Can a lawyer&#39;s pattern of &quot;own goals&quot; constitute malpractice? An &quot;own goal&quot; in soccer constitutes kicking the ball into your team's own goal, to the benefit of the opposition. If your lawyer repeatedly makes mistakes or other actions that tend to benefit the other side (this was not a one time thing), even if it stemmed from incompetence, could that constitute malpractice, or some related charge such as breach of fiduciary duty? How would this change if your lawyer accepted work from the other party shortly after he concluded your case to your detriment? And suppose &quot;discovery&quot; showed that on at least one occasion, the lawyer represented a small company, A, against a much larger company, B, and then a year later helped B take over A?
If your lawyer repeatedly makes mistakes or other actions that tend to benefit the other side (this was not a one time thing), even if it stemmed from incompetence, could that constitute malpractice, or some related charge such as breach of fiduciary duty? Incompetence is the principal reason for a malpractice lawsuit, which is a subset of the ubiquitous ground for tort lawsuits which is &quot;negligence&quot;, although mere carelessness is also often a ground for a malpractice lawsuit. For example, in one professional malpractice lawsuit I am aware of, a lawyer failed to have a mortgage securing a debt owed to his client recorded in the real property records as required for it to be effective against third-parties, and so the client lost the benefit of the mortgage, even though this was merely the kind of carelessness an otherwise competent lawyer could commit. Of course, often carelessness reflects incompetence in the form of failure to competently put in place good systems to guard against careless mistakes. The legal standard is that the attorney failed to act with the reasonable care of an attorney in a manner that caused harm to the client. This breach of a standard of care is usually established and opposed with expert testimony from an another attorney regarding what a reasonable attorney would have done. A single act of negligence is sufficient (and indeed, usually easier to prove than a series of missteps in most cases). Breaches of fiduciary duty typically involve breaches of a duty of loyalty (including conflicts of interest that don't involve otherwise negligent work product), misappropriation of client funds, or unauthorized disclosures of client secrets that are damaging outside the context of litigation simply by virtue of the emotional harm associated with their disclosure. Generally speaking, incompetence can only be pursued in an action for professional negligence and not in an action for breach of fiduciary duty. Sometimes forfeiture of fees paid, or fees owed, is a remedy for breach of fiduciary duty even in the absence of other evidence of damages caused by the breach of a fiduciary duty. How would this change if your lawyer accepted work from the other party shortly after he concluded your case to your detriment? And suppose &quot;discovery&quot; showed that on at least one occasion, the lawyer represented a small company, A, against a much larger company, B, and then a year later helped B take over A? In the U.S. this is governed by Rule of Professional Conduct 1.9 governing duties to a former client. Rules of professional conduct have the same numbering system and are variants on the same American Bar Association set of Model Rules in every U.S. jurisdiction, although there are minor, but important, differences in wording between them. Generally speaking the rule is that a lawyer can't represent a new client against a former client if it is in a matter in which the former client was previously represented, or in a matter in which the new client gains some advantage from the confidences shared by the former client in the representation of the new client. Often, the former client would move to disqualify the attorney from representing the new client in the case in question once learning of the representation.
As a lawsuit, it doesn't make sense in U.S. law unless you have suffered significant injuries. Your damages are likely to be, at most, nominal ($1) if you discovered it before you were hurt, so you'd only lose the money spent replacing the jar of peanut butter with a non-defective one and the nominal $1 damages. You would not generally have a right to any of your attorneys' fees and personal time spent on a lawsuit like that which would likely cost tens or hundreds of thousands of dollars on an hourly basis (no attorney would take a case like that on a contingency basis), and would take hundreds of hours of your own personal time.
The already existing rule 11 penalizes baseless litigation. The modifications in this bill makes sanctions obligatory rather than optional, removes escapes for what would be sanctionable actions, and expands the range of sanctions. The clause in question strikes me as redundant, because existing rule 11(b)(2) says of the action that (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; Without either of these clauses, sanctions could be imposed on a bright guy who comes up with a new legal argument that actually works, which I think is clearly contrary to the intent of the original rule. Such a clause is a way of telling the courts "No, that is not the legislative intent". But the existing rule already covers that outcome. It may be that the added sanction "striking the pleadings, dismissing the suit, or other directives of a non-monetary nature..." was thought to potentially threaten "creative lawyering", but again that seems to be already covered by 11(b)(2). The words "assertion or development of new claims, defenses, or remedies under Federal, State, or local laws, including civil rights laws, or under the Constitution of the United States" differ from "nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law", but they seem to describe the same kind of facts. Perhaps a historical reading of the various versions since 1983, especially related to the advisory committee notes, would reveal more precisely why this is necessary.
The question of whether a person was acting on their own behalf or that of a company would generally be a question of fact, so if such a case came to court it would be for both sides to present evidence and argue for their interpretation of it. In most cases the context makes it clear. You mention having a company email domain and associated email signature; that is certainly good practice and would go a long way towards creating a presumption that you were acting for a company. Also signing yourself with your job title or role (e.g. "Joe Bloggs, Chief Bottlewasher") makes it clear that you are speaking in your role as an employee. The content of the communication also matters; if you use your company email address to order goods from a supplier that the company has used before then the recipient can reasonably assume that you are ordering on behalf of the company and a court is likely to agree. OTOH if you use the company address to send libellous emails then the recipient would have a much higher bar to claim that this was the company view rather than a personal one.
Is there any type of California labor law that would allow for him to ask for compensation for lost wages? Your family member might have a claim of [intentional?] misrepresentation. Simply put, it is unjustifiable for a well-known transportation company to misrepresent for too long the requirements its drivers must satisfy. Assessment of other legal theories such as breach of contract or promissory estoppel requires a detailed knowledge of the interactions and terms between the parties. Freeman &amp; Mills, Inc. v. Belcher Oil Co., 11 Cal.4th 85, 107 (1995) points out that &quot;courts will generally enforce the breach of a contractual promise through contract law, except when the actions that constitute the breach violate a social policy that merits the imposition of tort remedies&quot;. Misleading and belatedly avoiding a hiree who relied on the company's conduct contravenes public policy because of the ensuing disruptions and uncertainty the company could and should have avoided. Accordingly, see Robinson Helicopter Co., Inc. .v Dana Corp., 22 Call Rptr. 352, 361 (2004) (&quot;[A] plaintiff advances the public interest in punishing intentional misrepresentations and in deterring such misrepresentations in the future.&quot;). Generally speaking, the doctrine known as economic loss rule bars claims of negligent misrepresentation involving no property damage or personal injury. That is in order to preempt a party from sidestepping contract law. However, the extent of the company's conduct as you describe it might forfeit the protections embodied in the doctrine of at-will employment.
In General Generally speaking, applying common law principles, no. In the case of a relative or friend or neighbor or someone like that, doing a favor for a business does not create a legally enforceable right against a business or business owner. Contract Claims The question assumes that there is not true express contract, or even really a contract to pay compensation in some amount or by reference to some schedule of rates, that was implied in fact. Unjust Enrichment Claims One can still recover for service or benefit rendered under a claim of &quot;unjust enrichment&quot; in the absence of a contract. But, in contexts applicable here (also called &quot;quantum meruit&quot;) there must be an expectation of payment communicated in a way clear to an objective observer of the situation to recover, as opposed to a gratuitous provision of service. One classic case of unjust enrichment is when someone paints your house by accident, when they are actually under contract to paint your next door neighbor's house, and you know that they made the mistake but allow them to go forward expecting to be paid anyway. Another classic case is one where services must be provided by a doctor or repairman or lawyer on an emergency basis and everyone knows that they were hired with an intent that you pay them, but the price could not be agreed upon because it was urgent to do the work immediately before working out the details of a contract to provide services. In these circumstances, the service provider is entitled to payment of the fair value of the services provided despite the lack of an express agreement regarding the amount. In this example, however, there is not a clear expectation of payment that an objective outside observer would have been able to discern at that time the services were provided, so by default, the help provided was gratuitous, and not enforceable legally. Special Considerations For Spouses This general analysis also applies to a spouse, but not quite so strictly. While the spouse couldn't sue for compensation or having a legally enforceable right to compensation, the extent of the help provided would be one factor among many that could be considered in determining an equitable division of property (in states that are not community property states) and an appropriate and equitable amount of alimony in states that do not have a fixed formula for determining this amount. De minimis assistance would &quot;come with the territory&quot; and be part of a spouse's general right to an equitable division of property under a partnership theory of marriage. But, more extreme labors not compensated in money during the marriage, such as personally building a barn on a farm, or working full time in a spouse's business for a prolonged time period without express money compensation, might have a value assigned to it that is considered in balancing each side's share in an equitable division, if one spouse is reaping the benefit of the other spouse's unpaid labor by receiving, for example, a working farm or business. Similarly, in a fraudulent transfer case, it is possible that a payment to a spouse for extreme labors in the past of this kind would have a status similar to a payment for a pre-existing and not substantially contemporaneous debt. A spouse would be an insider. But, the transfer for no contemporaneous consideration might be considered safe from a fraudulent transfer attack after one year rather than the usual four year statute of limitations on fraudulent transfers. Concluding Observation: Questions Of Proof. Of course, all of this would be based when litigated on oral discussions and context limited by people's memories. This might make proof of a claim like this on the merits hard to win on at trial. But, it also makes disproving a claim prior to trial, when what happened is disputed, difficult. Caveat For Intellectual Property Claims I do not address the issue raised by a comment of designing a logo which raises legal issues specific to who owns intellectual property. Sometimes the person who comes up with an idea is the default owner of the intellectual property rights associated with that idea, unless there is a written agreement to the contrary. This default rule usually applies even if the intellectual property was created with the intent that it be used by someone else.
A non-lawyer can bring torts committed against them in their own name as pro se parties in their own name. They cannot sue for torts committed against others including entities in which they are officers, or persons for whom they are guardians, nor can they represent someone else in their efforts to do so. A handbook written for California judges does not anywhere suggest a greater limitation than that. Neither does a guide for pro se parties in federal courts in California (see also here). Labor law and civil rights claims are routinely filed pro se in California's federal courts. California's state courts have standard court forms for pro se parties to use in state court to sue for torts like personal injury and fraud. The comment that: &quot;[L]ay people can't prosecute [torts] in California&quot;, appears to be not literally true. Either the implied meaning was that they cannot prosecute torts committed against someone other than themselves, or the comment was mistaken. It is also possible that the person making the comment meant that it was not as a practical matter possible to be successful in doing so because it is so difficult. There may be a limited exception for law students in a legal clinic working under the supervision of a law school professor.
The solicitor is allowed not to accept a case. If your ex-wife asked him to prepare papers, and he feels that she is getting ripped off, it is absolutely understandable that he won't prepare these papers for her, because he doesn't want to be sued or badmouthed when the deal goes wrong. "We would also reserve the right to take our own professional advice as to our efforts on your behalf." means simply he is not specialised in some subject, and will prefer to ask someone who is. Like a medical doctor asking for a second opinion before going ahead and cutting your leg off. Now I would have preferred if the solicitor had said concretely what exactly is wrong with the contract. Also, it would be obvious that you would be very comfortable with anything that he would advice her against. If he thinks that it is a good deal for you but not for her, he should advice against it. (Your comment to another question seems to indicate that she should be paid a lot more than you offered, so her solicitor seems to have been perfectly right).