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District of Columbia Legal Ethics
1.1:100 Comparative Analysis of DC Rule
D.C. Rule 1.1(a) is identical to the entire MR 1.1. DC Rule 1.1(b) adds a requirement that the lawyer serve the client with skill and care commensurate with that generally afforded by other lawyers in similar matters. Rule 1.1(b) was added, according to the Jordan Committee, to give lawyers a "meaningful standard" by which to measure their "ability" -- that is the Committee's word, though "performance" would seem the apter term -- against the requirements of Rule 1.1(a). The Jordan Committee had originally proposed that Rule 1.1(b) begin with the phrase "at a minimum." The Board of Governors elected to delete this language, however, because "it was inconsistent with the concept of a single applicable standard."
The Comments to DC Rule 1.1 add several sentences that are not contained in the Model Rule. Comment  to the Model Rule states that expertise in a particular field of law may be required in some circumstances. Comment  to the DC Rule adds the example that expertise in a particular field of law may be required when a client has been led by the lawyer reasonably to expect such expertise. Comment  to the Model Rule sets forth standards for competent handling of a case. The DC Comment  adds the requirement that a lawyer give continuing attention to the needs of the representation of a client to ensure that such needs are not neglected.
Finally, Comment  to the Model Rule was amended as recommended by the Ethics 2000 Commission to add that a lawyer should "keep abreast of changes in the law and its practice." This phrase was also added to the DC Rule's Comment  pursuant to the Rules Review Committee's recommendation, along with the phrase "and comply with all continuing legal education requirements to which the lawyer is subject."
The counterpart to Rule 1.1 in the Model Code was DR 6-101(A)(1)-(3), which prohibited a lawyer from handling a matter the lawyer was not competent to handle, required preparation adequate in the circumstances, and prohibited neglect of a matter. Rule 1.1 is much more specific than DR 6-101 about what constitutes competent representation, especially as to areas of specialty practice. DR 6-101(A)(3)'s specific prohibition of neglect of a matter is absent from Rule 1.1, which instead affirmatively requires that the representation of the client be competent; "competent representation" includes qualities -- thoroughness and preparation as well as legal knowledge and skill -- that are inconsistent with neglect. Neglect is mentioned in Comment  to DC Rule 1.1, which says that "competent handling of a particular matter" requires "continuing attention to the needs of the representation to assure that there is no neglect of such needs." Neglect is addressed more directly in Rule 1.3 and Comment  to the DC Rule. See 1.3:300, below.
1.1:200 Disciplinary Standard of Competence
Although the Jordan Committee proposed that Rule 1.1(b) be added in order to provide a standard for measuring compliance with Rule 1.1(a), and the Board of Governors endorsed this concept, Bar Counsel, in the tradition of prosecutors' proliferating counts of a charge, has sometimes charged lawyers with violating both subparts of Rule 1.1, often for the same conduct. Perhaps in reaction, in order to differentiate Bar Counsel's charges, the Board on Professional Responsibility has sometimes read Rule 1.1(a) as dealing with a lawyer's competence in the sense of ability and Rule 1.1(b) as dealing with a lawyer's performance.
In re Lewis, 689 A.2d 561 (DC 1997), concerned an experienced criminal defense lawyer accused of neglect in a particular case and charged with violating both subparts of Rule 1.1. The Board ruled that the lawyer did not violate Rule 1.1(a) because "there [was] no evidence that lack of competence [i.e., ability] was at issue" but did violate Rule 1.1(b) because the lawyer's lapses were not commensurate with the skill and care afforded to clients by other lawyers in similar matters. The Board thought Rule 1.1(b) "better tailored [than Rule 1.1(a)] to address the situation in which a lawyer capable to handle a representation walks away from it for reasons unrelated to his competence in that area of practice." Id. at 564. The case was not contested in the Court of Appeals, which merely appended the Board's opinion to a one-paragraph per curiam order affirming it. See also these Board decisions not contested in the Court of Appeals: In re Lyles, 680 A.2d 408 (DC 1996) (lawyer professing to be a bankruptcy specialist violated Rule 1.1(b) when she failed to follow fundamental pleading and filing requirements of the Bankruptcy Code; violation of Rule 1.1(a) not charged); In re Sumner, 665 A.2d 986 (DC 1995) (both subparts of Rule 1.1 violated by lawyer who had no experience in criminal appeals and bungled attempted criminal appeal).
However, in a contemporaneous case similar to Lewis, the Board reversed a hearing committee's decision that had relied on the distinction between ability and performance in finding that a lawyer (again an experienced criminal defense lawyer who had neglected clients' interests) had violated Rule 1.1(b) but not Rule 1.1(a). In re Drew, 693 A.2d 1127 (DC 1997) (per curiam). In reversing as to Rule 1.1(a), the Board noted that Rule 1.1(a) says "that a lawyer shall provide competent representation to a client" and added: "That he may have the requisite skill and knowledge . . . and yet deliberately refuse to provide competent representation cannot . . . allow him to escape his obligation under Rule 1.1(a)." Id. at 1132 (emphasis in original).
The Board then quoted from DC Rule 1.1, Comment , as supporting its conclusion. Id. The Drew case was contested in the Court of Appeals. The court stated, not very helpfully, that it "agree[d] with the Board that violations of Rule 1.1(a) were established by clear and convincing evidence." Id. at 1127.
Whether the ability/performance distinction between Rule 1.1(a) and Rule 1.1(b) will survive the Court of Appeals' cryptic approval of the Board's rejection of the distinction on the facts of Drew cannot be known. Although the distinction draws some support from the Jordan Committee's unfortunate use of "ability" instead of "performance" in explaining the purpose of Rule 1.1(b) -- paragraph (b), added by the Committee, "provides lawyers with a meaningful standard by which to measure their ability" -- it is indefensible textually. Rule 1.1(a) requires a lawyer to provide "competent representation," not merely to be capable of providing competent representation, and says that "competent representation" includes, in addition to legal knowledge and skill, "thoroughness and preparation reasonably necessary for the representation."
In In re Outlaw, 917 A.2d 684 (DC 2007), the respondent lawyer had negligently allowed the statute of limitations on the client’s tort claim to run before initiating meaningful negotiations with the defendant’s insurer, and had thereby violated DC Rules 1.1(a) and (b) and 1.3(a). The respondent had also failed to advise her client of her professional lapses, and thus violated Rule 1.4(a). In the latter connection, the respondent was also found to have deliberately avoided disclosing to the client the true posture of the case, and so to have violated Rule 8.4(c) as well.
In In re Evans, 902 A.2d 56 (DC 2006), a disciplinary proceeding in which the respondent’s principal ethical transgression was a conflict of interest in violation of DC Rule 1.7(b)(4) by reason of the lawyer’s representing a client in a matter that involved a business in which he had a personal financial interest [discussed under 7.1:210, below], this conflict was found to have led to violations of DC Rule 1.1(a) and (b) as well as Rule 8.4(d) [discussed under 8.4:500, below]. The respondent owned a title company, and also engaged in a law practice that included probate and real estate matters. His title company was contacted to close a real estate loan, but when it appeared that the property to be encumbered was not owned by the borrower but instead belonged to the unprobated estate of the borrower’s deceased mother-in-law, the respondent undertook to represent the borrower in initiating a probate proceeding to secure the borrower’s title to the property. He undertook this engagement without advising the borrower of his conflict of interest or getting her informed consent to his proceeding with the engagement despite the conflict of interest, and this was the basis of the violation of Rule 1.7(b)(4). He then proceeded to commit a number of errors and omissions in the course of his representation of the borrower, presumably as a result of his conflicting interests, that were found to have violated both paragraphs of Rule 1.1. To prove a failure to provide competent representation, under paragraph (a) of Rule 1.1, prior case law had established that Bar Counsel must show not only that the lawyer failed to apply his or her skill and knowledge, but that this failure constituted a serious deficiency in the representation, and here the respondent was found to have had four such failures in his representation of the borrower. These lapses were then held, along with one additional lapse, to have also manifested a failure to “serve a client with the skill and care commensurate with that generally afforded to clients by other lawyers in similar matters,” in violation of paragraph (b) of the Rule.
Another overlap is between Rule 1.1 and Rule 1.3. The same conduct or pattern of conduct has been found to violate one or both subparts of Rule 1.1 and one or more of the subparts of Rule 1.3. See Drew; Lewis; Lyles; Sumner, 665 A.2d 986; In re Green, 689 A.2d 560 (DC 1997); In re Roxborough, 679 A.2d 950 (DC 1996)(per curiam); In re Peartree, 672 A.2d 574 (DC 1996); In re Ryan, 670 A.2d 375 (DC 1996).
In addition to the cases discussed in 1.1:210, a few other disciplinary cases involving competence have reached the Court of Appeals. In In re Chisholm, 679 A.2d 495 (DC 1996), there was no charge of a violation of Rule 1.1, but the Board on Professional Responsibility based its leniency in the sanction it imposed in part on the ground that lawyer's misconduct was "largely the product of accepting a case outside his area of expertise." Opting instead for the more severe sanction requested by Bar Counsel, the court said that "the record does not bear out the notion that this [lack of expertise] was the cause of [the lawyer's] misconduct," where the record "demonstrated persistent and intentional dishonesty" on the lawyer's part. "There is no rational nexus between repeated acts of dishonesty and an attorney's lack of specialized expertise." Id. at 504. In In re Ryan, 670 A.2d 375 (1996), the misconduct charged to a lawyer extended over the period of both the Model Code and the Model Rules. She was found to have violated both Rule 1.1 and DR 6-101(A)(3) by neglecting the interests of undocumented alien clients seeking work permits.
In In re Ford, 79 A.2d 1232 (DC 2002), the Court upheld, against a challenge by Bar Counsel, dismissal of a Hearing Committee finding that respondent had failed in his duty of competent representation under Rule 1.1(a) and (b) by reason of errors in a probate petition. The Court did not, unfortunately, spell out the exact nature of the errors involved, but simply noted that its decisions imposing discipline for incompetent representation "have required proof of deficiency more serious than that demonstrated here." It cited, as cases involving disciplinable incompetence, In re Shorter, 707 A.2d 1305, 1306 (DC 1998); In re Bland, 714 A.2d 787 (DC 1998) (per curiam); and In re Sumner, 665 A.2d 986, 989 (DC 1995) (per curiam).
In cases arising solely under the Model Code, the Court has sustained findings of a violation of DR 6-101(A)(3) (neglect) where the lawyer did not comply with discovery deadlines and did not keep his client informed, and of DR 6-101(A)(2) (inadequate preparation), where the same lawyer let the time for filing a petition for certiorari pass without filing a petition. In re Spaulding, 635 A.2d 343 (DC 1993). In In re Willis, 505 A.2d 50 (DC 1985), the lawyer had filed pleadings that were "sloppy, incoherent, incomplete and misleading on their face . . . [and] prepared . . . without any meaningful investigation," id. at 50 (citation omitted), and thus violated DR 6-101(A)(2). The disciplined lawyer in In re Stow, 633 A.2d 782, 783-84 (DC 1993) (per curiam), maintained haphazard and disorganized files and thus violated DR 6-101(A)(3). In In re Alexander, 513 A.2d 781, 789-90 (DC 1986) (per curiam), a lawyer violated DR 6-101(A)(2) and (3) because he prepared for a case inadequately and made legally deficient arguments.
In In re Mance, 869 A.2d 339 (DC 2005), the Court upheld a finding that the respondent had violated Rules 1.1(a) and (b), as well as Rules 1.3 (a) and (b), by filing an untimely appeal from his client’s criminal conviction of multiple offenses and failing to seek available relief for that lapse, and in addition failing to get the client’s sentence reduced on the available ground that some of the offenses of which he was convicted merged. Similarly, in In re Outlaw, 917 A.2D 784 (DC 2007), the Court upheld the Board’s determination that the respondent’s error in miscalculating the applicable statute of limitations her client’s tort case, and her neglect of the case that allowed the limitation period to expire before initiating meaningful negotiations with the defendant’s insurance carrier constituted failure to provide competent representation and to serve the client with skill and care, in violation of DC Rules 1.1(a) and (b), as well as failure to provide zealous and diligent representation in violation of Rule 1.3(a), despite the fact that the error in recording the applicable limitations period had been made by an employee who was under the respondent’s supervision and not the respondent herself.
In In re Nwadike, 905 A.2d 221 (DC 2006), the Court approved a determination that the respondent had failed to represent her client with skill and care in violation of Rule 1.1(b) by failing to file, in a medical malpractice action, a timely and complete statement pursuant to Civil Rule 26(b)(4), listing potential experts to be called at trial and summarizing their expected testimony; but also approved the Board’s recommendation that in the circumstances the appropriate disciplinary sanction therefor be an informal admonition, the least severe available sanction.
In In re Cater, 887 A.2d 1 (DC 2005), there were four consolidated proceedings against the same lawyer, in one of which the respondent was charged with violating DC Rules 5.3(b) and 1.1(b) by failing to act competently and failing adequately to supervise a nonlawyer assistant, in connection with a former secretary’s embezzlement of $47,000 from the estates of two incapacitated adults for whom the respondent had been court-appointed guardian and conservator. (In the three other proceedings, the respondent had been charged with violating DC Rules 8.1(b) and 8.4(d) by reason of her repeated failures to respond to inquiries from Bar Counsel; these are more fully discussed under 8.1:500, below.) With respect to the Rule 5.3(b) proceeding, the evidence showed that over a nine-month period, the respondent’s secretary had forged the respondent’s signature on thirty-four checks totaling $42,000 from the account of one of the clients, and two checks totaling a little over $5,000 from the other client’s account -- facts that the respondent did not discover until she examined the accounts a year after he secretary had disappeared without notice. The respondent had delegated to the secretary entire responsibility for handling the two accounts, and had done nothing to check or supervise her handling of them. The Hearing Committee had concluded that the respondent had not violated these two rules because she had offered an explanation that the Committee found persuasive, and a divided Board had concurred, albeit with four members dissenting. The Court, however, agreed with the minority on the Board, and quoted the commentary in the Annotated Model Rules of Professional Conduct to the following effect:
Courts view holding money in trust for clients as a nondelegable fiduciary responsibility that is not excused by ignorance, inattention, incompetence or dishonesty. Although lawyers may employ nonlawyers to assist in fulfilling this fiduciary duty, lawyers must provide adequate training and supervision to ensure that ethical and legal obligations to account for clients’ monies are being met.
Id. at 13. Having concluded that the respondent had violated Rule 5.3(b), the court stated that it followed a fortiori that she had also failed to provide competent representation and thereby violated Rule 1.1(a), since the same evidence supported both charges.
See also In re Devaney, 870 A.2d 53 (DC 2005), where, as more fully discussed under 1.8:400, below, a lawyer’s violation of DC Rule 1.8(b)’s prohibition on a lawyer’s preparing an instrument giving the lawyer or a member of his family a substantial gift from a client was held also to have violated Rule 1.1(a)’s requirement of competent representation.
The only relevant opinion of the Legal Ethics Committee under Rule 1.1 is DC Ethics Opinion 256 (1995), stating that the inadvertent disclosure of confidential information to opposing counsel does not by itself constitute a violation of the rule. The Committee said that inadvertent disclosure would violate Rule 1.1 only if the lawyer failed to review the documents to be turned over to opposing counsel with the thoroughness, preparation, skill or care required by the rule.
Several ethics opinions addressed incompetence under the DC Code. DC Ethics Opinion 28 (1977) stated that a second lawyer cannot provide competent representation to a client (though he may consult with and advise the client) in a matter in which the client already has a lawyer unless the first lawyer knows of and consents to the dual representation or withdraws from the case. DC Ethics Opinion 116 (1982) said that a lawyer does not have to seek out a client for whom he previously drafted a will to advise the client that subsequent changes in the law make a change in the will desirable unless there is continuing representation. DC Ethics Opinion 118 (1982) held that when a lawyer is employed by a union as a staff lawyer and provides legal services to both the union and its individual members, the lawyer cannot strike or participate in a work slowdown except in what the Legal Ethics Committee apparently considered the unlikely event that participation in the strike or slowdown "in no way interferes with the timely and competent performance of the [lawyer's] work." DC Ethics Opinion 139 (1984) addressed the issue of the duty a lawyer owes to a client who has minimal contact with the lawyer and expresses minimal interest in her own affairs. The lawyer in question represented a woman in a criminal case. The client was convicted and the lawyer filed an appeal. Rather than order a transcript, the trial judge ordered the lawyer to prepare a stipulation of facts to submit to the appellate court. The stipulation was not prepared because the client skipped bail and became a fugitive. Throughout the following year, the client had minimal contact with the lawyer, missed appointments, spent some time in jail, and remained on fugitive status. It was clear, however, that the client wanted the lawyer to proceed with the appeal. The Legal Ethics Committee opined that, because the lawyer did not need the client's participation in the appeal, the lawyer should continue to represent the client in the way he thought appropriate and should renew his efforts to contact her. Lastly, DC Ethics Opinion 170 (1986) cautioned against pre-paid legal services plans that afford to members unlimited monthly telephone access to legal advice within the scope of the plan. The Committee observed that, while not inherently unethical, telephonic advice of this kind, if handled in an "off-the cuff" rapid assembly-line fashion, can result in incompetent representation.
1.1:300 Malpractice Liability
Scope Comment  of the Model Rules states: "Violation of a [disciplinary rule] should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. . . . [The Rules] are not designed to be a basis for civil liability." The Preamble and Preliminary Statement to the DC Code contained similar language, stating that the disciplinary rules do not "undertake [to] define standards for civil liability of lawyers for professional conduct." The Jordan Committee, however, recommended the deletion from the DC Rules of language referring to the relationship between ethics rules and civil liability. The Committee thought that any attempt to "prescribe the effect of the [ethics rules] in decisions by courts outside the disciplinary process seem[ed] unwarranted." The Committee recommended deleting Scope Comment  of the Model Rules and instead leaving it up to the courts to define, on a "case-by-case" basis, the relationship between the ethics rules and the judicial process. The Court of Appeals, however, retained, in a new Scope Comment , the first sentence of Comment , together with a general discussion of the possible relevance of violations of the rules to civil liability. The Peters Committee recommended deletion of this language. In keeping with the spirit of the Jordan Committee's recommendation -- allowing malpractice law to develop independently of ethics rules -- the Peters Committee recommended that the Scope section simply state that the disciplinary rules are not "intended to enlarge or restrict existing law regarding the liability of lawyers to others or the requirements that the testimony of expert witnesses or other modes of proof must be employed in determining the scope of a lawyer's duty to others." The Court of Appeals agreed this time, and the Peters Committee wording was incorporated into Scope Comment  of the DC Rules, effective November 1, 1996. To date (as of March 1998), there is no case law under the DC Rules interpreting Scope Comment .
In Waldman v. Levine, 544 A.2d 683, 690-91 (DC 1988), the Court held that, while the disciplinary rules do not define civil liability, they are relevant evidence of the standard of care to which a lawyer is held. Accordingly, the Court in Waldman affirmed the trial judge's decision to allow an expert witness to use the DC Code as a guide to the relevant standard of care in a malpractice action. The Court cited cases involving expert use of traffic and safety manuals in negligence actions as support for the proposition that a malpractice expert should be treated the same as other experts using codes of conduct in negligence cases. See id. at 691. See also Smith v. Haden, 872 F. Supp. 1040, 1045 n.2 (DDC 1994), aff'd, 69 F.3d 606 (DC 1995) (citing Waldman for the proposition that the DC Code is relevant to establishing the standard of care governing a lawyer's conduct); Williams v. Mordkofsky, 901 F.2d 158, 163 (DC Cir. 1990) ("While the Model Code does not provide for a direct private malpractice action, violations of the Code certainly constitute evidence in an action at common law"). The Peters Committee, making specific reference to the Mordkofsky case, stated that decisions holding that the disciplinary rules are relevant evidence in malpractice cases were consistent with the original Scope Comment .
See 1.1:380 below, for discussion of cases holding that, in contrast with the duty-of-care malpractice cases, violation of a disciplinary rule defining a fiduciary duty is conclusive of a lawyer's breach of his common-law fiduciary obligations.
A lawyer owes a duty to his client "'to employ a reasonable degree of care and skill in the performance of [his] duties.'" Cohen v. Surrey, Karasik & Morse, 427 F. Supp. 363, 373 (DDC 1977) (quoting Savings Bank v. Ward, 100 U.S. 195, 198 (1880)). A lawyer does not breach her duty merely because she makes an error in professional judgment. Id. In Applegate v. Dobrovir, Oakes & Gebhardt, 628 F. Supp. 378, 383 (DDC 1985), aff'd, 809 F.2d 930 (DC Cir. 1987), the court held that a lawyer did not breach his "professional duty by failing to introduce specific items of evidence at trial" because such trial decisions were in the lawyer's discretion. This discretion exists even when the lawyer disregards the client's advice in the heat of a trial or rejects a client's suggested trial tactic. Id. (citing Frank v. Bloom, 634 F.2d 1245, 1256-57 (10th Cir. 1980)). Failure to follow a client's explicit instructions regarding a non-discretionary issue is, on the other hand, a breach of duty and constitutes negligence. See Waldman v. Levine, 544 A.2d 683, 692 n.7 (DC 1988) (stating that a lawyer breaches his duty when he fails to ask for a continuance of a trial despite being explicitly asked to do so by his client).
A lawyer who is retained after the client has terminated another lawyer's services has no duty to lessen the adverse effect of the terminated lawyer's negligence. See Waldman, 544 A.2d at 693. Waldman involved a woman who died after giving birth. The woman's mother, Essie Swann, retained Waldman, a lawyer, to file a medical malpractice action. Waldman failed to retain an expert witness, failed to ask for a continuance of the trial despite the client's explicit instructions to do so, and forced the client to acquiesce in a settlement for a nominal sum. Swann fired Waldman and hired Levine to set aside the settlement and reinstate the action. Waldman, at Levine's suggestion, signed a praecipe withdrawing his appearance as counsel and sent it to Levine. Levine never filed the praecipe, however, and never entered an appearance as Swann's lawyer. Accordingly, Swann's case remained dismissed. Swann sued Waldman for malpractice. Waldman filed a third party complaint against Levine for contribution, alleging that Levine's actions prevented Waldman from setting aside the dismissal and reducing the injury to Swann. The Court held that the third-party action against Levine could not stand. Levine had made a professional judgment not to take Swann's case, and his failure to enter an appearance did not cause or exacerbate Swann's injuries. See id. As a result, the court held that "[w]here there is a choice to be made, successor counsel has no duty to the client to take action which would lessen the damages resulting from predecessor counsel's negligence, and is not liable to predecessor counsel for contribution." Id.
A lawyer's duty is limited by the scope of the representation the lawyer has undertaken. See Smith v. Haden, 872 F. Supp. 1040 (DDC 1994), aff'd, 69 F.3d 606 (DC Cir. 1995). Haden was a malpractice suit against a lawyer for failing to file a civil action on behalf of her client before the statute of limitations ran. The court found that the lawyer was retained to file not a civil action but a claim with the Alaska Victim's Compensation Board, which she did file; the lawyer therefore had no duty to pursue the civil action. See id. at 1054. Generally, the establishment of a lawyer-client relationship is a necessary predicate for stating a claim for malpractice. See Chase v. Gilbert, 499 A.2d 1203, 1211 (DC 1985); Williams v. Callaghan, 938 F. Supp. 46, 50 (DDC 1996). For exceptions to this rule, see 1.1:410, below. For a discussion of fiduciary duties, see 1.1:380, below.
The standard of care in malpractice actions is "'that degree of reasonable care and skill expected of lawyers acting under similar circumstances.'" O'Neil v. Bergan, 452 A.2d 337, 341 (DC 1982) (citing Morrison v. MacNamara, 407 A.2d 555, 561 (DC 1979)). What constitutes reasonable care may "vary depending upon circumstances." Smith v. Public Defender Serv., 686 A.2d 210, 213 (DC 1996). As a threshold matter, a lawyer must have "not only the formal legal training reflected by membership in the bar, but also enough additional knowledge, as well as experience," to satisfy the required degree of care. Battle v. Thornton, 646 A.2d 315, 322 (DC 1994). The court in Battle observed that the required experience and knowledge may include satisfaction of certain requirements of DC Rule 1.1. See id. at 322-23. For example, a lawyer may need additional formal legal training to act with reasonable care on a particular matter. See id.
A criminal defendant who has been unsuccessful in seeking to set aside a conviction on the ground of ineffective assistance of counsel is not barred from bringing a malpractice action against his defense lawyer. See Smith, 686 A.2d at 212; Brown v. Jonz, 572 A.2d 455, 457 n.7 (DC 1990). Although the Court of Appeals is somewhat ambiguous in its reasoning, it has firmly established that the standard for ineffective assistance of counsel as a ground for setting aside a conviction differs from the standard for malpractice. See Smith, 686 A.2d at 212; Brown, 572 A.2d at 457 n.7. The District of Columbia differs from some other jurisdictions, which have held that a denial of an ineffective assistance claim bars a malpractice action. See Smith, 686 A.2d at 212 (citing cases).
Expert testimony is required to establish the applicable standard of care in a legal malpractice action unless the lawyer’s lack of care is so obvious that “the trier of fact can find negligence as a matter of common knowledge.” O’Neil v. Bergan, 452 A.2d 337, 341 (DC 1982). Obvious negligence requiring no expert testimony includes allowing a statute of limitations to run, see id. at 342, permitting the entry of default against a client, see id., and failing to include a residuary clause in a will, see Hamilton v. Needham, 519 A.2d 172, 175 (DC 1986). Matters requiring expert testimony, on the other hand, include trial strategy decisions made by the lawyer, see Williams v. Callaghan, 938 F. Supp. 46, 50 (DDC 1996); procedural strategy decisions made by the lawyer, see Liu v. Allen, 894 A.2d 453, 460-61 (DC 2006); the extent of pre-trial preparation, see Applegate v. Dobrovir, Oakes & Gebhardt, 628 F. Supp. 378, 382-83 (DDC 1985), aff’d, 809 F.2d 930 (DC Cir. 1987); the filing of evidence after a court-imposed deadline, see Mavity v. Frass, 456 F. Supp.2d 29, 34 (DDC 2006); and the adequacy of a lawyer’s investigation of corporate misconduct, see O’Neil, 452 A.2d at 342. Failure to produce expert testimony when it is required can result in a directed verdict for the opposing party. See id.
An expert witness does not have to be a specialist in the area of law he is testifying about. A general practitioner with knowledge and legal expertise can be qualified as an expert. For example, in Battle v. Thornton, 646 A.2d 315, 323 (DC 1994), the court permitted a general practitioner with substantial expertise in criminal law to testify as an expert in a Medicaid fraud case despite the fact that the witness had no experience in the Medicaid fraud area. The court observed that any "weakness attributable to [the expert's] lack of experience with Medicaid fraud was a matter for cross-examination at trial, affecting the weight to be accorded his testimony." Id. at 324.
The expert testimony requirement generally applies whether the trier of fact is a judge or a jury. See O'Neill, 452 A.2d at 342 n.5. Some decisions, however, suggest an exception for bench trials. In Greenberg v. Sher, 567 A.2d 882, 884 (DC 1989), a trial judge conducting a bench trial excluded expert testimony on the issue of whether a lawyer's recommendation of settlement to a client fell below the standard of due care, holding that the expert testimony was unnecessary in view of the judge's own experience in personal injury litigation. The Court of Appeals ruled that in the circumstances of the case the trial judge did not abuse her discretion in excluding the testimony. On the other hand, a judge trying the facts may sometimes allowably hear an expert that a jury would not be allowed to hear. Smith v. Haden, 872 F. Supp. 1040 (DDC 1994), aff'd, 69 F.3d 606 (DC Cir. 1995), was a malpractice suit against a lawyer for failing to file a civil action on behalf of her client before the statute of limitations ran. An expert testified for plaintiff in a bench trial on the probability and value of a settlement had the action not been time-barred. The defendant argued that the expert's testimony was too speculative and confusing. The court held that, while expert testimony on settlement value might be too speculative and confusing for a jury, it was admissible and might be helpful in a bench trial. See id. at 1047.
"Proximate cause exists when there is a 'substantial and direct causal link' between the attorney's breach and the injury sustained by the client." Dalo v. Kivitz, 596 A.2d 35, 42 (DC 1991) (citation omitted). In order to show that a lawyer's malpractice was the cause of her injury, a plaintiff must prove that she would have prevailed in the underlying case but for her lawyer's malpractice. See Williams v. Patterson, 681 A.2d 1147 (DC 1996). Patterson was a malpractice case against a lawyer who failed to file a personal injury claim within the limitations period. The plaintiff was injured in an automobile accident. She retained Williams, a lawyer, to file a civil action on her behalf. After Williams had let the limitations period expire, the would-be personal injury plaintiff sued him. The court held that in order for the plaintiff to recover for malpractice she had to prove, by expert testimony, that her injuries were either exacerbated by or originated in the automobile accident. See id. at 1150. In Williams v. Callaghan, 938 F. Supp. 46, 51 (DDC 1996), the court stated that a plaintiff in a malpractice action must show that "the result of his criminal trial would have been different had his attorney not committed the alleged misconduct." Williams was a criminal defendant who was found guilty at trial. He sued his trial lawyer for malpractice, alleging that the lawyer was negligent in rejecting Williams' suggestions for cross-examining and interviewing witnesses. The Court held that Williams failed to demonstrate that the result of his trial would have been different had the lawyer acted on his suggestions.
Although a malpractice plaintiff has to demonstrate that his lawyer's negligence prevented him from being awarded a money judgment, he probably does not have to prove in the first instance that the judgment was collectible. In Smith v. Haden, 872 F. Supp. 1040, 1054 (DDC 1994), aff'd, 69 F.3d 606 (DC Cir. 1995), the United States District Court, noting that there was no District of Columbia law on the issue, held that collectibility of a judgment is not an element of plaintiff's malpractice claim. Instead, noncollectibility is an affirmative defense that defendant must plead and sustain. No other District of Columbia court appears to have addressed this issue.
An act of another that intervenes between the lawyer's negligence and the client's injury does not necessarily break the chain of causation. See Dalo, 596 A.2d at 42. A lawyer may be liable to a client for malpractice even though an intervening act was a more immediate cause of the plaintiff's injury than the lawyer's misconduct if the lawyer could have "'anticipated and protected against'" the intervening act. Id. (citation omitted). In Waldman v. Levine, 544 A.2d 683, 693-94 (DC 1988) (1.1:320 above), the court held that a successor lawyer's failure to file an appearance for a client is not an intervening event that breaks the chain of causation and relieves the predecessor lawyer of liability for malpractice.
Punitive damages are awarded in a malpractice action only if the defendant's actions are wilful, fraudulent, wanton, reckless, oppressive, or inspired by ill will or evil motive. See Dalo, 596 A.2d at 40. In other words, lawyers are treated like all other defendants with respect to claims for punitive damages. The DC Court of Appeals has observed that "actions do not become more egregious simply because of the professional obligations of the person committing them." Boynton v. Lopez, 473 A.2d 375, 378 n.1 (DC 1984). In Boynton, the Court overturned as unjustified a jury's award of punitive damages to a plaintiff who sued his lawyer for misrepresenting the terms of a settlement offer. Id. at 377-78. In Dalo, the court affirmed a trial judge's decision not to award punitive damages to a malpractice plaintiff whose lawyer entered into an unethical business arrangement with him, improperly filed a lawsuit against him, and caused his assets to be frozen. See Dalo, 596 A.2d at 40. In Hendry v. Pelland, 73 F.3d 397, 400 (DC Cir. 1996), the court upheld a trial judge's refusal to award punitive damages to a plaintiff who complained that his lawyer was not "well-advised" in the law and failed to advise the client properly regarding settlement. An award of punitive damages was permitted, however, when a lawyer, acting as an escrow agent for one potential purchaser of a house, used that purchaser's deposit to enable a different purchaser to buy the house. See Wagman v. Lee, 457 A.2d 401, 405 (DC 1983).
Breezevale Limited v. Dickinson, 759 A.2d 627 (DC 2000), affirmed on rehearing en banc, 783 A.2d 573 (DC 2000), which is discussed more fully in connection with defenses to malpractice claims [under 1.1:370, below], also addressed both causation and damages.
1.1:350 Waiver of Prospective Liability [see 1.8:910]
See 1.8:910, below, for a discussion of this topic.
1.1:360 Settlement of Client's Malpractice Claim [see 1.8:920]
See 1.8:920, below, for a discussion of this topic.
The District of Columbia has a three-year statute of limitations on legal malpractice claims, see DC Code § 12-301, and the "discovery rule" (modified, as explained below, as the "continuous representation rule") is used to determine when a cause of action accrues. See Knight v. Furlow, 553 A.2d 1232, 1234 (DC 1989). Under the discovery rule, a cause of action in malpractice accrues when a "plaintiff has knowledge of (or by the exercise of reasonable diligence should have knowledge of) (1) the existence of the injury, (2) its cause in fact, and (3) some evidence of wrongdoing." Id. (citing Bussineau v. President & Dirs. of Georgetown College, 518 A.2d 423, 425 (DC 1986)).
In R.D.H. Communications Ltd. v. Winston, 700 A.2d 766 (DC 1997), the Court adopted the "continuous representation rule," as an exception to the discovery rule for determining when a cause of action for a malpractice accrues. Under that exception, "when the injury to the client may have occurred during the period the attorney was retained, the malpractice cause of action does not accrue until the attorney's representation concerning the particular matter in issue is terminated." Id. at 768 (quoting Weisberg v. Williams, Connolly & Califano, 390 A.2d 992, 995 (DC 1978)). The court described the "purpose and parameters" of the rule as follows: "The rule's primary purpose is to avoid placing the client in the untenable position of suing his attorney while the latter continue to represent him. For that reason, the rule is limited to situations in which the attorney who allegedly was responsible for the malpractice continues to represent the client in that case." Id. (quoting Williams v. Mordkofsky, 901 F.2d 158, 163 (DC Cir. 1990)).
Determining when a plaintiff had or should have had knowledge of a lawyer's malpractice entails a factual analysis of the conduct and the representations of the lawyer and the reasonableness of the client's reliance thereon. See Diamond v. Davis, 680 A.2d 364, 372 (DC 1996) (per curiam). In some situations, a layperson simply may not be aware that a lawyer committed malpractice until the malpractice is affirmatively brought to the layperson's attention. See Williams v. Mordkofsky, 901 F.2d 158, 162 (DC Cir. 1990). In Duggan v. Keto, 554 A.2d 1126, 1144 (DC 1989), for example, the Court held that the earliest time a beneficiary could have known about a lawyer's malpractice in drafting a will was when the testator died and the will was presented for probate.
Even if a plaintiff believes that a lawyer has been providing deficient representation, the statute of limitations does not begin to run until the plaintiff has suffered an actual injury. “Typically, . . . a potential – not actual – injury has occurred when a client claims that an attorney has mishandled a lawsuit still in progress by failing to take appropriate discovery, or by making some other error that, however egregious, does not conclude the lawsuit.” Wagner v. Sellinger, 847 A.2d 1151, 1156 (DC 2004). “That is to say, until the lawsuit is resolved (either by verdict or ruling in court or by settlement), the injury remains uncertain or inchoate. It follows that the statute of limitations has not yet begun to run.” Id. (internal citation omitted). However, “[p]artial resolution of lawsuit, such as by way of partial summary judgment,” may also give rise to actual injury. See Havens v. Patton Boggs LLP, No. 05-01454, 2006 WL 1773473 (DDC June 26, 2006), aff’d, 2007 WL 1549030 (DC Cir. 2007).
In Mordkofsky, however, the Court ruled that a malpractice claim was time-barred because of the time that had passed since the plaintiff-client should have known that his lawyer's wrongdoing possibly constituted malpractice. On his lawyer's advice, the client-plaintiff made inconsistent statements in separate applications to an administrative agency. The inconsistency was questioned by the administrative law judge hearing one of the applications, who scheduled a second hearing to determine whether the client "'misrepresented or lacked candor' in [his] failure to report the conflicting statements." Mordkofsky, 901 F.2d at 161. The Court said that the client should have known that the lawyer's advice constituted possible malpractice at this point, which was beyond the period of limitations. See id. at 162. The client waited until after the application was denied and administrative appeals from that denial were taken and denied. In the circumstances, the Court held, that was too late. Id. And if it does take adverse action by a tribunal to create a cause of action in malpractice, resolution of an appeal of that action is not necessary to state a claim in malpractice. See Knight, 553 A.2d at 1235. Knight involved a will that had been invalidated by a trial court because of the drafting lawyer's malpractice. While the trial court's decision was pending on appeal, a malpractice action was filed against Furlow, the lawyer who drafted the will. Furlow claimed that the malpractice action was not ripe because the appeal had not been decided, and thus no injury had occurred. The Court held that not all of a plaintiff's damages have to occur before a malpractice action can be brought. The legal fees and costs incurred by the plaintiff in defending the invalidated will in the trial court "constitute legally cognizable damages for purposes of stating a claim for . . . malpractice." Id. at 1235.
The discovery rule's reasonable diligence standard applies to cases involving fraud or fraudulent concealment. See Diamond, 680 A.2d at 381. To avoid dismissal of his action as time-barred, the plaintiff there urged adoption of a rule that, in a case in which fraud and fraudulent concealment are alleged, the cause of action accrues only when the plaintiff has actual knowledge of the fraud. The Court ruled against him and applied the discovery rule as it is commonly applied in all other matters, holding that the cause of action accrued when a reasonable person would have been put on inquiry to investigate with reasonable diligence whether fraud was being committed.
Under DC law, the statute of limitations applicable to a legal malpractice action is tolled during an individual's incarceration. DC Code § 12-302(a)(3); Proctor v. Morrissey, 979 F. Supp. 29, 32 (DDC 1997).
Breezevale Limited v. Dickinson, 759 A.2d 627 (DC 2000), affirmed on rehearing en banc, 783 A.2d 573 (DC 2000) held that fraudulent conduct by a client relating to litigation conducted on its behalf by counsel is not necessarily a bar to a malpractice claim by the client against that counsel; nor does it necessarily constitute contributory negligence barring such a claim. There, the law firm Gibson, Dunn & Crutcher, LLP ("GDC") had represented Breezevale in pursuing claims against Firestone arising from three business transactions involving foreign countries. During pretrial discovery, a Breezevale witness confided to a GDC lawyer on the eve of her deposition that she planned to testify that she had forged certain documents relating to one of the three transactions in issue. Without notifying the client, a GDC partner allowed the deposition to commence and later refused Breezevale's demand that the deposition be suspended before the deposition had disclosed the fraud. Firestone's lawyers then prepared a motion to dismiss all Breezevale's claims with prejudice, and Breezevale, following GDC's advice, settled its multimillion dollar claims for a nominal sum. Breezevale then sued GDC for malpractice; the jury, after a "trial within the trial," in which it heard experts from both sides as to the applicable professional standards, found that despite Breezevale's fraud its suit against Firestone, had it been handled properly by GDC, would have resulted in a recovery of $3,430,000, and awarded Breezevale a verdict in that amount. The trial court then entered judgment n.o.v. in GDC's favor, finding that there was no evidence to support the jury's conclusion that GDC's malpractice proximately caused Breezevale's loss of all but a minimal portion of its potential recovery from Firestone; that the forgery by Breezevale had proximately caused the loss and constitutional contributory negligence on Breezevale's part; and that there was no evidence to support the jury's findings on damages. The trial court then granted GDC $5,356,633 in damages on its counterclaim for "bad faith litigation." The Court of Appeals reversed as to each of these grounds. As to the matter of proximate cause, the nub of the Court's holding was that the jury's verdict, recognizing the fraud yet finding that Breezevale would have prevailed at trial nonetheless, undercut the trial court's holding that the fraud would have destroyed Breezevale's case against Firestone. 759 A.2d at 633-34. As to contributory negligence, the Court held that the key issue was whether, if GDC had exercised due care, the fraud would have substantially affected Breezevale's chances of ultimately prevailing at trial, and the jury had found that it would not; thus, the fraud did not amount to contributory negligence. Id. at 634-35. As to proof of damages, the Court declared that
Under District law, which governed the malpractice suit, "a plaintiff is not required to prove the amount of his damages precisely; however, the fact of damage and a reasonable estimate must be established." (Quoting Bedell v. Inner Housing, Inc., 506 A.2d 202, 205 (DC 1980).
Id. at 635.
The Court granted GDC's petition for rehearing en banc to consider the contention that "a client who engages in wrongdoing in connection with any aspect of litigation thereby as a matter of law forfeits all rights of recovery against the attorney." 783 A.2d at 574. Rejecting this proposition, the Court held that "Matters must be judged in relative context and with an eye to other available measures of compensation and sanction." Id.
In Breezevale Limited v. Dickinson, 879 A.2d 957 (DC 2005), the case returned to the court of appeals after the trial court ruled on remand that Breezeville had litigated its malpractice claim against GDC in bad faith and, as sanctions, dismissed the claim, awarded GDC attorneys’ fees, and awarded GDC $1 million in punitive damages. The Court upheld the trial court’s conclusion that Breezeville had litigated its malpractice claim in bad faith by focusing on the forgery issue and forcing GDC to refute its false claims of innocence. The Court also agreed that dismissal was an appropriate sanction for “conduct utterly inconsistent with the orderly administration of justice.” Id. at 968 (internal quotation omitted). It further agreed that Breezeville’s bad faith tainted the entire litigation and thus it was not necessary to limit the award of attorneys’ fees to the portions of the suit litigated in bad faith. Finally, the Court stated that the trial court had authority to impose punitive damages as a sanction for Breezeville’s bad faith litigation, but it vacated the award because the other sanctions imposed by the trial court “bore ‘punitive’ elements” and to impose an additional $1 million in damages “lack[s] the reasonableness and proportionality required of punitive damages awards.” Id. at 970 (internal citation omitted).
Two other defenses to malpractice mentioned in DC case law are noncollectibility of a judgment and failure of a client to notice a flaw in a will before executing it. In Smith v. Haden, 872 F. Supp. 1040, 1054 (DDC 1994), aff'd 69 F.3d 606 (DC Cir. 1995), the court held that noncollectibility of a judgment is "an affirmative defense that must be pleaded and proved by the defendant." [See 1.1:370, above, for a discussion of the Haden holding.]
In Hamilton v. Needham, 519 A.2d 172 (DC 1986), the court held that the testator's failure to notice an omission in a will before executing it is not a viable defense to a malpractice action for a lawyer's failure to include a residuary clause in the will. The court observed that, while a person is ordinarily bound by what he signs, a client "'has the right to rely upon his attorney and is not forced, as he would be in an adversary position, to weigh the effect of every word in fine print of the modern deed forms.'" Id. at 175 (citation omitted).
Breach of Contract
Although contract and tort actions may arise from the same factual setting, "they exist separate and distinct from one another." See Boynton v. Lopez, 473 A.2d 375, 377 (DC 1984). Thus, both a fraud claim and a breach of contract claim may be made in the same action. See id. A client may bring a breach of contract action against her lawyer on the basis of the lawyer's "implied agreement to deal in good faith and to perform with reasonable skill." O'Neil v. Bergan, 452 A.2d 337, 342 (DC 1982). The "reasonable skill" implied in a contract action is the same "reasonable skill" a lawyer must display to avoid malpractice liability. See id. at 343. The plaintiff must present in a contract action, as she would in a malpractice case, expert testimony defining "reasonable skill." See id.
An express contract between a lawyer and her client is subject to general principles of contract law but will be scrutinized closely if the contract is beneficial to the lawyer and executed after the establishment of the attorney-client relationship. See Haynes v. Kuder, 591 A.2d 1286, 1291 (DC 1991); Chase v. Gilbert, 499 A.2d 1203, 1208-09 (DC 1985). All agreements "between an attorney and a client for services are governed by the standard of good faith and reasonableness." Haynes, 591 A.2d at 1291.
A lawyer is entitled to recover the value of her services in quantum meruit if she relied on a "promise implied by law to pay for beneficial services rendered and knowingly accepted." Chase, 499 A.2d at 1207. In other words, if the lawyer rendered services to a client with the reasonable expectation of being compensated for those services, and the client, by implication, asked for those services and accepted the benefit of them, the lawyer may be entitled to payment. See id. The issue of whether a lawyer who has been discharged can recover in quantum meruit for the reasonable value of her services based on an express fee agreement has not been decided by the DC courts. See id. at 1209.
Breach of Fiduciary Duty
All that is required to establish a fiduciary relationship between a lawyer and her client is a manifestation by the parties, either "explicitly or by their conduct," of their intent to create an attorney-client relationship. See In re Ryan, 670 A.2d 375, 379 (DC 1996). Where a corporation or other entity is involved, the lawyer owes a fiduciary duty only to the entity that he represents, not to "individual shareholders, officers, or directors." See Egan v. McNamara, 467 A.2d 733, 738 (DC 1983). Once a lawyer-client relationship is established, the lawyer's fiduciary duty extends beyond the principal matter for which he was retained. See Avianca, Inc. v. Corriea, 705 F. Supp. 666, 680 (DDC 1989), aff'd without opinion sub nom. Avianca, Inc. v. Harrison, 70 F.3d 637 (DC Cir. 1995). Avianca involved a lawyer who had a lawyer-client relationship with Avianca, a major Colombian airline. The lawyer, acting on behalf of his own corporation, purchased an aircraft for the purpose of leasing it to a wholly owned subsidiary of Avianca. The lawyer failed to disclose his financial interest in the transaction to the subsidiary or Avianca. He argued that he did not breach a fiduciary duty to Avianca because Avianca had not retained him with respect to the lease transaction. The court rejected this argument, stating that the lawyer had a continuing fiduciary obligation to Avianca that did not dissipate simply because he was not specifically or expressly retained with respect to one transaction. See id. "The fiduciary duties owed plaintiffs by Corriea extended to all matters in which he was involved, not simply the ones for which he received legal fees." Id.
In First American Corp. v. Sheikh Zayed Bin Sultan Al-Nahyan, 17 F. Supp. 2d. 10 (DDC 1998) , the Court observed that lawyers owe their clients fiduciary duties both of loyalty and of care. Id. at *53. Asserted in that case was a breach of the duty of loyalty, id. as to which the Court observed that state of mind is immaterial to the question whether there is a breach, though "[i]t can play a role in determining the appropriate remedy." Id. at *54. The Court also stated that "The inquiry is whether the lawyer put himself or herself in a position by which he or she could not give full loyalty to which the client is entitled." Id. And, comparing the standards governing disciplinary rules and common law fiduciary duties, the Court observed that "[b]oth sets of standards recognize that a lawyer has a duty to avoid conflicts of interest, to exercise independent judgment on behalf of a client, and to fully disclose conflicts of interest to affected clients, but the terminology for enunciating these standards varies." Id. at *57.
Loyalty to the client is an essential element of fiduciary duty. In Hendry v. Pelland, 73 F.3d 397 (DC Cir. 1996), the court observed that "a basic fiduciary obligation of an attorney is the duty of 'undivided loyalty,' which is breached when an attorney represents clients with conflicting interests." Id. at 401. See also Griva v. Davison, 637 A.2d 830, 847 (DC 1994) (stating that a lawyer who represents clients with competing interests breaches his fiduciary duty); Dalo v. Kivitz, 596 A.2d 35, 37 (DC 1991) (1.1:340 above) (stating that the trial court was "indisputably correct" in ruling that a lawyer breached his fiduciary duty by failing to advise his client about the potential conflicts of interest that can exist when the lawyer and client enter into a joint business venture).
Though regarded as only evidence of the standard of case to which a lawyer is held in the ordinary malpractice action, based on negligence, disciplinary rules can define a lawyer's fiduciary duties. In Griva, the Court of Appeals, after quoting Scope Comment  as it read before the 1996 amendment (1.1:310 above), said that "[d]espite these cautious statements . . ., case law confirms that a violation of the . . . [former Code] or of the Rules of Professional Conduct can constitute a breach of the attorney's common law fiduciary duty to the client." 637 A.2d at 846-47. The "case law" that the court quoted was Avianca, 705 F. Supp. at 679. In that case, acting without guidance from the DC Court of Appeals, which alone could speak authoritatively to the point, the United States District Court said that the then effective disciplinary rules of the Model Code, "while not strictly providing a basis for a civil action, nonetheless may be considered to define the minimum level of professional conduct required of an attorney, such that a violation of one of the DRs is conclusive evidence of a breach of the attorney's common law fiduciary obligations." Id. That holding had been anticipated by another district court judge in Financial General Bankshares, Inc. v. Metzger, 523 F. Supp. 744, 762 (DDC 1981), vacated on jurisdictional grounds, 680 F.2d 768 (DC Cir. 1982). And later a third district judge said that, "if the plaintiff has alleged facts indicating a possible violation of one of the Disciplinary Rules, then the plaintiff has stated a claim for breach of fiduciary duty." Resolution Trust Corp. v. Gardner, 788 F. Supp. 26, 30, partial sum. judgment granted, 798 F. Supp. 790 (DDC 1992). The United States Court of Appeals, in vacating the district court decision in Metzger for jurisdictional reasons, was critical of the district court's resolving "novel and difficult issues of local law." Financial Gen. Bankshares, Inc. v. Metzger, 680 F.2d 768, 769 (DC Cir. 1983). More recently, in reliance on the intervening DC Court of Appeals decision in Griva, the United States Court of Appeals has ruled that evidence that a lawyer defendant violated one of the rules of the former Code "was sufficient to support [plaintiffs'] claim that he violated his common law fiduciary duty." Hendry, 73 F.3d at 401. In each of these cases the disciplinary rules at issue were those dealing with conflicting loyalties.
The Peters Committee thought that Scope Comment  as it read before the 1996 amendment was "somewhat inconsistent with the holding in Avianca" and "[a]ccordingly" the committee proposed "deleting that portion of Comment  which discusses the common law of lawyer liability and the relationship of that law to these Rules." Thus, the topic sentence of Scope Comment  as proposed by the committee and approved by the Court of Appeals reads:
 Nothing in these Rules, the Comments associated with them, or this Scope section is intended to enlarge or restrict existing law regarding the liability of lawyers to others or the requirements that the testimony of expert witnesses or other modes of proof must be employed in determining the scope of a lawyer's duty to others.
Clients who seek compensatory damages against their lawyers for breach of fiduciary duty "must prove injury and proximate causation." See Hendry, 73 F.3d at 401. If a client seeks disgorgement of legal fees paid, however, the client need prove only that the lawyer breached his fiduciary duty, not that the breach caused injury. See id. In reaching this conclusion, the court in Hendry observed that, unlike compensatory damage claims, which focus on the harm the client has suffered, the claim for disgorgement of legal fees focuses on the "decreased value of the representation itself." See id. at 402. Thus, "[b]ecause a breach of the duty of loyalty diminishes the value of the attorney's representation as a matter of law, some degree of forfeiture is . . . appropriate without further proof of injury." Id. The court addressed the disgorgement of fees issue only in connection with disloyalty as a breach of fiduciary duty. No court appears to have considered whether the holding should be extended to claims involving other means of breach. In Gardner, the court held that there can be a breach of fiduciary duty when a lawyer collects an excessive fee. Gardner, 788 F. Supp. at 30. There, the client plaintiffs argued that the defendant lawyer accepted payments from them but failed to render the requisite legal services. The court observed that accepting payments from a client when no benefit, or little benefit, is received by the client in return amounts to receiving an excessive fee. See id.
In Herbin v. Hoeffel, 806 A.2d 186 (DC 2002), the Court addressed a claim resting on allegations that a lawyer in the DC Defender Service had sent to Virginia Law enforcement officials a confidential pre-sentence report from a criminal case in which the plaintiff had been involved, enabling the officials to serve a search warrant on the plaintiff which resulted in "physical pain and suffering and emotional damage." Considering only the claim on its face, in the context of an appeal from a dismissal for failure to state a claim on which relief could be granted, the Court held that the allegations stated a claim for breach of fiduciary duty by the defendant lawyer in disclosing client "secrets" (as defined in Rule 1.6), and that such a disclosure would be sufficiently serious to constitute "extreme and outrageous conduct," and thus to support a damage claim for infliction of emotional distress.
Other Causes of Action
DC courts have also entertained actions against lawyers for the tort of fraud, see Boynton, 473 A.2d 375, and the tort of intentional infliction of emotional distress, see Williams v. Callaghan, 938 F. Supp. 46, 51 (DDC 1996). These cases were decided under standard DC tort law with no special consideration for lawyer involvement.
There appear to be no pertinent DC court decisions on this subject.
1.1:400 Liability to Certain Non-Clients
Monick v. Melnicoff, 144 A.2d 381 (DC 1958), addressed "the question of an attorney's personal liability to pay the cost of a stenographic transcript ordered during the course of a proceeding in which the attorney appears on behalf of his client." Id. at 382. The Court acknowledged authority for the proposition that "'an attorney's negotiations for work to be done in a law suit is the act [sic] of an agent for a known principal and for the expense of that service the agent does not become personally responsible.'" Id. at 383 (citation omitted). However, the Court opted for a different, "and perhaps minority" rule: "[W]hen an attorney orders printing or reporting, although known to be acting as an attorney, he becomes liable unless he makes it expressly known that he is ordering such work as agent for his client." Id. The Court stated, "If an attorney ordering a transcript or brief does not intend to bind himself personally, he may avoid responsibility by making his position clear." Id.
In McNeill v. Appel, 197 A.2d 152 (DC 1964), a handwriting expert sued a lawyer for the amount of his fee after he had testified for the lawyer's client in a probate hearing. The trial court entered judgment for the expert, and the lawyer appealed, contending that the evidence had been insufficient to support a finding against him. Id. at 153. The Court observed that "to avoid liability an agent must disclose both his agency and the identity of his principal. . . . Disclosure of the agency after execution of the contract will not relieve the agent of liability." Id. (citations omitted). The Court then held, "A careful review of the record discloses ample evidence to support the trial [court's decision] holding appellant personally liable." Id.
Despite the general rule that "'the obligation of the attorney is to his client, and not to a third party,'" Needham v. Hamilton, 459 A.2d 1060, 1061 (DC 1983) (quoting National Savings Bank v. Ward, 100 U.S. 195, 200 (1880)), a lawyer's duty to exercise reasonable care extends to non-clients who are the "direct and intended" beneficiaries of the lawyer's services. Id. at 1062. See also Quetel Corp. v. Columbia Communications Int'l, Inc., 787 F. Supp. 1, 4 (DDC 1992) ("[A] third party may bring a legal malpractice claim if he or she is a direct and intended beneficiary of the transaction at issue.") (citing Needham). Thus, the intended beneficiary of a will has standing to bring a malpractice action against the lawyer retained to draft the will. Needham, 459 A.2d at 1061. See also Duggan v. Keto, 554 A.2d 1126, 1143 n. 21 (DC 1989) (legatees of an estate had standing to sue for malpractice, notwithstanding a lack of privity between them and the lawyers who drafted the will) (citing Needham). In Teasdale v. Allen, 520 A.2d 295 (DC 1987), the court held that plaintiffs claiming to be intended beneficiaries of a will have standing to sue the drafting lawyer for malpractice regardless of whether the "intended beneficiaries could be discerned from the four corners of the will itself." Id. at 296. Outside the context of wills also, courts have found that direct and intended beneficiaries of legal services enjoy standing to sue for malpractice. In Williams v. Mordkofsky, 901 F.2d 158 (DC Cir 1990), the owner of two corporations brought malpractice claims against the lawyer retained to represent one of the companies. Although the claims related to the corporation that was not the defendant's client, the court refused to grant summary judgment for the lawyer because it believed the parties may have intended that the injured company be a direct beneficiary of the lawyer's representation of the other company. Id. at 163-64.
The beneficiaries of an estate do not enjoy standing to bring a malpractice action against the lawyer for the estate's personal representative. Hopkins v. Akins, 637 A.2d 424, 428 (DC 1993). In Hopkins, a widower brought a malpractice claim against the lawyer for the personal representative of the deceased wife's estate. The widower argued that the lawyer had owed the beneficiaries of the estate a duty to take reasonable steps to prevent the decedent's son from diverting estate assets. In rejecting that argument, the court quoted approvingly from a treatise on legal malpractice: "'In the absence of an express undertaking, fraud or malice, the attorney for a personal representative owes no duty to and cannot be liable for negligence to heirs, legatees, [or] creditors of the estate.'" Id. (quoting Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 26.10 at 618 (3d ed. 1989)). According to the court, "[t]he principal reason for this rule is 'the potentially adversarial relationship [that exists] between an executor's interest in administering the estate and the interests of the beneficiaries of the estate.'" Id. (quoting Rutkoski v. Hollis, 600 N.E.2d 1284, 1289 (Ill. App. Ct 1992)). The Court stated further, "It would be very dangerous to conclude that the attorney, through performance of his service to the administrator . . . , subjects himself to claims of negligence from the beneficiaries. The beneficiaries are entitled to even-handed and fair administration by the fiduciary. They are not owed a duty directly by the fiduciary's attorney." Id. (quoting Goldberg v. Frye, 266 Cal. Rptr. 483, 490 (Cal. Ct. App. 1990)).
Far from being the intended beneficiaries of a lawyer's legal services, opposing counsel and adverse parties hold interests directly adverse to the lawyer's client. Consequently, neither opposing counsel nor an adverse party enjoys standing to sue a lawyer for malpractice. Conservative Club of Washington v. Finkelstein, 738 F. Supp. 6, 9-11 (DDC 1990). See also Morowitz v. Marvel, 423 A.2d 196, 199 (DC 1980) ("Each jurisdiction which has concluded, as we do, that a negligence action will not lie by a former defendant against adverse counsel, has done so primarily for the reason that there is an absence of privity of contract between counsel and an opposing party and for public policy reasons."). According to the court in Conservative Club, "To adopt a rule of law that would expose an attorney to the prospect of negligence claims by parties whose interests are adverse to those of his client would result in the demise of our adversarial system of justice." 738 F. Supp. at 10.
In Brady v. Graham, 611 A.2d 534 (DC 1992), the appellee Graham had originally filed a complaint against her lawyer for failing to account for and tender rental payments that the lawyer had received from Graham's tenant. Graham subsequently amended her complaint to include another lawyer, Brady. According to Graham, her lawyer had endorsed the money orders in question to Brady, who had then deposited the money in his client's trust account. Graham also alleged that Brady "had failed to provide an accounting of these funds as requested." Id. at 534-35. In upholding judgment against Brady, the Court observed that, "[a]s a general matter, an attorney who possesses the funds even of one of [sic] who is not a client in the traditional sense has duties as a fiduciary to safeguard those funds." Id. at 536. A lawyer may be liable where he breaches a promise to protect a third party's lien on his client's settlement proceeds. Travelers Ins. Co. v. Haden, 418 A.2d 1078, 1084 (DC 1980). In Travelers, a workmen's compensation carrier sought to hold the lawyer of an injured worker liable for the alleged breach of an oral agreement to protect the carrier's lien on the worker's settlement proceeds. The court acknowledged that "an attorney may be liable for failure to protect a lien imposed on his client's settlement proceeds, where he expressly agrees with the client and the creditor to do so," id., but denied the carrier's claim against the lawyer because it did not find the evidence sufficient to establish an express agreement. Id. at 1085.
In Heffelfinger v. Gibson, 290 A.2d 390 (DC 1972), a lawyer signed an assignment agreement with his client and the physician who had treated the client's injuries. The assignment provided that the lawyer would withhold the amount of the physician's bill from any settlement or damages that the client might obtain in the case against the motorist who had caused the injuries. The lawyer later turned the case over to another lawyer but remained in contact with both the former client and the new counsel regarding the case. The client ultimately received a cash settlement; however, the physician received none of the money. In holding the first lawyer liable for his failure to protect the doctor's fee, the Court observed, "For [the lawyer] to have avoided liability under this agreement would, in our view, have required a novation, i.e., an acceptance by the doctor of an assumption by [the new lawyer] of [the first lawyer's] existing obligation." Id. at 393 (footnote omitted).
In Richter v. Analex Corp., 940 F. Supp. 353 (DDC 1996), the issue was whether a company, Analex, could assert the malpractice claims of its predecessor company, Xanalex, against the lawyer who had counseled Xanalex. Analex argued that it had Aacquired the malpractice claim, along with Xanalex's liabilities . . . and all of Xanalex's assets, and that as successor and assignee it can assert Xanalex's claim against [the lawyer]." Id. at 356. Although the parties agreed "that no court has yet decided whether a legal malpractice claim is assignable under District of Columbia law and that other states are split on the issue," id. at 357, the court concluded "that in circumstances such as these, public policy does not prohibit the assignment of a legal malpractice claim and District of Columbia law does not prevent it." Id. at 358.
1.1:420 Reliance on Lawyer's Opinion [see also 2.3:300]
In Security National Bank v. Lish, 311 A.2d 833 (DC 1973), a bank sued a lawyer for losses on a loan that the bank had made to the lawyer's client. The client had borrowed money from the bank using certain real property as collateral. The lawyer believed that his client was in a position to execute a valid second trust instrument to secure the loan. He conveyed this belief to the bank. Because the bank had a history of positive dealings with the lawyer, it relied on his opinion and loaned $25,000 to the client without performing a title search on the property. When the client defaulted on the loan, the bank learned of a previously-existing second trust on the property that was superior to the bank's interest. The default cost the bank $7,500. It wrote off $1,500 and sued the lawyer for the remaining $6,000, claiming that the lawyer had breached a duty to provide reliable information to the bank. The trial court granted the lawyer's motion for summary judgment, based upon "'the undisputed facts that plaintiff did not employ defendant to search the title, and that a lawyer-client relationship did not exist between [the bank] and the defendant.'" Id. at 834 (quoting the trial court). In reversing the trial court's dismissal, the Court of Appeals stated, "One engaged in supplying information has a duty to exercise reasonable care. Generally, this duty does not extend beyond one's employer. . . . However, there is a recognized exception to this general rule. Where information is supplied directly to a third party (or indirectly for the benefit of a specific third party), then the same duty of reasonable care exists, notwithstanding a lack of privity." Id. at 834-35 (citation omitted). The court concluded that a lawyer must be held to the same standard of care, even when his inaccurate representations (however innocently made) are conveyed to a non-client." Id. at 835.
1.1:430 Assisting Unlawful Conduct [see also 1.2:600-1.2:630]
In Hopkins v. Akins, 637 A.2d 424 (see 1.1:410, above), where the personal representative of an estate had misappropriated estate funds, the Court refused to find the representative's lawyer liable to the beneficiaries for failing to take steps to prevent the misappropriation. Id. at 428. However, the Court opined that, "where the attorney is alleged to be an accomplice in the wrongdoing, a different case is presented; '[i]ntentional wrongs . . . can give rise to liability.'" Id. at 430 (quoting Mallen & Smith, supra, § 26.10 at 618).
In Faison v. Nationwide Mortgage Corp., 839 F.2d 680 (DC Cir. 1988), the plaintiffs claimed they had lost their home as a result of a fraudulent loan scheme. The plaintiffs named as defendants the bank that had made the loan, the person who had purchased the plaintiffs' promissory note from the bank, and the lawyer who had conducted the loan settlement for the bank. The plaintiffs alleged that the lawyer had participated in the fraudulent scheme by willfully withholding relevant information, offering misleading information, and negligently performing his responsibilities at the loan settlement. Id. at 683. At trial, the jury awarded the plaintiffs $12,000 (which included punitive damages) against the lawyer on a fraud claim and $3,000 against him on a negligence claim. Id. at 684. On appeal, the lawyer did not challenge the $3,000 negligence award but claimed that the fraud award should be reversed because of erroneously admitted evidence and improper jury instructions. Id. at 685. The court found no error in either the evidentiary rulings or the jury instructions. It thus affirmed the jury's findings of liability as well as the punitive damage awards. Id. at 692.
1.1:440 Knowledge of Client's Breach of a Fiduciary Duty [see also 1.13:520]
In Hopkins, 637 A.2d 424 (see 1.1:410, 420, above), the plaintiff claimed that the lawyer for the personal representative of the estate had breached the duty he owed to the beneficiaries to take reasonable steps to prevent the decedent's son from diverting estate assets. The plaintiff argued that "while the privity requirement may be soundly applied to the customary situation where the personal representative (aided by counsel) referees, as it were, between the interests of competing claimants to the estate, . . . it should not serve to insulate attorneys . . . from the consequences of negligently allowing the personal representative to divert estate property to his own use. . . . When the client is mulcting the estate, . . . the attorney's ethical duties may . . . [include] the obligation to rectify the illegal or fraudulent conduct or withdraw from the representation, . . . and so she is properly answerable to injured beneficiaries for negligence." Id. at 429-30 (citation omitted). The court rejected this argument, stating, "Absent a claim of intentional wrong by the attorney, the distinction [plaintiff] posits between the fiduciary-client who merely mismanages the estate and one who deliberately betrays his trust affords no basis for making the attorney liable to beneficiaries." Id. at 430.
There appear to be no pertinent DC court decisions on this subject.
A plaintiff must prove four things in order to prevail in a claim of malicious prosecution: "(1) the underlying suit terminated in plaintiff's favor; (2) malice on the part of defendant; (3) lack of probable cause for the underlying suit; and (4) special injury [incurred] by plaintiff as the result of the original action." Morowitz, 423 A.2d at 198 [see 1.1:410, above]. See Ammerman v. Newmann, 384 A.2d 637 (DC 1978) (per curiam) (dismissing a doctor's malicious prosecution claim against the lawyers whose client had sued the doctor for malpractice, on the ground that the doctor had failed to allege sufficient facts to satisfy the elements of probable cause, malice, and special injury). See also Dalo v. Kivitz, 596 A.2d 35, 39 (DC 1991) (holding that the plaintiff would not be entitled to damages from his former lawyers under a malicious prosecution theory, because the lawyers had lacked malice and had possessed probable cause to file their lawsuit in a dispute with their former client over a real estate transaction).
To succeed in a claim of abuse of process, a plaintiff must prove that "'the process has been used to accomplish some end which is without the regular purview of the process, or which compels the party against whom it is used to do some collateral thing which he could not legally and regularly be required to do.'" Morowitz v. Marvel, 423 A.2d at 198 (quoting Jacobson v. Thrifty Paper Boxes, Inc., 230 A.2d 710, 711 (DC 1967)).
In Morowitz, several doctors brought a small claims suit against a patient for unpaid medical bills. A lawyer hired by the patient filed a counterclaim (later withdrawn) against the doctors, alleging medical malpractice and professional negligence. After the patient won a default judgment on the doctors' claim in the small claims court, the doctors sued the lawyer for malicious prosecution and abuse of process. Id. at 197. On the claim of malicious prosecution, the Court stated, "The injuries [the doctors] complain of are those which 'might normally be incident to the service of process on anyone involved in a legal suit.' . . . Such injury is not actionable in a malicious prosecution claim." Id. at 198 (citation omitted). With regard to the abuse of process claim, the Court observed, "The critical concern . . . is whether process was used to accomplish an end unintended by law, and whether the suit was instituted to achieve a result not regularly or legally obtainable. . . . In the instant case, [the lawyer] merely filed a counterclaim and subsequently withdrew it. Without more, [the doctors'] proffer that [the lawyer] filed the counterclaim with the ulterior motive of coercing settlement, is deficient." Id. The Court thus concluded that "the trial court did not commit error in dismissing the [doctors'] complaint." Id. at 197.
In Epps v. Vogel, 454 A.2d 320 (DC 1982), several doctors sued the lawyer who had represented a group of patients in a medical malpractice action against the doctors. In their complaint, the doctors included claims for malicious prosecution and abuse of process. The trial court dismissed the complaint because it "lacked two necessary elements of claims for malicious prosecution and abuse of process, respectively: specific allegations of special injury, and contentions that the underlying suit (filed by [the lawyer]) had been used to accomplish an end not regularly or legally obtainable." Id. at 322. Though holding that the doctors should have been given an opportunity to amend their complaint, the Court of Appeals agreed with the trial court's decision that the doctors' original complaint did not state a valid claim for malicious prosecution: "The only injury explicitly specified, loss of income, is not an injury that is not usually a consequence of a malpractice suit." Id. at 324. The court also observed that the complaint failed to state a claim for abuse of process: "There is no indication [in the complaint] that [the lawyer] sought to accomplish some result 'not contemplated in the regular prosecution of the charge.'" Id. (quoting Morowitz, 423 A.2d at 198).
The statute of limitations for a malicious prosecution action runs not from the date on which the underlying, allegedly malicious suit was filed, but rather from the date when that suit was terminated in favor of the defendant in that action. Shulman v. Miskell, 626 F.2d 173, 175 (DC Cir. 1980) (facts similar to Epps).
To prevail on a claim of false arrest, a plaintiff must demonstrate that the defendant acted without probable cause to effectuate the plaintiff's arrest. Welch v. District of Columbia, 578 A.2d 175, 176 (DC 1990). The only DC cases that address a lawyer's liability for false arrest involve actions against a prosecuting lawyer acting in his or her official capacity.
It is the accepted rule in the District of Columbia that a prosecuting lawyer is protected by the doctrine of quasi-judicial immunity if the conduct in question was performed within the scope of his or her official duties. Cooper v. O'Connor, 99 F.2d 135 (DC Cir. 1938) (finding assistant United States attorney immune from civil suit for damages caused by acts done by him in the discharge of his official duty). This rule extends to claims of false arrest. See Fletcher v. McMahon, 121 F.2d 729 (DC Cir. 1941) (dismissing action for false arrest and false imprisonment against assistant United States attorney who prepared and filed for an allegedly illegal arrest warrant when acts were taken in the discharge of his official duties).
In Lang v. Wood, 92 F.2d 211 (DC Cir. 1937), the DC Circuit held that the immunity doctrine is not vitiated by the lawyer's wrongful or malicious motive in arresting or imprisoning the plaintiff. The plaintiff in Lang brought a damages action against the Attorney General of the United States alleging that he, along with members of the United States Parole Board, had illegally imprisoned plaintiff by denying him his parole without the benefit of a hearing. Finding the subject matter to be committed by law to the Attorney General, the court dismissed the suit. The court held that a prosecutor who acts within the scope of his or her duties is immune from suit and cannot be exposed to a civil damages action for false imprisonment even though his or her decision could be described as arbitrary, capricious and malicious.
When a lawyer counsels his or her client to behave in a certain way with respect to a contract to which his client is a party, or performs some act with respect to the client's contract, third parties may seek to hold the lawyer liable for tortious interference with the contract. To recover on a claim of tortious interference with contractual relations, a plaintiff would have to prove "(1) the existence of a contract, (2) defendant's knowledge of a contract, (3) defendant's intentional procurement of its breach, and (4) damages resulting from the breach." Cooke v. Griffiths-Garcia Corporation, 612 A.2d 1251 (DC 1992) (citing Alfred A. Altimont, Inc. v. Chatelain, Samperton & Nolan, 374 A.2d 284, 288 (DC 1977)).
In Cooke, the only reported DC case to address a claim against a lawyer for assisting a client to break a contract, the plaintiff signed a contract to buy a piece of real property from two of the defendants, Mr. and Mrs. Semper. One month later, Mr. Semper met another individual, a representative of Griffiths-Garcia Corporation, who was interested in the same real property. Semper informed the Griffiths-Garcia representative that the plaintiff had contracted to buy the property. However, a few days later, Semper's lawyer, Leibowitz, sent a copy of plaintiff's contract to the Griffiths-Garcia representative and, at Semper's request, informed the representative that the contract had been terminated as a result of the plaintiff's failure to satisfy a refinancing contingency. Griffiths-Garcia then made an offer on the property and the sellers accepted. Subsequently, the plaintiff, claiming Leibowitz falsified documents in an effort to terminate plaintiff's contract, brought an action against Leibowitz and Griffiths-Garcia for tortious interference with contract. The Court, in deciding other elements of the plaintiff's case, noted in a footnote that it had affirmed summary judgment in favor of Leibowitz. Cooke, 612 A.2d at 1254, n.5. Although the Court did not discuss the legal basis for the summary judgment, the case suggests one way in which a lawyer can become embroiled in a lawsuit for assisting a client to break a contract.
1.1:500 Defenses and Exceptions to Liability
A lawyer "'is protected by an absolute privilege to publish false and defamatory matter of another' during the course of or preliminary to a judicial proceeding, provided the statements bear some relation to the proceeding." Arneja v. Gildar, 541 A.2d 621, 623 (DC 1988) (quoting Mohler v. Houston, 356 A.2d 646, 647 (DC 1976) (per curiam)). This privilege also encompasses quasi-judicial proceedings conducted by administrative bodies. Mazanderan v. McGranery, 490 A.2d 180, 181 (DC 1984) (holding that the defamation privilege covered a letter to the Public Vehicles Division complaining about a taxi driver, where the letter had led to a hearing by the Hacker's License Appeal Board).
In Arneja, one lawyer alleged that another lawyer had made slanderous comments to him in the presence of both lawyers' clients. The alleged incident occurred in a hearing room at the Rental Accommodations Office while the parties and their lawyers awaited the imminent arrival of the hearing examiner to adjudicate the dispute. 541 A.2d at 622. The court concluded that the comments in question fell within a lawyer's privilege to make defamatory statements in the judicial context. Id. at 623. Conservative Club of Washington v. Finkelstein, 738 F. Supp. 6 (DDC 1990) (see 1.1:410, above), addressed the question whether a lawyer would be privileged against claims alleging that slanderous statements were made "prior to any litigation actually being filed." Id. at 13. In that case, the plaintiff had sought to sell part of its building. The potential buyer had asked the abutting landowners to join in a resubdivision application. The lawyer for those landowners then told the potential buyer "that there was a problem with the title to the subject property and that unless his clients received $100,000 a law suit could be instituted which would tie up the property for 2-3 years." Id. at 9. The plaintiff later brought a quiet title and slander of title action against the abutting landowners. In the resulting settlement agreement, the abutting landowners agreed to execute a resubdivision application in exchange for $40,000. The plaintiff then sued the abutting landowners' lawyer for the $40,000 settlement payment, claiming that the lawyer's assertion of problems with the property's title had constituted slander of title. Id. at 9, 13. The Court disagreed with the plaintiff's contention that application of "the privilege would be inappropriate because there was no pending litigation at the time of the statements and no proceedings had commenced." Id. at 13. The Court quoted approvingly from the Restatement: "As to communications preliminary to a proposed judicial proceeding," the lawyer's privilege to make defamatory statements "applies only when the communication has some relation to a proceeding that is contemplated in good faith and under serious consideration." Id. at 13-14 (quoting Restatement (Second) of Torts § 586 cmt. e (1977)). In refusing to hold the lawyer liable for his statement regarding title, the court observed, "Here, the statements were made in contemplation of litigation to the very individuals who would have an interest in the outcome of such litigation." Id. at 14.
[The discussion of this topic has not yet been written.]
[The discussion of this topic has not yet been written.]
In SEC v. National Student Marketing Corp., 457 F. Supp. 682 (DDC 1978), the Securities and Exchange Commission sought injunctive sanctions against numerous defendants, claiming that the defendants had, in consummating a merger, violated the anti-fraud provisions of the federal securities laws. Id. at 686. The court found that two of the defendants, each lawyers in the same firm, had aided and abetted the violations. The SEC had also named the lawyers' firm as a defendant. According to the court, the SEC did not articulate "a distinct theory upon which [the law firm] may be held to have violated the securities laws. Instead, it simply charge[d] the firm 'with responsibility for all of [the two lawyers'] activities,' . . . without citation to any statutory provisions . . . or common law principles, such as respondeat superior, upon which such vicarious liability could be founded." Id. at 701 n.42 (citations omitted). The court stated that "[d]espite this failing, the Court need not address the significant and difficult questions concerning [the law firm's] responsibility for the actions of [the lawyers] . . . since [the law firm] has not challenged the SEC on this issue. To the contrary, the firm has fully associated itself with the conduct of both of its partners and apparently concedes its responsibility for their conduct." Id. (citations omitted).