(1) Basic Obligation of Care  Ethics Rules  MRPC 1.1) Competence reasonably necessary for the [particular] representation  legal knowledge  skill  thoroughness  preparation  MRPC 1.3) Reasonable diligence and promptness (“neglect” in Code of PR)  MRPC 1.4) Duty to keep client informed

Ethics Rules and Damages Actions  Has Webster in our problem p. 189 violated any of these rules?  Does violation of an ethics rule as such give rise to a damages action? MRPC Preamble para. 20; n. 11 p. 196  If not, why not?

Problem pp  On what theories might our lawyer be liable to his client Teague?  tort?  breach of contract?  breach of fiduciary duty?  what difference does it make?  statute of limitations?  punitive damages?  limitation of liability?

Problem pp c’t’d  What does client have to prove?  attorney-client relationship? Togstad, p. 190  injury and proximate cause?  that the claim would likely have succeeded but for lawyer’s negligence?  does the “suit within a suit” problem present itself in this situation?  what does it involve?  did the Togstad court do it?

Problem pp  amount of likely recovery  alternative approach to “suit within a suit”: loss of a chance (have fact finder determine, based on expert testimony, what the probability of success was as of the time the suit should have been brought, then discount the claim?  should it include punitive damages that would have been recoverable from the original defendant?

Problem pp  Is lawyer entitled to reduce the amount of damages by the amount of the fee he would have received?  what arguments for and against?  what if lawyer can show that the original defendant was financially judgment-proof? Who has the burden? N. 8 p. 195

Problem pp c’t’d  Malpractice in criminal case (q. (d))  What did Jordan fail to do?  what is the federal constitutional standard for overturning the conviction (“ineffective assistance of counsel”)? N. 12 p. 196  how does a conflict of interest change the client’s position?  what must client show to establish a civil claim for malpractice?

(2) Duties to Third Parties  Estate Beneficiaries suing Attorney who [mis]drafted will for their ancestor: on what theory would liability attach?  What would they have to show?  Did the attorney-client relationship with testator give rise to a duty to beneficiaries?  do other factors support liability?  Trask, p. 202 – does it support liability in our problem?