ATTORNEY MALPRACTICE: DAMAGES AND OTHER REMEDIES(1)Basic Obligation of Care

Ethics Rules MRPC 1.1) Competence reasonably necessary for the [particular] representation legal knowledge skill thoroughness preparation

MRPC 1.3) Reasonable diligence and promptness (“neglect” in Code of PR)

MRPC 1.4) Duty to keep client informed

Ethics Rules and Damages Actions

Has Webster in our problem p. 189 violated any of these rules?

Does violation of an ethics rule as such give rise to a damages action? MRPC Preamble para. 20; n. 11 p. 196

If not, why not?

Problem pp. 189-90

On what theories might our lawyer be liable to his client Teague? tort? breach of contract? breach of fiduciary duty? what difference does it make?

statute of limitations? punitive damages? limitation of liability?

Problem pp. 189-90 c’t’d What does client have to prove?

attorney-client relationship? Togstad, p. 190

injury and proximate cause? that the claim would likely have succeeded but for lawyer’s negligence?

does the “suit within a suit” problem present itself in this situation? what does it involve? did the Togstad court do it?

Problem pp. 189-90

amount of likely recovery alternative approach to “suit within a suit”: loss of a chance (have fact finder determine, based on expert testimony, what the probability of success was as of the time the suit should have been brought, then discount the claim?

should it include punitive damages that would have been recoverable from the original defendant?

Problem pp. 189-90 Is lawyer entitled to reduce

the amount of damages by the amount of the fee he would have received? what arguments for and against?

what if lawyer can show that the original defendant was financially judgment-proof? Who has the burden? N. 8 p. 195

Problem pp. 189-90 c’t’d Malpractice in criminal case (q.

(d)) What did Jordan fail to do? what is the federal constitutional

standard for overturning the conviction (“ineffective assistance of counsel”)? N. 12 p. 196 how does a conflict of interest change the client’s position?

what must client show to establish a civil claim for malpractice?

(2) Duties to Third Parties Estate Beneficiaries suing

Attorney who [mis]drafted will for their ancestor: on what theory would liability attach?

What would they have to show? Did the attorney-client relationship

with testator give rise to a duty to beneficiaries?

do other factors support liability? Trask, p. 202 – does it support

liability in our problem?