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

12. E.g., DeVaux v. Am. Home Assurance Co., 444 N.E.2d 355 (Mass. 1983) (secretary who spoke to prospective
client and told her to write a letter asking for representation and have a physician document injuries had actual or
apparent authority to create client-lawyer relationship).
13. RLGL § 51.
14. See MR 1.2(c); RLGL § 19.
15. RLGL § 52.
16. Rosemann v. Sigillito, 785 F.3d 1175 (8th Cir. 2015) (upholding summary judgment due to plaintiff’s failure to
provide expert witness to establish standard of care).
17. RLGL § 52 Comment b.
18. See, e.g., Russo v. Griffin, 510 A.2d 436 (Vt. 1986).
19. MR Scope 20; RLGL § 52(2).
20. Horne v. Peckham, 158 Cal. Rptr. 714 (Cal. App. 1979) (lawyer who acknowledged the need for expertise in tax
had duty to refer client to an expert practitioner or to comply with the specialty standard of care).
21. See, e.g., Battle v. Thornton, 646 A.2d 315 (D.C. 1994) (absent proof that the defendants held themselves out as
specialists in Medicaid fraud defense, or that jurisdiction or profession recognizes such a specialty, lawyer is required to
exercise skill and care of lawyers acting under similar circumstances).
22. See, e.g., George v. Caton, 600 P.2d 822 (N.M. App. 1979).
23. See, e.g., Smith v. Lewis, 530 P.2d 589 (Cal. App. 1973) (lawyer who failed to research law, which would have
indicated a potential, though unclear, client claim in a divorce).
24. See, e.g., Schmitz v. Crotty, 528 N.W.2d 112 (Iowa 1995) (lawyer who failed to investigate property descriptions
in valuing estate taxes after he was put on notice they were inaccurate).
25. E.g., Ambase Corp. v. Davis Polk & Wardwell, 866 N.E.2d 1033 (N.Y. 2007) (record provides no support for
plaintiff’s assertion that “but for” law firm’s failure to advise it properly, a large loss reserve would have been removed
earlier and client would not have suffered loss of business opportunities). But see Williams v. Joynes, 677 S.E.2d 261
(Va. 2009) (client’s failure to file suit in another jurisdiction after lawyer failed to file within statute of limitations in
Virginia was not a superseding cause because intervening act of client was set in motion by the initial negligence of the
lawyer).
26. E.g., Viner v. Sweet, 70 P.3d 1046 (Cal. 2003) (case within a case proof required for errors in transactional work
as well as litigation); Bevin v. Fix, 42 P.3d 1013 (Wyo. 2002) (summary judgment granted against client who proved
that former lawyer breached fiduciary duty but did not allege facts indicating that the underlying divorce action would
have been more favorable to him).
27. John Leubsdorf, Legal Malpractice and Professional Responsibility, 48 Rutgers L. Rev. 101, 149-150 (1995).
28. E.g., Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 845 A.2d 602 (N.J. 2004) (expert testimony sufficient
to establish actual cause against lawyer who negligently failed to investigate accident claim and join one responsible
driver).
29. Lawyer’s fees expended in the negligently performed service generally are not credited to the damage amount on
the theory that the plaintiff had to hire a second lawyer to remedy the mistake. RLGL § 53, Comment c; Nettleton v.
Stogsdill, 899 N.E.2d 1252 (Ill. App. 2008), appeal denied, 910 N.E. 2d 1128 (Ill. 2009) (former client entitled to
recover as actual damages fees she would not have had to pay in the absence of former lawyer’s negligence).
30. See, e.g., RLGL § 53, Comment b. Cf., Garretson v. Miller, 121 Cal. Rptr. 2d 317 (Cal. App. 3d Dist. 2002)
(plaintiff must prove that judgment would be collectible).
31. See, e.g., RLGL § 53, Comment g.
32. RLGL § 53, Comment h. See also dePape v. Trinity Health Systems, Inc., infra Chapter 5.
33. E.g., Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal. 3d 176 (1971).
34. RLGL § 54, Comment d.
35. E.g., Jeckle v. Crotty, 85 P.3d 931 (Wash. App. 2004); James v. The Chase Manhattan Bank, 173 F. Supp. 2d
544, 550 (N.D. Miss. 2001).
36. RLGL § 57.
37. RLGL § 56, cmts. e & f. We discuss the law of fraud in more detail in Chapter 7 in The Bounds of the Law:
Fraud.
38. RLGL § 56 cmt. i.
39. RLGL § 51(2).
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