Malpractice attorney
The legal term of malpractice is often subject to numerous misunderstandings, and thus required to be explained in details so that the majority of people will be able to distinguish a malpractice case from other types of mistake case. Malpractice is pervasive and can affect anyone. Therefore it is essential to have a full understanding in order to know what to do in such case. In the field of law, malpractice refers to the situation when a professional is proved to have failed to use proper levels of care, skill or diligence in the performance of its professional activities causing harm to its patient or customers. Generally, a professional can be accused of malpractice if he fails to perform his or her professional duties in an assignment, such as an operation or simple check-up, he or she has accepted at the standard level of care, skill and learning normally that one can expect from the average careful renown member of the profession in the community.
II. UNAUTHORIZED PRACTICE ? IN GENERAL:
Entirely apart from questions of malpractice, the planner of multijurisdictional estates must be forever wary of unauthorized practice problems. These difficulties can arise in a number of situations. First, a client domiciled or residing in the state in which the attorney is admitted to the bar may have interests in property outside the state, or out-of-state parties may have interests in the client's assets. In order to represent the client properly, the attorney may have to travel to the foreign jurisdiction and make appearances in court or before an agency; alternatively, he may have to negotiate with other parties there, or settle various disputes or claims on behalf of his clients. Furthermore, he may have to research the law of this other jurisdiction. The second situation in which issues of unauthorized practice arise is quite different. Here, the client is from a jurisdiction in which the attorney is not admitted to practice. In many ways, the problems presented in this setting are even more difficult and unsettled than those in the first situation, since the foreign jurisdiction has the added interest of protecting one of its residents from a locally unlicensed attorney.
In these settings, numerous issues will have to be confronted :
Can the attorney meet and advise clients or other interested parties in the state in which he is not licensed.
Can he advise them on the law of this home state, the state in which the other party resides, or a third jurisdiction ?
Should he seek admission to the bar pro hac vice and, if so, under what circumstances will that motion be granted ?
If the attorney is an alien of the United States, will be heave fewer or greater rights than the attorney from another state and to what extent does GATS and NAFTA affect all this ?
If a United States attorney is representing a client from a foreign country, are the restrictions placed on United States attorneys of the same sort as the unauthorized practice rules of the various states ?
Finally, what is the price for violating the rules and how can the penalty be meted out to the foreign attorney?
III. PENALTIES FOR UNAUTHORIZED PRACTICE :
Continuing with the malpractice comparison, the attorney who has engaged in the unauthorized practice of law is not likely to have civil damages actually imposed. When the client has not been harmed, there would be considerable difficulty in imposing liability and determining the injury suffered. The injury is really one suffered by the public policy of the state, regardless how questionable that policy is. At a pragmatic level, local attorneys who might have been retained have suffered an opportunity cost. Despite this, the typical penalty in unauthorized practice cases is the denial of the attorney's fee. Thus, if the client is dissatisfied with the attorney's fee he may simply refuse to pay. The attorney can sue for the nonpayment. The client can then raise a defense of the attorney's unauthorized practice of law. Again, even if the client is completely satisfied with the attorney's performance, the unauthorized practice of law gives the client a free ride. Not unlike antitrust treble damages, the client enjoys a windfall due to the offender's violation of public policy. One alternative pursued by some attorneys has been to seek recovery in their own home state or the state in which the client resides or has assets. This approach has generally not met with success.
IV. CONSIDERATIONS OF PROFESSIONAL RESPONSIBIliTY:
The model rules and codes of professional responsibility of the various state bars further complicate the multijurisdictional planner's tasks. While the penalties associated with an attorney's breaches of professional responsibility are not those posed by malpractice or unauthorized practice, the prospect of investigation, suspension, and disbarment ultimately can have an even more devastating effect. In the past, this danger has been entirely hypothetical one; only in the egregious cases of unprofessional conduct have sanctions of any sort been imposed by the relevant bar association. Today, however, the trend is clearly in the direction of enforcement and while it would be wrong to make too much of the threat of peer review, it is certainly no longer an eventuality that can be safety ignored.
One of the major difficulties with model rules and codes of professional responsibility is that they are so open-ended. Rarely do they address the borderline cases that fair-minded and concerned attorneys are likely to confront. Numerous formal and informal options have been presented by bar associations interpreting the code ?s ethical considerations and disciplinary rules. Typically, the opinions of another bar association lack any authority and often do not accurately reflect the prevailing view of the bar to which the perplexed attorney belongs."> Finally, many opinions are themselves quite general in nature and can either be distinguished for this reason or the fact that their underlying premises have been overturned, such as the prohibition on attorney advertising.
V.GENERAL CONSIDERATIONS FOR THE PLANNER OF MULTIJURISDICTION-AL ESTATES:
With respect to planners of multijurisdictional estates, several aspects of the Model Code and Model Rules are of particular significance. First, they adopt a markedly different approach to practice by out-of-state attorneys than the various unauthorized practice statutes. The interplay of the code or rules and the statutes may be of enormous consequence for the planner and deserves careful attention. The Code and Rules are being interpreted in a way so as to come to terms with the extraordinary pressure toward globalization and consolidation of legal practices in a way that very much tends to ignore parochial political boundaries in favor of unbounded economic opportunity. Second, the Model Code and Model Rules address the question of fee-splitting, which proves a sensitive matter when a locally unlicensed attorney is brought in to consult because of his expertise. A third aspect of significance for the multijurisdictional estate planner is the professional responsibility considerations entailed in deciding whether or not to seek co-counsel on a multijurisdictional matter.
VI. UNAUTHORIZED PRACTICE OF LAW:
Canon 3 of the Model Code of Professional Responsibility provides that a lawyer should assist in preventing the unauthorized practice of law. This canon certainly suggests an endorsement of the traditional policy of states to prevent individuals not admitted to the local bar from practicing law. Indeed, the canon appears to impose an affirmative duty on attorneys to assure compliance with the law.
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