Malpractice

1. Given the existence of malpractice liability, is there any reason to have disciplinary punishment for violation of a duty of competence?

2. Let's say that a lawyer botched some litigation by failing to call a crucial witness. When he subsequently is sued for malpractice, the lawyer can show that the client did not suffer any damages that were proximately caused by the lawyer's breach of duty by showing that the client would have lost anyway. Can the client introduce as evidence that he had a meritorious case the lawyer's own statements in the earlier litigation that the case had merit?

3. Let's say that a lawyer breaches his duty of care to his client by failing to communicate a settlement offer. Must the client show that he would have won at trial in order to show that he suffered damages from this breach of duty?

4. If a criminal defendant has a legal right to be acquitted on a "technicality" (for example, because the evidence against him was obtained in violation of the Fourth Amendment), shouldn't he be allowed to get damages if a lawyer negligently fails to assert the technicality at trial? What about failing to assert the defense of double jeopardy?

5. A lawyer advertises that he can draft a simple will for a set fee.  In drafting a client’s will he realizes that there may be some tax-saving devises that the client could use, but the lawyer is not familiar enough with the tax laws to use them.  May the lawyer ignore these tax-saving devises on the ground that the client contracted for limited representation?

6. How might the inability of the lawyer and client to contract around the lawyer’s duty to provide competent services harm clients in the end?  How might it work to the advantage of lawyers?