Ch. 2 Overview of Theories of Liability “legal malpractice”: umbrella term Torts: negligence; misrepresentation; intentional torts (fraud, etc.); breach of fiduciary duty (also sounds in equity) Contract: express or implied

Negligence Plaintiff’s burden Duty: – to clients (with limited duties to prospective clients, intended beneficiaries & a few other nonclients) Breach of Duty: reasonable care, ordinarily prudent lawyer – Proof of breach: requires expert witness – Debatable use of rule violations (Compare Rstmt §52(2)(c); ABA & Okla. RPC Preamble ¶20). See text at pp

Negligence: Plaintiff’s burden Causation/harm – Cause in fact “case within a case” Damages in underlying case provable with reasonable certainty and would have been recoverable/collectable – Proximate harm (not too remote) Damages – Compensatory (public policy to “make whole”; eggshell plaintiff) – Punitive (“exemplary”) – Provable with reasonable certainty (not speculative)

Negligence Plaintiff: burden of pleading and proof (preponderance of evidence) Defenses: – Challenge plaintiff’s failure to satisfy elements of tort – Challenge plaintiff’s evidence on damages – Contributory negligence (defeats liability) or comparative fault (reduces amount of liability)

Breach of Contract Burden: preponderance of evidence Voluntary undertaking (typically express; sometimes implied) (e.g., promise of cure, specific outcome, style of representation) Breach: did not perform as promised; strict liability w/o regard to standard of care Damages: based on P’s defeated expectation interest

Fiduciary Duties (in law + equity) 19 th Century Origins; fluid & growing “’uberrima fides’ requires most abundant good faith” requiring absolute & perfect candor, openness & honesty, & the absence of any concealment or deception” Rstmt § 49 cmt. b. : Safeguard client confidences & property; Highest level of honesty & fair dealing; Avoid impermissible conflicts (with interest of other clients, former clients, law firm, lawyer’s personal or business interests); Adequately inform client of all relevant information; Follow client’s lawful directions

Breach of Fiduciary duty (tort & agency & equity) Breach: Disloyalty; wide range of potential proofs from common law & equity; may not need expert witness. Plaintiff’s burden of production: existence of client/lawyer relationship; apparent unfairness or breach of loyalty, honesty > where business transaction w/ lawyer, constructive fraud doctrine presumes fraud & shifts burden of nonpersuasion to lawyer Defendant lawyer: rebut presumption & bear burden of non-persuasion (prove utmost fairness, actions above reproach)

Breach of Fiduciary Duty: Remedies & Miscellaneous Strategic Issues Damages: actual compensatory + punitive Equitable relief: injunctive; action for accounting; impose constructive trust or equitable lien; fee forfeiture/disgorgement & other claims for restitution Defense strategies: try to strike fiduciary claims as baseless gloss on ordinary negligence; plaintiff’s comparative negligence

Proof of RPC Rule violation? Restatement of Law Governing Lawyers (Third) (A.L.I. 2000)§52(2) [at 32] (a)[while] does not give rise to implied c/a.. (c) may be considered as aid in understanding & applying the standard [of care] to the extent that (i) rule/stat. designed for protection of persons in claimant’s position (ii) content & construction relevant to claim

Proof of RPC Rule Violation as Evidence of Breach? Compare ABA & Okla. Scope ¶ 20 ABA (as amended 2003 – “E2k”) “itself” Last sentence: “Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard.” Unique Okla. RPC Scope “Violation of a Rule should not itself give rise to a cause of action nor should it a create presumption that a legal duty has been breached.... The Rules... are not designed to be a basis for civil liability....[last sentence provides instead] Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty. pp text. See also course webpage for complete ¶20, ABA & OK.

Problem 2-1, p. 33Investigating & Asserting Claims Negligence claim: failure to exercise due care, comply with Colo. Statute requiring parental counseling > presumptive breach of duty Br. of Fiduciary Duty claim: conflict of interest (represented legal & financial interests of adoptive parents over those of birth mother; RPC 1.7(b)non-consentable current COI; failed to provide mother with important information of her statutory rights. Br. of K “handle everything... Nice couple, all expenses paid.”

Prob. 2-1 Damages Negl.: emotional distress, compensatory, medical expenses, future counseling/rehab. Fiduc. duty: m/b also punitives, fee disgorgement

Ch. 3 Negligence Elements Duty Breach Causation Damages

Negligence Plaintiff’s burden Duty: – to clients (limited duties to prospective clients, intended beneficiaries & a few nonclients) Breach of Duty: reasonable care, ordinarily prudent lawyer Rstmt §48 – Proof of breach: requires expert witness; OK tort reform requires pre-filing certificate of merit from EW – Debatable use of rule violations (Compare Rstmt §52; ABA & Okla. RPC Preamble ¶20)

Negligence: Plaintiff’s burden Causation/harm – Cause in fact “case within a case” Damages in underlying case provable with reasonable certainty and would have been recoverable/collectable – Proximate harm (not too remote) Damages – Compensatory (public policy to “make whole”; eggshell plaintiff) – Punitives (“exemplary”) – Provable with reasonable certainty (not speculative)

A. Duty to Exercise Care 1. To Whom is a Duty Owed? CLIENTS Rstmt §14 Cl/L relationship “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;

Duty to “Putative” Clients Examples: Informational Burden on L Tropp v. Lumer (N.Y.S.2d 2005) (text at p. 37) P testified L “would keep an eye” on other L to whom p.i. matter referred. Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980) P testified that went to L for legal advice; relied on advice that they “did not have a case”

b. Prospective Clients: Limited duties Rstmt §15(1) (a)not subsequently use or disclose confidential information learned in consultation … (b)protect property in L’s custody (c)use reasonable care to extent L provides legal services

PRACTICAL SKILL LESSONS ON INITIAL CONSULTATION? Problem 3-1 & Beyond text at 39 Structure the interview Avoid unnecessary disclosures of confidential information Documents & keepsakes Evaluate whether to accept proffered undertaking Accepting representation (retainer ltr, whether limited scope) Declining representation

2. Scope of Representation: key variable, disputed fact question Rstmt §19 Agreements Limiting Client or Lawyer Duties (1)Subject to other requirements [in Rstmt]…,a client & a L may agree to limit a duty that a L would o/w owe to the C if: (a)the client is adequately informed and consents; and (b)the terms of the limitation are reasonable in the circumstances See also RPC 1.2(c) and cmts. 6, 7

Negligence in Limited Scope Representation? Lerner v. Laufer 819 A.2d 471 (N.J. App. Dvsn 2003) (detailed &lengthy retainer ltr explicitly limited to reviewing mediated Property Settlement Agreement; aff’d trial ct grant of summary judgment dismissing malpractice case) ( text at 42-49) Flatow v. Ingalls, No. 49A CV-994 (Ind. Ct. App., 8/16/10)(as matter of law, no breach of duty for doing nothing more than specific tasks identified in retainer letter; citing RPC 1.2(c))

Terminating the Representation Return unearned fees Return any client property, original documents Clean & close file (often neglected) Thank client for opportunity to serve (advantages of closure: “former” client; limits exposure) Text at 49-50, citing Rstmt §§31, 33, RPC 1.16(d)

B. Breach of Duty pp Standard of Care (objective test): exercise that level of knowledge, skill, ability & diligence that would be exercised by reasonably prudent & competent lawyer under similar circumstances P must prove that a reasonably competent lawyer “would either have done something the D L did not do, or would have refrained from doing something the D did.” 51

Duties of Reasonably Competent Lawyer (**may vary by circumstances) Fact investigation Legal research (knowledge, diligent research, inf’d jdgmts; not cursory reading, single case. Aloy, n. 39, p. 55 ) Preparation, effort Skill, general legal knowledge, familiar w/ procedure Communicate with client, “informed consent”

B. Breach of Duty pp Exercise of Professional Judgment “reasonable under the circumstances”: flexible “mere error of judgment” [a/k/a “judgmental immunity”]: exercise of judgment NOT a safe harbor; “nothing strategic or tactical about ignorance” p. 55, n. 38 unsettled questions of law: would well-informed lawyers [in that field of practice] entertain reasonable doubt about? Post Oak Oil Co. v. Stack & Barnes, P.C., 913 P.2d 1311 (Okla. 1996) Specialized fields of practice: duty to anticipate changes in law

Darby & Darby, P.C. v. VSI International, Inc. (NY Ct. App. 2000) I: duty to advise that general liability insurance might cover costs of patent infringement defense? H: No. Relevant states had rejected such coverage at time in question, coverage theory then “largely undeveloped”; policy language later revised to exclude. Firm not liable for failing to advise about novel & questionable theory re insurance coverage. Legal principle: Must be familiar with current legal developments so can make informed judgments & give effective counsel although “perfect vision & wisdom of hindsight” not required.

Problem 3-3 Standardized Testing Errors text at Analyze potential legal malpractice claim v. Lawyer (Leone Lew) · Duty to Chavez & parents: prospective clients? ·Breach? What (if any) legal research should Lew have done before declining? Although no duty to accept, faulty legal advice risks liability.

B. Breach of Duty 3. Expert Witness Generally required unless negligent as matter of law, so obvious … matter of common knowledge…or breach of express contract Admissibility contrasted with credibility: F. R. Ev. 702, “sufficiently reliable” under Daubert standard; role of direct & cross-examination text at 62 Standard of care: state (“locality rule” rejected); sometimes federal law; rarely international market (CISG) Logistics: Consulting (privileged) vs. testifying expert (not privileged) Basis for opinion; discoverable; qualifying Expensive. Fees: customarily with retaining law firm; conflict issue if client primarily responsible. See Rstmt §§ 30, 117 Duties: reasonable diligence, loyalty; honest in professional judgment See generally, text at 59-71, Douglas Richmond, Lawyers as Witnesses, 36 N. M EX. L. R EV. 47 (2006)

3. Expert Witnesses (cont’d) Expert Certificate of Merit: OK. Tort Reform Act requires. See 12 O.S. §19 A 1.: before filing any civil action for professional negligence, π shall attach affidavit attesting that qualified expert reviewed the facts and has provided a written opinion concluding the claim is meritorious & based on good cause. 2. Failure to attach may result in dismissal. B. Ct may, for good cause, grant 90 day time extension after petition filed.

Expert Witness (cont’d) pp ABA F. Op – Testifying expert: truthful & accurate information, presented as objective; frankness expected. – Communications between testifying EW & firm, C, C representatives, documents reviewed all discoverable.

Expert Witness (cont’d) pp To sustain π verdict, EW testimony must establish either – Δ failed to do what reasonably prudent practitioner required to do – Or Δ Did what no reasonably prudent practitioner could have done Recall earlier discussion: admissibility of RPC & OK Scope ¶20 – Richmond: supports admissibility (may help Δs or πs)

B. Breach of Duty (cont’d) pp “Specialists” contrasted with general practitioners Higher standard of care in specialized fields of practice. Caution: don’t get in over your head. Novices held to generally applicable standard of care

B. Breach of Duty 5.Negligence Per Se: Unexcused violation of standard-setting statute: conclusive proof that duty breached: Not applicable to ethical rule violations (RPC Scope, ¶ 20) Possible shortcut to proving breach caused damage designed to protect against. Rstmt §52(2)

B. Breach of Duty pp Informed Consent Doctrine ·Developed in medical malpractice cases; require patient’s consent to course of treatment after full disclosure of material risks and relevant alternatives ·Now used against lawyers, “hoist with one’s own pitard”: disadvantaged by action of one’s own meant to be used against others Shakespeare, Hamlet (1602)

B. Breach of Duty pp Informed Consent Doctrine ABA RPC (2002 revisions): see informed consent throughout, esp. 1.2, 1.4, 1.6, 1.7, 1.8, (e) defines as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of reasonably available alternatives to the proposed course of conduct.

C. Causation pp Two pronged. Must show both: 1. Factual causation: but-for test and 2. Proximate causation: policy inquiry. Cf., Palsgraf

C. Causation 1. Factual causation: but-for test a.“case w/in a case”: to recover for legal malpractice π must show that but for L’s negligence (or other tortious conduct), π would have recovered in underlying action, the likely amount of recovery and sometimes (cts split) that a judgment on underlying claim would have been collectible.

C. Causation Torts Rstmt (3d) §26 Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. Torts Rstmt (3d) §27 If multiple acts exist, each of which alone would have been a factual cause under §26 of the physical harm at the same time, each act is regarded as a factual cause of the harm. Application: Mr. Ward’s legal malpractice case required proving of underlying medical malpractice.

C. Causation Pechko v. Gendelman pp Can get complicated. Current LM P must prove: 1.Wd have recovered in underlying medical malpractice claim but for L-1’s negligence in EW’s losing mammograms 2.And L-2’s negligent in failing to obtain & produce secondary ev. re films, other evidence to defeat Dr’s sum. jdmt motion.

C. Causation Factual causation & transactional malpractice pp Viner v. Sweet (Cal. 2003)(botched sale of audio book co.; buyer took advantage of negligence by seller’s lawyer). Ct: must be shown that loss suffered was in fact caused by the alleged attorney malpractice (and not other forces acting in combination). Take-away point: greater difficulty in recovering for failed business transaction.

C. Causation pp ·Must provide sound evidence of factual causation; speculation on future events not allowed. Additional barrier in transactional malpractice cases. ·Informed consent cases: π’s subjective testimony that would have refused consent if risks properly disclosed is suspect; must also show that reasonable person would have acted differently if the risks or alternatives had been disclosed.

C. Causation Spoliation: “The intentional destruction, mutilation, alteration or concealment of evidence, usually a document. If proved, spoliation may be used to establish that the evidence was unfavorable to the party responsible.” Black’s Law Dictionary (7 th ed. 1999)

C. Causation Jerista v. Murray (N.J. 2005) pp π alleged Δ L deceived π on case status 9 years, so that passage of time created high probability that records in underlying case would be purged, making it difficult/impossible to establish case w/in case. H: if π could make threshold showing that Δ’s recklessness caused loss or destruction of evidence, spoliation instruction would allow inference that missing evidence would have been helpful to π, adverse to Δ.

Practice Pointer: Document Retention Policies Lawyers and clients should have written policy for document retention & file cleaning. If consistently & faithfully observed, but retaining documents & records relevant to pending or impending matter, can minimize risk of spoliation inference and possible obstruction of justice criminal charges. See Rstmt LGL §46 cmt. b. p. 88

C. Causation 1.Factual (cont’d) c. Loss of a chance pp “coulda, shoulda, woulda”: cts split on use in LM. Wash.: no Vahila v. Hall (OH 1997) Allowed. Rejected strict “but for” test that ignores settlement opportunities b/c L’s negligence. LM π alleged criminal defense counsel failed to present favorable plea offer, to drop charges in exchange for her testimony v. another. Later, L persuaded her to accept guilty plea. Ct recognized c/a based on lost opportunity to minimize her criminal record, with damages being additional atty fees in rectifying failure.

2. Proximate Causation pp Seldom key issue in torts or LM cases. Policy inquiry into fairness of liability; cuts off liability where type of resulting harm was unforeseeable, or allowed if harm within the zone of risk created by D’s negligent conduct. TIG Ins. Co. v. Giffin Winning, et al. (7 th Cir. 2006) pp , 98. (Employ. Discrim.: negl. failure to produce docs > disgruntled former employee L gave to π L > motion for sanctions/default jdgmt > new firm put 27 L’s in hi gear.) H: not foreseeable; dismissed LM action.

2. Proximate Cause b. Superseding cause may shift responsibility pp e.g., TIG Ins. Co.: could treat disgruntled –ee conduct as superseding cause, cuts off chain of causation. Subsequent omissions: similar to “last clear chance” doctrine in torts, where later by T/P feasibly could have taken reasonable remedial action to prevent the harm. Failure to do so may absolve 1 st tortfeasor of liability.