Why You Should Give Only the Best Legal Services But Not Promise to Do So.

Ethics

Lawyers ought to use engagement letters to memorialize the scope of representation and other things.  (A future installment will talk about some peculiar patent prosecution issues you may want to address.)  But engagement letters aren’t places for thoughtless promises.

I’ve seen engagement letters say all sorts of things.  In the Abramson case, cite below, the letter said  “we give sensitive and professionally responsive service.” The court held that that statement transformed the tort claim of legal malpractice which might be barred by limitations, into a contract claim, which are usually subject to longer periods of limitation.

The classic case where a warranty was found is Abramson v. Wildman, 964 A.2d 703 (Md. Ct. Spec. App. 2009).  A recent case where no warranty was found is Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly (Conn. Apr. 1, 2014).

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

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2 thoughts on “Why You Should Give Only the Best Legal Services But Not Promise to Do So.”

  1. 1

    As the Abramson opinion points out, malpractice issues can be asserted as a tort or contract claim. Every fee agreement for attorneys says “I will do legal work for you, and you will pay me.” That is a contract, and the court’s statement that the tort claim was transformed into a contract claim seems needlessly confused given that the court acknowledges that both claims are supported.
    From a practice standpoint, why do we patent attorney’s wait for the malpractice statute of limitations to run before bringing a contract action against a deadbeat client? While the client cannot recover on the malpractice claim, his contract claim is still viable, so (1) if the attorney waits, he might still be hit with damages but (2) since it is not a malpractice claim, the insurer is not going to cover the damages. What supports the conventional wisdom?

    1. 1.1

      Ah, the first paragraph of your reply has a lot to unpack. In some states, it can only be tort; in others, only contract unless there’s a warranty, and in some, both or either depending on the nature of the claim (competency versus loyalty is usually the dividing line).

      As for the second, in some states you can do that, but in others they let the client counterclaim.

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