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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.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Pennsylvania Legal Ethics

I. CLIENT-LAWYER RELATIONSHIP

1.1   Rule 1.1 Competence

1.1:100   Comparative Analysis of Pennsylvania Rule

Primary Pennsylvania References: PA Rule 1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary:

1.1:101      Model Rule Comparison

In 1987, the Pennsylvania Supreme Court adopted the exact language of MR 1.1 including the commentary thereto.

1.1:102      Model Code Comparison

Under DR 6-101(A)(1) the Code provided that a lawyer shall not handle a matter "which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it." DR 6-101(A)(2) required "preparation adequate in the circumstances." Further, Rule 1.1 more fully particularizes the elements of competence. Whereas DR 6-101(A)(3) prohibited the "neglect [of] a legal matter," Rule 1.1 does not contain such a prohibition. Instead, Rule 1.1 affirmatively requires the lawyer to be competent.

1.1:200   Disciplinary Standard of Competence

Primary Pennsylvania References: PA Rule 1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA 31:201, ALI-LGL 28, Wolfram 5.1

Competence under Rule 1.1 requires the requisite legal knowledge and skill to undertake the representation. Pa. Eth. Op. 90-156.

1.1:300   Malpractice Liability

Primary Pennsylvania References: PA Rule 1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA 301:1, ALI-LGL 71-76 , Wolfram 5.6

Liability of lawyer for legal malpractice--civil matter

To recover for legal malpractice, the plaintiff must establish:

employment of attorney or other basis for duty;
failure of attorney to exercise ordinary skill and knowledge; and
the attorney's action was proximate cause of damage to plaintiff.

See Rizzo v. Haines (1989).

In addition, the plaintiff in a legal malpractice matter must demonstrate that he or she would have prevailed in the underlying matter. See, e.g., Rogers v. Williams, (Super. 1992).

Liability of lawyer for legal malpractice -- criminal matter

In order to prevail in a legal malpractice claim arising out of a criminal matter the plaintiff must allege and prove the following five factors:

1) employment of the attorney;
2) reckless or wanton disregard of the defendant's interest on the part of the attorney;
3) the attorney's culpable conduct was the proximate cause of the injury suffered by the defendant. In addition, the defendant has to prove under this prong that the defendant would have obtained acquittal or complete dismissal of the charges;
4) as a result of the injury, the defendant suffered damages; and
5) the defendant pursued post-trial remedies and obtained relief which was dependent on attorney error.

Bailey v. Tucker (1993).

The finding of attorney error in the plaintiff-criminal defendant's post-trial remedies may be introduced in the legal malpractice action, but it is not dispositive of culpable conduct. Id.

1.1:310      Relevance of Ethics Codes in Malpractice Actions

Violation of the Pennsylvania Rules of Professional Conduct do not create an actual claim for damages or equitable relief. See Maritrans GP, Inc. v. Pepper, Hamilton & Scheetz (1992). However, a person may have an actual claim pursuant to the underlying common law codified in a particular rule of professional conduct. Id.; also Francis J. Bernhardt, III, P.C. v. Needleman (Super. 1997) (noting that although the Rules of Professional Conduct are not the basis for civil liability, but finding that the Rules are instructive).

1.1:320      Duty to Client

The duty to the client arises out of the attorney-client relationship. The Pennsylvania Court's have further clarified when an attorney-client relationship exists. See Cost v. Cost (Super. 1996). The Superior Court established the following four factor test:

1) the purported client sought advice or assistance from the attorney;
2) the advice sought was within the attorney's professional competence;
3) the attorney expressly or impliedly agreed to render such assistance; and
4) it is reasonable for the client to believe the attorney is representing her.

Id. The purported client's subjective belief that an attorney-client relationship exists is not sufficient, absent the other three factors, to create the attorney-client relationship with the corresponding duty. Atkinson v. Haug (Super. 1993)

The Pennsylvania Supreme Court has clearly stated that the attorney-client relationship does not extend to third parties in a tort legal malpractice action. See Guy v. Liederbach (1983). The court in Guy explicitly declined to adopt the "California Rule" with regard to extending legal malpractice to third parties and allowing third parties to bring legal malpractice tort claims. Id. at 750.

In cases where a public defender has been appointed to represent an indigent, the public defender ceases being a public official at that point and an attorney-client relationship is formed with all the obligations and protections for the client. See Reese v. Danforth (1979).

1.1:330      Standard of Care

The standard of care in Pennsylvania for a legal malpractice claim is the exercise of ordinary skill and knowledge of an attorney in Pennsylvania. See Schenkel v. Monheit (1979). Pennsylvania courts have examined the contours of the standard of care in numerous cases. For example, an attorney has a duty to recognize changes in the law and pursue any claims arising out of those changes. See McHugh v. Litvin (1990). In another case, the Pennsylvania Supreme Court held that an attorney has a duty to investigate offers that were proposed by another party including all reasonable steps necessary to investigate the reliability of that offer. Rizzo v. Haines (1989).

In criminal matters, Pennsylvania courts have held that ordinary skill and professional competence do not require an attorney to advise a client of the collateral consequences of a guilty plea, including the possibility of deportation. See Rogers v. Williams (Super. 1992). In a later case, the Superior Court held that an attorney has a duty when perfecting an appeal to notify the appellant of the results of the appeal, but the attorney's duty does not extend and include continued representation if the case is remanded back to the trial court. See Perkovic v. Barrett (Super. 1996).

In an unusual development, the Pennsylvania Supreme Court held that malpractice claim arising from a settlement of an earlier claim must rise to the level of fraudulent inducement rather than simple negligence. Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick (1991). The Supreme Court further held that to establish fraud, the plaintiff must show that the lawyer knowingly committed malpractice but did not disclose the error but convinces the client to settle so as to avoid discovery of such error. Id.

The "Muhammad Doctrine" has been limited as a result of later decisions. For example, the Pennsylvania Supreme Court affirmed a Superior Court holding that Muhammad is applicable only to the amount of the settlement; but not to an attorney's failure to advise clients about well-settled principles of law, and the impact that an agreement will have on the client's substantive rights and obligations. See McMahon v. Shea (1997).

In another case limiting the Muhammad Doctrine, the Superior Court held that a lawyer must exert his or her best efforts to ensure that the decision of his or her client is made only after the client has been informed of all relevant considerations. See Collas v. Garnick (Super. 1993). In Collas, the attorney failed to inform the client of the effect of a general lease on pursuing a second claim against a defective product manufacturer. Id.

1.1:335      Requirement of Expert Testimony

Pennsylvania courts have held that the plaintiff in a legal malpractice action must proffer some expert testimony establishing the standard of care and that the defendant breached that standard. Storm v. Golden (Super. 1988); also Gans v. Mundy (3rd Cir. 1985). The only exception to this requirement is when the lack of skill is "so obvious as to be within the range of the ordinary experience and comprehension of a non-professional person." Storm also Rizzo v. Haines (1989) (holding a plaintiff's claim that attorney's failure to investigate and disclose settlement offers to his or her client does not require expert testimony).

1.1:340      Causation and Damages

In order to prevail in a legal malpractice claim arising out of a civil matter, the plaintiff must prove by a preponderance of the evidence that he or she would have prevailed in the underlying matter. See Kituskie v. Corbman (Super. 1996); Brock v. Owens (Super. 1987). The damages are measured by the "lost judgment," which measures the difference between what the plaintiff actually received and what he or she would have received had the attorney not committed malpractice. Kituskie. At least one court has held that the damages can be limited if the attorney can demonstrate that all, or some part of the damages, could not have been collected from the original defendant. Id.

In criminal cases, the courts have noted that the plaintiff must demonstrate through post-trial relief that he or she is innocent of the crime charged and all lesser included offenses. Slaughter v. Rushing (Super. 1996).

1.1:350      Waiver of Prospective Liability [see 1.8:910]

There is no Pennsylvania case law nor ethics opinions on this issue. But see section 1.2:240.

1.1:360      Settlement of Client's Malpractice Claim [see 1.8:920]

There is no Pennsylvania case law nor ethics opinions on this issue.

1.1:370      Defenses to Malpractice Claim

Defenses to malpractice claims have included many of the standard professional malpractice defenses including among others:

failure to bring a claim within the statute of limitations;
failure to demonstrate that the plaintiff would have prevailed in the underlying action;
failure to establish an attorney-client relationship or some other basis for a duty; and
failure to proffer expert testimony establishing the standard of care.

Pennsylvania courts have adopted two unusual defenses to legal malpractice claims. The first is the "Muhammad Doctrine" which requires that a plaintiff must allege with specificity fraudulent inducement of a settlement to prevail on a legal malpractice claim arising out of the settlement. Muhammad v. Strassburger (1991).

The other unusual defense is "collectibility." Pennsylvania courts have permitted attorneys to raise an affirmative defense that the underlying judgment would not be "collectible." Kituskie v. Corbman (Super. 1996). The attorney bears the burden of proving by a preponderance of evidence that the underlying judgment, or some part of that judgment, is not collectible. Id. at 382. For example, the plaintiff may be able to prove that he or she could have recovered a judgment of $1,000,000 in the underlying action absent the defendant-attorney's negligence. However, the attorney can rebut this by establishing that the original defendant's insurance had a policy limit of $100,000 and the original defendant was otherwise destitute. The defendant-attorney would then only be liable for the difference between the original recovery and the limits of the insurance policy.

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

Fiduciary duties

The attorney-client relationship creates a fiduciary duty for the attorney toward the client. Maritrans GP, Inc. v. Pepper, Hamilton & Scheetz (1992). Breach of that duty is actionable. Id.

Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility has recently issued Ethics Opinion 97-100 which states unequivocally that sexual relations between an attorney and a client is breach of the attorney's fiduciary duty to the client. The Committee has proposed a Pennsylvania Rule of Professional Conduct 1.18 codifying this opinion.

Breach of Contract

Pennsylvania has long recognized that a client can bring a breach of contract claim against an attorney. See, e.g., Rogers v. Williams (Super. 1992). For a breach of contract claim to succeed, the plaintiff must prove that the attorney failed to follow the client's specific instructions. Id.

1.1:390      Liability When Non-Lawyer Would Be Liable

There is no reported Pennsylvania case law or ethics opinions on this matter.

1.1:400   Liability to Certain Non-Clients

Primary Pennsylvania References: PA Rule 1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA 71:1101, ALI-LGL 73, Wolfram 5.6

1.1:410      Duty of Care to Certain Non-Clients

An attorney representing a fiduciary also has a "derivative" duty to the beneficiaries of the fiduciary. In re Pew Trust (1995); also Pa. Eth. Op. 96-75 (1996). The duty to the non-client beneficiaries are "restrictive" as opposed to the affirmative duties owed to the fiduciary. Id. The duties to the non-clients are "tantamount to prohibitions from the lawyer taking advantage of his or her position to the detriment of the fiduciary or its beneficiaries." Id.

1.1:420      Reliance on Lawyer's Opinion [see also 2.3:300]

There are no ethics opinions on this issue.

1.1:430      Assisting Unlawful Conduct [see also 1.2:600-1.2:630]

Pennsylvania has clearly stated that an attorney may not assist any unlawful or illegal conduct. Office of Disciplinary Counsel v. Campbell (1975); Pa. Eth. Op. 95-110 (1995). The recommended punishment for such conduct is disbarment. Campbell.

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

A Pennsylvania attorney has an affirmative duty to inform the beneficiaries if a client-fiduciary has taken actions which might constitute a breach of the fiduciary's duties to the beneficiaries. Pa. Eth. Op. 96-75 (1996); Pa. Eth. Op. 96-65 (1996); Pa. Eth. Op. 96-13 (1996). These actions include embezzlement of funds, refusal to include an asset in the estate, and executor was attorney-in-fact for the testator and made gifts to him or herself not permitted by the power of attorney. Pa. Eth. Op. 96-75.

1.1:450      Failing to Prevent Death or Bodily Injury

In Pennsylvania, an attorney does not have an affirmative duty to prevent death or bodily injury, and therefore, there is no liability for failure to prevent death or bodily injury. However, an attorney may disclose confidential client communications to prevent death or bodily injury. See PA-R 1.6(c). If an attorney decides to disclose confidential client communications, the disclosure must be limited to only that which is absolutely necessary to prevent the harm. Pa. Eth. Op. 93-43 (undated).

1.1:500   Defenses and Exceptions to Liability

Primary Pennsylvania References: PA Rule 1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA 301:1001, ALI-LGL 76, 78, Wolfram 5.6

1.1:510      Advocate's Defamation Privilege

Pennsylvania courts have recognized the long-standing principle that statements contained in the pleadings as well as statements made during an actual trial or argument are absolutely privileged from prosecution for defamation. Post v. Mendel (1986); also Rolla v. Westmoreland Health Systems (Super. 1994). However, the privilege does not extend to statements disparaging the conduct of an opponent made through a letter outside of the proceedings. Post.

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

The Pennsylvania Legislature enacted a wrongful use of civil proceedings statute (Dragonetti Act) which punishes both the client and attorney for bringing a wrongful civil action. 42 Pa. C.S.A. 8351, et seq. The elements of a Dragonetti Act claim are:

1) that the underlying proceedings were terminated in the plaintiff's favor;
2) that the defendant caused the proceedings to be instituted against the plaintiff without "probable cause"; and
3) that the proceedings were instituted for primarily an improper purpose.

Hart v. O'Malley (Super. 1994), aff'd (1996). Under the Dragonetti Act "probable cause" means that:

[the person bringing the claim] reasonably believes in the existence of facts upon which the claim is based, and either:

1) Reasonably believes that under those facts the claim may be valid under the existing or developing law;
2) Believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information; or
3) Believes as an attorney of record, in good faith that his procurement, initiation or continuation of a civil cause is not intended to merely harass or maliciously injure the opposite party.

42 Pa. C.S.A. 8352.

A plaintiff can recover the following damages in a Dragonetti Act claim:

1) harm from arrest or interference with the use of land or chattels;
2) harm from any defamatory statement alleged as a basis for the proceeding;
3) expense of defending the original action, including attorney's fees;
4) any pecuniary loss resulting from the original proceedings;
5) any emotional distress that is caused by the wrongful proceeding; and
6) punitive damages.

42 Pa. C.S.A. 8353.

1.1:530      Assisting Client to Break a Contract

There are no cases or ethics opinions specifically discussing this issue. For information purposes, the Pennsylvania tort of interference with a contract requires the plaintiff to establish the following four elements:

1) existence of a contractual or prospective contractual relationship between the plaintiff and a third party;
2) purposeful action by the defendant, specifically intended to harm the existing or prospective relationship between the plaintiff and the third party;
3) absence of an absolute or qualified privilege; and
4) actual legal damages.

Pawlowski v. Smorto (Super. 1991).

1.1:600   Vicarious Liability [see 5.1:500]

Primary Pennsylvania References: PA Rule 1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA 91:201, ALI-LGL 79, Wolfram 5.6

An insurer is not vicariously liable for the negligence of the attorney which it retains to defend an insured's claim. Ingersoll-Rand Equipment Corp. v. Transportation Insurance (M.D. Pa. 1997). A law firm as well as an attorney is liable when he or she actively participates in tortious conduct. Francis J. Bernhardt, III, P.C. v. Needleman (Super. 1997).