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

the contract contained a clause making reference to the plaintiff’s right to remain on the
property residing in the cottage, none of the closing documents referred to the plaintiff’s
life estate in the property.
The plaintiff further alleges that after the closing, the O’Briens changed their treatment
of her. They were rude and cruel and kept all details of the construction of her cottage from
her. She was constantly reminded that the property did not belong to her anymore but
rather to the O’Briens. Although a structure was built for her, it was not a cottage, but
rather a small barn like structure that could not accommodate her furnishings.
The plaintiff’s revised complaint contains eleven counts. Counts one through six are
against the O’Brien defendants and allege fraudulent representation, breach of contract and
intentional or negligent infliction of emotional distress.
Counts seven through eleven are against the defendant Peter I. Manko. Count seven
alleges legal malpractice, count eight alleges recklessness, count nine alleges fraudulent
representation, count ten alleges that Manko violated [the Connecticut Unfair Trade
Practices Act] (CUTPA) and count eleven alleges a breach of fiduciary duty by Manko. . . .
A. The Eighth Count: Recklessness
In the eighth count of the complaint, entitled “Recklessness by the defendant Manko,”
the plaintiff restates the allegations contained in the seventh count, which is entitled “Legal
Malpractice by defendant Manko.” According to the allegations of the seventh and eighth
counts, the defendant Manko prepared a contract for the sale of the plaintiff’s property to
the O’Brien defendants. He prepared the contract on behalf of both the plaintiff and the
O’Brien defendants. According to the allegations in the complaint, the representation of
the plaintiff in this transaction created an attorney-client relationship between Manko and
the plaintiff. As a result, Manko owed the plaintiff the duty to represent her with
reasonable care and diligence.
The plaintiff also alleges, in this count, that Manko knew, or should have known, that
the plaintiff, who was ill on the day of the closing, inquired about whether she should have
separate counsel and was reassured that Manko could represent all of the parties. The
closing of the sale of the plaintiff’s property took place in Manko’s office at about 5:00 in
the afternoon, at least one month before the date specified in the contract. As a result, the
plaintiff alleges that she was rushed into the closing.
Furthermore, the plaintiff alleges that Manko failed to inform the lender of her life
estate thereby allowing the lender to have an interest in the property superior to hers. In
addition, he did not prepare a deed subject to the plaintiff’s life estate. As a result, the
plaintiff’s life estate was not recorded on the land records.
The plaintiff alleges that these facts state a claim for recklessness. Manko objects[,]
stating that the facts as alleged merely support a claim for malpractice.
“While [courts] have attempted to draw definitional [distinctions] between the terms wilful, wanton or reckless,
in practice the three terms have been treated as meaning the same thing . . . . A wilful act is one done intentionally
or with reckless disregard of the consequences of one’s conduct.”
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