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Professional Responsibility
University of South Carolina School of Law
Powell, Burnele Venable

Professional Responsibility
Fall 2006
Chapter 36—Legal Malpractice.
Legal malpractice claims used to be nonexistent, but have steadily increased since the 60’s and 70’s when public distrust fueled challenging authority. Lawyers now have malpractice insurance, and are being sued often. 
1.      Legal malpractice claim–generally
a.       Plaintiff who sues for legal malpractice must prove:
                                                                          i.      The lawyer mishandled the underlying case AND
                                                                        ii.      That if the defendant lawyer had not screwed up the case, the plaintiff would have won.
b.      SO, at trial the plaintiff must put on a trial within a trial. The plaintiff must put on the case which Should have been put on if the lawyer had handled it correctly to prove:
                                                                          i.      The original case was a winner AND
                                                                        ii.      The reason it did not win is that the lawyer fell below the community standard of care (the degree of skill used by most lawyers in the community).
2.      Elements of a legal malpractice claim. (this is a matter of state law, so it varies from place to place, the basis for discussion is the Restatement of the law governing Lawyers, tentative draft.)
a.       Lawyer’s Duties to Client in General. Restatement tentative draft, Section 28. A lawyer MUST
                                                                          i.      (1) In matters covered by the representation, act in a manner reasonably calculated to advance a client’s lawful objectives, as defined by the client after disclosure and consultation.
                                                                        ii.      (2) Act in the matter with reasonable competence and diligence
                                                                      iii.      (3) Safeguard the client’s confidences and property, avoid impermissible conflicting interests, deal honestly with the client, and not employ adversely to the client powers arising from the client-lawyer relationship, AND
                                                                      iv.      (4) Fulfill any valid contractual obligation to the client.
                                                                        v.      OVERVIEW–The emphasis here is on honesty, conflicts of interest, confidentiality, and loyalty. Section 28(3)—these are the fiduciary duties of the lawyer.
b.      Elements and defenses, generally. Section 71
                                                                          i.      Duty—section 72 and 73
                                                                        ii.      Failure to exercise care—section 74
                                                                      iii.      Injury—section 75
                                                                      iv.      Unless there is a defense—Section 76
c.       Duty to client, Section 72
                                                                          i.      Lawyer must exercise the standard of care (section 74) in pursuing the client’s lawful objectives and fulfilling fiduciary duties 28(3)
d.      Standard of care, Section 74
                                                                          i.      (1) Lawyer MUST exercise competence and diligence normally exercised by lawyers in similar circumstances UNLESS he has represented to the client that he will exercise greater competence and diligence. (a lawyer can take on a higher standard of care on their own) OVERVIEW—this is a community standard of care for lawyers handling similar matters in similar situations. 
                                                                        ii.      (2) proof of violating a rule of professional conduct does not irrebutably prove negligence or give rise to an implied cause of action for negligence, BUT a trier of fact may be informed about the rule of professional conduct (content of rule and why it is there and who it protects) by instruction and through expert testimony, and an expert may express opinion as to the importance of the rule and its violation. 
                                                                      iii.      OVERVIEW—to prove that a lawyer fell below the standard of care, normally plaintiff shows that an ethical rule has been violated which was “intended for the protection of persons in the position of the claimant.” This is shown through experts, who testify about the rule and how the defendant violated them. MORE ON THIS BELOW.
e.       Causation and damages, section 75
                                                                          i.      Only where the lawyer’s breach of the duty of care was a legal cause, as determined by the generally applicable principles of causation and damages.
                                                                        ii.      Same old tort causation principles, basically.
f.       Defenses, Prospective Liability Waiver, Settlement Section 76
                                                                          i.      (1) an agreement prospectively limiting liability of the lawyer is unenforceable UNLESS it is permitted by general professional negligence law AND UNLESS the client is independently represented when making the agreement. (a prospective waiver is not a defense unless…….).
                                                                        ii.      (2) a settlement agreement with a client is voidable by the client IF the client was not adequately informed AND was not independently represented, OR if the client was subject to improper pressure by the lawyer. (a settlement is not a defense unless………….)
                                                                      iii.      (3) a lawyer is subject to professional discipline for:
1.      (a) making an agreement violating 76(1) OR
2.      (b)Settling a claim with an unrepresented client without first advising that client IN WRITING that independent representation is appropriate.
3.      OVERVIEW—this is almost exactly like MRPC 1.8(h)
                                                                      iv.      (4) Defenses available under general professional negligence law are available, except as otherwise provided by this section. A lawyer is NOT LIABLE for any action or inaction the lawyer reasonably believed to be required by law, including a professional rule binding on the lawyer.
1.      Generally, lawyers have the same defenses as other professionals, PLUS the defense that if they reasonably believe that the were compelled by the law to act the way they did, then they are not liable.
g.      Special Liabilities, Section 76A (outside of TORT law legal malpractice claim).
                                                                          i.      (1) Lawyers are liable to their clients for breach of K,
                                                                        ii.      (2) Lawyers are liable for breach of fiduciary duties outlined in 28(3) above for INTENTIONAL BREACH.
                                                                      iii.      Lawyers are liable in circumstances warranting restitution, injunctions, or other remedies.
h.      Liability Under General Law, Section 77
                                                                          i.      Basically, being a lawyer won’t get you off the hook for liability if a non-lawyer would be liable (except under section 78, which is skipped)
i.        Vicarious liability, Section 79 (partnership and agency law)
                                                                          i.      All partners in a firm are liable for each other’s wrongs, and for the wrongs of any employee doing the firm’s work..
3.      The Standard of Care.
a.       Restatement section 74 (above) allows

use information for your own benefit unless the client gives informed consent. 
5.      Malpractice in Criminal Cases.
a.       Claims of Ineffective assistance of counsel (this is the rubric when a defendant is seeking a new trial because of malpractice, essentially it is the equivalent of a malpractice claim)
                                                                          i.      6th amendment guarantees criminal defendants assistance of counsel, which means “effective” assistance of counsel. If a court finds that a defendant has not received effective assistance, and has therefore suffered prejudice, the defendant may be entitled to a new trial.
                                                                        ii.      Procedure:
1.      Defendant would typically file a habeas corpus petition alleging that the lawyer mishandled the defense. 
2.      The lawyer is not a defendant.  
3.      The defendant cannot go free if he proves ineffective assistance, but he can get a new trial. (this is not the remedy for civil malpractice—should it be?)
                                                                      iii.      Standard for deciding ineffective assistance claims, from Strickland v. Washington (US Supreme Court, 1984). To get a new trial the defendant must prove:
1.      the lawyer’s conduct fell below the range of professionally acceptable conduct, AND
2.      the client suffered prejudice in the sense that the verdict was probably affected by the lawyer’s incompetence. This is described in the Day case below as a “reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.” And “a reasonable probablility is a probability sufficient to undermine confidence in the outcome,” 
                                                                      iv.      Typically, these claims arise form the lawyer’s omission or failure to act. 
                                                                        v.      United States v. Day.
1.      FACTS—Lawyer failed to inform his client about federal sentencing guidelines, and actually misinforms him about the maximum possible sentence for conviction. Client rejected a plea which would have gotten him five years, he is convicted, and due to sentencing guidelines is sentenced to 21 years. He wants to be able to accept the plea offer, after the fact. 
2.      Strickland analysis:
a.       Deficient performance of Counsel. Day says that Counsel did not give the defendant enough information to make a reasonably informed decision on his plea bargain offer. Court says that this is possible, and remands for a lower court determination of fact.
Prejudice. Prejudice has been rejected by some courts at the plea stage, because a fair trial was conducted later, but this court says that a subsequent fair trial does not remedy the situation. IT must still be considered, however, whether Defendant here would have accepted the plea bargain, and this must be determined by a fact finder. HE believed his sentence exposure was 11 years, so he rejected the plea. Had he known it was 21 years, would he have accepted it? This is the question which defendant must prove in the affirmative—that