During our third class meeting, we discussed the different causes of action that are typically brought in legal malpractice lawsuits. We saw in Fiorentino v. Rapoport, 693 A.2d 208 ( 1997), at least three separate and distinct causes of action: breach of contract, negligence and breach of fiduciary duty. Many jurisdictions apply different statutes of limitations to each of these causes of action, which frequently determine which one of them will survive a motion to dismiss. Sometimes the facts of a particular case can establish theories of liability in more than one cause of action. For example, the same facts can establish both negligence and breach of fiduciary duty.

One renowned scholar, Professor Charles Wolfram, is critical of the way courts have permitted breach of fiduciary duty claims in legal malpractice cases. He wants them to be scaled back. In “A Cautionary Tale: Fiduciary Breach as Legal Malpractice”, 34 Hofstra L. Rev. 689,692 (2006), he argues that “courts have allowed fiduciary breach claims to proliferate needlessly on the same ground already adequately occupied by negligence….[M]ost fiduciary breach claims are problematic precisely because of their almost complete and useless overlap with available claims of negligence.”

On the other hand, we studied Judge Sotomayor’s decision in Estate of Re v. Kornstein, et al., 958 F. Supp. 907 (SDNY 1997). She points out that a breach of fiduciary duty claim imposes a lighter burden of proof on the plaintiff, particularly in regard to the proximate cause element of the cause of action. (True, the Court dismissed the negligence claim and permitted the fiduciary breach to proceed.) Also, there is generally a longer statute of limitations applicable to breach of fiduciary duty claims than negligence claims. These distinctions can easily make the difference between recovery for or dismissal of a bona fide claim. The notion that meritorious claims deserve appropriate remedies may thus help to explain why the vitality of the fiduciary breach claim is so important to fundamental fairness and justice.

We also read the Restatement of Law Governing Lawyers § 49 which provides that the breach of fiduciary duty claim is “[i]n addition to the other possible bases of civil liability…”

Should fiduciary breach claims in legal malpractice lawsuits be permitted to continue to flourish or should they be scaled back and limited to being, in effect, a cause of action of last resort reserved only for the most reprehensible forms of lawyer misconduct that harms clients? And what if it harms non-clients?

Do you see any merit to the argument that the proliferation of fiduciary breach claims should be encouraged because of its prophylactic benefit, i.e., it serves as a constant reminder to us of our over-arching, primary duty of undivided loyalty to our client and thus encourages adherence to that duty?

As lawyers, these are concepts we must take to heart in our everyday dealings with clients and non-clients alike. What do you think about this debate? Do you see a lawyer’s fiduciary duty as a standard of care or perhaps even an enforceable “Code of Conduct”? Or do you think in years to come we will see a move toward taking the teeth out of its bite?

Please, share your thoughts and comments with us. Just click the comments link below.

Prof. W.

During our second class meeting, we discussed the indicia that help define the attorney-client relationship. We tried to understand when and how the professional relationship begins, how all encompassing it could be and how the scope of the relationship can be limited. We also discussed how we, as attorneys, can properly end the relationship, when the objective of our representation has not yet been achieved.

But the expression, “It ain’t over ‘till it’s over” may not apply to the attorney client relationship. Some duties that a lawyer has to a client– even after the professional relationship has ended—still live on. For example, in the Pronacik case that we discussed, the Court found an enduring duty to the client even after the relationship ended. In another very recent legal malpractice case, a New Jersey Appellate Division decision definitively stated: “A lawyer’s duty of loyalty can extend beyond the time when his or her representation of a client has concluded.” See, Estate of Spencer v. Gavin, 440 N.J. Super 220, 242 (2008).

What duties should we, as attorneys, have to a client even after we are no longer that client’s attorney? Are there any duties that we should not be burdened with? Is there any fundamental reason or policy why any duty at all to a client should endure after the attorney client relationship has come to an end? Can you cite any other instances in professions other than the law where a duty arising from a professional relationship lasts beyond the time that relationship has come to an end? Are those in any way analogous to the enduring attorney-client relationship and the duties that we as lawyers have after our client is no longer our client?

Please share your thoughts and comments. They’re always welcome.

Prof. W.

Welcome back to Lawyer Malpractice, 2008.

We start this new academic year with the very first law school level text/casebook in this substantive area of law; LEGAL MALPRACTICE LAW: PROBLEMS and PREVENTION, by Fortney & Johnson (hereafter F&J). We will be using it as our required text, together with the Concise Restatement of Law Governing Lawyers and the additional Course Materials on our TWEN website that I have prepared for students at Hofstra Law School.

In our first class meeting, we discussed some of the reasons for the rapid and widespread growth of legal malpractice lawsuits over the past 25 years or so. This phenomenon has overlapped with the proliferation of product liability and medical malpractice lawsuits. Many observers believe that one of the benefits of those lawsuits has been to encourage manufacturers to make safer products and doctors, nurses and hospitals to be more cognizant of better patient care. Clearly, those lawsuits have been fueled by the growth of a consumer rights movement that our society has experienced.

In our reading assignment #1 in F&J (p.2), the authors write: “Scholars and practitioners increasingly recognize the important role that legal malpractice actions play in regulating the legal professional.”

Do you think that, like product liability and medical malpractice suits, legal malpractice lawsuits will have a similar effect and make us better lawyers? Why? Why not?

Your comments are always welcome.

Prof. W.

Dear Students:

As our course in Lawyer Malpractice comes to an end this semester, we are privileged and honored to welcome as our “guest blogger” William Freivogel, Esq. Bill Freivogel has been one of the most important forces in helping to educate practicing lawyers (and now, Hofstra Law students) on how NOT to practice law. You can see Bill’s excellent work and stellar credentials on his popular website, “Freivogel on Conflicts” by just clicking here.

Bill has composed the blog below just for us. In it, he touches upon the lawyer’s fiduciary duty to non-clients and one of the more recent theories of liability now in vogue: the lawyer’s aiding and abetting a fiduciary’s breach of duty to the beneficiaries of the fiduciary. (Remember, Restatement of Law Governing Lawyers, section 51 (4) ).

We have discussed both these topics in class. In posting your comments to this blog, please keep our class room discussions in mind as well as your readings. Also, please be sure to review the cases and materials mentioned in the blog by Mr. Freivogel.

Without further dealy, I have the pleasure of introducing our “guest blogger”, William Freivogel, Esq.:

[Dear Professor Wasserman:]

“Your students have demonstrated [by their previous blog comments] a good grasp of the lawyer’s fiduciary duties to clients. Fiduciary duty plays some interesting roles with respect to non-clients. The most prominent example is the cause of action being alleged against Enron’s law firms, aiding and abetting the breach of fiduciary duty by Enron’s executives to Enron. The Enron Examiner lays this out in his report on the conduct of Enron’s law firms which you can access at Appendix C of the Enron website.

“Another fiduciary duty analysis regarding non-clients is at HF Mgm’t. Services LLC v. Pistone, 818 N.Y.S.2d 40 (N.Y. App. Div. 2006). A law firm had represented the underwriter in an initial public offering. In doing due diligence the law firm had obtained much information from the issuer – not a client. When the law firm later attempted to take on a lawsuit adverse to the issuer, the trial court disqualified the law firm because of the knowledge the law firm gained about the issuer during the IPO (initial public offering). The trial court held that the underwriter in the IPO had a fiduciary duty to the issuer, and, therefore, so did the underwriter’s law firm. In the cited opinion the Appellate Division reversed, holding that the underwriter did not have a fiduciary duty to the issuer. It followed that the underwriter’s law firm, likewise, did not have a fiduciary duty to the issuer and should not have been disqualified.

“One last mention concerns two Oregon decisions. In Granewich v. Harding, 985 P.2d 788 (Ore. 1999), the court held that a non-client could sue a lawyer for “assisting” a majority shareholder’s breach of fiduciary duty to a minority shareholder. More recently, in Reynolds v. Schrock, 142 P.3d 1062 (Ore. 2006), the same court held that that cause of action would not apply if the lawyer’s conduct was in connection with helping a client. The court distinguished Granewich by noting that in that case the lawyer’s client was the corporation and that the lawyer was “assisting” a non-client, the majority shareholder.”

Note to students: Please review the materials mentioned in Mr. Freivogel’s blog. I will be looking for your usually perceptive and excellent comments.

Prof. W.

We are now at that point in the semester where we are cataloging the long list of various basic duties that arise from the attorney-client relationship. (Of course, we are learning what those duties are by focusing on reported and real live cases where lawyers have allegedly or actually been found or not found to have breached one duty or another). From the duties we owe to a prospective client to the duties we owe to past clients and all those in between, not to mention those duties to the many “accidental clients” we might come upon, it is said that the highest duty of all is the Fiduciary Duty.

The nature and extent of the Fiduciary duty frequently depends upon the type of professional relationship we have with the client or non-client and the type of case or matter in which we are acting as attorneys. Other factors might also be involved. Some would like to view the Fiduciary Duty as narrow and specific. Others might view it more broadly, almost as an umbella under which several other well established duties are huddled.

We have read that the Ficuciary Duty has been described as the duty of trust, undivided loyalty and other related equally inspring metaphors. But do those definitons alone help us to truly understand how to apply that Duty in the day to day practice of law? I submit that the way to appreciate what the Fiduciary Duty actually consists of– and therefore what is required of us as lawyers, is by looking at its constituent duties. In other words, what are the other duties you think “huddle” under its “umbrella”? Perhaps we can see the Fiduciary Duty as a jigsaw puzzle; a different picture in each case, but always made up of certain well defined parts. Whatever way you might choose to see the Fiduciary Duty, we always need to return to the basics.

Just as you have been creating a list of basic duties, now do the same for the Fiduciary Duty. Which of those duties are constituent parts of the Fiduciary Duty? Which of those duties should be part of the Fiduciary Duty? Which of those duties should NOT be part of the Fiduciary Duty? Why? Why not?

In stating your comments, it woud be very helpful and much appreciated if you would cite illustrative cases you have been reading.

As usual, I look forward to your comments.

Prof. w.

Until now we have been wrestling with how to define the attorney-client relationship. When does it come into effect, when does it end, must it start with a written agreement or when and under what circumstances can there be an implied agreement? Who are the parties to the agreement and who are its beneficiaries?

Now we go on to the next element in lawyer malpractice: Duty. Let’s assume we have enough evidence to establish the existence of an attorney client relationship. We next have to turn to defining what duties arise out of that relationship and whether the attonrey has breached one or more of them in the course of the legal representatation furnished. We also need to define to whom those duties run and for how long that duty persists even after the attorney-client relationship has come to an end.

What if the legal representation entails more than just legal representation? What if it is combined with other services such as accounting, tax, business planning, financial advice and a whole host of other services that are related to the legal advice? What if the legal service is for a specific piece of litigation, does that also include appellate services? All these issues help us define the scope or the limit of our professional duty. So, herein the critical question: What exactly is the attorney’s duty to a client and to non-clients as well?

Critical to determining whether there is a breach of duty is first defining the duty we undertake or which is imposed on us in each representation. In the cases that follow in the next section of the course we will focus on these issues. We will try to understand what precisely our duties are as lawyers and how broad those duties could be.

In order to help stimulate your thinking about how to define our professional duties, consider the words of a well known British commentator whose perspective is especially germane to the American experience in lawyer malpractice:

“Duty is the primary control device which allows the courts to keep liability for [lawyer] negligence within accpetable limits, and the controversies which have centered around the criteria for the existence of a duty reflect differences of opinion as to the proper ambit of the law of negligence.”

As we study the cases on lawyer’s duties, try to identify the various forces and interests involved in the expansion and contraction of duties imposed on us a lawyers. Who favors the growth of lawyers duties and who their contraction? Why?

You may well find that the growth of the lawyers’ duties has something to do with a variety of contemporary movements and phenomena, the effect of which has been to redefine and reshape the role we lawyers play in our society.

As usual, your comments and insights are always welcome.

Prof. W.

Many students at Hofstra Law School may choose to practice law in New York. As such, let me recommend an article by Marian C. Rice, Esq., one of the finest legal malpractice defense lawyers around. And, she’s our neighbor right up the road in Garden City. Marian is a prolific writer and speaker on various topics in legal malpractice. I recommend her article on the rules and pitfalls of starting the attorney client relationship in New York. Read it here.

Comments are always welcome.

Prof. W.

There has been a lot in the press and on the internet lately about the rising tide of malpractice suits against lawyers. The American Bar Association has released some interesting statistics about this trend. Some would chalk it up to a variety of factors such as the “Enron” fiasco and a consequential heightened sense of accountability of professionals to clients and non-clients alike. One interesting piece (for reasons you will readily discern) on the internet is attached and you can read it simply by clicking here.

Question: You have by now, no doubt, read the MacPherson v. Buick case in the area of products liability law that I have assigned in this course. Assuming product liability cases over the past 50 years or so have made for better (or safer) products, do you think lawyer malpractice suits will have an analagous effect on the quality of legal services we lawyers deliver? Do you think such lawsuits make (or will make) us better lawyers? If you agree, tell us why. If you disagree, tell us why not.

As always, I look forward to your comments.

Prof. W.