What is Legal Malpractice?
Legal malpractice is defined as a lawyer’s failure to exercise the standard of competence and care that a reasonable and prudent attorney would in a comparable situation, resulting in harm to the client. For a legal malpractice case to be valid, these three elements must apply:
- A client attains a lawyer to provide professional services.
- The lawyer fails to perform some services consistent with the reasonable standard of care for attorneys and the breach results in a legal injury to the client.
- The harm caused to the client results in monetary damages. Criminal, civil, and transactional cases are the most common cases that can result in legal malpractice, but even then, not every error results in legal malpractice.
As an example, if a lawyer fails to submit a brief by the filing deadline and misses a court-imposed filing deadline, that may or may not result in a legal malpractice case . If the plaintiff in a personal injury case had a valid claim that would have resulted in a substantial recovery for the client, the failure to meet the deadline would have likely amounted to an actionable legal malpractice case.
However, if the plaintiff didn’t have a sound basis for a case at all, missing the deadline wouldn’t have caused any injury to the client. If the plaintiff would have lost his or her case even if the lawyer had filed the required motion, there is no legal malpractice.
Because most criminal and civil cases ultimately lose, the relationship between the loss in the lawsuit and the failure to meet the standard of care isn’t always straightforward.
If you are thinking about filing a legal malpractice case, immediately enlist a knowledgeable attorney such as those at Newman & McDonough to perform a review of your case and help you understand the possible outcomes. It might sound counter-intuitive, but losing the case you are thinking about suing your attorney about may actually save you big dollars.
Characteristics of a Successful Legal Malpractice Case
There must be an attorney/client relationship with the alleged perpetrator. That is, you must be able to show that the lawyer you are suing had a duty of care to you, created by this relationship. To show that a real attorney/client relationship existed, you must be able to prove that there was mutual reliance between you and the attorney. 1) as in any contract, there must be acceptance the contract (here, employment of the attorney), the consideration (payment) 2) cooperation 3) transfer of documents 4) specific action 5) a retainer fee payment and/or bill and payment for the legal work. There must be a proximate link between the claimed breach and the resulting damages. The legal malpractice must be the proximate cause of your damages, which is what causes you to lose your case against the first bad attorney. There must actually be damages from the first legal act, or you cannot claim damages in the second lawsuit, the one against your original attorney.
Common Factors in Successful Legal Malpractice Cases
Factors Contributing to Successful Outcomes for Legal Malpractice Plaintiffs
Plenty of plaintiffs win judgments and settlements in legal malpractice cases each year. Whether in a court or arbitration, the factors for winning a legal malpractice case are usually straightforward: good safety net evidence showing that the prior case could have and should have been performed in the correct manner, and confirmed damages after the case could have been repaired. The pattern is usually followed, even in large monetary damage circumstances.
The unidentified factor is a working attorney which has helped more than one plaintiff succeed with no other evidence than double talking attorneys on the witness stand or an assigned "owner" who couldn’t answer basic questions about the file. All they needed to keep the wind in their case was to show the attorney was not up to speed on his or her own file. We’ll review a few cases which had these active and stand out elements.
Documents usually form a part of the picture, but not always. Plaintiffs’ attorney Judith Shapiro, in her appealing book "Legal Malpractice Law & Litigation" addresses the factors which appear in most decisions in Chapter 3. She posits from numerous citations that provable damages for the "missing deal, kidnapper/defamation, the long lost tort-feasor, and the clearly excessive claim for a personal injury case" were named factors which can win the day for a plaintiff.
Famous Legal Malpractice Plaintiffs
One of the biggest legal malpractice cases in history, which cost Cravath top $94 million, involved high-profile defendants the Home Group and the Galliher Law Firm of Connecticut. The malpractice resulted from an illegal transfer of 1,750 acres of land that was said to be ministerial in nature. While the home group failed to obtain a title opinion, it was on appellate court that they found out that their attorneys had failed them, as the trial court had invalidated the transfer. The Home Group won, but without the attorneys the insurance company, The Home Group, won $92 million in damages +court costs and interest . This ruling was made by the judge without a jury, after finding that plaintiffs’ attorneys were guilty of gross and willful mal-practice.
Michael Metnick was an attorney for the Stern family when he transferred about $1.3 million from one of their businesses to the personal account of Robert Stern, the family patriarch. At a state contract hearing, Stern and his brother claimed mistake and wanted the money returned. Based on this, the California State Bar began to investigate Berlin in 2008, allowing Metnick to resign. The case was settled out of court.
How to Avoid Legal Malpractice
Attorneys can avoid legal malpractice by adhering to the professional standards set in their state, communicating effectively with their clients about all aspects of a case and being fiercely vigilant regarding deadlines and all other details. The laws governing attorney competency and ethics are contained in the state’s code of professional conduct. Generally, a lawyer must perform competently and act with reasonable diligence and promptness. Good lawyers employ good support staff and have the financial and other resources to handle all aspects of litigation from pre-suit investigation onward. Simple mistakes, missed deadlines and lack of communication with clients can cost clients money, as well as valuable time and opportunities to collect on a judgment.
Legal Malpractice Statistics and Trends
Legal malpractice claims statistics are difficult to come by, as they are anathema to the claims insurers, and legal malpractice defense firms. In any event, all "legal malpractice cases" are in the end negligence cases and statistics pertaining to negligence cases are available. The usual insight holds that "Major urban centers" have more negligence cases than rural settings; more "depth of field" than "breadth of field" as discussed in this article. Consequential damages, by which we mean the damaged are specific to the individual plaintiff, are typically greater for urban centers as well. Casualties seem to be highly correlated to the various industries in the area. Defense lawyers will point to the frequency of such cases in New York, California, Texas, other big cities because of "big industry and big money"; plaintiff’s lawyers counter with the high number of attorneys in the area.
But there are several interesting trends in these sectors . First, there is a long-term trend towards increased lawyer accountability. This seems more pronounced in the areas of corporate/ business litigation than on any other area. Increasingly courts and juries are willing to hold lawyers responsible even when they didn’t make "bad faith decisions", or at least not in the larger sense.
Second, a happily related trend is in the number of cases where the financial services industry recently. There has been a recent spate of cases where lawyers are held liable for failing to fully disclose the investment risks and consequences of certain tax shelters. This is likely to expand out into malpractice in other kinds of financial advice. There seems to be a sensitivity amongst the public (and jurors) that lawyers know and should disclose every risk relating to money. On the one hand, this would seem difficult and the scope of such advice would be very large. On the other hand, lawyers and their insurers in particular need to stay aware of this growing trend.