Saturday, July 10, 2004

Martin Begleiter (Drake) has published The Gambler Breaks Even: Legal Malpractice in Complicated Estate Planning Cases, 20 Ga. St. U. L. Rev. 277 (2003). Here is part of the Conclusion:

The last 15 years have witnessed a pause in the malpractice revolution. Concerns over the impact of the increase in both malpractice actions and liability on the legal profession, the potential conflicts of interest and the dilution of the attorney’s duty to the client caused by the imposition of a duty on the lawyer to will beneficiaries, and the increasingly difficult legal questions raised by these actions have resulted in courts’ dismissing actions against attorneys or upholding summary judgments for different reasons. The courts have developed a variety of rules (or exceptions to rules) in an attempt to strike the correct balance between just decisions for disappointed beneficiaries and protection of attorneys….[T]his Article shows evidence that the decided cases have gravitated toward a rule requiring beneficiaries in complicated legal malpractice actions to present or refer to written evidence-letters, unexecuted wills, attorney’s notes, bills, etc.-in their complaints to survive a motion to dismiss or a motion for summary judgment. This Article shows that this rule explains most of the categories of decided cases….