Professional Malpractice: Paying for the Sins of Others

January 21, 2008Articles New Jersey Law Journal

This article is reprinted with permission from the JANUARY 21, 2008 issue of the New Jersey Law Journal. ©2008 ALM Properties, Inc. Further duplication without permission is prohibited. All rights reserved.

In our litigious society, lawyers know (or should know) that our own bad lawyering can lead to malpractice liability. Missing a statute of limitation, drafting an inaccurate description of property to be sold, missing a patent filing deadline, or failing to perfect a client’s security interest will typically result in a malpractice claim. These days, however, it is more and more common for lawyers to be sued not for bad lawyering, but for representing bad clients. Courts are ever more likely to impose a duty on a lawyer to prevent his client’s fraud or illegal conduct, and even to warn the other side about it. This runs contrary to our deeply ingrained training to be loyal to our clients and to preserve our clients’ confidences. As a result, learning when to say “no” to a client has become a crucial aspect of malpractice prevention and avoidance.

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