Professor Barry Temkin
This course will examine the theoretical and conceptual bases for legal malpractice as well as the interplay between the law of legal malpractice and ethichal issues raised by the Lawyers Code of Professional Responsibility and the ABA Model Rules of Professional Conduct. After exploring the basic elements of the tort of legal malpractice and the creation of the attorney-client relationship, the course will canvas applicable defenses and procedural issues, such as the role of experts in malpractice trials. The course will consider problems of attorney authority and multiple clients, as well as vicarious liability for the malpractice of other attorneys, e.g. in a referral/fee splitting arrangement. We will analyze attorney liability to non-clients with partricular emphasis on lawyer liability for securities fraud and representations to others in negotations. The students will use the case-study method to perform a post-mortem analysis of malpractice by lawyers such as the role of the Vinson and Elkins lawyers in the Enron scandal.
A major emphasis of the course will be on the prevention of malpractice, and we will examine common mistakes made by practicing attorneys which give rise to malpractice claims. We will also cover a representative errors and omissions insurance policy, and address what is and is not covered by insurance. We will end with an aspirational look at the higher values of the legal profession.
The students will write papers on topics of interest to them, raised or inspired by the curriculum, subject to faculty approval.