D Summary Chapter 4

Question 1

Attorneys handling e-discovery should have the requisite level of familiarity and skill to, among other things, be able to perform (either by themselves or in association with competent co-counsel or expert consultants) the following:

Answer 1

1) assess e-discovery needs and issues
2) implement appropriate ESI preservation procedures,
3) analyze client’s ESI systems/storage;
4) identify custodians of relevant ESI;
5) perform appropriate searches;
6) collect responsive ESI in a manner that preserves the integrity of that ESI;
7) advise client available options for collection and preservation of ESI;
8) engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
9) and produce responsive ESI .

Question 2

What are the elements of legal malpractice

Answer 2

1) Client-Lawyer Relationship
2) Duty
3) Breach
4) Causation
5) Damages

Question 3

Legal Malpractice: What does kind of plaintiff?

Answer 3

(foreseeable plaintiff) (Togstad);

Question 4

Legal Malpractice: What does testimony for duty?

Answer 4

Depends. Expert Testimony or Common Knowledge

Question 5

Legal Malpractice: What are the two types of causation?

Answer 5

1. (actual = but for = case within a case)

2. (proximate = foreseeable consequences)

Question 6

Legal Malpractice: What kind of damages are available?

Answer 6

emotional distress or punitive (dePape)

Question 7

Legal Malpractice Criminal Defense: In a legal malpractice action brought by a criminal defendant:

Answer 7

Majority rule – D must prove actual innocence.

But see RLGL § 53 Comment d: “Although most jurisdictions addressing the issue have stricter rules, under this Section it is not necessary to prove that the convicted defendant was in fact innocent.”

Question 8

Causation? What if client would have lost the case no matter what the lawyer had done? What is the only way to prove? What case did we first see that in?

Answer 8

Only way to prove otherwise is to have retry the original action within the context of the legal malpractice suit. The so-called suit-within-a-suit remedy, which we first saw in the Togstadt case (very difficult to do). Some states shift the burden of proof in these suits (Louisiana).

Question 9

Remedies To Redress Malpractice?

Answer 9

Out of pocket damages.
Lost opportunities.
Punitive damages.

Question 10

Duty to Inform Client of Lawyer’s Own Malpractice?

Answer 10

Matter of Talon (NY.App.Div. 1982) - Lawyer must inform the client, withdraw, and advise the client to get independent legal advice.

In re Blackwelder (Ind. 1993) - Lawyer missed filing and default judgment taken. Lawyer agrees to handle bankruptcy for free in exchange for release from malpractice. Clients not advised to get independent counsel.

Question 11

Are Lawyers’Fees Affected by Breach of Fiduciary Duty? If so, does it require proof of actual damages?

Answer 11

Yes.

Hot area!

Fee forfeiture now one of the favorite remedies, because it does not require a showing of actual damages, or suit within a suit.

Theory is that the lawyer who breaches fiduciary duty to the client has in effect breached the actual or implied contract that required payment of fees.