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Attorney malpractice: damages and other remedies

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.

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Attorney malpractice: damages and other remedies

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  1. 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 Basic Obligation of Care Attorney malpractice: damages and other remedies

  2. 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?

  3. 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?

  4. 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?

  5. 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?

  6. Problem pp. 189-90 • Is lawyer entitled to reduce the amount of damages by the amount of the feehe 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

  7. 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?

  8. (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?

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