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

with intent to defraud or injure another, the person obtains the signature of a person to a
written instrument by knowingly misrepresenting any fact.” Plaintiffs’ proposed ORICO
claims allege that Hudler fraudulently obtained a signature on a deed by making
misrepresentations, and that both defendants fraudulently obtained the signatures of
Tyrone and Jacqueline Cruze on various LLC operating agreements and closing documents
by way of misrepresentation. . . .
The trial court . . . should reconsider [on remand] whether to allow plaintiff to proceed
on an amended complaint that includes ORICO claims based on racketeering activity of
fraudulently obtaining signatures.
Reversed and remanded.
Problem
4-4. In giving an opinion to Cheltenham Township on the issuance of bonds to finance
a shopping center, Martyn & Fox inserted the usual boilerplate: “This issuance complies
with all applicable law.” But, in fact, Martyn & Fox forgot that there were new Internal
Revenue Service (IRS) regulations governing the tax-exempt status of such special-purpose
bonds, rendering these bonds taxable. Any problems? What if Fox knew about the new
regulations but the Township counsel asked him to ignore them because it would cost the
township too much in attorney’s fees to comply?
12. Authority has diverged on the required elements of a contract-based claim for legal malpractice since the
Pennsylvania Supreme Court decided Bailey v. Tucker, 621 A.2d 108 (Pa. 1993). Bailey limited the damages available in
a contract-based malpractice claim to fees paid and statutory interest, but courts have reached different conclusions as to
whether this limitation should apply only in the criminal context, as in Bailey.
1. Manuel R. Ramos, Legal Malpractice: The Profession’s Dirty Little Secret, 47 Vand. L. Rev. 1657, 1664 (1994).
Ramos concludes that legal malpractice may be a “tip of the iceberg” problem, while medical malpractice more likely
involves “a few bad apples.”
2. E.g., Rinker v. Amori, 2016 WL 1110217 (M.D. Pa.) (lawyer who failed to fulfill a “specific executory promise” to
attend sheriff’s tax sale and bid on client’s property can be sued in contract and tort); Interclaim Holdings, Ltd. v. Ness,
Motley, Loadholt, Richardson & Poole, 298 F. Supp. 2d 746 (N.D. Ill. 2004) (upholding compensatory damages of
$8.3 million and punitive damages of $27.7 million on breach of contract theory against law firm that settled claims
and released frozen assets without client’s consent).
3. E.g., Lanz v. Goldstone, 197 Cal. Rptr. 3d 227 (Cal. App. 2015) (upholding malicious prosecution action against
lawyer for making threats of protracted and groundless litigation against opposing counsel and filing a meritless cross
complaint alleging serious ethics breaches without researching the claims).
4. See, e.g., Olfe v. Gordon, 286 N.W.2d 573 (Wis. 1980) (no expert testimony required to show that lawyer
breached fiduciary duty to client by failing to draft a first mortgage client specifically requested).
5. E.g., dePape v. Trinity Health Systems, Inc., infra Chapter 5.
6. E.g., Perez v. Kirk & Carrigan, infra Chapter 6.
7. RLGL § 49.
8. Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d 1283, 1290 (Utah 1996).
9. RLGL § 49, Comment a; Restatement (Second) of Torts § 551(2)(a).
10. Cases against lawyers can be traced to 1767. John W. Wade, The Attorney’s Liability for Negligence, 12 Vand. L.
Rev. 755 (1959).
11. See Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928).
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