[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

(b) Should Martyn tell the caller that she has researched the case and is not
interested in taking on the representation?
(c) Must Martyn tell the caller that the statute has run and it’s her fault?
The Law Governing Lawyers:
Tort Liability
Since World War II, both the number and complexity of civil cases against all professionals,
including lawyers, has grown. The exact numbers are difficult to determine because insurers
report claims, and too many lawyers do not carry malpractice insurance. Some think that
the annual claims rate for lawyers is “probably closer to 20% or more.” 1 The development
of this law has made malpractice suits a primary means of addressing professional
incompetence. Understanding the contours of tort remedies can help you avoid liability in
practice.
Sickler and Bayview in this chapter, dePape in Chapter 5, and Togstad in Chapter 3 all
make clear that lawyers may be liable to their clients in both contract and tort. The contract
remedy usually is reserved for cases where a lawyer disobeys a clear and legal instruction of
the client or acts contrary to the client’s clear interests. 2 Tort remedies include intentional
torts, 3 such as fraud and battery, but because intentional torts are not covered by
malpractice insurance, clients typically seek recovery against lawyers on a negligence theory,
such as breach of fiduciary duty or malpractice.
Sickler and the next two cases, Greycas and Cruze, illustrate another aspect of lawyer tort
liability: that courts hold lawyers liable to nonclients in certain defined circumstances where
doing so will not harm the client-lawyer relationship.
Client Duties: Breach of Fiduciary Duty
Courts have upheld this cause of action for failure to obey a client’s instructions, 4 inform a
client, 5 keep client confidences, 6 or respond to and remedy conflicts of interest, as in
Bayview. In these situations, the client has been deprived of a basic fiduciary obligation
designed to protect the client’s interests, 7 and the lawyer has acted “outside the scope of
authority granted by the client.” 8 Some courts describe this cause of action as constructive
fraud, because in a fiduciary relationship, the failure to communicate to the principal
information which the principal is entitled to know constitutes active deception or fraud. 9
Bayview emphasizes the disloyalty in the lawyer’s attempt to hide his own malpractice.
Client Duties: Malpractice
Most of the situations where clients seek a tort remedy do not involve such clear breaches of
fiduciary duty. Instead, the client alleges a breach of the duties of care or competence —
that the lawyer should have known more, should have had more experience, or should have
exercised reasonable judgment in seeking to accomplish the client’s goals. These situations,
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