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Civil Remedies for Professional Failure

Q: 1(b). The Standard of Care - General Rule

The standard of care for Ls is that of a 'reasonable professional,' not the reasonable person.

Q: 2) Breach of Duty - Relevance of Disciplinary Rules: Can state DRs be sued to shows L's breach of duty (noncompliance with the SoC)?

Majority Rule: Violation of a DR is evidence of negligence only, which the trier of fact may consider as an aid to understanding L's reasonable care duty. Consistent CMT 20 to ABA introduction ('scope.' violation of a rule does not create a cause of action and does not give rise to a presumption that L breached a professional duty). Minority rule: Violation of a DR is negligence per se (proof of a DR violation is conclusive proof on element (2), breach of duty).

22 important questions on Civil Remedies for Professional Failure

1(a). Duty and 3rd Parties - Foreseeability Factor

If a lawyers letter/report does not contain an appropriate disclaimer, courts will often look to foreseeability to determine whether L owed a duty to the 3rd party.

ISS: Whether it was foreseeable that a 3rd party would rely on the report/opinion letter.

Key: Foreseeability is a possible limitation on the scope of L's duty. Turns on whether the harm was foreseeable. In tort law, questions of duty and foreseeability are often decided on public policy grounds. Extended duties require greater time and greater costs to clients.

1(b). The Standard of Care - General Rule

The standard of care for Ls is that of a "reasonable professional," not the reasonable person.

1(b). Heightened Standard of Care

The S.O.C. will be even higher than than a reasonable professional if an L holds himself as a specialist in something like tax or appellate law. Ls must be careful not to inadvertently create expectations of expertise (i.e., through advertising or promotional materials).

1(b). Standard of Care - General RLE

Ls have a duty to their clients to exercise the competence and diligence normally exercised by Ls in similar circumstances.

1(b) Standard of Care is defined in reference to.

Under tort law, the definition of reasonable care is provided by custom amongst practitioners. Thus, custom is generally dispositive of compliance with the standard of care. For this reason, virtually every malpractice plaintiff/C must produce expert testimony.

1(b). Standard of Care - Determining Custom

Majority RLE, probably: Custom is determined on a statewide basis. Many courts are moving away from the locality rule (Ls will be measured against the S.O.C. of other lawyers within their state).

2) Breach of Duty - Gen RLE

L breaches the standard of care by failing to act as a reasonable professional under the circumstances.

2) Breach of Duty - Relevance of Disciplinary Rules: Can state DRs be sued to shows L's breach of duty (noncompliance with the SoC)?

Majority Rule: Violation of a DR is evidence of negligence only, which the trier of fact may consider as an aid to understanding L's reasonable care duty. Consistent CMT 20 to ABA introduction ("scope." violation of a rule does not create a cause of action and does not give rise to a presumption that L breached a professional duty).

Minority rule: Violation of a DR is negligence per se (proof of a DR violation is conclusive proof on element (2), breach of duty).

2) Breach of Duty - Judgment RLE Defense

A L is not liable for making errors in judgment or giving advice that turns out to be erroneous in hindsight, so long as L's judgment was objectively reasonable under the circumstances (L must have made a reasonable effort to investigate facts and research the legal issues).

2) Breach of Duty - Judgment RLE Defense - CHANGES IN LAW

L may be held liable for failing to anticipate a change in the law that adversely affects C and/or failing to advice C of the likelihood of the change. if there are other signs that would put a reasonable L on notice that additional research is necessary

Where L asserts that he made a judgment call in resolving an unsettled issue of law, then C has the burden to show either that [a] the issue was actually fairly well settled or [b] that L did not conduct a reasonable investigation.

3) Causation - Gen RLE: Plaintiff-Client must show...

For the tort of professional negligence, the P-C must show that but for L's failure to exercise reasonable care, the outcome of the rep would have been different

3) Causation - a Litigation Client must show.. [Case-within-a-case requirement]

If L was representing C in litigation, C must show that he would have prevailed in the underlying action [in addition to showing L's negligence). Case-Within-a-Case Requirement.

3) Causation - Criminal Cases

In most jurisdictions, a criminal Defendant-Client must show that he was actually innocent of the crime, which can only be done by having his conviction vacated on direct appeal or collateral attack.

4) Damages - Gen RLE: what can prevailing malpractice plaintiff-Cs recover

Prevailing legal malpractice Ps can generally recover the damages that flow "naturally and directly" from L's damages.

Damages can include: pecuniary damages for business losses and the additional legal fees necessitated by L's malpractice (if L1's malpractice required C to find a new L to fix the problem, the additional fees may be recoverable).
C-P may recover fees paid for the negligent representation
If the malpractice occurred in litigation, C may recover the damages that would've been obtained in the underlying action, but for L's negligence.

4) Damages - recovery by a 3rd party (non-C)

Negligent misrepresentation claims are governed by generally applicable tort principles. A prevailing 3rd-party-plaintiff may recover pecuniary damages and losses suffered as a result of reliance on L's negligent misrepresentation.

Remedy for 6th Am violation [ineffective assistance of counsel -hereinafter IAH)

If L is found to have been constitutionally incompetent, the only remedy for C is a new trial at which he is provided with competent counsel (drastic, expansive remedy).

The Strickland Test - Bifurcated Analysis of IAC claim

A criminal defendant did not receive effective assistance of counsel and is entitled to habeas relief if:

L's performance was outside the wide range of professional competent assistance. (the Performance Prong), AND
But for L's incompetence/errors, the result of the proceeding would've been different (the Prejudice prong).

Evidence for Strickland Prong (1): Performance

The practices of other criminal defense Ls and statements by the bar are informative here (determining whether L's performance was deficient)
State DRs useful guides as to what is reasonable (AKA evidence of prevailing professional norms), but do not give rise to negligence per se. Evidence of a breach of an ethical rule is not dispositive on prong 1.

Strickland Presumption - Prong (1) Performance

Strickland said that there should be a strong presumption that L's conduct falls within a range of reasonable professional assistance as long as there was a "meaningful adversarial testing process at trial." Generally, courts are extremely reluctant to second-guess any decision that can be characterized as strategic/tactical, at least if it is based on adequate research.

Presumptively ineffective performance - Strickland prong 1.

There are certain things that a criminal defense L must do:

L must conduct a reasonable investigation (including, in capital case, seeking evidence that would mitigate C's sentence).
L must provide objectively reasonable advice, based on knowledge of the facts and law in C's case, even where the decision in question is one that C has sole authority to make (i.e., pleading guilty).
Move to suppress evidence were a reasonable L would have done so
Raise applicable defenses that make the best of available evidence
construct a reasonable trial strategy.

Strickland - Proving Prong (2): Prejudice.

IAC petitioner must establish that "absent the errors, the fact finder would have had a reasonable doubt." Generally, C must prove that "but for counsel's unprofessional errors, the result of the proceeding would have been different.

Presumed Prejudice - Strickland Prong 2.

Prejudice is presumed--satisfying prong 2 of strickland--only where there has been an "actual or constructive denial of assistance of counsel altogether."

L is burdened w/ a conflict of interest
L is presented from being present at a critical stage of the proceedings.

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12) Civil Remedies for Professional Failure

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Civil Remedies for Professional Failure

22 important questions on Civil Remedies for Professional Failure

1(a). Duty and 3rd Parties - Foreseeability Factor

1(b). The Standard of Care - General Rule

1(b). Heightened Standard of Care

1(b). Standard of Care - General RLE

1(b) Standard of Care is defined in reference to.

1(b). Standard of Care - Determining Custom

2) Breach of Duty - Gen RLE

2) Breach of Duty - Relevance of Disciplinary Rules: Can state DRs be sued to shows L's breach of duty (noncompliance with the SoC)?

2) Breach of Duty - Judgment RLE Defense

2) Breach of Duty - Judgment RLE Defense - CHANGES IN LAW

3) Causation - Gen RLE: Plaintiff-Client must show...

3) Causation - a Litigation Client must show.. [Case-within-a-case requirement]

3) Causation - Criminal Cases

4) Damages - Gen RLE: what can prevailing malpractice plaintiff-Cs recover

4) Damages - recovery by a 3rd party (non-C)

Remedy for 6th Am violation [ineffective assistance of counsel -hereinafter IAH)

The Strickland Test - Bifurcated Analysis of IAC claim

Evidence for Strickland Prong (1): Performance

Strickland Presumption - Prong (1) Performance

Presumptively ineffective performance - Strickland prong 1.

Strickland - Proving Prong (2): Prejudice.

Presumed Prejudice - Strickland Prong 2.

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