Professional Liability Committee Assesses the Law Every Lawyer Should Understand

The Law of Lawyers’ Liability is an important new foray by the ABA Section of Litigation’s Professional Liability Committee into the world of ABA Publishing. Released in May 2012, the book is a well-done state-by-state review of each jurisdiction’s treatment of that phrase we all hope we never hear used to describe our professional conduct: legal malpractice.

The book devotes one chapter to each state and the District of Columbia, and each state’s chapter comes from the pen of a local practitioner, many who are members of the committee. Straightforward and well-organized, each chapter follows a familiar format.

This editorial approach permits a true apples-to-apples comparison of the law between states. This facet of the book is particularly valuable when weighing the merits of a claim that involves potential malpractice in more than one jurisdiction. This is particularly true given malpractice is an area of law where the “winner” in State A may be a “loser” in State B under otherwise identical facts.

Specifically, each chapter has a section covering:

• elements of the claim, including, where applicable, statutory claims for malpractice;
• standing, with a focus on the general rule of privity, its exceptions, and how each jurisdiction applies  its exceptions;
• the standard of care, which typically is determined/established by expert testimony;
• causation, in both the civil (whether the jurisdiction adopts the ”case within a case” procedure, and if it has a requirement that the plaintiff proves it could have collected the damages in the underlying case) and criminal (whether the claimant must prove his or her innocence as an element of causation) context;
• damages;
• defenses, in particular those related to limitations/tolling, as well as states that permit some form of comparative fault/contributory negligence and the unique defense of “judgmental immunity”; and
• alternative causes of action, which range from fraud, breach of fiduciary duty, breach of contract, and negligent misrepresentation, as well as malicious prosecution, aiding and abetting, and conspiracy claims available to some third parties in some jurisdictions.

Each chapter is well written, and the format is outstanding for a 50-state survey presentation. For example, the damages sections typically cover the availability of monetary, mental anguish, lost profit damages, contingency fee offset, attorney fees as damages, and punitive damages.

No book is perfect, and The Law of Lawyers’ Liability is no exception. Some chapters, of course, appear to have more heft than others. This may be due to several factors ranging from the depth of State A’s legal malpractice common law to the depth of the individual author’s treatment of her state’s law.

An area where a future edition could improve might be in the consistency of the formatting of the copious footnotes. One chapter may have a smaller number of case citations, the next a rich mix of statutes, treatises, and case citations that include helpful parentheticals. Another way it might improve is if the cases cited included parentheticals that indicate whether the ultimate finding was “malpractice” or “no malpractice.” It is one thing to know the rules, but another to know which way the court tends to come out when applying the rules!

On the whole, The Law of Lawyers’ Liability is an excellent offering. At $140—or less than half a billable hour—it is an economical addition to any managing partner’s desk reference.