Incompetence and its consequences p65

Effect of lawyer error or misconduct: Bailey

Persons who were hired to excavate a trench and lay a gas line filed suit against the company that hired them and an engineering group after they allegedly were injured by exposure to toxic chemicals. Plaintiffs propounded a request to the engineering group for the production of documents, and when the engineering group failed to respond there followed in due course a motion and an order compelling production, a conditional default order, the entry of a default, a hearing on damages, and a default judgment. Evidence showed that the group's attorney received documents sent by plaintiffs but he did not respond to them, and he blamed his conduct on problems with alcohol abuse. The state supreme court held that although the engineering group was not aware that its attorney was mishandling the case, the trial court did not abuse its discretion by refusing to vacate the default judgment pursuant to R.I. Super. Ct. R. Civ. P. 60(b)(6).

Agency rule (Bailey): A client is bound to the lawyer’s errors. Allowing parties to overturn final judgments because of inexcusable neglect might be unfair to the winning party, since they didn’t actually do anything wrong but are being punished.

Settlement: apparent authority isn’t enough; the attorney had to have the consent of the client to sign an agreement. A lawyer cannot bind a client to a settlement without actual authority, since the decision whether to settle is the client’s alone.

Malpractice: the prima facie case

Duty

Duty is established if a client-lawyer relationship exists. A lawyer owes a duty of care to his/her clients. Most courts say that the standard of care for a lawyer is that degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in the jurisdiction, under the same or similar circumstances.

Breach

Breach requires proof by the P that the lawyer’s conduct fell below the standard of care. It is a question of fact for the jury to determine whether a reasonable and prudent lawyer, under the same or similar circumstances that the defendant was in at the time, would have acted differently.

Causation of harm

P must proof that the lawyer’s breach of duty was both an actual cause (a but for cause) and a proximate cause of legally-cognizable harm.

Actual causation: but for the lawyer’s negligence, the harm would not have happened.

Proximate causation: a negligent act is a proximate cause of harm only where the harm that occurred is of a type that a reasonable person would have foreseen as a likely result of his or her conduct.

Damages

Damages require reasonable certainty. Damages cannot be recovered if they are too speculative.

Most courts also require proof that the economic loss caused by the lawyer’s negligence in a litigated matter is actually collectable.

P may also recover fees incurred in the legal malpractice case itself.

Defenses

Contributory negligence

pure contributory negligence - P’s fault will reduce recovery in the percentage of...

Buy the full version of these notes or essay plans and more in our Ethics (Duke Smolla) Outlines.