Protecting your own assets—understanding the anatomy of a malpractice claim
As part of a continuing legal education program presented by the Section of Real Property, Probate and Trust Law at its 18th Annual Spring Symposia, "Protecting Your Assets: Anatomy of a Malpractice Claim" examined the differences between the Model Rules of Professional Conduct (ethical rules) and malpractice, as well as the pivotal points where they intersect which often causes a conflict of interest.
According to panelist Dana G. Fitzsimons Jr., McGuireWoods LLP, ethical rules are an important feature of self regulation. These rules elevate public faith in the legal system, provide guidance for lawyers and equip disciplinary agencies with rules that they can use in regulating lawyers' conduct.
Conversely, malpractice, Fitzsimons noted, is a cause of action alleging that a lawyer has failed to perform services in accordance with professional standards due to negligence or breach of contract. Generally, malpractice requires proof of the following: existence of duty, breach of that duty, proximate causation and resulting damage.
Fellow panelist Matthew P. Matiasevich of Evans, Latham & Campisi shed some light on this subject in relation to estate planning. "Malpractice most likely occurs in estate planning because a lawyer failed to implement a client's intent, which is most common, or failed to obtain a technical or tax benefit, or violated some sort of rule relating to a conflict of interest."
The final panelist, Gerard G. Brew of McCarter & English, defined some of the broad concepts delineating conflicts of interest outlined in the ABA Model Rules of Professional Conduct. Examples include a concurrent conflict of interest such as representing two clients who are directly adverse to one another, prohibited transactions between lawyer and client, and conflicts with former clients. Brew said that these rules can leave room for confusion.
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The panel agreed that, when in doubt, consulting with another lawyer without divulging too many specifics is the best way to go. Additionally, documenting conversations and maintaining records of work on behalf of clients is of the utmost importance.
"Conflicts of interest can completely unravel the good work we do," said Fitzsimons. To avoid conflicts, he mentioned some red flags to avoid:
1. Are there suspicious circumstances? If it looks like undue influence or that you're doing something improper, consider re-evaluating the situation.
2. What is it that you're being asked to do?
3. Does it look like litigation is about to take place? For example, did a radical change in an estate plan happen recently?
4. What kind of personal interest do you have in this transaction?
For a more detailed explanation on the Model Rules and how they relate to malpractice, download the "Protecting Your Assets: Anatomy of a Malpractice Claim" materials here, compliments of the Section of Real Property, Probate and Trust Law.
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