Fiduciary Duty, Tort and Contract: A Primer on the Legal Malpractice Puzzle

Abstract

How to deal with problematic lawyer behavior has become a vogue subject. The ever increasing number of lawsuits against lawyers over the past decade has resulted in increased thinking about the law of attorney malpractice and has resulted in dramatic changes and developments in the practice of law and in attitudes about law practice. In deciding whether or not to grant the particular cause of action and in deciding the available remedy, the courts must make policy decisions. Should the remedy available to the client be measured against the amount of harm caused by the attorney's misbehavior? Should legal presumptions, rebuttable or irrebuttable, be applied so as to afford greater protection to clients from attorneys than they would have from other vendors of goods and services in the market place? Against what standard should the attorney's conduct be measured: reasonableness, uberrima fides, or some other? Should the standard vary depending upon the nature of the cause of action? These and other issues comprise our agenda.