: Abbott Brown, Jonathan Lomurro, Gary Riveles
: New Jersey Legal Malpractice and Litigation Ethics
: BookBaby
: 9781098354411
: 1
: CHF 211.30
:
: Allgemeines, Lexika
: English
: 446
: DRM
: PC/MAC/eReader/Tablet
: ePUB
New Jersey Legal Malpractice Law and Litigation Ethics is intended to provide a comprehensive and easy to use reference for lawyers handling malpractice cases and ethics cases and to provide guidance to litigators who are often faced with complex issues unique to the trial bar. This book is structured to discuss the issues that often complicate the practice of our profession, from the initiation of the attorney-client relationship, the duties to the Court, client, counsel and also to persons who are not clients, to the elements of the cause of action for legal malpractice, proximate causation, damages, evidence and related issues. Each chapter contains detailed subheadings to allow users to quickly find the discussion of the relevant issues. The chapters in New Jersey Legal Malpractice Law and Litigation Ethics include: Chapter 1: The Duties and Responsibilities of a Lawyer to a Client or Former Client. Chapter 2: The Duties and Responsibilities of a Lawyer to a Non-Client Chapter 3: The Elements of Legal Malpractice Chapter 4: Proximate Causation in Legal Malpractice Cases Chapter 5: Damages in Legal Malpractice Cases Chapter 6: Expert Testimony and Evidence Issues in Legal Malpractice Cases Chapter 7: Pleadings and Defenses in Legal Malpractice Cases
CHAPTER 1: THE DUTIES AND RESPONSIBILITIES OF A LAWYER TO A CLIENT OR FORMER CLIENT
1-1The Creation of the Attorney-Client Relationship
A lawyer’s primary responsibilities and obligations arise out of creation of the attorney-client relationship. The attorney-client relationship should be reduced to a written retainer agreement, but some courts have held that the existence of an attorney-client relationship may be established by the conduct of the parties. For this reason, great care should be taken to make certain that both the attorney and the client understand the nature and scope of the relationship.
The creation and scope of the attorney-client relationship were the focus of the court in Albright v. Burns,4 where the plaintiffs, beneficiaries of the estate of Bruchs, sued the defendant lawyers, Burns, the co-executor, and Poe, the attorney for the estate. The controversy arose after Burns sold shares of stock owned by the estate. Burns had the check made payable to Bruch, but sent the check to Poe, who deposited the check in his trust account. Poe did not inform Bruch of the sale proceeds and disbursed the proceeds to Burns in exchange for an unsecured promissory note, and the plaintiffs sued Poe.5
After observing that a legal malpractice claim must be based upon “the existence of an attorney-client relationship creating a duty of care upon the attorney,”6 the court first examined whether there was an attorney-client relationship between the plaintiff, a beneficiary of the estate, and Poe, the attorney for the estate, even though the beneficiary had not retained Poe to represent his interests. In answering in the affirmative, the Court explained:
It has been held that an attorney's acceptance of representation need not be articulated and may be inferred from the conduct of the parties. In re Palmieri, 76 N.J. 51, 58-59 (1978). We find sufficient relationship, even though there was an absence of contact between Bruch and Poe. Burns was acting under the power of attorney he obtained from Bruch. It was his duty to act in Bruch's best interests. Poe was aware of the relationship and potential conflict.7
The Albright Court therefore held that Poe was liable to the beneficiaries for making an improper payment. The Appellate Division explained an executed retainer agreement is not required to create an attorney/client relationship. “[A] member of the bar owes a fiduciary duty to persons, though not strictly clients, who he knows or should know rely on him in his professional capacity.”8 The court explained whether an attorney has a duty to third persons is determined by considering:
[V]arious factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm