LEGAL MALPRACTICE COURSE NO LAWS FALL 2010 TUESDAYS, 4:00 P.M. TO 5:55 P.M. ROOM 244

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1 LEGAL MALPRACTICE COURSE NO LAWS FALL 2010 TUESDAYS, 4:00 P.M. TO 5:55 P.M. ROOM 244 Charles E. Lundberg BASSFORD REMELE A Professional Association 33 South Sixth Street, Suite 3800 Minneapolis, MN clundberg@bassford.com Direct Line: Direct Fax: Contact Information: Timothy J. Gephart Vice President, Claims Minnesota Lawyers Mutual Insurance Company 333 South Seventh Street, Suite 2200 Minneapolis, MN tjg@mlmins.com Direct Line: Direct Fax: The best method way to contact us is by or voice mail. Note: We check the St. Thomas Blackboard system only infrequently, so please do not e- mail us there. Use the bassford.com or mlmins.com addresses above. [Incidentally, both the Bassford and MLM spam filters occasionally block legitimate s -- accordingly, our policy is always to acknowledge or respond to all s, even if only an okay. So, if you e- mail one of us and do not get a reply promptly, assume your did not reach the recipient and call us.] Required Course Book: Fortney & Johnson, Legal Malpractice Law: Problems and Prevention (Thomson West 2008) Course Website: Web page is on Blackboard Course Overview and Objectives: This course explores legal malpractice law, policy, and problems. In addition to studying the civil liability claims and defenses, the course will cover approaches to managing risk and avoiding malpractice claims. This course is designed to do the following: 1. To enable students to learn the law and policy related to the professional liability of lawyers; 2. To expose students to legal malpractice issues encountered by practicing lawyers and malpractice experts;

2 3. To enable students to identify and avoid common malpractice traps; 4. To give each student an opportunity to explore malpractice problems that s/he will encounter in a particular practice area; 5. To provide a survey of malpractice issues encountered by lawyers in a range of practice areas. Learning outcomes: 1. Students will learn the substantive legal principles that govern legal malpractice claims and defenses. 2. Students will learn procedural aspects of prosecuting and defending legal malpractice cases. 3. Students will obtain experience in conducting field research on legal malpractice issues faced by lawyers in a particular practice area. 4. Students will obtain experience in collaborating with others in preparing and presenting practical malpractice problems that practitioners encounter. 5. Students will learn to recognize, analyze, and prevent legal malpractice traps. Rules for class attendance and participation: Class attendance and participation is required and expected. A sign-in sheet will be circulated at the beginning of each class for each student to record his or her attendance. You are permitted a total of three absences for the semester without penalty regardless of the reason for those absences. Examination and grading: The following outlines the requirements and basis for evaluating student performance. A. Class participation Ten percent (10%) of your final grade will be based on class participation. On the first day of class we will divide the class into several panels of three or four students each. Each week thereafter, one of the panels will be primarily responsible for class discussion. Everyone is still responsible for doing each week s reading and anyone may be called on at any time, but on the days when your panel is on, you will be expected to have digested the material particularly carefully. 2

3 If you want to be on a panel with someone in particular, feel free to team up. Panel members should sit together in the classroom. We will have a seating chart, and therefore assigned seats. Once we get to the room on the first day we ll figure out what our space needs are and people can pick their seats accordingly. B. Open book examination Seventy-five percent (75%) of the final grade will be based on an open-book examination. C. Interview paper Fifteen percent (15%) of the final grade will be based on a paper on an interview of a practicing lawyer. The interview gives a student an opportunity to connect with a lawyer who practices in an area or specialty of interest to the student. The interview also gives students a chance to explore ethics and malpractice concerns that lawyers deal with on a daily basis. Although you have flexibility in how you conduct the interview (in person or by telephone), you should collect information related to: 1. What they like most and least about their work? 2. What they consider to be the most frustrating aspect of their law practice, as well as the most rewarding? 3. What legal malpractice problems do they commonly encounter in their practice area? 4. What legal malpractice problems do they consider the most difficult to handle? 5. What recommendations do they have for a new lawyer who wants to limit malpractice exposure? 6. How the lawyer handles ethical dilemmas when applicable ethics codes don t address the matter? The paper based on the interview may not exceed three pages (double-spaced). The paper is due at 4:00 p.m. on Tuesday, November 9, Classroom Accommodations: Qualified students with documented disabilities who may need classroom accommodations should make an appointment with the Enhancement Program Disability Services office. Appointments can be made by calling You may also make an appointment in person in O Shaughnessy Educational Center, room 119. For further information, you can locate the Enhancement Program on the web at 3

4 SYLLABUS/CLASS/READING SCHEDULE Our pace through this material may vary. The following outlines readings/assignments for each class. Be prepared to discuss the assigned problems. Class Date Topic Assignment 1. 8/31/10 Introduction to Legal Malpractice Overview of Theories of Liability 2. 9/7/10 Negligence Duty to Exercise Care Breach of Duty 3. 9/14/10 Negligence Causation Breach of Fiduciary Duty 4. 9/21/10 Breach of Fiduciary Duty Duties to Nonclients Read Chapter One, pages 1-13 Problem 1-1 on page 13 Read Chapter Two, pages Problem 2-1 on page 33 Togstad v. Vesely, et al., 291 N.W.2d 686 (Minn. 1980) Read Chapter Three, pages Problem 3-1 on page 39 Problem 3-2 on page 50 Problem 3-3 on page 57 Problem 3-4 on page 70 Problem 3-5 on page 74 Read Chapter Three, pages Problem 3-6 on page 93 Problem 3-7 on page 99 Read Chapter Four, pages Problem 4-1 on page 116 Read Chapter Four, pages Problem 4-2 on page 127 Read Chapter Five, pages Problem 5-1 on page /28/10 Duties to Nonclients Read Chapter Five, pages Problem 5-2 on page 160 Problem 5-3 on page 163 Problem 5-4 on page 169 Problem 5-5 on pages /5/10 Remedies for Legal Malpractice Read Chapter Six, pages Problem 6-1 on page 187 Problem 6-2 on page 198 Problem 6-3 on page 202 4

5 7. 10/12/10 Defenses and Other Obstacles to Recovery Contributory Negligence, Comparative Negligence and Comparative Fault Unlawful Conduct 8. 10/26/10 Other Defenses Malpractice Statute of Limitations Review of Defenses 9. 11/2/10 Vicarious Liability Firms, Employers and Partners Vicarious Liability Limited Liability Firms /9/10 Vicarious Liability Other Associations Malpractice Traps Client Relations Errors, Conflicts of Interest /16/10 Malpractice Traps Litigation Errors Malpractice Traps Business Transactions with Clients, Breach of Confidentiality /23/10 Malpractice Traps Representing Entities Preventing Legal Malpractice Client Management Procedures, Human Resources Management Read Chapter Seven, pages Problem 7-1 on page 209 Problem 7-2 on page 214 Problem 7-3 on page 221 Problem 7-4 on page 224 Problem 7-5 on page 234 Read Chapter Seven, pages Problem 7-6 on page 239 Problem 7-7 on page 245 Problem 7-8 on page 252 Read Chapter Eight, pages Problem 8-1 on page 263 Problem 8-2 on page 270 Problem 8-4 on page 279 Read Chapter Eight, pages Problem 8-5 on page 288 Read Chapter Nine, pages Problem 9-1 on page 302 Read Chapter Nine, pages Problem 9-2 on page 314 Problem 9-3 on page 326 Problem 9-4 on page 348 Read Chapter Nine, pages Problem 9-5 on page 366 Read Chapter Ten, pages Problem 10-1 on page 389 Problem 10-2 on page 401 5

6 13. 11/30/10 Legal Malpractice Insurance Understanding Coverage Handling Claims and Informing Clients Read Chapter Eleven, pages Problem 11-1 on page 412 Problem 11-2 on page 414 Problem 11-3 on page