the archives of f/k/a . . .

Three judges who concurred with the opinion’s application of the new rule in the class action setting dissented to its application to all cases. Writing in her concurring and dissenting opinion, Justice Joyce Kennard said the following about clients outside the class action context:

“[T]he majority effectively denies such injured clients anything but a nominal recovery of compensatory damages, insulating the attorneys while failing to fully compensate the clients for the loss caused by the malpractice.”

According to Justice Kennard, just one other state completely insulates attorneys from liability for lost punitive damages in malpractice suits.   Therefore, since insurance companies and lawyers have been living with that exposure, she says there is no need to go this far to prevent a malpractice crisis.  [The Justice cites to 3 Mallen & Smith, Legal Malpractice (5th ed. 2000) Damages, Sec. 20.7, for the general rule imposing the liability for lost punitive damages on lawyers.]

Justice Kennard argues that “If the attorney has not performed competently, the attorney is liable for the client’s injury, including punitive damages lost to the client because of the attorney’s deficient performance.”

Law.com has an article today on Ferguson, as well as an article from 2001 about a California appellate court that reached a contrary conclusion.   An earlier piece on Ferguson (March 7, 2003) notes that Ferguson’s lawyer in the malpractice suit, David Becht, “knows he’s not popular with his fellow lawyers on this issue. Not a single person or agency weighed in on his side in the form of an amicus, he said.”  It adds: “His opponents would say that’s because the harm of allowing punitive damages for legal malpractice far outweighs any good.”

Plaintiffs’ personal injury lawyers and malpractice insurance companies (interesting bedfellows?) are breathing a big sigh of relief today.  But, this is a perfect “ethicalEsq? Moment” – a chance to ask, not whether the decision makes life easier for lawyers, but whether it jibes with an attorney’s professional and fiduciary obligations to the client, and with basic fairness.

In an article that will soon be published by the University of Illinois Law Review, Cardozo Law Professor Lester Brickman argues that lawyers qua judges have been busy insulating attorneys from fiduciary and professional obligations, while developing and applying such norms to other professions.  Indeed, Brickman compares attorney efforts to obtain punitive damages from others (including professionals such as medical doctors), with cases that came to a result similar to yesterday’s Ferguson opinion and give lawyers immunity. 

What do you think? Please tell us with a Comment.

Two Cents from Jack Cliente:  Isn’t the chance of getting big punitive damages a major part of the services and sales pitch of many lawyers?  (It plays a big part in the career choice of more than a few attorneys, doesn’t it?)   When a lawyer’s malpractice destroys that chance, why shouldn’t the client have a chance to prove a real loss and be compensated?  What’s so different about lawyers as defendants that warrants that protection — other than the fact that lawyers make the rules?

ethicalEsq?ethicalEsq?

Several thanks to The Southern California Law Blog for mentioning us several times over the past few days. 

Three judges who concurred with the opinion’s application of the new rule in the class action setting dissented to its application to all cases. Writing in her concurring and dissenting opinion, Justice Joyce Kennard said the following about clients outside the class action context:

“[T]he majority effectively denies such injured clients anything but a nominal recovery of compensatory damages, insulating the attorneys while failing to fully compensate the clients for the loss caused by the malpractice.”

According to Justice Kennard, just one other state completely insulates attorneys from liability for lost punitive damages in malpractice suits.   Therefore, since insurance companies and lawyers have been living with that exposure, she says there is no need to go this far to prevent a malpractice crisis.  [The Justice cites to 3 Mallen & Smith, Legal Malpractice (5th ed. 2000) Damages, Sec. 20.7, for the general rule imposing the liability for lost punitive damages on lawyers.]

Justice Kennard argues that “If the attorney has not performed competently, the attorney is liable for the client’s injury, including punitive damages lost to the client because of the attorney’s deficient performance.”

Law.com has an article today on Ferguson, as well as an article from 2001 about a California appellate court that reached a contrary conclusion.   An earlier piece on Ferguson (March 7, 2003) notes that Ferguson’s lawyer in the malpractice suit, David Becht, “knows he’s not popular with his fellow lawyers on this issue. Not a single person or agency weighed in on his side in the form of an amicus, he said.”  It adds: “His opponents would say that’s because the harm of allowing punitive damages for legal malpractice far outweighs any good.”

Plaintiffs’ personal injury lawyers and malpractice insurance companies (interesting bedfellows?) are breathing a big sigh of relief today.  But, this is a perfect “ethicalEsq? Moment” – a chance to ask, not whether the decision makes life easier for lawyers, but whether it jibes with an attorney’s professional and fiduciary obligations to the client, and with basic fairness.

In an article that will soon be published by the University of Illinois Law Review, Cardozo Law Professor Lester Brickman argues that lawyers qua judges have been busy insulating attorneys from fiduciary and professional obligations, while developing and applying such norms to other professions.  Indeed, Brickman compares attorney efforts to obtain punitive damages from others (including professionals such as medical doctors), with cases that came to a result similar to yesterday’s Ferguson opinion and give lawyers immunity. 

What do you think? Please tell us with a Comment.

Two Cents from Jack Cliente:  Isn’t the chance of getting big punitive damages a major part of the services and sales pitch of many lawyers?  (It plays a big part in the career choice of more than a few attorneys, doesn’t it?)   When a lawyer’s malpractice destroys that chance, why shouldn’t the client have a chance to prove a real loss and be compensated?  What’s so different about lawyers as defendants that warrants that protection — other than the fact that lawyers make the rules?

ethicalEsq?ethicalEsq?

Several thanks to The Southern California Law Blog for mentioning us several times over the past few days.