Summary: 12) Civil Remedies For Professional Failure

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• 1 13) Civil Remedies for Professional Failure

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• Professional Discipline Proceedings for Breach of Duty of Competence in should be analyzed under which rules?

  1.1 (competence), 1.3 (diligence)

• When a client brings a breach of duty of competence claim against L, the claim should be analyzed under...?

  Tort law (negligence) and agency law (fiduciary duty) principles, with due regard to whether DRs are either (a) evidence of the standard of care or (b) somehow incorporated into the common law causes of action (negligence per se)

• Cs can sue Ls under 3 causes of action (all "malpractice"). Name them:

  1. Professional negligence (Tort). This is the primary, and key, cause of action. 
  2. Breach of L's agreement to provide professional services (contract)
  3. Breach of fiduciary duty (Agency law)

• Breach of fiduciary duty claims are key for which issues?

  Key for confidentiality + conflicts issues.
  
  Under agency law, L has a duty to give C undivided loyalty, refrain from representing conflicting interests, and to avoid the disclosure/misuse of C's confidential information

• In brief - 1.8(h)(1). Prospective Liability Waivers.

  L and C can enter into an agreement prospectively limiting L's liability to C ONLY IF [1] L complies w/ applicable law (which may hold that prospective liability waivers are void as against public policy), AND [2] C must be represented by independent counsel in making the agreement.

• R on Settlement of Malpractice Claims?

  1.8(h)(2)

• In brief - 1.8(h)(2). Settlement of malpractice claims.

  Lawyer (defendant in malpractice action) must advise C in writing of the desirability of obtaining separate counsel, and provide a reasonable opportunity for C to do so.

• The Tort of Malpractice (Professional Negligence): 4 Elements

  1. (a) Duty of Care + (b) Standard of Care 
  2. Breach of Duty 
  3. Causation 
  4. Damages 

• 1(a). Duty. Restatement Test for extending L's D.o.C to 3rd parties.

  Third party can bring negligent misrepresentation claim against L ware L knows that C intends as one of the primary objectives of the representation that the L's services will benefit the non-C. Courts will require a showing that the [allegedly negligent] representation was made to a specific third party for a specific purpose.

• 1(a) Duty and 3rd Parties - Opinion Letter Disclaimers

  to avoid liability to 3rd parties, the letter/report should state that it was prepared only for the use of the client and that no one else should rely on it.