Legal Ethics and Professional Responsibility Commons^™

Taylor V. Hunton Andrews Kurth, Llp: Patents - Legal Malpractice, Nate Kelly

Transactions: The Tennessee Journal of Business Law

No abstract provided.

How Not To Lie: A Don't-Do-It-Yourself Guide For Litigators, Leonard Niehoff

Articles

Over the past few years, a number of high-profile attorneys have been sanctioned or suspended from the practice of law because they lied. The instance that probably received the greatest media attention came in June of 2021, when the Appellate Division of the Supreme Court of the State of New York ordered the immediate suspension of Rudy Giuliani’s license because he had made demonstrably false statements to the courts, lawmakers, and the public at large concerning the 2020 presidential election. In a 33- page opinion, the court considered the arguments Giuliani raised in his defense but concluded that his pants …

Daubert/Kumho Tire And The Legal Malpractice Expert Witness, Warren R. Trazenfeld, Robert M. Jarvis

St. Mary's Journal on Legal Malpractice & Ethics

In legal malpractice cases, parties almost always end up using expert witnesses. Whether a particular legal malpractice expert is qualified to testify often is a hotly contested issue. In this Article, the authors provide recommendations for how to qualify a legal malpractice expert and how to challenge a legal malpractice expert’s qualifications.

Professional Responsibility, Legal Malpractice, Cybersecurity, And Cyber-Insurance In The Covid-19 Era, Ethan S. Burger

St. Mary's Journal on Legal Malpractice & Ethics

In response to the COVID-19 outbreak, law firms conformed their activities to the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), and state health authority guidelines by immediately reducing the size of gatherings, encouraging social distancing, and mandating the use of protective gear. These changes necessitated the expansion of law firm remote operations, made possible by the increased adoption of technological tools to coordinate workflow and administrative tasks, communicate with clients, and engage with judicial and governmental bodies.

Law firms’ increased use of these technological tools for carrying out legal and administrative activities has implications …

The Informed Consent Doctrine In Legal Malpractice Law, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

The doctrine of informed consent is now deeply embedded into the law of legal ethics. In legal malpractice litigation, the doctrine holds that a lawyer has a duty to disclose to a client material information about the risks and alternatives associated with a course of action. A lawyer who fails to make such required disclosures and fails to obtain informed consent is negligent, regardless of whether the lawyer otherwise exercises care in representing a client. If such negligent nondisclosures cause damages, the lawyer can be held accountable for the client’s losses.

Shifting the focus of a legal malpractice action from …

The Informed Consent Doctrine In Legal Malpractice Law, Vincent R. Johnson

Faculty Articles

The doctrine of informed consent is now deeply embedded into the law of legal ethics. In legal malpractice litigation, the doctrine holds that a lawyer has a duty to disclose to a client material information about the risks and alternatives associated with a course of action. A lawyer who fails to make such required disclosures and fails to obtain informed consent is negligent, regardless of whether the lawyer otherwise exercises care in representing a client. If such negligent nondisclosures cause damages, the lawyer can be held accountable for the client's losses.

Shifting the focus of a legal malpractice action from …

Keeping Lawyers' Houses Clean: Global Innovations To Advance Public Protection And The Integrity Of The Legal Profession, Susan Saab Fortney

Faculty Scholarship

Around the globe regulators are rethinking the scope of their mandates and responsibilities. They are assuming more expansive roles rather than limiting their efforts to disciplining lawyers after misconduct occurs. This Article examines such regulatory initiatives in three areas. First, it discusses developments related to proactive management-based programs in which regulators partner with lawyers who self-assess their firms’ management systems. Data reveal that such assessments help lawyers avoid problems through developing their firms’ ethical infrastructure. When misconduct occurs, injured persons often seek monetary redress. These persons may not be able to obtain recovery unless they have suffered substantial damages to …

In The Midst Of Change, A Few Truths Remain—A Review Of Trazenfeld And Jarvis’S Florida Legal Malpractice Law, Jan L. Jacobowitz Ms.

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming.

Securing Technological Privacy: Modernizing The Texas Disciplinary Rules Of Professional Conduct To Protect Electronic Data, Ashley "Nikki" Vega

St. Mary's Journal on Legal Malpractice & Ethics

This comment explains how and why the Texas Disciplinary Rules of Professional Conduct (the “Texas Disciplinary Rules”) should be updated to reflect the modernization of technology. Lawyers must keep abreast of changes in the law and its practices; including those which are technological in nature. The American Bar Association (the “ABA”) recently amended the “technology provisions” of its Model Rules of Professional Conduct (the “Model Rules”); namely Rule 1.1 “Competence” and Rule 1.6 “Confidentiality of Information” in order to keep up with the benefits and risks associated with technology in the legal profession. Additionally, over half of all jurisdictions have …

Mandatory Legal Malpractice Insurance: Exposing Lawyers' Blind Spots, Susan S. Fortney

Susan S. Fortney

The legal landscape for lawyers’ professional liability in the United States is changing. In 2018, Idaho implemented a new rule requiring that lawyers carry legal malpractice insurance. The adoption of the Idaho rule was the first move in forty years by a state to require legal malpractice insurance since Oregon mandated lawyer participation in a malpractice insurance regime. Over the last two years, a few states have considered whether their jurisdictions should join Oregon and Idaho in requiring malpractice insurance for lawyers in private practice. To help inform the discussion, the article examines different positions taken in the debate on …

Mandatory Legal Malpractice Insurance: Exposing Lawyers' Blind Spots, Susan S. Fortney

St. Mary's Journal on Legal Malpractice & Ethics

The legal landscape for lawyers’ professional liability in the United States is changing. In 2018, Idaho implemented a new rule requiring that lawyers carry legal malpractice insurance. The adoption of the Idaho rule was the first move in forty years by a state to require legal malpractice insurance since Oregon mandated lawyer participation in a malpractice insurance regime. Over the last two years, a few states have considered whether their jurisdictions should join Oregon and Idaho in requiring malpractice insurance for lawyers in private practice. To help inform the discussion, the article examines different positions taken in the debate on …

Legal Malpractice Claims: What The Data Indicate, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming

Causation And "Legal Certainty" In Legal Malpractice Law, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

A line of California cases holds that causation of damages in legal malpractice actions must be proven with “legal certainty.” This Article argues that judicial references to legal certainty are ambiguous and threaten to undermine the fairness of legal malpractice litigation as a means for resolving lawyer-client disputes. Courts should eschew the language of legal certainty and plainly state that damages are recoverable if a legal malpractice plaintiff proves, by a preponderance of the evidence, that those losses were factually and proximately caused by the defendant’s breach of duty.

Keep Suing All The Lawyers: Recent Developments In Claims Against Lawyers For Aiding & Abetting A Client’S Breach Of Fiduciary Duty, Katerina P. Lewinbuk

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers have increasingly become subject to liability under various legal theories, ranging from traditional legal malpractice or negligence liability claims to various third-party actions. Most recently, state and federal courts across the country have recognized attorney liability for aiding and abetting a client’s breach of fiduciary duty. This Article will address the current status of the cause of action for a lawyer’s aiding and abetting her client’s breach of fiduciary duty, explain the commonalities and distinguish nuances as outlined by particular states, examine recent decisions by federal courts that have recognized the cause of action, and culminate in its conclusion …

Mutually Assured Protection Among Large U.S. Law Firms, Tom Baker, Rick Swedloff

All Faculty Scholarship

Top law firms are notoriously competitive, fighting for prime clients and matters. But some of the most elite firms are also deeply cooperative, willingly sharing key details about their finances and strategy with their rivals. More surprisingly, they pay handsomely to do so. Nearly half of the AmLaw 100 and 200 belong to mutual insurance organizations that require member firms to provide capital; partner time; and important information about their governance, balance sheets, risk management, strategic plans, and malpractice liability. To answer why these firms do so when there are commercial insurers willing to provide coverage with fewer burdens, we …

Personal Jurisdiction In Legal Malpractice Litigation, Cassandra Burke Robertson

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers are increasingly engaging in multi-jurisdictional practice—and their representation is increasingly giving rise to cross­-jurisdictional malpractice actions. Over the years, courts have issued divergent and contradictory opinions about whether out-of-state attorneys representing clients only on out-of-state matters can constitutionally be subject to personal jurisdiction in the client’s home state. The Supreme Court’s recent opinions in Daimler v. Bauman and Walden v. Fiore do little to settle this question and, in fact, may raise more questions than they answer. Nevertheless, the Supreme Court’s new personal jurisdiction jurisprudence offers an opportunity for courts to adopt a more cohesive analysis of personal jurisdiction …

Everyone Makes Mistakes: Attorney's Fee Recovery In Legal Malpractice Suits, Sande L. Buhai

St. Mary's Journal on Legal Malpractice & Ethics

This Article argues that the American Rule should be changed for legal malpractice suits because the attorney–client relationship is the quintessential fiduciary relationship and because of the added concern of unequal information available to each party as a result of the large disparity in power. Attorneys must abide by ethical rules and owe fiduciary duties to their clients, which include the duties of competence, diligence, and loyalty. Because it is this very relationship that distinguishes legal malpractice suits from an ordinary lawsuit, awarding attorney’s fees to the damaged plaintiff client helps maintain fiduciary relationships and furthers the interests of justice. …

Statute Of Limitations: Discovery Rule For Malpractice, Linda C. Ashar

Akron Law Review

IN OLIVER V. KAISER COMMUNITY HEALTH FOUNDATION the Ohio Supreme Court adopted the discovery standard for medical malpractice actions, which are subject to Ohio's one-year statute of limitations. In Oliver the court held that a medical malpractice cause of action "accrues and the statute of limitations commences to run when the patient discovers, or in the exercise of reasonable care and diligence should have discovered, the resulting injury." Shortly after Oliver, the court applied the discovery rule to legal malpractice cases in Skidmore & Hall v. Rottman. The discovery standard replaces Ohio's previously judicially adopted rule of termination of …

Legal Malpractice Statutes Of Limitations: A Critical Analysis Of A Burgeoning Crisis, Joseph H. Koffler

Akron Law Review

Surprisingly little has been written on the law of legal malpractice. Even more disturbing is the fact that there is little analytical writing to help guide the courts and bar in this area. The analysis and recommendations contained in this article are intended as a basis in developing rules for statutes of limitations in legal malpractice actions that meet the needs of the parties, the test of fundamental fairness, and evoke a genuine sense of confidence in society.

Fortifying A Law Firm's Ethical Infrastructure: Avoiding Legal Malpractice Claims Based On Conflicts Of Interest, Susan Saab Fortney, Jett Hanna

Susan S. Fortney

This article addresses the prevailing problem of malpractice claims based on conflicts of interest. Part I of this article introduces the topic by underscoring the seriousness of all conflicts of interest and recommending preventative action. Part II describes measures that law firms can take to detect and manage conflicts and analyzes the effect of the firm’s ability to avoid conflicts claims on a firm’s ethical infrastructure. Part III focuses on some of the most common conflicts situations that result in malpractice claims and sanctions. The discussion includes selected conflicts cases that illustrate problems and patterns. Part IV concludes by urging …

Liability Insurer Data As A Window On Lawyers’ Professional Liability, Tom Baker, Rick Swedloff

All Faculty Scholarship

Using the best publicly available data on lawyers’ liability claims and insurance – from the largest insurer of large law firms in the U.S., the American Bar Association’s Standing Committee on Professional Liability, and a summary of large claims from a leading insurance broker–this article reports the frequency of lawyers’ liability claims, the distribution and cost of claims by type of practice, the disposition of claims, and lawyers liability insurance premiums from the early 1980s to 2013. Notable findings include remarkable stability over thirty years in the distribution of claims by area of practice among both small and large firms, …

Controversial Defenses To Legal Malpractice Claims: Are Attorney-Experts Being Asked To Be Advocates?, David Caudill

David S Caudill

Attorney-experts in legal malpractice litigation are like many other experts. Although easily distinguishable from experts offering science-based testimony, attorney expertise is similar to that of witnesses offering experience-based testimony, and very much like the expertise of a physician in a medical malpractice case. An attorney-expert is, however, somewhat unique among experts in terms of the type of expertise offered, the inherent risk that the expert’s testimony will invade the province of the judge or jury, and, I believe, the risk of over-testifying. First, there is a problem of defining the attorney-expert’s “expertise” to ensure that the expert is not testifying …

A No-Fault Remedy For Legal Malpractice?, Melissa D. Mortazavi

Melissa Mortazavi

No abstract provided.

A Professional (Lack Of) Courtesy: The Emergence Of Expert Testimony In Legal And Medical Malpractice Cases., Jeffrey I.H. Soffer

St. Mary's Journal on Legal Malpractice & Ethics

This Article investigates the role of expert testimony in legal malpractice and medical malpractice cases; analyzing similarities and differences between the two and the evolution of case law in this context. The Article also examines numerous challenges potential expert witnesses face, including harsh backlash from their colleagues and repercussions from their professional organizations. Finally, the Article discusses the future of the legal malpractice and medical malpractice landscape as it pertains to expert testimony and what we should look for moving forward.

Evidentiary Standards In The Legal Malpractice Trial-Within-A-Trial., F. Parks Brown

St. Mary's Journal on Legal Malpractice & Ethics

Like malpractice actions in general, the standards of proof required for each element of a legal malpractice claim evolved as legal malpractice claims became increasingly common. State and federal courts consequently produced a diverse range of opinions as jurisdictions continually adjust to evolving standards. The courts often seek to balance these standards of proof against their own precedent and the need to serve their particular notions of equity and justice. Perhaps the most contentious of these evolving standards of proof is the current state of the causation element, which is a critical test that must be satisfied to prevail in …

The Roles Of Attorneys As Courtroom Experts: Revisiting The Conventional Limitations And Their Exceptions., David S. Caudill

St. Mary's Journal on Legal Malpractice & Ethics

This Article examines whether attorneys should be allowed to testify as legal experts, especially in the legal malpractice context. This Article starts by addressing the unclear distinction between questions of law and fact and reviews several recent cases that prohibited expert legal testimony. Next, this Article addresses some general exceptions to the prohibition against expert legal testimony, such as questions of complex and uncertain law. Finally, this Article examines the use of legal experts in legal malpractice cases.

No Laughing Matter: The Intersection Of Legal Malpractice And Professionalism, Nicola A. Boothe-Perry

Journal Publications

In an effort to increase professionalism among lawyers, an analysis of the relationship between lawyers' professional behavior and legal malpractice claims is warranted. This Article will explore that relationship, and address the need to fuse the two components in an effort to enhance professionalism. The Article will specifically seek to address the questions: (1) Should professionalism be admissible, or even conclusive, evidence of the standard of care of the "reasonable attorney" in legal malpractice cases? and (2) Will a proper definition of the "reasonable attorney" in the context of legal malpractice cases encourage and ultimately enhance professionalism in legal society?

Shifting The Burden Of Proof On Causation In Legal Malpractice Actions., Jeffrie D. Boysen

St. Mary's Journal on Legal Malpractice & Ethics

Legal malpractice suits, like any negligence claim, require the plaintiff to meet all of the elements of the malpractice claim. Texas malpractice claims are based on professional negligence. In Texas, the elements a plaintiff must prove in a legal malpractice claim are: "(1) the attorney owed the plaintiff a duty; (2) the attorney breached that duty; (3) the breach proximately caused the plaintiffs injuries; and (4) damages occurred." Most jurisdictions, including Texas, place the burden on the plaintiff to meet all elements of the claim, including causation. However, a significant minority of jurisdictions allow the burden to shift to the …

Legal Malpractice Litigation And The Duty To Report Misconduct., Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers participating in legal malpractice litigation sometimes encounter evidence of serious disciplinary rule violations. Whether, and how soon, those lawyers are required to report this information to grievance authorities is a question that has received little attention from courts and scholars, despite the fact that most states have mandatory reporting rules. The dilemma for lawyers serving as testifying experts is particularly troublesome because nonreporting may result not only in discipline, but testimonial impeachment. The better view is that an expert in a pending case ordinarily has no mandatory obligation to report misconduct. This conclusion is supported by an analysis of …

Lawyers, Clients And Sex: Breaking The Silence On The Ethical And Liability Issues, Caroline Forell

Golden Gate University Law Review

This paper examines the existing case law concerning attorney-client sexual relationships and the current ethical rules which may be implicated. Because of the inadequacies in the present system, and the serious harm caused to both women clients and the Bar by these inadequacies, I propose changes in how lawyers regulate themselves and how others are compensated for lawyer's sexual misconduct.