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34 Tax Executive 259 (1981-1982)
Legal Malpractice of the Tax Attorney

handle is hein.journals/taxexe34 and id is 269 raw text is: FEDERAL

Legal Malpractice of
the Tax Attorney
By SHARON BURRELL*

INTRODUCTION
In recent years the number of legal
malpractice claims has sharply risen 1
until now lawyers are sued more than
any professionals except doctors.2 For
reasons which will be further developed
in this article, tax attorneys run a high
risk of having legal malpractice ac-
tions brought against them. Thus it is
important for the tax attorney to be
fully aware of the principles, causes,
and precautions of legal malpractice.
This article will discuss the tax attor-
ney's potential liability to his client, to
third parties, and to the Internal Reve-
nue Service and offer suggestions on
how to avoid it. In order to understand
the tax attorney's potential liability,
however, it is first necessary to under-
stand the basic doctrine of legal mal-
practice. Accordingly, this article is
divided into three parts. The first part
discusses legal malpractice generally;
the second part discusses the tax at-
torney's potential malpractice actions
brought by a client or third party; and
* Student at Harvard Law School.

the third part discusses the tax attor-
ney's liability to the Internal Revenue
Service.
I. LEGAL MALPRACTICE:
A GENERAL OVERVIEW
A. Definition
Legal malpractice consists of [the]
failure of an attorney to use such skill,
prudence, and diligence as lawyers of
ordinary skill and capacity commonly
possess and exercise in performance of
tasks which they undertake. 3
A legal malpractice action may be
brought by a client against an attorney
for negligence, breach of express or
implied contract, breach of fiduciary
duty, or fraud.4 In any legal malprac-
tice action, however, the client has the
burden of proving that a duty existed,
that this duty was breached by the at-
torney, and that the breach of duty
caused damage.5 The duty that the
attorney owes his client is defined by
law and by agreement between the
parties .6

THE TAX EXECUTIVE July 1982  259

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