California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - NOVEMBER 2001
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - November 2001
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News / News Briefs
Two new judges named to bar court; Stovitz to preside
New protections for consumers
Court approves disclosure of some private disciplines
Board member Erica Yew named to Santa Clara bench
40 receive Foundation scholarships
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Trials Digest
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Opinion
From the President - Intentional UPL should be a felony
International law in a post-Sept. 11 world
Lawyers' response: First, do no harm
Delicate balance between liberty and security
Con artists single out immigrants
Letters to the Editor
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MCLE Self-Study
Restructuring a bankrupt global company
Self-Assessment Test
MCLE Calendar of Events
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You Need to Know
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Public Comment
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Discipline
Ethics Byte - New decision may subject lawyers to suits
Trust fund scam leads to summary disbarment
Attorney Discipline

ETHICS BYTE

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New decision may subject lawyers to suits

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By DIANE KARPMAN
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Diane KarpmanLawyers are a besieged species, threatened by an unfathomable Appellate Court decision which may subject us to a multitude of lawsuits, and by a sinister new computer virus.

The new case, Viner v. Sweet (Cal. Ct.App. 2d Dist., 9/28/01) B 138 149, is a troubling transactional legal malpractice decision with enormous implications. The court rejected the "case within a case" analysis often used to establish causation in legal malpractice cases dealing with litigation situations. "[I]t would introduce unprecedented layers of pure speculation and conjecture into the trial of the malpractice action." The court characterized the requirement of the plaintiff proving that they could have gotten a "better deal" as being "speculative." It maintained that it is impossible to prove that requirement in a business transaction, be-cause the negotiation of terms is fluid, with continual give and take.  Therefore, you cannot reconstruct all of the deal points, since they are endlessly adjusted or traded.

Causation is totally abandoned. Inquiring minds want to know what is substituted for this prima facie element of any tort claim in Anglo-American law. Answer: The testimony of the plaintiff's paid expert, who calculated the damages based on the contractual provisions that the plaintiffs contend that they should have had. That is the only "evidence" of causation in the opinion and was the sole basis of the jury's verdict. Other evidence may have existed, but it is not part of the reported decision.

If expert opinion is a sufficient substitute for causation, then it might be argued that the court labeling as "speculative" over historic causation methods is a bit disingenuous. Hind-sight is wonderful to prove that any particular "deal point" would have been beneficial or detrimental. If the deal goes south, it would seem that clients can sue their lawyers by hiring an expert who can say what would have happened if the client had been successful. Therefore, lawyers will become the guarantors of the deal, because they will have the only coverage available.

In Viner, the lawyer allegedly misled the clients regarding the actual content of the contract. Misrepresen-tation to a client is simple, uncomplicated fraud. That presented a clear and reliable method to impose liability, as opposed to the court's analysis. Fraud presented a tenable doctrinal approach to justify liability. This "less structured approach to causation and damages" was endorsed by the court. It is beyond being "less structured" and relaxes any quantifiable causation requirement entirely.

Then, in addition, along comes W32magistr, a sinister computer virus that targets those who use terms such as "affirmed," "sentences you," "ordered to prison," "sufficiency of evidence," "habeas corpus," etc. Gosh, I wonder who that could be?  Then, after deleting every 25th file, it overwrites "youares---." A malicious timed payload then e-mails (asexual reproduction) many of your soon-to- be former friends. Further, it has monthly surprises, eventually causing your computer icons to run from your mouse (only on odd days of the month), and includes a message: "You think you are God but. . . ." You can find it at @symantic.com with removal instructions.