Legal Ethics Blog of James M. McCauley, Ethics Counsel, Virginia State Bar. Contains posts and resources for legal ethics and professional responsibility.
Total Pageviews
Thursday, October 22, 2009
Legal Malpractice
The New Jersey Supreme Court is about to take another look at the "settle and sue" syndrome: When a client settles a case and then sues his or her lawyer over it. The case is Guido v. Duane Morris.
I don't like the blanket rule that if you settle you can't sue for malpractice. If Guido was not aware of the market implications that the agreed restrictions on his stock, then his consent to settle was not an informed one. My problem is was it Duane Morris' responsiblility ethically or professionally to advise Guido on such matters? I am not sure. I imagine expert testimony will clash on that issue. Guido told the judge he understood the settlement and its terms but claims he was not informed on the effect the stock restrictions would have on its value. I am not sure I buy that, but I agree with giving the plaintiff an opportunity to attempt to prove his case instead of throwing the case out on summary judgment.
James M. McCauley is the Ethics Counsel for the Virginia State Bar where he has been employed since 1989, managing the Bar’s legal ethics section and staff counsel to the Standing Committee on Legal Ethics. His department writes the draft advisory legal ethics opinions, propose amendments to the Virginia Rules of Professional Conduct and provide informal advice via the “ethics hotline” to members of the bar and bench on matters involving legal ethics, lawyer advertising and the unauthorized practice of law. Mr. McCauley frequently lectures and publishes on matters relating to legal ethics and the unauthorized practice of law. He taught Professional Responsibility at the T.C. Williams School of Law in Richmond, Virginia for 15 years, and served on the American Bar Association’s Standing Committee on Legal Ethics and Professionalism from 2008-2011. Mr. McCauley served on the faculty of the Virginia State Bar’s Mandatory Professionalism Course from 2004-2010. He is also a Fellow of the Virginia Law and the American Bar Foundations. In 2018, he was chosen as Leader of the Year by the 2018 Class of Leaders in the Law sponsored by the Virginia Lawyers Weekly.
2 comments:
Where do you come out on this particular case?
I don't like the blanket rule that if you settle you can't sue for malpractice. If Guido was not aware of the market implications that the agreed restrictions on his stock, then his consent to settle was not an informed one. My problem is was it Duane Morris' responsiblility ethically or professionally to advise Guido on such matters? I am not sure. I imagine expert testimony will clash on that issue. Guido told the judge he understood the settlement and its terms but claims he was not informed on the effect the stock restrictions would have on its value. I am not sure I buy that, but I agree with giving the plaintiff an opportunity to attempt to prove his case instead of throwing the case out on summary judgment.
Post a Comment