Legal malpractice may occur where a lawyer acts in a negligent manner when providing legal advice or representation. The following represents an overview of legal malpractice law and common defenses. If you have questions about a specific incident of possible legal malpractice, you should check with a lawyer licensed to practice in your state about the specific elements of a legal malpractice action under the laws of your state, and for an analysis of whether the incident might constitute legal malpractice under the laws of your state.
Legal malpractice occurs when an attorney causes damage to his/her client or a non-client either by doing something wrong or not doing something he/she was supposed to do in his/her role as an attorney.
The Lawyer - Client Relationship
A lawyer and a client usually begin their relationship:
by signing a contract that sets out what the client expects from the lawyer and what the lawyer is going to provide for the client.
The lawyer volunteers his or her services.
The court appoints a lawyer.
Simply providing advice or investigating a case may start a lawyer-client relationship.
The Lawyer's Duty to the Client
The lawyer has a duty to represent you with the knowledge, resources, time and energy that is reasonable to present a fair case. He/she is expected to know the basics of the law as they relate to your case and to research areas of the law that he or she is not familiar with. The attorney can also owe a duty to someone who is not a client. For example, when a lawyer is working for an insurance company, he/she not only represents the insurance company, but also the people insured by that company. The lawyer only represents the people insured by the company in matters that relate to the insurance policy. Moreover, an attorney has certain obligations when consulting with potential clients even if that client does not retain that particular attorney. Such duties include providing information such as applicable statute of limitations.
When the Relationship Ends
Attorney - Client Privilege & Legal Malpractice
A lawyer-client relationship ends when the work the attorney was hired to do is finished. The relationship can also end if something in the contract between the client and attorney says it ends before the work is finished. This can happen when an attorney decides to withdraw from a case. If the attorney decides to stop working on the case before it ends, he or she must make sure that his or her leaving does not ruin the case.
When the relationship ends the attorney does not have to represent you in another case; however, the attorney must not tell anyone about information that was discussed between the attorney and the client that might hurt the client, which falls under attorney-client privilege. Violation of attorney-client privilege can result in a legal malpractice lawsuit.
The Lawyer's Negligence & Legal Malpractice
A lawyer can be held responsible in a legal malpractice lawsuit for causing you damage if you can show four things: The lawyer had a duty to represent you with the knowledge, resources, time and energy that is reasonable to present a fair case (standard of care). The lawyer is not fulfilling that duty. Because the lawyer did not fulfill that duty you were injured. The injury actually occurred, which includes losing money, going to jail, emotional distress, or having your case thrown out of court.
You need all four of these elements for a lawyer to be held responsible for his/her negligence in a legal malpractice lawsuit.
Third Party Injuries & Legal Malpractice
If you are a person that was not represented by the attorney you may still be able to sue if you can show:
The issue that the lawyer was working on was intended to affect you
The harm to you could be foreseen
You have actually suffered an injury
You were injured because of the lawyer's actions
There is a need to prevent this type of harm in the future
Courts do not require you to meet all of these factors in a legal malpractice lawsuit, but they do take all of them into account when trying to decide if the lawyer was responsible for your injury.
The Attorney Judgment Rule
Under the attorney judgment rule, an attorney is not liable for what, in hindsight, were errors in judgment where the attorney made those judgments in good faith and in the honest belief that the decisions were well founded in the law and made in the best interest of the client.
Common Areas of Liability
Litigation & Legal Malpractice
An attorney may be held responsible in a legal malpractice lawsuit for failing to bring a lawsuit in a timely manner. In several states there are rules called statutes of limitations. These rules set the time line for how much time you have to bring a case. If an attorney misses the deadline, he or she will not be allowed to bring the case. For example, if there is a one year statute of limitations for getting money for a car accident and the lawyer does not bring the case in that year, you will not be able to collect that money. However, this is just an example and you should consult legal counsel before moving forward.
The attorney may also be held responsible in a legal malpractice lawsuit for an involuntary dismissal of an action. For example, if the attorney fails to serve and return the summons and complaint within the applicable time limit or fails to bring a case to trial within the applicable time limit the case will be dismissed.
An attorney may also be responsible in a legal malpractice lawsuit for letting a judgment be entered against his or her client. For example, if a defense attorney fails to file a responsive pleading the judge may decide the case in favor of the other side.
An attorney can also be held responsible in a legal malpractice lawsuit for not following a client's instructions. The attorney does not have to follow instructions by the client in terms of legal issues or things that the client does not have any knowledge of, but the lawyer does have a duty to follow the general wishes of the client. For example, if a settlement offer is made, not only must the attorney tell the client about all offers, but he or she must also abide by what the client wants to do, even if they think they could get more.
Corporate, Securities Law & Conflicts of Interest in Legal Malpractice Lawsuits
If a lawyer is representing a corporation, he/she must act in the same manner they would if it was an individual person. Thus the lawyer must represent the corporation with the knowledge, resources, time and energy that is reasonable to present a fair case. If you are a shareholder in a corporation you can sue the board of directors and officers that are not acting in the best interests of the corporation. The lawyer for the corporation can not represent the directors or officers if he or she is working for the corporation. If they do, a conflict of interest may exist and the lawyer will be responsible for any damages caused by his or her working for both the corporation and the board of directors.
Family Law & Legal Malpractice
A lawyer should not represent both sides in a family law case. If he/she does, then the lawyer must tell both sides and get them to agree to being represented by the same person. For example, in a divorce case a lawyer can not work for both the husband and wife. If the lawyer does represent both sides, then the lawyer must make sure both sides know what the consequences are and obtain their informed consent.
Marital Settlements & Legal Malpractice
If a lawyer fails to discover how much property a couple shares or what share one spouse has in the other's pension plan or retirement account, such negligence may be the basis for a legal malpractice lawsuit. For example, if a lawyer tells a client that a certain account the other spouse has is not part of the community property the client can decide not to ask for any of it. If it is later discovered that the client could have gotten some of that money, then the lawyer is going to be held responsible for any damages that occur because of it. The lawyer can also be held responsible for damages that happen from not drafting a martial settlement correctly.
Pr
ofessional Negligence & Legal Malpractice If a lawyer refuses to continue helping a client or delays helping a client because the client will not accept his/her sexual advances, then the lawyer can be sued for professional negligence. The lawyer cannot imply that you should have sex with him/her. The lawyer cannot scare you or force you to have sex with him/her as a condition for continuing to represent. Moreover, the lawyer cannot continue to represent a client if they are having a sexual relationship. Lawyer-client sexual relationships are prohibited in many states. However, you should check with the appropriate agency before proceeding further.
Wills, Trusts, Estate Planning & Legal Malpractice
Wills, trusts, and estate planning cases usually involve a beneficiary to the will or trust. These lawsuits usually happen when the beneficiary feels that he/she has not been fairly taken care of by the will, trust or estate plan.
The attorney is usually sued with legal malpractice because he/she did not draft the will correctly. This can include not following the non-deceased client's wishes or failing to discover all the taxation issues created by the will or trust. The attorney can also be sued with legal malpractice for representing more than one party in an issue about the will or trust. For instance, if a brother and a sister are fighting over who gets the money an attorney can not represent both of them because they are fighting against each other. In such a case, the lawyer can be held responsible in legal malpractice for any damages caused by representing both of them.
Bankruptcy & Legal Malpractice
If an attorney causes a client to file bankruptcy and subsequently does not accurately appraise the client's property and that results in the client selling the property for much less than it was worth, the attorney can be sued with legal malpractice for the damages caused by his/her actions.
Damages & Legal Malpractice
A difficult legal aspect that must be proven is that due to the lawyer's malpractice, the case was lost. If you can prove that the lawyer's actions caused you damages, you can recover all of those damages from the attorney with a legal malpractice lawsuit.
You can recover all the damages the attorney directly caused.
You can also recover all the damages that occurred as a result of the attorney's actions with a legal malpractice lawsuit.
It is important to note that within the context of a legal malpractice action, a lawyer may utilize what were formerly privileged communications from the client in order to respond to allegations of negligence.
Legal malpractice occurs when an attorney causes damage to his/her client or a non-client either by doing something wrong or not doing something he/she was supposed to do in his/her role as an attorney.
The Lawyer - Client Relationship
A lawyer and a client usually begin their relationship:
by signing a contract that sets out what the client expects from the lawyer and what the lawyer is going to provide for the client.
The lawyer volunteers his or her services.
The court appoints a lawyer.
Simply providing advice or investigating a case may start a lawyer-client relationship.
The Lawyer's Duty to the Client
The lawyer has a duty to represent you with the knowledge, resources, time and energy that is reasonable to present a fair case. He/she is expected to know the basics of the law as they relate to your case and to research areas of the law that he or she is not familiar with. The attorney can also owe a duty to someone who is not a client. For example, when a lawyer is working for an insurance company, he/she not only represents the insurance company, but also the people insured by that company.
The lawyer only represents the people insured by the company in matters that relate to the insurance policy. Moreover, an attorney has certain obligations when consulting with potential clients even if that client does not retain that particular attorney. Such duties include providing information such as applicable statute of limitations.
When the Relationship Ends
Attorney - Client Privilege & Legal Malpractice
A lawyer-client relationship ends when the work the attorney was hired to do is finished. The relationship can also end if something in the contract between the client and attorney says it ends before the work is finished. This can happen when an attorney decides to withdraw from a case. If the attorney decides to stop working on the case before it ends, he or she must make sure that his or her leaving does not ruin the case.
When the relationship ends the attorney does not have to represent you in another case; however, the attorney must not tell anyone about information that was discussed between the attorney and the client that might hurt the client, which falls under attorney-client privilege. Violation of attorney-client privilege can result in a legal malpractice lawsuit.
The Lawyer's Negligence & Legal Malpractice
A lawyer can be held responsible in a legal malpractice lawsuit for causing you damage if you can show four things:
The lawyer had a duty to represent you with the knowledge, resources, time and energy that is reasonable to present a fair case (standard of care).
The lawyer is not fulfilling that duty.
Because the lawyer did not fulfill that duty you were injured. The injury actually occurred, which includes losing money, going to jail, emotional distress, or having your case thrown out of court.
You need all four of these elements for a lawyer to be held responsible for his/her negligence in a legal malpractice lawsuit.
Third Party Injuries & Legal Malpractice
If you are a person that was not represented by the attorney you may still be able to sue if you can show:
The issue that the lawyer was working on was intended to affect you
The harm to you could be foreseen
You have actually suffered an injury
You were injured because of the lawyer's actions
There is a need to prevent this type of harm in the future
Courts do not require you to meet all of these factors in a legal malpractice lawsuit, but they do take all of them into account when trying to decide if the lawyer was responsible for your injury.
The Attorney Judgment Rule
Under the attorney judgment rule, an attorney is not liable for what, in hindsight, were errors in judgment where the attorney made those judgments in good faith and in the honest belief that the decisions were well founded in the law and made in the best interest of the client.
Common Areas of Liability
Litigation & Legal Malpractice
An attorney may be held responsible in a legal malpractice lawsuit for failing to bring a lawsuit in a timely manner. In several states there are rules called statutes of limitations. These rules set the time line for how much time you have to bring a case. If an attorney misses the deadline, he or she will not be allowed to bring the case. For example, if there is a one year statute of limitations for getting money for a car accident and the lawyer does not bring the case in that year, you will not be able to collect that money. However, this is just an example and you should consult legal counsel before moving forward.
The attorney may also be held responsible in a legal malpractice lawsuit for an involuntary dismissal of an action. For example, if the attorney fails to serve and return the summons and complaint within the applicable time limit or fails to bring a case to trial within the applicable time limit the case will be dismissed.
An attorney may also be responsible in a legal malpractice lawsuit for letting a judgment be entered against his or her client. For example, if a defense attorney fails to file a responsive pleading the judge may decide the case in favor of the other side.
An attorney can also be held responsible in a legal malpractice lawsuit for not following a client's instructions. The attorney does not have to follow instructions by the client in terms of legal issues or things that the client does not have any knowledge of, but the lawyer does have a duty to follow the general wishes of the client. For example, if a settlement offer is made, not only must the attorney tell the client about all offers, but he or she must also abide by what the client wants to do, even if they think they could get more.
Corporate, Securities Law & Conflicts of Interest in Legal Malpractice Lawsuits
If a lawyer is representing a corporation, he/she must act in the same manner they would if it was an individual person. Thus the lawyer must represent the corporation with the knowledge, resources, time and energy that is reasonable to present a fair case.
If you are a shareholder in a corporation you can sue the board of directors and officers that are not acting in the best interests of the corporation. The lawyer for the corporation can not represent the directors or officers if he or she is working for the corporation. If they do, a conflict of interest may exist and the lawyer will be responsible for any damages caused by his or her working for both the corporation and the board of directors.
Family Law & Legal Malpractice
A lawyer should not represent both sides in a family law case. If he/she does, then the lawyer must tell both sides and get them to agree to being represented by the same person. For example, in a divorce case a lawyer can not work for both the husband and wife.
If the lawyer does represent both sides, then the lawyer must make sure both sides know what the consequences are and obtain their informed consent.
Marital Settlements & Legal Malpractice
If a lawyer fails to discover how much property a couple shares or what share one spouse has in the other's pension plan or retirement account, such negligence may be the basis for a legal malpractice lawsuit. For example, if a lawyer tells a client that a certain account the other spouse has is not part of the community property the client can decide not to ask for any of it.
If it is later discovered that the client could have gotten some of that money, then the lawyer is going to be held responsible for any damages that occur because of it. The lawyer can also be held responsible for damages that happen from not drafting a martial settlement correctly.
Professional Negligence & Legal Malpractice
If a lawyer refuses to continue helping a client or delays helping a client because the client will not accept his/her sexual advances, then the lawyer can be sued for professional negligence. The lawyer cannot imply that you should have sex with him/her.
The lawyer cannot scare you or force you to have sex with him/her as a condition for continuing to represent. Moreover, the lawyer cannot continue to represent a client if they are having a sexual relationship. Lawyer-client sexual relationships are prohibited in many states. However, you should check with the appropriate agency before proceeding further.
Wills, Trusts, Estate Planning & Legal Malpractice
A lawyer can be held responsible in a legal malpractice lawsuit for causing you damage if you can show four things:
The lawyer had a duty to represent you with the knowledge, resources, time and energy that is reasonable to present a fair case (standard of care).
The lawyer is not fulfilling that duty.
Because the lawyer did not fulfill that duty you were injured.
The injury actually occurred, which includes losing money, going to jail, emotional distress, or having your case thrown out of court.
You need all four of these elements for a lawyer to be held responsible for his/her negligence in a legal malpractice lawsuit.
Third Party Injuries & Legal Malpractice
If you are a person that was not represented by the attorney you may still be able to sue if you can show:
The issue that the lawyer was working on was intended to affect you
The harm to you could be foreseen
You have actually suffered an injury
You were injured because of the lawyer's actions
There is a need to prevent this type of harm in the future
Courts do not require you to meet all of these factors in a legal malpractice lawsuit, but they do take all of them into account when trying to decide if the lawyer was responsible for your injury.
The Attorney Judgment Rule
Under the attorney judgment rule, an attorney is not liable for what, in hindsight, were errors in judgment where the attorney made those judgments in good faith and in the honest belief that the decisions were well founded in the law and made in the best interest of the client.
Common Areas of Liability
Litigation & Legal Malpractice
An attorney may be held responsible in a legal malpractice lawsuit for failing to bring a lawsuit in a timely manner. In several states there are rules called statutes of limitations. These rules set the time line for how much time you have to bring a case. If an attorney misses the deadline, he or she will not be allowed to bring the case. For example, if there is a one year statute of limitations for getting money for a car accident and the lawyer does not bring the case in that year, you will not be able to collect that money. However, this is just an example and you should consult legal counsel before moving forward.
The attorney may also be held responsible in a legal malpractice lawsuit for an involuntary dismissal of an action. For example, if the attorney fails to serve and return the summons and complaint within the applicable time limit or fails to bring a case to trial within the applicable time limit the case will be dismissed.
An attorney may also be responsible in a legal malpractice lawsuit for letting a judgment be entered against his or her client. For example, if a defense attorney fails to file a responsive pleading the judge may decide the case in favor of the other side.
An attorney can also be held responsible in a legal malpractice lawsuit for not following a client's instructions. The attorney does not have to follow instructions by the client in terms of legal issues or things that the client does not have any knowledge of, but the lawyer does have a duty to follow the general wishes of the client. For example, if a settlement offer is made, not only must the attorney tell the client about all offers, but he or she must also abide by what the client wants to do, even if they think they could get more.
Corporate, Securities Law & Conflicts of Interest in Legal Malpractice Lawsuits
If a lawyer is representing a corporation, he/she must act in the same manner they would if it was an individual person. Thus the lawyer must represent the corporation with the knowledge, resources, time and energy that is reasonable to present a fair case.
If you are a shareholder in a corporation you can sue the board of directors and officers that are not acting in the best interests of the corporation. The lawyer for the corporation can not represent the directors or officers if he or she is working for the corporation. If they do, a conflict of interest may exist and the lawyer will be responsible for any damages caused by his or her working for both the corporation and the board of directors.
Family Law & Legal Malpractice
A lawyer should not represent both sides in a family law case. If he/she does, then the lawyer must tell both sides and get them to agree to being represented by the same person. For example, in a divorce case a lawyer can not work for both the husband and wife.
If the lawyer does represent both sides, then the lawyer must make sure both sides know what the consequences are and obtain their informed consent.
Marital Settlements & Legal Malpractice
If a lawyer fails to discover how much property a couple shares or what share one spouse has in the other's pension plan or retirement account, such negligence may be the basis for a legal malpractice lawsuit. For example, if a lawyer tells a client that a certain account the other spouse has is not part of the community property the client can decide not to ask for any of it. If it is later discovered that the client could have gotten some of that money, then the lawyer is going to be held responsible for any damages that occur because of it. The lawyer can also be held responsible for damages that happen from not drafting a martial settlement correctly.
Professional Negligence & Legal Malpractice
If a lawyer refuses to continue helping a client or delays helping a client because the client will not accept his/her sexual advances, then the lawyer can be sued for professional negligence. The lawyer cannot imply that you should have sex with him/her. The lawyer cannot scare you or force you to have sex with him/her as a condition for continuing to represent. Moreover, the lawyer cannot continue to represent a client if they are having a sexual relationship. Lawyer-client sexual relationships are prohibited in many states. However, you should check with the appropriate agency before proceeding further.
Wills, Trusts, Estate Planning & Legal Malpractice
Wills, trusts, and estate planning cases usually involve a beneficiary to the will or trust. These lawsuits usually happen when the beneficiary feels that he/she has not been fairly taken care of by the will, trust or estate plan.
The attorney is usually sued with legal malpractice because he/she did not draft the will correctly. This can include not following the non-deceased client's wishes or failing to discover all the taxation issues created by the will or trust.
The attorney can also be sued with legal malpractice for representing more than one party in an issue about the will or trust. For instance, if a brother and a sister are fighting over who gets the money an attorney can not represent both of them because they are fighting against each other. In such a case, the lawyer can be held responsible in legal malpractice for any damages caused by representing both of them.
Bankruptcy & Legal Malpractice
If an attorney causes a client to file bankruptcy and subsequently does not accurately appraise the client's property and that results in the client selling the property for much less than it was worth, the attorney can be sued with legal malpractice for the damages caused by his/her actions.
Damages & Legal Malpractice
A difficult legal aspect that must be proven is that due to the lawyer's malpractice, the case was lost. If you can prove that the lawyer's actions caused you damages, you can recover all of those damages from the attorney with a legal malpractice lawsuit. You can recover all the damages the attorney directly caused. You can also recover all the damages that occurred as a result of the attorney's actions with a legal malpractice lawsuit.
It is important to note that within the context of a legal malpractice action, a lawyer may utilize what were formerly privileged communications from the client in order to respond to allegations of negligence.
The Elements of Legal Malpractice
Typically, to prevail in a legal malpractice case, a plaintiff must prove all of the following:
The existence of an attorney-client relationship;
Negligence in the legal representation of the plaintiff;
That the negligence was a proximate cause of an injury;
The fact and extent of the injury alleged.
As malpractice laws vary by state, your state may not adhere to the elements listed above.
Proving Legal Malpractice
As the elements outlined above suggest, the first thing a plaintiff must do in order to prove legal malpractice is to establish that an attorney-client relationship existed. Absent an attorney-client relationship, the lawyer doesn't have any duty to the client, and there is no basis for a malpractice action.
Next, a plaintiff must establish the "standard of care" which governed the legal representation, and show that the attorney violated that standard of care. Sometimes this is easy, and may not even require any expert testimony. For example, if a lawyer steals money that the lawyer holds in trust for a client, the fact that the attorney violated a duty to the client is a "no brainer". However, as legal representation is often complex, it is often necessary to use an expert witness to establish the governing standard of care, and to describe how the lawyer violated that standard of care.
Once those elements are satisfied, is is necessary to demonstrate that the plaintiff suffered an injury as a proximate result of the lawyer's negligence. That is, that the injury followed from the lawyer's misconduct. For example, where a lawyer fails to make an evidentiary objection which would have kept a murder weapon out of evidence, a criminal defendant may have a case for legal malpractice - but if the defendant confessed to the murder, left fingerprints all over the victim's house, and was caught while trying to use the victim's credit cards, the defendant won't be able to demonstrate that the lawyer's mistake affected the outcome of his case, and thus won't be able to show that the injury resulted from the negligence. Similarly, if the connection between the alleged act of negligence and the harm suffered is speculative or extremely attenuated, it may not support a malpractice claim - the injury suffered must ordinarily be a reasonably foreseeable consequence of the attorney's negligence.
Finally, the plaintiff must ordinarily establish that damages actually were suffered as a result of the legal malpractice, and the nature and amount of those damages. Even if all other elements of a malpractice case are established, if the plaintiff cannot show that any damages resulted from the legal malpractice the lawyer will typically be entitled to a dismissal of the case.
The Attorney Judgment Rule
Under the attorney judgment rule, an attorney is not liable for what, in hindsight, were errors in judgment where the attorney made those judgments in good faith and in the honest belief that the decisions were well founded in the law and made in the best interest of the client. In other words, while a gross error in judgment may be actionable as legal malpractice, a mere error in judgment made in good faith is not. This rule protects the attorney who acts in good faith and keeps the client informed and involved in the case, but makes what turn out in hindsight to be strategic or tactical errors in handling a case.
Changes In The Law
Attorneys are not ordinarily charged with anticipating changes in the law. This means that it is not ordinarily possible to secure a malpractice verdict against a lawyer where the lawyer's advice or representation turns out to be faulty based upon a court decision or new legislation passed after the lawyer acted or provided the advice.
Sometimes there are a lot of indications that a change in the law may be coming - some legislation is under debate for years prior to passage - and a good lawyer will advise a client about possible changes. However, lawyers are not charged with being able to predict the future. The Case Within A Case
In many legal malpractice actions, there may be discussion of whether the plaintiff could win the "case within a case". This discussion occurs in malpractice cases involving prior litigation, where a plaintiff claims to have either lost or to have recovered a smaller amount of damages than warranted by the facts and law, as a result of the original lawyer's malpractice.
In order for the plaintiff to establish that damages were suffered as a result of the alleged malpractice, depending upon state law, it is often necessary for the plaintiff to prove that, but for the malpractice, a favorable verdict would have been won or greater damages recovered. In essence, this is a retrial of the original litigation within the context of the malpractice action - a case within a case.
Attorney-Client Privilege
It is important to note that within the context of a legal malpractice action, a lawyer may utilize what were formerly privileged communications from the client in order to respond to allegations of negligence.
What Is Legal Malpractice?
Legal malpractice occurs when a lawyer acts in a negligent manner, or fails to provide the required standard of care when providing legal advice or representation.
If you have questions about a specific incident of possible legal malpractice, call 410-486-1800
Legal malpractice can occur in any area of the law including medical malpractice law. Twenty five percent of legal malpractice cases occur in personal injury cases. A legal malpractice lawsuit is brought against a negligent lawyer by the victim (the client) to receive compensation for the damages caused by the legal malpractice. Many people are the victims of legal malpractice every year.
There are many situations in a legal case where legal malpractice harms a client. The following circumstances may be cases of legal malpractice: a case is dismissed because the lawyer failed to properly pursue the case; the attorney failed to secure witnesses and experts for the case; s/he failed to act before a statute of limitations or calendar deadline; s/he forced settlement in a case for any reason that unjustly harmed the client; and any other failures or errors that result in client damages.
In a legal malpractice case, the following must be proved in the lawsuit in order to receive compensation for injuries sustained. First, the lawyer-client relationship has to be established. Most often a fiduciary relationship exists between the lawyer and the client requiring the lawyer to provide a minimum standard of service. Second, the damages that a victim has suffered as a result of legal malpractice must be presented and proven. Lastly, these damages must be the proven result of legal malpractice.
Malpractice insurance can greatly affect the outcome of a legal malpractice lawsuit. As a general rule, legal professionals are not required to obtain legal malpractice insurance. Statistics show that approximately sixty percent of attorneys have legal malpractice insurance. Of these lawyers who do have insurance, some may not cover some forms of legal malpractice such as fraud theft or willful injury. If a lawyer does not have legal malpractice insurance, it is possible that the victim will have no legal recourse. In any case, a lawyer should be consulted who can advise you of your legal rights and options in a legal malpractice case.
If there is legal malpractice insurance, the insurance company will most likely be the one to negotiate compensation for injured victims. When a legal malpractice case is filed, the insurance company will designate a law firm to represent the defendant in the lawsuit and the insurance company will allocate money should the case be judged in favor of the victim.
It is important in legal malpractice cases to be represented by qualified, experienced and honest attorneys who can help build a strong case and receive reasonable compensation for the victim. For more information on legal malpractice, please contact us to confer with an attorney.
Legal malpractice is the term for negligence, breach of fiduciary duty, or breach of contract by an attorney that causes harm to his or her client. In order to rise to an actionable level of negligence, the injured party must show that the attorney's acts were not merely the result of poor strategy, but that they were the result of errors that no reasonable attorney would make. Furthermore, legal malpractice requires the showing of an injury that would not have happened had the attorney not been negligent. If the injury would have occurred despite different (non-negligent) actions by the attorney, no cause of action will be permitted. Legal malpractice can also occur when an attorney breaches a fiduciary duty to his or her client. This occurs when attorneys act in their own interest instead of to their client's, to the detriment of their client. A claim for legal malpractice may also arise when an attorney breaches the contract they sign with their client.
A common basis for a legal malpractice claim arises where an attorney misses a deadline for a filing of a paper with the court, such as a statute of limitations, and this error is related to the loss of the client's cause of action
Negligence s a legal concept in the common law legal systems usually used to achieve compensation for injuries (not accidents). Negligence is a type of tort or delict (also known as a civil wrong). However, the concept is sometimes used in criminal law as well. "Negligence" is not the same as "carelessness", because someone might be exercising as much care as they are capable of, yet still fall below the level of competence expected of them. It is the opposite of "diligence". It can be generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from foreseeable risks of harm. In the words of Lord Blackburn, those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision.
Through civil litigation, if an injured person proves that another person acted negligently to cause his injury, he can recover damages to compensate for his harm. Proving a case for negligence can potentially entitle the injured plaintiff to compensation for harm to their body, property, mental well-being, financial status, or intimate relationships. However, because negligence cases are very fact-specific, this general definition does not fully explain the concept of when the law will require one person to compensate another for losses caused by accidental injury. Further, the law of negligence at common law is only one aspect of the law of liability. Although resulting damages must be proven in order to recover compensation in a negligence action, the nature and extent of those damages are not the primary focus of negligence cases.
Contents
Elements of negligence claims
Duty of care
Breach of duty
Factual causation
Legal causation or remoteness
Damages
Procedure in the United States
Elements of negligence claims
Negligence suits have historically been analyzed in stages, called elements, similar to the analysis of crimes. Common law jurisdictions may differ slightly in the exact classification of the elements of negligence, but the elements that must be established in every negligence case are: duty, breach, causation, and damages. Each is defined and explained in greater detail in the paragraphs below.
Negligence can be conceived of as having just three elements - conduct, causation and damages. More often, it is said to have four (duty, breach, causation and pecuniary damages) or five (duty, breach, actual cause, proximate cause, and damages). Each would be correct, depending on how much specificity someone is seeking. "The broad agreement on the conceptual model," writes Professor Robertson of the University of Texas, entails recognition that the five elements are best defined with care and kept separate. But in practice," he goes on to warn, "several varieties of confusion or conceptual mistakes have sometimes occurred.
Duty of care
A decomposed snail in Scotland was the humble beginning of the modern English law of negligenceThe case of Donoghue v. Stevenson, illustrates the law of negligence, laying the foundations of the fault principle around the Commonwealth. Plaintiff Donoghue drank ginger beer given to her by a friend, who bought it from a shop. The beer was supplied by a manufacturer under a certain Stevenson in Scotland. While drinking the drink, Ms. Donoghue discovered the remains of an allegedly decomposed snail. She then sued Stevenson, though there was no relationship of contract, as the friend had made the payment. As there was no contract the doctrine of privity prevented a direct action against the manufacturer, David Stevenson.
In his ruling, justice Lord MacMillan defined a new category of tort, (which is really not based on negligence but on what is now known as the "implied warranty of fitness of a product" in a completely different category of tort--"products liability") because it was analogous to previous cases about people hurting each other. Lord Atkin interpreted the biblical passages to 'love thy neighbour,' as the legal requirement to 'not harm thy neighbour.' He then went on to define neighbour as "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question." Reasonably foreseeable harm must be compensated. This is the first principle of negligence.
In England the more recent case of Caparo v. Dickman, introduced a 'threefold test' for a duty of care. Harm must be (1) reasonably foreseeable (2) there must be a relationship of proximity between the plaintiff and defendant and (3) it must be 'fair, just and reasonable' to impose liability. However, these act as guidelines for the courts in establishing a duty of care; much of the principle is still at the discretion of judges.
Breach of duty
See also: Breach of duty in English law
In Bolton v. Stone the English court was sympathetic to cricket playersOnce it is established that the defendant owed a duty to the plaintiff/claimant, the matter of whether or not that duty was breached must be settled. The test is both subjective and objective. The defendant who knowingly (subjective) exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty. The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which any reasonable person in the same situation would clearly have realized, also breaches that duty.
Breach of duty is not restricted to professionals or persons under written or oral contract; all members of society have a duty to exercise reasonable care toward others and their property. A person who engages in activities that pose an unreasonable risk toward others and their property that actually results in harm, breaches their duty of reasonable care. An example is shown in the facts of Bolton v. Stone, a 1951 legal case decided by the House of Lords which established that a defendant is not negligent if the damage to the plaintiff was not a reasonably foreseeable consequence of his conduct. In the case, a Miss Stone was struck on the head by a cricket ball while standing outside her house.
Cricket balls were not normally hit a far enough distance to pose a danger to people standing as far away as was Miss Stone. Although she was injured, the court held that she did not have a legitimate claim because the danger was not sufficiently foreseeable. As stated in the opinion, 'Reasonable risk' cannot be judged with the benefit of hindsight. As Lord Denning said in Roe v. Minister of Health, the past should not be viewed through rose coloured spectacles. Therefore, there was no negligence on the part of the medical professionals in a case faulting them for using contaminated medical jars because the scientific standards of the time indicated a low possibility of medical jar contamination. Even if some were harmed, the professionals took reasonable care for risk to their patients.
Factual causation
Causation For a defendant to be held liable, it must be shown that the particular acts or omissions were the cause of the loss or damage sustained. Although the notion sounds simple, the causation between one's breach of duty and the harm that results to another can at times be very complicated. The basic test is to ask whether the injury would have occurred but for, or without, my breach of duty. Even more precisely, if a breaching party materially increases the risk of harm to another, then the breaching party can be sued to the value of harm that he caused.
Asbestos litigations which have been ongoing for decades revolve around the issue of causation. Interwoven with the simple idea of a party causing harm to another are issues on insurance bills and compensations, which sometimes drove compensating companies out of business.
See also: Causation in English law and Breaking the chain
Legal causation or remoteness
Negligence can lead to this sort of accident - a train wreck at Gare Montparnasse in 1895.Sometimes factual causation is distinguished from 'legal causation' to avert the danger of defendants being exposed to, in the words of Cardozo, J., "liability in an indeterminate amount for an indeterminate time to an indeterminate class."It is said a new question arises of how remote a consequence a person's harm is from another's negligence. We say that one's negligence is 'too remote' (in England) or not a 'proximate cause' (in the U.S.) of another's harm if one would 'never' reasonably foresee it happening. Note that a 'proximate cause' in U.S. terminology (to do with the chain of events between the action and the injury) should not be confused with the 'proximity test' under the English duty of care (to do with closeness of relationship). The idea of legal causation is that if no one can foresee something bad happening, and therefore take care to avoid it, how could anyone be responsible?
For instance, in Palsgraf v. Long Island Rail Road Co.the judge decided that the defendant, a railway was not liable for an injury suffered by a distant bystander. The plaintiff, Palsgraf, was hit by scales that fell on her as she waited on a train platform. The scales fell because of a far-away commotion. A train conductor had run to help a man into a departing train. The man was carrying a package as he jogged to jump in the train door. The package had fireworks in it. The conductor mishandled the passenger or his package, causing the package to fall. The fireworks slipped and exploded on the ground causing shockwaves to travel through the platform. As a consequence, the scales fell. Because Palsgraf was hurt by the falling scales, she sued the train company who employed the conductor for negligence.
The defendant train company argued it should not be liable as a matter of law, because despite the fact that they employed the employee, who was negligent, his negligence was too remote from the plaintiff's injury. On appeal, the court agreed, however, it was divided when it came time to explain the reason why the defendant was not liable. One view was that the defendant owed no duty of care to the plaintiff, because a duty was owed only to foreseeable plaintiffs. This was the view advanced by Judge Cardozo. The other view was that the defendant owed a duty to the plaintiff, regardless of foreseeability, because all men owe one another a duty not to act negligently. This was the view advanced by Judge Andrews. According to Andrews, however, the defendant still should not be liable because, despite having owed a duty, and breached it, the breach was not the proximate cause of the injury.
Such disparity of views on the element of remoteness continues to trouble the judiciary. Courts follow Cardozo's view have greater control in negligence cases. If the court can find that, as a matter of law, the defendant owed no duty of care to the plaintiff, the plaintiff will lose his case for negligence before having a chance to present to the jury. Cardozo's view is the majority view. However, some courts follow the position put forth by Judge Andrews. In jurisdictions following the minority rule, defendants must phrase their remoteness arguments in terms of proximate cause if they wish the court to take the case away from the jury.
Remoteness takes another form, seen in the Wagon Mound. The Wagon Mound was a ship in Sydney harbour. The Wagon Mound was a ship which leaked oil creating a slick in part of the harbour. The wharf owner asked the ship owner about the danger and was told he could continue his work because the slick would not burn. The wharf owner allowed work to continue on the wharf, which sent sparks onto a rag in the water which ignited and created a fire which burnt down the wharf.
The UK House of Lords determined that the wharf owner 'intervened' in the causal chain, creating a responsibility for the fire which canceled out the liability of the ship owner.
In Australia, the concept of remoteness, or proximity, was tested with the case of Jaensch v. Coffey. The wife of a policeman, Mrs Coffey suffered a nervous shock injury from the aftermath of a motor vehicle accident although she was not actually at the scene at the time of the accident. The court upheld in addition to it being reasonably foreseeable that his wife might suffer such an injury, it also required that there be sufficient proximity between the plaintiff and the defendant who caused the accident. Here there was sufficient causal proximity.
Damage
Even though there is breach of duty, and the cause of some injury to the defendant, a plaintiff may not recover unless he can prove that the defendant's breach caused a pecuniary injury. This should not be mistaken with the requirements that a plaintiff prove harm to recover. As a general rule, a plaintiff can only rely on a legal remedy to the point that he proves that he suffered a loss. It means something more that pecuniary loss is a necessary element of the plaintiff's case in negligence. When damages are not a necessary element, a plaintiff can win his case without showing that he suffered any loss; he would be entitled to nominal damages and any other damages according to proof.
Negligence is different in that the plaintiff must prove his loss, and a particular kind of loss, to recover. In some cases, a defendant may not dispute the loss, but the requirement is significant in cases where a defendant cannot deny his negligence, but the plaintiff suffered no loss as a result. If the plaintiff can prove pecuniary loss, then he can also obtain damages for non-pecuniary injuries, such as emotional distress.
The requirement of pecuniary loss can be shown in a number of ways. A plaintiff who is physically injured by allegedly negligent conduct may show that he had to pay a medical bill. If his property is damaged, he could show the income lost because he could not use it, the cost to repair it, although he could only recover for one of these things.
The damage may be physical, purely economic, both physical and economic (loss of earnings following a personal injury), or reputational (in a defamation case).
In English law, the right to claim for purely economic loss is limited to a number of 'special' and clearly defined circumstances, often related to the nature of the duty to the plaintiff as between clients and lawyers, financial advisers, and other professions where money is central to the consultative services.
Emotional distress has been recognized as an actionable tort. Generally, emotional distress damages had to be parasitic. That is, the plaintiff could recover for emotional distress caused by injury, but only if it accompanied a physical or pecuniary injury.
A claimant who suffered only emotional distress and no pecuniary loss would not recover for negligence. However, courts have recently allowed recovery for a plaintiff to recover for purely emotional distress under certain circumstances. The state courts of California allowed recovery for emotional distress alone – even in the absence of any physical injury, when the defendant physically injures a relative of the plaintiff, and the plaintiff witnesses it.
Damages
Damages place a monetary value on the harm done, following the principle of restitutio in integrum (the Latin for "restoration to the original condition"). Thus, for most purposes connected with the quantification of damages, the degree of culpability in the breach of the duty of care is irrelevant. Once the breach of the duty is established, the only requirement is to compensate the victim. But, particularly in the U.S., punitive or exemplary damages may be awarded in addition to compensatory damages to reflect the egregious nature of the defendant's conduct, e.g. that the defendant was malicious or callously indifferent.
One of the main tests that is posed when deliberating whether a defendant is entitled to compensation for a tort, is the "reasonable person." The test is self-explanatory: would a reasonable person (as determined by a judge or jury) be damaged by the breach of duty. Simple as the "reasonable person" test sounds, it is very complicated. It is a risky test because it involves the opinion of either the judge or the jury that can be based on limited facts. However, as vague as the "reasonable person" test seems, it is extremely important in deciding whether or not a defendant is entitled to compensation for a negligence tort.
Damages are, in general, compensatory and not punitive in nature. This means that the amount paid matches the plaintiff/claimant's actual loss (in cases involving physical injury, the amount awarded should aim to compensate for the pain and suffering). It is not the court's intention to punish the defendant. The award should be sufficient so as to put the plaintiff/claimant back in the position he or she was before the tort was committed and no more, because otherwise the plaintiff/claimant would actually profit from the tort. The award of damages may include the following heads of damage:
Special damages - losses suffered from the date of the tort up until the date of trial and which can be precisely quantified in monetary terms.
General damages - losses that cannot be quantified exactly in monetary terms (the actual pain, suffering, and loss of amenity caused by the negligent act), as well as expected future losses from the date of trial (e.g. continuing pain and suffering, and loss of earnings). Where the plaintiff/claimant proves only negligible loss or damage, or the court is unable to quantify the losses, the court may award nominal damages. Punitive damages - are awards of amounts greater than those needed to compensate the victim and are intended to deter intentional, usually malicious, wrongdoing. They are not available where only negligence has been proved. Procedure in the United States
The plaintiff must prove each element to win his case. Therefore, if it is highly unlikely that the plaintiff can prove one of the elements, the defendant may request judicial resolution early on, to prevent the case from going to a jury. This can be by way of a demurrer, motion to dismiss, or motion for summary judgment. The ability to resolve a negligence case without trial is very important to defendants. Without the specific limits provided by the four elements, any plaintiff could claim any defendant was responsible for any loss, and subject him to a costly trial.
The elements allow a defendant to test a plaintiff's accusations before trial, as well as providing a guide to the finder of fact to decide whether the defendant is or is not liable, after the trial. Whether the case is resolved with or without trial again depends heavily on the particular facts of the case, and the ability of the parties to frame the issues to the court. The duty and causation elements in particular give the court the greatest opportunity to take the case from the jury, because they directly involve questions of policy. The court can find that regardless of the disputed facts, if any, the case can be resolved as a matter of law from undisputed facts, because two people in the position of the plaintiff and defendant simply cannot be legally responsible to one another for negligent injury.
On appeal, the court reviewing a decision in a negligence case will analyze in terms of at least one of these elements, depending on the disposition of the case and the question on appeal. For example, if it is an appeal from a final judgment after a jury verdict, the reviewing court will look to see that the jury was properly instructed on each contested element, and that the record shows sufficient evidence for the jury's findings. On an appeal from a dismissal or judgment against the plaintiff without trial, the court will review de novo whether the court below properly found that the plaintiff could not prove any or all of his case.
Ineffective assistance of counsel is an issue raised in legal malpractice suits and in appeals in criminal cases where a criminal defendant asserts that their criminal conviction occurred because their attorney failed to properly defend the case. In order to prevail on such a claim, the plaintiff or appellant must show two things:
Deficient performance by counsel.
But for such deficiency, the result of the proceeding would have differed. Some states limit the use of this appeal to mistakes the counsel made at trial.[citation needed]
In both the Strickland v. Washington (1984) and the Peter v. Dais (1990), the Supreme Court of the United States established that failure to inform a defendant of the direct consequences of a sentence qualifies as ineffective assistance of counsel, but failure to inform of collateral consequences of criminal charges does not. All immigration related consequences are considered collateral.
Having the benefit of counsel or assistance of counsel means that the party (defendant) has had a competent attorney representing him or her.
Ineffective assistance of counsel may also be a ground for voiding a waiver of the right to appeal that a defendant may have signed as part of her agreement to plead guilty.
In Padilla v. Kentucky, a case currently before the United States Supreme Court, the questions at issue are whether non-citizens such as Padilla have a Sixth Amendment right to a claim for ineffective counsel.
What is legal malpractice?
Legal malpractice occurs when a lawyer acts in a negligent or wrongful manner while providing legal advice or representation, and thereby causes the client to suffer a loss or damages. Four elements must be shown in order to establish a legal malpractice claim: (1) that an attorney-client relationship existed between the parties; (2) that the attorney failed to act in the professional manner expected of attorneys; (3) that the attorney's failure caused harm to the client; (4) and, the extent of the harm or loss suffered by the client must be proven. To show the extent of loss incurred by the client, it may be necessary to prove the amount of money that the client would have recovered if the attorney had not been negligent or incompetent. What are some particular kinds of attorney negligence?
An attorney may be liable for loss or injury sustained by a client due to the attorney's negligence in initiating and conducting litigation; permitting a statutory time limitation to run against a client's claim; failing to take the proper steps, or taking the wrong steps, to protect a client's right of appeal or review; or, failing to present the proper evidence in a criminal defense matter. Actions for malpractice can also be bought against an attorney for negligence in settling or failing to settle a client's case, in examining the title to a property, in preparing and recording legal instruments and security documents, and in handling debt collections. To determine if your former attorney could be liable to you for committing legal malpractice, call 410-486-1800 Can I sue my attorney for over charging me?
Yes. You should require your attorney to provide you with a written fee agreement prior to hiring the attorney. If the charges are inconsistent with your agreement, ask your lawyer for an explanation and the correction of any errors. If you are not satisfied, contact the state bar association. Some bar associations offer free arbitration services for settling attorney/client disputes. If your fee dispute is still unresolved, you may want to pursue a legal malpractice action against the attorney based upon breach of contract, fraud, or other theories of liability. Could an attorney be liable to a third party?
Yes. In general, an attorney can be liable for professional negligence only to clients or the intended beneficiaries of the attorney's legal work (such as the intended beneficiaries of a will drafted by the attorney). However, an attorney could be found liable to a third party for fraud, misrepresentation, or other reckless or intentionally wrongful conduct that harms the third party. An attorney could also be liable to a third party where the attorney's legal services aided the illegal motives or activities of a client.
Legal Malpractice Frequently Asked Questions
The following list contains some basic information that you should be aware of regarding attorney malpractice cases. This is not intended to be an exhaustive list covering every issue or question that may come up, but instead intended to be a guideline to alert you to some of the key issues that repeatedly arise in legal malpractice cases. The information below is furnished strictly for informational purposes, and does not constitute legal advice.