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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Delaware Legal Ethics

I. Client-lawyer relationship

1.1 Rule 1.1 Competence

1.1:300 Malpractice Liability

For a client to recover from an attorney for legal malpractice, the client must show that he employed the attorney, the attorney neglected “a reasonable duty” and this “negligence resulted in and was the proximate cause of loss to the client.” Pusey v. Reed, 258 A.2d 460, 461 (Del. 1969), overruled on other grounds by Starum v. All. Am. Eng’g Co., 350 A.2d 765 (Del. 1975).

1.1:310 Relevance of Ethics Codes in Malpractice Actions

The Preamble of DLRPC, note 20 states that “Violation of a rule should not itself give rise to a cause of action against a lawyer, nor shall it create any presumption in such a case that a legal duty has been breached.” In Flaig v. Ferrara, No. 90C-11-095, 1996 Del. Supr. Ct. WL 944860 (April 15, 1996) the court held that a violation of the DRPC does not constitute “negligence per se.” Id. at *2. However, the rules can be used to show a breach of a common law duty, but they cannot form the basis of that legal duty. Id. at *3.

1.1:320 Duty to Client

In order to recover for malpractice under the standard articulated in Pusey v. Reed, 258 A.2d 460, 461 (Del. 1969), overruled on other grounds by Starum v. All. Am. Eng’g Co., 350 A.2d 765 (Del. 1975), the client must first show that the attorney was employed to represent him. If the client cannot show this, then the attorney does not owe a legal duty to represent the client. See, Woulard v. Kennedy, 1985 Del. Supr. Ct. WL 189249 (Aug. 20, 1985) (client alleged that attorney breached his duty to represent him before certain courts in Delaware, but there was no duty and the first prong of Pusey was not satisfied because the scope of the representation had been limited to only representation in front of the Superior Court).

The Superior Court of Delaware defined an attorney’s duty of care as the duty “to provide reasonable legal representation…”, “including informing her about the matters that reasonable attorneys would have informed Starr about.” Starr v. Morris, James, Hitchens & Williams, No. Civ.A. 01C-08-285FSS, 2003 Del. Supr. Ct. WL 367553 (Jan 31, 2003) at *1.

1.1:330 Standard of Care

The Superior Court of Delaware defined the standard of care as “skill and diligence which is commonly possessed and exercised by a ‘reasonably prudent’ attorney in this community under the circumstances”, Ruthenberg v. Kimmel & Spiller, No. Civ.A. 79C-DE-17, 1981 Del. Supr. Ct. WL 383091 (March 17, 1981) at *2.

1.1:335 Requirement of Expert Testimony

Expert testimony regarding the standard of care is necessary to support a claim of legal malpractice, unless the attorney’s negligence is so obvious that an expert is not necessary. Alston v. Hudson, No. 160, 1997 Del. 700 A.2d 735 (Table), WL 560883 (Aug. 22, 1997) at *2. An attorney’s negligence is deemed to be obvious when the error was “within common knowledge and experience.” Brooke v. Elihu-Evans, No. C.A. 95C-07-005-NMT, 1996 Del. WL 659491 (Aug. 23, 1996) at *1. An attorney’s failure to file the claim within the statute of limitations often falls within the common knowledge exception but only if the “applicability of that statute is well settled in the law.” Id. In Brooke v. Elihu-Evans, the court denied a motion for summary judgment on the issue of whether an expert was necessary where the attorney failed to file a wrongful death claim before the statute of limitations because a clear decision on this point of law was lacking. Id. at *2.

An expert testifying regarding the standard of care must be familiar with the standard of care in the community. Brett v. Berkowitz, 706 A.2d 509, 517 (Del. 1997). Expert witness has to be “‘well acquainted and thoroughly conversant’ with the degree of skill ordinarily employed in the local community.” Id. quoting Loftus v. Hayden, 391 A.2d 749, 752 (Del. 1978). An expert from another state whose standard of care is identical may testify, but testimony from a local expert may be necessary to reconcile the two standards. Brett, 706 A.2d at 517. In situations where expert testimony is required, judicial opinions which do not implicate the attorney as negligent will not be sufficient to satisfy the requirement of expert testimony. Middlebrook v. Ayres, No. Civ.A. 02C-07-203PLA 2004 Del. Supr. Ct. WL 1284207 (June 9, 2004) at *6.

1.1:340 Causation and Damages

In order to make a successful claim for malpractice, the client must be able to prove that a loss was proximately caused by the attorney’s negligence. Pusey v. Reed, 258 A.2d 460 (Del. 1969), overruled on other grounds by, Starum v. All. Am. Eng’g Co., 350 A.2d 765 (Del. 1975). When the attorney’s negligence is the failure to file an appeal, the client cannot recover unless the client can prove that the appeal would have been successful. Id. at 461., Floyd v. Brooks-Tahir, No. 449, 1993, 1994 Del. LEXIS 308 (October 4. 1994) at **2, postconviction relief denied, No. 293, 1995 Del. LEXIS 352 (September 25, 1995). Similarly, when the attorney’s alleged negligence is failing to correct a sentence, if the sentence is ultimately corrected, the damages are not sufficient. Woulard v. Kennedy, 1985 Del. Supr. Ct. WL 189249 (Aug. 20, 1985) at *2. When an attorney’s negligence causes the client who is a property owner to be denied financing, this is a sufficient loss. Murray v. Baker, 1988 Del. Supr. Ct. WL 67816 (May 31, 1988) at *1. Finally, the alleged negligent rendering of legal advice will not be held to have proximately caused losses when the attorney is not informed of all the relevant facts known by the client. Vredenberg v. Jones, 349 A.2d 22, 41 (Del. Ch. 1975).

The damages that the client claims must be specific. Thompson v. D’Angelo, 312 A.2d 639, 640 (Del. 1973), aff’d, 320 A.2d 729 (Del. Ct. 1974). Damages that can be recovered for malpractice must be foreseeable consequences of the breach of the standard of care. McLain v. Faraone, 369 A.2d 1090, 1092 (Del. 1977). A plaintiff can recover more than out of pocket losses. Id. However, a plaintiff cannot receive punitive damages for attorney malpractice unless the basis of the claim against the attorney involves wilfull or wanton conduct. Id. at 1094, (failure to discover a title deficiency was not considered willful or wanton), Lilliquist v. Rodriguez, No. 92C-11-142, 1995 Del. Supr. Ct. WL 790993 (Nov. 30, 1995) at *3(suggests that an attorney’s “reckless disregard” of the client’s interests may be enough to award punitive damages). Damages for emotional distress cannot be recovered unless the client can show that the attorney was wanton or reckless. Savitch v. Heiman, 1986 Del. Supr. Ct. WL 4860 (April 23, 1986) at *3 Cummings v. Pinder, 574 A.2d 843, 845 (Del. 1990) (intentionally causing a stop payment on the client’s check without notifying the client was wanton or reckless conduct).

1.1:350 Waiver of Prospective Liability (see 1.8:920)

1.1:360 Settlement of Client’s Malpractice Claim (see 1.8:920)

1.1:380 Defenses to Malpractice Claim

Statute of Limitations

The statute of limitations for a malpractice action is three years. Middlebrook v. Ayres. The general rule is that the statute begins to accrue on the date of the injury rather than the date of discovery of the malpractice. 2004 WL 1284207 at *3. However, the time of discovery rule is applied when 1.) the injury is “inherently unknowable” and 2.) it is “sustained by a blamelessly ignorant plaintiff”. Id. at *4. Under the time of discovery rule, discovery of the facts leading to the injury is sufficient to begin the statute, discovery of the actual injury may not be necessary. Id. The time of discovery rule will not be applied when the defendant knows that there is an appeal and the attorney fails to file it. Id. The time of discovery rule was applied in Pioneer Nat’l Title Ins. Co. v. Child, Inc., 401 A.2d 68, 71(Del. 1979) in an action for a negligent title search. The court held that the statute did not begin to run until the client made a contract to sell the property. Id.

Public Policy

When a plaintiff has admitted guilt of a crime, public policy prohibits the plaintiff from bringing a legal malpractice claim against the attorney who represented the plaintiff in the matter. Haskins v. Durstein, 583 A.2d 660 (Table) 1990 Del. WL 209230 (April 11, 1990) at *1.

Qualified Immunity

The State Tort Claims Act, 10 Del. C. §4001 grants immunity from suit to “any ‘public officer or employee…’” Browne v. Robb, 583 A.2d 949, 950 (Del. 1990) quoting 10 Del. C. §4001. The act protects judges, the attorney general, deputy attorneys, public defenders and a court appointed attorney for an indigent client. Id. at 951, Vick v. Haller, 522 A.2d 865 (Table) (No. 149, 1986 Del. WL 36716 (March 2, 1987) at *9. In order for the act to protect these public officials, the following three requirements must be met: 1.) the act or omission complained of must have arisen in the public official’s official capacity which required “the exercise of discretion”; 2.) the act or omission was “done in good faith” and with the belief that the act was for the public interest; and 3.) the act or omission was not done wantonly or recklessly. Vick, WL 36716 at *9-10.

Estoppel

A plaintiff who makes a claim of ineffective assistance of counsel is estopped from later bringing a malpractice claim against the same attorney. Sanders v. Malik, 711 A.2d 32, 33 (Del. 1998).

1.1:380 Liability to Client for Breach of Contract, Breach of Fiduciary Duty, and

Other Liabilities

Breach of Contract

A client does not have standing to sue a court-appointed lawyer for breach of contract as a third party creditor beneficiary to the contract between the attorney and the court, to adequately represent the indigent client. Browne v. Robb, 583 A.2d 949, 954-55 (Del. 1990).

Breach of Fiduciary Duties

An attorney breaches a fiduciary duty to a client who engages in self-dealing unless the attorney can show that the beneficiary had complete understanding of the transaction, the client gave informed consent, the price paid for the property was fair and all material information was disclosed, and the client got outside advice from a third party. Vredenberg v. Jones, 349 A.2d 22, 33 (Del Ch. 1975), citing, Equitable Trust Co. v. Gallagher, 102 A.2d 538 (Del Ch. 1954). An attorney who breaches a fiduciary duty must disgorge the profits to the client. Vredenberg, 349 A.2d at 37. An attorney was held to have breached a fiduciary duty to his client when he bought stock from the daughter who owned stock in the corporation which belonged to his client. Id. at 31. However, the executor of the estate first bought the stock from the daughter and sold it to the estate attorney. Id. The attorney had to pay the estate the stock interest along with the dividends received. Id. at 37.

1.1:390 Liability When Non-Lawyer Would be Liable

1.1:400 Liability to Certain Non-Clients

Although there are exceptions, the general rule is that a lawyer has no liability to non-clients. Layfield v. Hastings. Civ. A. No. 1673, 1995 Del. Ch. WL 419966 (July 10, 1995) at *2.

1.1:410 Duty of Care to Certain Non-Clients

An attorney may be liable to a non-client in the absence of an attorney/client relationship for a gratuitous service that the attorney agreed to perform. Burke v. Frabizzio, No. 80L-MR-21, 1982 Del. Supr. Ct. WL 593177 (Nov. 3, 1982) at *2. In a case where an attorney represented the purchaser of real estate and agreed with the seller to draft the mortgage and conduct the settlement, the attorney had a “duty to the sellers to use reasonable care to do so in accordance with the agreement between the parties,” as well as a duty to disclose the nature of the transaction. Id. at *1-2.

1.1:420 Reliance on the Lawyer’s Opinion [see also 1.13:520]

1.1:450 Assisting Unlawful Conduct [see also 1.13:520]

1.1:440 Knowledge of Client’s Breach of Fiduciary Duty [see also 1.13:520]

When the attorney does not have full knowledge of the executor’s activities, the executor of an estate represented by an attorney cannot claim that the attorney is liable to the executor for failing to warn the executor not to breach his fiduciary duty to the estate. Vredenberg v. Jones, 349 A.2d 22, 41 (Del Ch. 1975).

1.1:450 Failing to Prevent Death or Bodily Injury

1.1:500 Defenses and Exceptions to Liability

1.1:510 Advocate’s Defamation Privilege

Delaware common law protects the statements of attorneys, witnesses, judges and parties of a lawsuit against defamation claims as long as the statements are made during a “judicial proceeding” and the statements are relevant to the case. Nix. v. Sawyer, 466 A.2d 407, 410 (Del. 1983). This defamation privilege is broadly construed and applies to “conversations between witnesses and counsel, the drafting of pleadings, and the taking of depositions or affidavits ex parte. Id. quoting, Tarto v. Esham, 335 A.2d 623 (Del. 1975). Statements made during a pre-trial conference also receive this protection. Shearin v. Baldwin, 1988 Del. Supr. Ct. WL 77777 (July 5, 1988) at *2. To be relevant to the case, the statement must be “reasonably germane to the cause of action.” Nix, 466 A.2d at 410. This requirement is also broadly interpreted in the pleader’s favor. Id. An attorney’s expression of concern that the opposing counsel violated the DRPC against trial publicity thus prejudicing his client is relevant. Shearin, WL 77777 at *2. The Delaware Supreme Court, in Barker v. Huang, held that there is no exception to the defamation privilege when the lawsuit is a sham. 610 A.2d 1341, 1345-1346 (Del. 1992), appeal after remand, sub. nom, Insurance Corp. of America v. Barker, 628 A.2d 38 (Del. 1993).

1.1:520 Wrongful Use of Civil Proceedings; Abuse of Process; False Arrest

A claim for malicious prosecution is not favored in Delaware courts and is “assessed with careful scrutiny”. Nix. v. Sawyer, 466 A.2d 407, 411 (Del. 1983). In order to sustain a cause of action for malicious prosecution, the following five requirements must be met: “1. the institution of civil proceedings; 2. without probable cause; 3. with malice; 4. termination of the proceedings in the aggrieved party’s favor and 5. damages which were inflicted upon the aggrieved party by seizure of property or other special injury.” Id. Simply showing that the action was instituted to harass is not sufficient to show malice. Id. at 412.

In order to have a cause of action for abuse of process, the defendant must have “an ulterior purpose”, and must have committed a “willful act in the use of process” inconsistent with the normal “conduct of the proceedings”. Id. citing Prosser, Law of Torts, §121 (4th Ed. 1971).

1.1:530 Assisting Client to Break a Contract

1.1:600 Vicarious Liability [see 5.1:500]