Tag Archives: malpractice
Do Assets in a Trust Have to Go Through Probate?
DO TRUST ASSETS HAVE TO GO THROUGH PROBATE? Sometimes. The answer depends on a number of factors, including (but not limited to); the type of trust the type of assets whether the assets were properly placed in or transferred to the trust and several other, less common, legal issues PROPERTY HELD IN AN INTER… Read More »
When Has a California Trustee Breached His or Her Fiduciary Duty?
FIDUCIARIES MUST ACT WITH “UTMOST GOOD FAITH” A fiduciary, like the trustee of a trust, must act with the highest degree of good faith, and for the benefit of the person or entity to whom the fiduciary owes the duty. In the case of a trustee, this means managing the trust, and the trust… Read More »
Can a Client Sue a Lawyer for Emotional Distress?
EMOTIONAL DISTRESS DAMAGES GENERALLY ARE NOT RECOVERABLE IN LEGAL MALPRACTICE ACTIONS As a general rule, damages for legal malpractice do not include emotional distress if the client suffered only economic loss or property damages. This is because, under California law, lost property does not “naturally” lead to emotional distress. While it’s true that the… Read More »
How is Legal Malpractice Different From Attorney Discipline?
WHAT IS LEGAL MALPRACTICE? “Legal malpractice” is a common term for Professional Negligence, which is a form of legal liability that occurs when a lawyer behaves in an actionably negligent manner when giving advice, representing a client, or handling a client’s legal affairs and when that improper conduct results in damage to the client. This… Read More »
Lawyers Must Cite the Law Correctly–And Disclose Adverse Authority
LAWYERS MUST DISCLOSE KNOWN & CONTROLLING LEGAL AUTHORITY A lawyer’s duty of candor includes both positive and negative duties relating to legal authority. When presenting arguments and evidence to a court or other tribunal: A lawyer must: Use only means that are consistent with the truth (California Business & Professions Code Section 6068(d)) Disclose… Read More »
Closing a Skill Gap: Acquiring Legal Competence
IS A LAWYER ALLOWED ACQUIRE THE NECESSARY COMPETENCE TO REPRESENT A CLIENT DURING THE REPRESENTATION? While this may seem surprising, the answer is yes–sometimes. As a general rule, a lawyer cannot accept a case where the lawyer is too busy or too inexperienced to provide competent representation. However, a lawyer who has the time and interest… Read More »
Is it Malpractice if a Lawyer Refuses to Take a Case?
LAWYERS ARE NOT REQUIRED TO TAKE ON EVERY CASE A PROSPECTIVE CLIENT BRINGS THEM While there are circumstances in which a lawyer may be required, or strongly encouraged, to take a case, those circumstances rarely involve truly “private” legal matters. In other words, no, it often (and, in most cases, usually) is not malpractice for… Read More »
Do Lawyers Have to Obey the Law?
LAWYERS HAVE A LEGAL AND ETHICAL DUTY TO OBEY THE LAW As a general rule, everyone has a duty to obey the law (with the caveat that civil disobedience is a lengthy topic for a different day) – including lawyers. Despite the old joke that asks “How can you tell when lawyers are lying?”… Read More »
The Importance of Informed Written Consent to Conflicts of Interest
Where conflicts of interest exist, a lawyer may not engage in certain types of conduct without making proper disclosures and obtaining the client’s informed written consent. Last week, we examined what it means to give informed written consent. Today, we’ll look a little more closely at what the lawyer cannot do unless proper consent is obtained…. Read More »
When Your Lawyer Quits: Substitution of and Cooperation With New Counsel
This post is part of an ongoing series about the obligations lawyers have when terminating (quitting) representation of a client. To start from the original post, click here (the post will open in a new window). LAWYERS HAVE A DUTY TO SIGN SUBSTITUTION OF COUNSEL FORMS WHEN REQUESTED OR NECESSARY Whenever a client… Read More »
