Gale Encyclopedia Of American Law 3Rd Edition Volume 6 P46 ppt

The criminal defendant or civil respondent in a baseless and malicious case may later file this claim in civil court against the parties who took an active role in initiating or encourag

Elijah Muhammad took a somewhat less rash approach and favored a general nonengagement policy in place of more confrontational tactics

Malcolm’s increasing popularity—as well as his caustic public remarks—began to create tension between him and Elijah Muhammad Malcolm became frustrated at having to restrain his comments

When PresidentJOHN F.KENNEDYwas assas-sinated on November 22, 1963, Malcolm exclaimed that Kennedy “never foresaw that the chickens would come home to roost so soon.” Malcolm later regretted his comment and explained that he meant that the govern-ment’s involvement in and tolerance of violence against African Americans and others had created an atmosphere that contributed to the death of the president Nevertheless, his com-ments and his increasing public notoriety prompted Elijah Muhammad to“silence” Mal-colm and suspend him as a minister on December 1, 1963 Members of the Nation of Islam were instructed not to speak to him

However, by 1963 Malcolm had become disillusioned by the Nation of Islam,

particular-ly with rumors that Elijah Muhammad had been unfaithful to his wife and had fathered several illegitimate children On March 8, 1964—while still under suspension from the Nation of Islam—Malcolm formally announced his separation from the organization He soon announced the creation of his own organiza-tion, Moslem Mosque, Incorporated (MMI), which would be based in New York MMI, Malcolm stated, would be a broad-based black nationalist organization intended to advance the spiritual, economic, and political interests of African Americans On March 26, Malcolm met for the first and only time with Martin Luther King, in Washington, D.C King at the time was scheduled to testify on the pendingCIVIL RIGHTS ACT OF1964

In April 1964 Malcolm made a spiritual pilgrimage to Mecca, the holy site of Islam and the birthplace of the prophet Muhammad He was profoundly moved by the pilgrimage, and said later that it was the start of a radical alteration in his outlook about race relations

Upon his return to the United States, Malcolm began to use the name El-Hajj Malik El-Shabazz Al-Sabann He also exhibited a profound shift in political and social thinking

Whereas in the past he had advocated against

cooperation with other civil rights leaders and organizations, his new philosophy was to work with existing organizations and individuals, including whites, so long as they were sincere

in their efforts to secure basic civil rights and freedoms for African Americans In June 1964

he founded the secular Organization of Afro-American Unity (OAAU), which espoused a pan-Africanist approach to basicHUMAN RIGHTS, particularly the rights of African Americans He traveled and spoke extensively in Africa to gain support for his pan-Africanist views He pledged to bring the condition of African Americans before the General Assembly of the

UNITED NATIONS and thereby “internationalize” the civil rights movement in the United States

He further pledged to do whatever was neces-sary to bring the black struggle from the level of civil rights to the level of human rights When

he advocated for the right of African Americans

to use arms to defend themselves against violence, he not only laid the groundwork for

a subsequent growth of the BLACK POWER MOVEMENT, but also led many U.S citizens to believe that he advocated violence However, in his autobiography, Malcolm said that he was not advocating wanton violence but calling for the right of individuals to use arms in SELF

-DEFENSE when the law failed to protect them from violent assaults

In 1965 Malcolm’s increasing public criti-cism of Elijah Muhammad and the Nation of Islam prompted anonymous threats against his life In his attempts to forge relationships with established civil rights organizations such as the

STUDENT NON-VIOLENT COORDINATING COMMITTEE, Malcolm was criticized severely in the Nation of Islam’s official publications In a December

1964 article in Muhammad Speaks—the official newspaper of the Nation of Islam—Louis X (now known as Louis Farrakhan) said,“[S]uch a man as Malcolm is worthy of death, and would have met with death if it had not been for Muhammad’s confidence in Allah for victory over the enemies.”

On February 14, 1965, Malcolm’s home in Queens, New York—which was still owned by the Nation of Islam—was firebombed while he and his family were asleep Malcolm attributed the bombing to Nation of Islam supporters but

no one was ever charged with the crime One week later, when Malcolm stepped to the podium at the Audubon Ballroom in New York

to present a speech on behalf of the OAAU, he

WE ARE NOT

FIGHTING FOR

INTEGRATION,NOR

ARE WE FIGHTING FOR

SEPARATION WE

ARE FIGHTING FOR

RECOGNITION AS

HUMAN BEINGS

WE ARE FIGHTING

FOR HUMAN

RIGHTS

—M ALCOLM X

438 MALCOLM X

was assassinated The gunmen, later identified

as former or current members of the Nation

of Islam, were convicted and sentenced to life

imprisonment in April 1966

Malcolm left a complex political and social

legacy Although he was primarily a black

nationalist in perspective, his changing

philoso-phy and politics toward the end of his life

demonstrate the unfinished development of an

influential figure Although some people point

to his identification with the Nation of Islam

and dismiss him as a racial extremist and

anti-Semite, his later thinking reveals profound

changes in his perspective and a more universal

understanding of the problems of African

Americans In his eulogy of Malcolm, the U.S

actor Ossie Davis said,

However we may have differed with him—or

with each other about him and his value as a

man—let his going from us serve only to

bring us together, now Consigning these

mortal remains to earth, the common

mother of all, secure in the knowledge that

what we place in the ground is no more now

a man—but a seed—which, after the winter

of our discontent, will come forth again to

meet us

FURTHER READINGS

Benson, Michael 2004 Malcolm X Minneapolis, MN:

Lerner.

Carson, Clayborne 1995 Malcolm X: The FBI File New

York: Ballantine.

Estell, Kenneth 1994 African America: Portrait of a People.

Canton, MI: Visible Ink.

Malcolm X 1987 The Autobiography of Malcolm X: As Told

to Alex Haley New York: Ballantine Books.

“Malcolm X Scores U.S and Kennedy.” The New York Times

(December 2, 1963).

Myers, Walter 1994 Malcolm X: By Any Means Necessary.

New York: Scholastic.

Natambu, Kofi 2002 The Life and Work of Malcolm X.

Indianapolis, IN: Alpha.

MALFEASANCE

The commission of an act that is unequivocally

illegal or completely wrongful

Malfeasance is a comprehensive term used

in both civil and CRIMINAL LAW to describe any

act that is wrongful It is not a distinct crime or

TORT, but may be used generally to describe any

act that is criminal or that is wrongful and gives

rise to, or somehow contributes to, the injury of

another person

Malfeasance is an affirmative act that is

illegal or wrongful In tort law it is distinct from

misfeasance, which is an act that is not illegal but is improperly performed It is also distinct fromNONFEASANCE, which is a failure to act that results in injury

The distinctions between malfeasance, mis-feasance, and nonfeasance have little effect on tort law Whether a claim of injury is for one or the other, the plaintiff must prove that the defendant owed a duty of care, that the duty was breached in some way, and that the breach caused injury to the plaintiff

One exception is that under the law ofSTRICT LIABILITY, the plaintiff need not show the absence

of due care The law of strict liability usually is applied to PRODUCT LIABILITY cases, where a manufacturer can be held liable for harm done

by a product that was harmful when it was placed on the market In such cases the plaintiff need not show any actual malfeasance on the part of the manufacturer A mistake is enough

to create liability because the law implies that for the sake of public safety, a manufacturer warrants a product’s safety when it offers the product for sale

MALICE The intentional commission of a wrongful act, absent justification, with the intent to cause harm

to others; conscious violation of the law that injures another individual; a mental state indicat-ing a disposition in disregard of social duty and a tendency toward malfeasance

In its legal application, the term malice is comprehensive and applies to any legal act that

is committed intentionally withoutJUST CAUSEor

The actions of Los Angeles residents who rioted and looted in the wake of the 1992 Rodney King trial verdict represented malfeasance, a breach

of the duty of care.

AP IMAGES MALICE 439

excuse It does not necessarily imply personal hatred or ill feelings, but rather, it focuses on the mental state that is in reckless disregard of the law in general and of the legal rights of others An example of a malicious act would be committing the TORT of slander by labeling a nondrinker an alcoholic in front of his or her employees

When applied to the crime of murder, malice is the mental condition that motivates one individual to take the life of another individual without just cause or provocation

In the context of theFIRST AMENDMENT, public officials and public figures must satisfy a standard that proves actual malice in order to recover for LIBEL or slander The standard is based upon the seminal case ofNEW YORK TIMES

V.SULLIVAN, 376 U.S 254, 84 S Ct 710, 11 L Ed

2d 686 (1964), where the Supreme Court held that public officials and public figures cannot be awarded damages unless they prove that the person accused of making the false statement did so with knowledge that the statement was false or with reckless disregard as to the truth or falsity of the statement Demonstrating malice

in this context does not require the plaintiff to show that the person uttering the statement showed ill will or hatred toward the public official or public figure

MALICE AFORETHOUGHT

A predetermination to commit an act without legal justification or excuse A malicious design to injure An intent, at the time of a killing, willfully

to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life; but malice aforethought does not necessarily imply any ill will, spite or hatred towards the individual killed

MALICIOUS Involving malice; characterized by wicked or mischievous motives or intentions

An act done maliciously is one that is wrongful and performed willfully or inten-tionally, and without legal justification

MALICIOUS MISCHIEF Willful destruction of PERSONAL PROPERTY of another, from actual ill will or resentment towards its owner or possessor Though only aTRESPASSat

theCOMMON LAW, it is now a misdemeanor in most states

MALICIOUS PROSECUTION

An action for damages brought by one against whom a civil suit or criminal proceeding has been unsuccessfully commenced withoutPROBABLE CAUSEand for a purpose other than that of bringing the alleged offender to justice

An action for malicious prosecution is the remedy for baseless and malicious litigation It

is not limited to criminal prosecutions but may be brought in response to any baseless and malicious litigation or prosecution, whether criminal or civil The criminal defendant or civil respondent in a baseless and malicious case may later file this claim in civil court against the parties who took an active role in initiating or encouraging the original case The defendant in the initial case becomes the plaintiff in the malicious prosecution suit, and the plaintiff or prosecutor in the original case becomes the defendant In most states the claim must be filed within a year after the end of the original case

A claim of malicious prosecution is a tort action A TORT action is filed in civil court to recover money damages for certain harm suffered The plaintiff in a malicious prosecu-tion suit seeks to win money from the respondent as recompense for the various costs associated with having to defend against the baseless and vexatious case

The public policy that supports the action for malicious prosecution is the discouragement

of VEXATIOUS LITIGATION This policy must compete against one that favors the freedom

of law enforcement officers, judicial officers, and private citizens to participate and assist in the administration of justice

In most jurisdictions an action for malicious prosecution is governed by the COMMON LAW This means that the authority to bring the action lies in case law from the courts, not statutes from the legislature Most legislatures maintain some statutes that give certain persons

IMMUNITYfrom malicious prosecution for certain acts In Colorado, for example, a merchant, a merchant’s employee, or a police officer, who reasonably suspects that a theft has occurred, may detain and question the suspect without fear of liability for slander, false arrest, FALSE IMPRISONMENT, unlawful detention, or malicious

440 MALICE AFORETHOUGHT

prosecution (Colo Rev Stat Ann § 18-4-407

[West 1996])

An action for malicious prosecution is

distinct from an action for false arrest or false

imprisonment If a person is arrested by a police

officer who lacks legal authority for the arrest,

the proper remedy is an action for false arrest

If a person is confined against her or his will,

the proper remedy is an action for false

imprisonment An action for malicious

prose-cution is appropriate only when the judicial

system has been misused

Elements of Proof

To win a suit for malicious prosecution, the

plaintiff must prove four elements: (1) that

the original case was terminated in favor of the

plaintiff, (2) that the defendant played an active

role in the original case, (3) that the defendant

did not have probable cause or reasonable

grounds to support the original case, and (4) that

the defendant initiated or continued the initial

case with an improper purpose Each of these

elements presents a challenge to the plaintiff

The Original Case Was Terminated in Favor

of the Plaintiff The original case must end

before the defendant or respondent in that case

may file a malicious prosecution suit This

requirement is relatively easy to prove The

original case qualifies as a prosecution if the

defendant or respondent had to appear in court

The original case need not have gone to trial:

it is enough that the defendant or respondent

was forced to answer to a complaint in court If

the original case is being appealed, it is not

considered terminated, and the defendant or

respondent must wait to file a malicious

pro-secution suit

To proceed with a malicious prosecution

claim, the plaintiff must show that the original

case was concluded in her or his favor Generally,

if the original case was a criminal prosecution, it

must have been dismissed by the court, rejected

by theGRAND JURY, abandoned by the prosecutor,

or decided in favor of the accused at trial or on

appeal If the original case was a civil suit, the

respondent must have won at trial or the trial

court must have disposed of the case in favor

of the respondent (now the plaintiff)

If recovery by the plaintiff in a civil action

was later reversed on appeal, this does not mean

that the action was terminated in favor of the

respondent However, if the plaintiff in the

original case won by submitting fabricated evidence or by other fraudulent activity, a reversal

on such grounds may be deemed a termination

in favor of the respondent A settlement between the plaintiff and the respondent in a civil suit is not a termination in favor of the respondent

Likewise, courts do not consider a plea bargain

in a criminal case to be a termination in favor

of the defendant

The Defendant Played an Active Role in the Original Case In a malicious prosecution suit, the plaintiff must prove that the defendant played an active role in procuring or continuing the original case The plaintiff must prove that the defendant did more than simply participate

in the original case False testimony alone, for example, does not constitute malicious prose-cution Moreover, witnesses are immune from suit forDEFAMATION, even if they lie on the witness stand Such is the case because the concept of a fair and free trial requires that witnesses testify without fear of having to defend a defamation suit owing to their testimony

An action for malicious prosecution focuses

on the abuse of legal process, not on defama-tory, untruthful statements If a person helps another person launch a baseless case or takes action to direct or aid such a case, the first person may be held liable for malicious prosecution

The defendant must have been responsible in some way for the institution or continuation of the baseless case This position of responsibility does not always include criminal prosecutors and civil plaintiffs For example, if a prosecutor bringing criminal charges is tricked into prose-cuting the case by an untruthful third party, the deceiving party is the one who may be found liable for malicious prosecution, not the prosecutor

The Defendant Did Not Have Probable Cause to Support the Original Case The plaintiff must prove that the person who began

or continued the original case did not have probable cause to do so Generally, this means proving that the person did not have a reason-able belief in the plaintiff’s guilt or liability In examining this element, a court will look at several factors, including the reliability of all sources, the availability of information, the effort required to obtain information, opportunities given to the accused to offer an explanation, the reputation of the accused, and the necessity

in the original case for speedy judicial action

MALICIOUS PROSECUTION 441

A failure to fully investigate the facts surrounding a case may be sufficient to prove

a lack of probable cause The termination of the original case in favor of the original defendant (now the plaintiff) may help to prove a lack of probable cause, but it may not be decisive on the issue The plaintiff should present enough facts to allow a reasonable person to infer that the defendant acted without a reasonable belief

in the plaintiff’s guilt or liability in beginning

or continuing the original case

In a criminal case, an acquittal does not constitute a lack of probable cause A criminal defendant stands a better chance of proving lack

of probable cause if the original case was dismissed by prosecutors, a grand jury, or the court before the case went to trial The criminal process provides several safeguards against pro-secutions that lack probable cause, so a full criminal trial tends to show the presence of probable cause Civil cases do not have the same safeguards, so a full civil trial does not tend to prove probable cause

The Defendant Initiated or Continued the Original Case with an Improper Purpose In

a malicious prosecution, the plaintiff must prove with specific facts that the defendant instituted or continued the original proceeding with an improper purpose Sheer ill will con-stitutes an improper purpose, and it may be proved with facts that show that the defendant resented the plaintiff or wanted somehow to harm the plaintiff However, the plaintiff does not have to prove that the defendant felt personal malice or hostility toward the plaintiff Rather, the plaintiff need only show that the defendant was motivated by something other than the purpose of bringing the plaintiff to justice

Few defendants admit to improper pur-poses, so improper purpose usually must be inferred from facts and circumstances If the plaintiff cannot discover any apparent purpose, improper purpose can be inferred from the lack

of probable cause

Hodges v Gibson Products Co Hodges v

Gibson Products Co., 811 P.2d 151 (Utah 1991), contained all the elements of a malicious prosecution According to Chad Crosgrove, the manager of Gibson Discount Center in West Valley, Utah, store money was noticed missing during the afternoon of September 4, 1981

Both Crosgrove and part-time bookkeeper Shauna Hodges had access to the money, and

both denied taking it On September 9 Cros-grove and Gibson officials went to the local police station, where they lodged an accusation

of theft against Hodges Crosgrove was not accused Hodges was arrested, handcuffed, and taken to jail After a PRELIMINARY HEARING, she was released on bail and ordered to return for trial on May 12, 1982

After Hodges was formally charged, an internal audit at Gibson revealed that Crosgrove had embezzled approximately $9,000 in cash and goods from the store The thefts had occurred over a time period that included September 4, 1981 Gibson still did not charge Crosgrove with theft Instead, it allowed him to resign with a promise to repay the money The night before Hodges’s trial was to begin, and almost two months after Crosgrove’s

EMBEZZLEMENT was discovered, management at Gibson notified Hodges’s prosecutor of Cros-grove’s activities The prosecutor immediately dropped the charges against Hodges Hodges then filed a suit for malicious prosecution against Gibson and against Crosgrove

At trial Hodges was able to prove all the elements of malicious prosecution to the jury’s satisfaction: (1) She had been subjected to prosecution for theft, and the matter had been terminated in her favor (2) She had sued the correct parties, because Gibson and Crosgrove were responsible for instituting the original proceedings against her (3) She had ample evidence that the original prosecution was instituted without probable cause because Gibson failed to investigate Crosgrove until after she had been arrested and because the prosecutor dismissed the charges against her (4) Finally, there were enough facts for the jury

to infer that both Gibson and Crosgrove had acted with improper motive: Gibson had acted with an apparent bias against Hodges, and Crosgrove apparently had accused Hodges for self-preservation The jury awarded Hodges a total of $88,000 in damages: $77,000 from Gibson and $11,000 from Crosgrove The verdict was upheld on appeal

Damages

The plaintiff in an action for malicious pro-secution can recover money from the defendant for certain harms suffered Typical injuries include loss of reputation and credit, humilia-tion, and mental suffering If the original action

442 MALICIOUS PROSECUTION

was a criminal case, additional harms often

include discomfort, injury to health, loss of time,

and deprivation of society with family

If the plaintiff suffered an economic loss

directly related to the original action, the plaintiff

can also recover the amount lost This amount

includes attorneys’ fees and court costs incurred

by the plaintiff in defending the original case

Finally, the plaintiff may recover PUNITIVE

DAMAGES Punitive damages are imposed by

judges and juries to punish misconduct by a

party Because an action for malicious

prosecu-tion requires proof of improper intent on the

part of the defendant, punitive damages

com-monly are awarded to malicious prosecution

plaintiffs who win damages awards

Other Considerations

Actions for malicious prosecution must

com-pete against the public interest in allowing

parties to pursue cases unfettered by the specter

of a retaliatory case Very few civil or criminal

cases result in an action for malicious

prose-cution This is because it is difficult to prove

that the defendant procured or continued the

original case without probable cause and with

an improper purpose

Another difficulty for the plaintiff in an

action for malicious prosecution is immunity

Generally, the law protects witnesses, police

officers, judges, prosecutors, and lawyers from

suit for malicious prosecution Witnesses are

given immunity because justice requires that they

testify without fear of reprisals Law enforcement

and judicial officers are given immunity because

they must be free to perform their duties

without continually defending against malicious

prosecution cases

There are exceptions, however If a law

enforcement or judicial official ventures outside

the bounds of official duties to instigate or

continue a malicious prosecution, the official

may be vulnerable to a malicious prosecution

suit For example, a prosecutor who solicits

fabricated testimony to present to a grand jury

may be sued for malicious prosecution The

prosecutor would receive only limited

immuni-ty in this instance because the solicitation of

evidence is an administrative function, not a

prosecutorial function (Buckley v Fitzsimmons,

509 U.S 259, 113 S Ct 2606, 125 L Ed 2d 209

[1993])

Private parties may also at times enjoy immunity from actions for malicious prosecu-tion For example, a person who complains to a disciplinary committee about an attorney may

be immune This general rule is followed by courts to avoid discouraging the reporting of complaints against attorneys

FURTHER READINGS American Law Institute Restatement (Second) of Torts, div 7,

ch 29, topic 2, §§659–661 1977 St Paul, MN:

American Law Institute.

Cooper, David R 1993 “Attorneys as Plaintiffs: Absolute Immunity for Ethics Complainants Bars Suit by Attorney for Malicious Prosecution [Jarvis v Drake, Kan 830 P.2d 23 (1992)] ” Washburn Law Journal 32.

Linscott, Steven, with Randall L Frame 1994 Maximum Security: The True Story of Steven Linscott Wheaton, IL:

Crossway.

Schillaci., Jacques L 2002 “Unexamined Premises: Toward Doctrinal Purity in Section 1983 Malicious Prosecution Doctrine ” Northwestern University Law Review 97 (fall).

Sherwood, Carlton 1991 Inquisition: The Persecution and Prosecution of the Reverend Sun Myung Moon Washing-ton, D.C.: Regnery.

Silver, Isidore 1989 Police Civil Liability: Law and Practice.

New York: Matthew Bender.

Toomey, Kate A 2002 “Practice Pointer: The Rule against Threatening Criminal Prosecution to Gain an Advantage

in a Civil Matter.” Utah Bar Journal 15 (December).

Available online at http://www.utahbar.org/barjour nal2000/html/december_2002_4.html; website home page: http://www.utahbar.org (August 12, 2009).

Weber, Christopher W 1994 “The Loss of Consortium-Malicious Prosecution Nexus: No Recovery for Loss of Spousal Consortium Absent Physical Injury and No Recovery for Malicious Prosecution beyond the Person Prosecuted: Browning Ferris Industries v Lieck, 881 S.W.2d 288 (Tex 1994) ” Texas Tech Law Review 26.

Zbytowski, Jennifer S 1995 “The Case against Section 1983 Immunity for Witnesses Who Conspire with a State Official to Present Perjured Testimony ” Michigan Law Review 93.

CROSS REFERENCES False Arrest; Malice; Probable Cause; Tort Law.

MALPRACTICE The breach by a member of a profession of either

a standard of care or a standard of conduct

Malpractice refers toNEGLIGENCEor miscon-duct by a professional person, such as a lawyer,

a doctor, a dentist, or an accountant The failure

to meet a standard of care or standard

of conduct that is recognized by a profession reaches the level of malpractice when a client

or patient is injured or damaged because of error

MALPRACTICE 443

After the 1970s the number of malpractice suits filed against professionals greatly in-creased Most malpractice suits involved doc-tors, especially surgeons and other specialists who performed medical procedures with a high degree of risk to their patients Large damage awards against doctors resulted in higher malpractice insurance costs Similarly, the increase of malpractice awards against lawyers led to higher insurance premiums and caused some insurance companies to stop writing malpractice policies altogether

The typical malpractice suit will allege the

TORT of negligence by the professional Negli-gence is conduct that falls below the legally established standard for the protection of others against unreasonable risk of harm Under negligence law a person must violate a reason-able standard of care Typically this has meant the customary or usual practice of members of the profession For example, if a surgeon leaves

a sponge or surgical tool inside a patient, the surgeon’s carelessness violates a basic standard

of care Likewise, if an attorney fails to file a lawsuit for a client within the time limits required by law, the attorney may be charged with negligence

Medical Malpractice

Among physicians, malpractice is any bad, unskilled, or negligent treatment that injures the patient The standard of care formerly was considered to be the customary practice of a particular area or locality Most states have modified the “locality rule” into an evaluation

of the standard of practice in the same or similar locality, combined with an examination

of the state of development of medical science at the time of the incident This modification has taken place as medicine has become increasingly uniform and national in scope A majority of states define the standard of conduct as that degree of skill and learning ordinarily possessed and used by other members of the profession

A doctor who has met the standard, as established byEXPERT TESTIMONY at trial, cannot generally be found negligent Some states have passed statutes that establish the standard of the profession as the test of whether particular treatment was negligent

Specialists within the medical field are generally held to standards of care that are higher than those for general practitioners In addition, a specialist or anyone undertaking to

perform procedures ordinarily done by a specialist will be held to the level of perfor-mance applied to that specialty, although the person may not actually be a certified specialist

in that field

A small number of states apply the “respect-able minority rule” in evaluating doctors’ conduct This rule exempts a physician from liability where he chooses to follow a technique used only by a small number of respected practitioners Courts, however, frequently have difficulty in determining what is a respectable minority of physicians or acceptable support for a particular technique

Some states use the “error in judgment rule.” This principle holds that a medical professional who otherwise subscribes to appli-cable professional standards should not be found to have committed malpractice merely because she committed an error in judgment in choosing among different therapeutic approaches

or in diagnosing a condition

Legal Malpractice

The four general areas of LEGAL MALPRACTICE

are negligent errors, negligence in the profes-sional relationship, fee disputes, and claims filed by an adversary or nonclient against a lawyer As in the medical field, lawyers must conform to standards of conduct recognized

by the profession

A lawyer has the duty, in all dealings and relations with a client, to act with honesty,GOOD FAITH, fairness, integrity, and fidelity A lawyer must possess the legal skill and knowledge that

is ordinarily possessed by members of the profession

Once the lawyer and the client terminate their relationship, a lawyer is not allowed to acquire an interest that is adverse to a client,

in the event that this might constitute a breach

of the ATTORNEY-CLIENT PRIVILEGE In addition, lawyer cannot use information that he or she obtained from a client as a result of their relationship For example, it would constitute unethical behavior for an attorney to first advise

a client to sell a piece of property so it would not be included in the client’s PROPERTY SETTLE-MENT upon DIVORCE and then to purchase the property from the client for half its market value Any dealings that a lawyer has with a client will be carefully examined Such dealings require fairness and honesty, and the lawyer

444 MALPRACTICE

must show that noUNDUE INFLUENCEwas exercised

and that the client received the same benefits

and advantages as if she had been dealing with

a stranger If the client had independent legal

advice about any transaction, that is usually

sufficient to meet the lawyer’s burden to prove

fairness

A lawyer also has the duty to provide a client

with a full, detailed, and accurate account of all

money and property handled for him or her

The client is entitled to receive anything that

the lawyer has acquired in violation of his duties

to the client

If a lawyer fails to promptly pay all funds to

his client, the lawyer may be required to pay

interest A lawyer is liable for fraud—except

when the client caused the attorney to commit

fraud—and is generally liable for any damages

resulting to the client by his negligence In

addition, a lawyer is responsible for the acts of

his associates, clerks, legal assistants, and

partners and may be liable for their acts if they

result in losses to the client

Negligent errors are most commonly

asso-ciated with legal malpractice This category is

based on the premise that an attorney has

committed an error that would have been

avoided by a competent attorney who exercises

a reasonable standard of care Lawyers who give

improper advice, improperly prepare

docu-ments, fail to file docudocu-ments, or make a faulty

analysis in examining the title to real estate may

be charged with malpractice by their clients A

legal malpractice action, however, is not likely

to succeed if the lawyer committed an error

because an issue of law was unsettled or

debatable

Many legal malpractice claims are filed

because of negligence in the professional

relationship The improper and unprofessional

handling of the attorney-client relationship

leads to negligence claims that are not based

on the actual services provided Lawyers who

fail to communicate with their clients about the

difficulties and realities of the particular claim

risk malpractice suits from dissatisfied clients

who believe that their lawyer was responsible

for losing the case

Another area of legal malpractice involves

fee disputes When attorneys sue clients for

attorneys’ fees, many clients assert malpractice

as a defense As a defense, it can reduce or

totally eliminate the lawyer’s recovery of fees

The frequency of these claims is declining, in part perhaps because attorneys are reluctant to sue to recover their fees

A final area of legal malpractice litigation concerns claims that do not involve a deficiency

in the quality of the lawyer’s legal services provided to the client, but an injury caused to a third party because of the lawyer’s representa-tion This category includes tort claims filed against an attorney alleging MALICIOUS PROSECU-TION,ABUSE OF PROCESS,DEFAMATION, infliction of emotional distress, and other theories based on the manner in which the attorney represented the client These suits rarely are successful except for malicious prosecution Third-party claims also arise from various statutes, such as

SECURITIES regulations, and motions for sanc-tions, such as under Federal Rule of Civil Procedure 11

Clergy Malpractice

A growing number of lawsuits against churches and clergy began to be filed in the 1980s, where plaintiffs sued churches as they might sue a corporation or a government agency Those lawsuits allegedCLERGY MALPRACTICE In them, the plaintiffs claimed that clergy members should

be legally held to a higher standard of conduct than ordinary citizens should, in the same way

as other professionals in positions of trust, such

as doctors or lawyers The majority of courts have ruled that standards of clergy conduct would violate the First Amendment’s separation

of church and state However, some courts have accepted narrower claims accusing individual clergy members of inflicting emotional distress

or breaching their fiduciary duty

In Nally vs Grace Community Church of the Valley, 763 P.2d 948 (Cal 1988), the California Supreme Court in 1988 rejected a lawsuit accusing the pastors of a Protestant church in Los Angeles of negligence for failing to prevent the 1979 suicide of a 24-year-old man who was

a church member The lawsuit, brought by his parents, argued that the pastors should have referred him to a professional counselor when they learned he had suicidal tendencies

In 2001 the Utah Supreme Court unani-mously upheld the dismissal of Franco v The Church of Jesus Christ of Latter-day Saitns, 21 P.3d 19 (Utah 2001) In that case, Lynette Franco sued theMORMON CHURCH for negligence for telling her to forgive and forget a 1986

MALPRACTICE 445

incident in which she claimed to have been the victim of child rape at the hands of another church member Lawyers for Franco had initially included an allegation of clergy mis-conduct in the lawsuit, but later dropped it, focusing instead on FRAUD, negligence and infliction of distress But the court rejected it nevertheless, ruling that setting a standard for clergy conduct would embroil the courts in establishing the training, skill and standards applicable for members of the clergy in this state

in a diversity of religions professing widely varying beliefs The justices, all Mormons, were unanimous in their ruling

FURTHER READINGS Mallen, Ronald E., and Jeffrey M Smith 2008 Legal Malpractice Eagan, MN: West.

Rosenblum, James 1993 Malpractice Solutions Coming to Doctor’s Knoxville, TN: Whittle Direct.

Taxman, Phil, and Jann Robbins 2009 Malpractice Wales, MA: PJ Books.

CROSS REFERENCES Attorney Misconduct; Ethics, Legal; Health Care Law;

Medical Malpractice; Physicians and Surgeons; Privileged Communication.

MAN-IN-THE-HOUSE RULE

A regulation that was formerly applied in certain jurisdictions that denied poor families WELFARE

payments in the event that a man resided under the same roof with them

Under the man-in-the-house rule, a child who otherwise qualified for welfare benefits was denied those benefits if the child’s mother was living with, or having relations with, any single

or married able-bodied male The man was considered a substitute father, even if the man was not supporting the child

Before 1968 administrative agencies in many states created and enforced the man-in-the-house rule In 1968 the U.S Supreme Court struck down the regulation as being contrary to the legislative goals of the Aid to Families of Dependent Children (AFDC) program The AFDC program, established by the Social Security Act of 1935 (49 Stat 620, as amended [42 U.S.C.A § 301 et seq.]), provides benefits to the children of impoverished parents

In King v Smith, 392 U.S 309, 88 S Ct

2128, 20 L Ed 2d 1118 (1968), the U.S

Supreme Court entertained a challenge to the man-in-the-house rule brought by the four

children of Mrs Sylvester Smith, a widow These children were denied benefits by Dallas County, Alabama, welfare authorities based on their knowledge that a man named Williams was visiting Smith on weekends and had sexual relations with her

The children of Smith filed aCLASS ACTIONsuit

in federal court on behalf of other children in Alabama who were denied benefits under Alabama’s “substitute father” regulation This regulation considered a man a substitute father if (1) he lived in the home with the mother; (2) he visited the home frequently for the purpose of living with the mother; or (3) he cohabited with the mother elsewhere (King, citing Alabama Manual for Administration of Public Assistance,

pt I, ch II, § VI) Testimony in the case revealed that there was some confusion among the authorities over how to interpret the regulation One official testified that the regulation applied only if the parties had sex at least once a week, another official testified that sex every three months was sufficient, and still another placed the frequency at once every six months According to the High Court, Congress did not intend that the AFDC program require children“to look for their food to a man who is not in the least obliged to support them.” The Court maintained that when Congress used the term parent in the SOCIAL SECURITY ACT, it was referring to“an individual who owed to the child

a state-imposed legal duty of support.”

Ultimate-ly, the Court struck down the man-in-the-house rule by holding that under the AFDC provisions

in the Social Security Act, “destitute children who are legally fatherless cannot be flatly denied federally funded assistance on the transparent fiction that they have a substitute father.”

MANAGED CARE Managed care is a general term that refers to health plans that attempt to control the cost and quality of care by coordinating medical and other health-related services

The U.S health care system has undergone major structural changes since the 1970s The traditional way of obtaining medical care has been for a patient to choose a doctor and then pay that doctor for the services provided This fee-for-service model, which has been

financial-ly rewarding for doctors, gives the patient the right to choose a physician But the fee-for-service model underwent a rapid decline in the

446 MAN-IN-THE-HOUSE RULE

1980s and 1990s as the concept of managed care

took hold in the health care industry

Managed care is a new term for an old

medical financing plan known as the health

maintenance organization (HMO) HMOs are

not insured plans They are prepaid health care

systems, offering services to which the member

is entitled, as opposed to a dollar amount

guaranteed by an insurance policy Doctors are

paid a set amount of money monthly for each

patient regardless of the level or frequency of

care provided

HMOs emphasize preventive care They

became popular with employers who purchase

health care coverage for their employees

because they charged lower fees than insurance

plans that reimburse patients for fee-for-service

payments Holding down the cost of medical

care was one of the chief aims of HMOs

The first HMOs were started around 1930

The Kaiser Foundation Health Plan of California

was one of the first and largest HMOs Another

large HMO is the Health Insurance Plan of

Greater New York Both Kaiser and Health

Plan also have their own hospitals The federal

government has promoted HMOs since the

1970s, enacting the Health Maintenance

Orga-nization Act of 1973 (87 Stat 931) and other

legislation that allows HMOs to meet federal

standards forMEDICAREandMEDICAIDeligibility

A person who participates in an HMO deals

with a primary care physician, who directs the

person’s medical care and determines whether

he or she should be referred for specialty care

This gatekeeper function has drawn both

criti-cism and praise Critics argue that a person

restricted to a physician not of his or her

choosing, who has complete control over

whether the person will be seen by a specialist

or be given special drugs or treatments Critics

also argue that HMO physicians are not allowed

to perform thorough testing procedures because

of the demands of HMO management to limit

costs and that this ultimately leads to rationing

of medical treatment

Advocates of HMOs and managed care

argue that it is an advantage to the patient to

have one physician with full responsibility for

his or her care With few exceptions, these

primary care physicians are trained as general

practitioners, family practice physicians,

pedia-tricians, internists, or obstetrician-gynecologists

The debate over NATIONAL HEALTH CARE

reform escalated during the first term of the Clinton administration President BILL CLINTON

sought to overhaul the U.S health care system

by guaranteeing universal coverage while simul-taneously controlling costs His plan, which emphasized the managed care model, died in Congress, yet managed care continues to grow

Medicaid, the state-operated, but federally and state-funded health care plans for the poor, started

in 1966 as a fee-for-service program By the 1990s, the conversion of Medicaid to a managed care model of service delivery had grown rapidly, serving as many as 10 million people

The early promise of HMOs has given way

to deep concerns about the steady escalation of health care costs From 2004 to 2009, double-digit, annual premium increases were hurting employers, employees, and small business own-ers who purchase their own health insurance

From 1999 to 2009 employers saw their premiums rise 120 percent HMOs defend the rise in costs by pointing to advances in medical technology that require the purchase of high-priced equipment, rising prescription drug prices, and a U.S population that demands increasingly more services, in particular the aging baby-boomer population To manage

Enrollment in Health Maintenance Organizations (HMOs), 1980 to 2006

0 5

15

10

20 25 30 35

24.5 26.4

23.4 30.0

19.4

13.4

7.9

4.0

Year

SOURCE: U.S Department of Health and Human Services, Centers for Disease

Control and Prevention, National Center for Health Statistics, Health, United States, 2007

ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,

A PART OF CENGAGE LEARNING.

MANAGED CARE 447