Legal Malpractice 1

Question 1

a. Differentiating discipline and civil liability

Answer 1

i. Different purpose, adversary, procedures, decision marker, effect of ethical rules.

Question 2

b. Legal Malpractice as an umbrella term

i. Common themes

Answer 2

1. Negligence
   a. Goes to standard of care
2. Breach of fiduciary duty
   a. Goes to conduct of lawyers
3. Vicarious liability
4. Breach of K
5. Statutory violation

Question 3

c. Civil liability

Answer 3

i. Firms always liable and so will induvial tortfeasor

Question 4

i. Anatomy of a policy

Answer 4

i. Anatomy of a policy

Question 5

f. Steps for evaluation of coverage

Answer 5

i. Compare policy provisions to allegations in complaint
1. Steps for analyzing policy
a. Study insuring agreement
i. Did the claim involve the rendition of legal services
b. Make sure claim not excluded
i. Look at exclusions
c. Make sure insured satisfied condition

Question 6

ii. Remember insurance ISNT for disciplinary defense

Answer 6

1. Not for claims seeking return of legal fees
2. Not for investment advice
   a. Covers claims arising under the rendition of legal services.

Question 7

g. Insurer options when handling coverage dispute

Answer 7

i. Deny coverage
ii. Provide unqualified defense and waive coverage reservations
iii. Provide a defense, subject to a reservation of rights letter or non-waiver agreement
iv. File a declaratory judgement action based on coverage problems

Question 8

h. Claims against Insurer for failure to settle

Answer 8

i. Negligence claim- in some jurisdiction
1. An insurer who acts negligently in settling claims may be subject to liability for judgement in excess of policy limits
ii. Bad faith claim
1. May be available under stature of CL

Question 9

i. Handling claims

Answer 9

i. Give insurer prompt notice
ii. Understand coverage issue and hire personal counsel if necessary to protect position.
iii. Don’t write internal memo
iv. Monitor defense counsel and settlement offers
v. Recognize you may have a duty to inform client of your own malpractice
1. Rest 20: If the lawyer’s conduct of the matter gives the client a substantial malpractice claim against the lawyer, the lawyer must disclose this to the client.

Question 10

j. Lessons report matter to insurer

Answer 10

i. Failure to report can jeopardize coverage
ii. Reporting may also enable insurer to assist insured
iii. To avoid consequences, carefully disclose matters on policy applications and report when claims arise

Question 11

k. Consequences of not disclosing to client

Answer 11

i. Ethical breach and discipline for failure to keep client reasonably informed.
ii. Breach of fiduciary duty claim
iii. Cover up inflame jury
iv. Concealment may extend SOL