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.
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.
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]
…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" ?
- "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).
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:
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)
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