- Book Title: Legal Malpractice (Third Edition)
- Penulis: Ronald E. Mallen & Jeffrey M. Smith
- Penerbit: United States of America:
West Publishing Co., 1989 - Edisi: Third Edition
- Bahasa: Inggris
- ISBN: 0314069275
Sinopsis Buku Legal Malpractice (Third Edition)
With the third edition, Legal Malpractice enters its second decade. This edition also commences the joint authorship by two friends who have extensively worked in this field as litigators, authors and lecturers. Both authors have chaired the American Bar Association’s Standing Committee on Lawyers Professional Liability
The third edition reflects the maturation of both the law and the reality of legal malpractice litigation. As a consequence of an increasing number of recent judicial decisions, this treatise has increased in size by more than 50 percent.
To better understand the present reality of claims, this edition includes the statistical data which has been gathered by the American Bar Association’s National Legal Malpractice Data Center. That data is graphically presented and is analyzed concerning the causes of claims and means of prevention.
Theories of liability which previously presented only occasional concern now require expositive treatment. For example, the securities law exposure of lawyers was minimal two decades ago but now appears as a separate chapter to present the basic premises of liability.
Consumer protection statutes and RICO, which previously appeared in occasional footnotes, now require extensive discussion and analysis. The still-developing rules governing exposure to judicial sanctions have become such a significant concern to all who litigate that even the extensive analysis in the third edition threatens to be dated before the next supplement.
By the 1980’s, allegations of fiduciary breaches have become a commonly asserted basis for attorneys’ liability. Accordingly, the examination of the fiduciary obligations has been expanded to three chapters, including a chapter on conflicting interests and another on adverse representation.
The risk of disqualification, which may also result in civil liability, is examined in a variety of contexts ranging from family relationships between counsel to discovery abuses to unauthorized communication with adverse parties and their employees.
Virtually all chapters and sections have been rewritten to include not only the latest judicial authorities but also to analyze those principles which are becoming “settled” and those which are only now becoming identified as areas of concern.
As before, within the limitations of standard research techniques and human fallibility, Legal Malpractice continues in its effort to be comprehensive of all subjects and exhaustive of all published judicial authority. That objective will continue to be pursued by annual supplement to the Third Edition.
Because legal malpractice claims are a reality for all practicing lawyers, “loss prevention” is not merely a salutary slogan, but has practical implications. Law firms not only may have substantial deductibles but their future insurability and the cost of that insurance requires that claims prevention be a skill possessed by the today’s lawyer.
Therefore, the third edition has greatly expanded the examination of the areas of concern and the principles of prevention.
Chapter 2, the focal point of loss prevention, is now the largest chapter in this work. The concept of managing a practice for loss prevention, that is, quality control, provides an administrative focus which should become a fundamental aspect of the management of any law practice.
Chapter 2 examines in detail the problems and proposes techniques for the legal skills, administrative systems and personal qualities essential to loss prevention. Some loss prevention concepts are discussed in the contexts of the chapters concerning the specific area of law involved.
Several topics now appear as new chapters. With the assistance of lawyers who possess special expertise, Chapter 3 presents an analysis of the role of education in avoiding legal malpractice and claims for the bar, the individual lawyer and the law firm.
The expanding freedom of lawyers to use commercial techniques to publicize their services brings about corresponding responsibilities. The practical ramifications and legal liabilities of advertising are the subjects of Chapter 4, Attorney Marketing.
Almost fifty years ago Justice Benjamin Cardozo cautioned a graduating class of law students on the hazards of practice that would exist beyond their adversaries and the judiciary:
Sometimes when these critics are compassionate or silent, you will have to meet a test still sterner, a scrutiny yet more rigid, the merciless test and scrutiny of a defeated and reproachful client.”
This admonition has even greater meaning today: presently, law school graduates will be the subject of three or more claims for legal malpractice before finishing a career. Thus, this third edition of Legal Malpractice continues to provide guidance for those concerned with preventing claims and losses, for the lawyers who must litigate the claims, for the judges who must decide the issues, and for those insurers who may ultimately pay the losses.
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