLGL § 48, 49 (Restatement of the Law Governing Lawyers)
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
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
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
The New Frontier: Abusive Billing Practices
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.
RLGL §§15, 51
Traditional Exceptions to Privity: fraud and collusion
Dodging the Privity Blockade
The Balancing of Factors Test
Third Party Beneficiaries of the Lawyer-Client Relationship:
Aiding and Abetting Breach of Fiduciary Duty
Duties to our Adversaries?
Contract: Assigning the Legal Malpractice Cause of Action
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.
NY CPLR 3101 (d);
Wasserman, “On Being an Expert Witness in Legal Malpractice Cases” (January 2012);
The Federal Approach: Killing “Junk” Science
The States’ Approach: No “Net Opinions”
Guarding Against the Expert’s “Net Opinion”
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
RLGL: § 53
The Case Within a Case: “But For the Lawyer’s Negligence…”
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)
The Substantial Factor Test
Burdens of Proof
Lieberman v. Employers of Wausau, 84 N.J. 325 ((1980)
Fuschetti v. Bierman, 128 N.J. Super 290 (1974) (malpractice jury decides what a reasonalbe underlying jury would have awarded).
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.
Malpractice in Underlying Transactions
Botched Settlements: Litigation Based Malpractice or Transactional Based Malpractice?
Grayson v. Wofsey, Rosen, Kweskin & Kuriansky 231 Conn. 168, 646 A. 2d 195 (1994)
The Problem of Aggregate Settlements
Mass Tort Cases
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
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)
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”
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)
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)
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)
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
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)
Russo, The Consequences of Arbitrating a Legal Malpractice Claim, 35 Hofstra L. Rev. 327 (2006)