Welcome to Hofstra Law School’s course on “Lawyer Malpractice”
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 Hofstra University Law School. 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 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 disappointed clients in 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 4 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 are outside of the relationship? How to define the duty? Does the duty fall within the scope of the relationship? Can a duty that is provided 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 professionally negligent?
And these are just some of the questions, for starters. So, where to start is the question. If you choose to read only one case throughout this entire course, here’s where you should begin: Probably one of the oldest and one of the few legal malpractice cases decided by the United States Supreme Court.
Savings Bank v. Ward, 100 US 195 (1880).
Student feed back is important. That’s why we have the ability to post comments to this lesson. Please feel free to do so. In that way, we can have discussions on what I hope will be helpful to you.
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