What is Legal Malpractice
Legal malpractice is when a practicing attorney or a law firm is found to have made an error that causes financial or other material harm to the other party in a legal matter. For example, if during the course of a legal proceeding a client decides to accept a settlement offer, but the attorney fails to submit the consent package to the court within the appropriate time frame and the offer is lost, the client may have a claim for legal malpractice. Other examples include a lawyer or law firm failing to meet deadlines in an action, supplying inadequate representation to a criminal client or failing to advise a client on the terms of a settlement or judgment. Still further examples include failure to timely file documents, failure to fulfill discovery deadlines, missing deadlines for submitting bankruptcy documents and other errors.
Lawyers and law firms can be held responsible for their actions, and even if a client is unhappy for a variety of reasons, a claim is not automatically valid. Claimants are required to show that the attorney or law firm fell short of the standard of care . An inadequate analysis of a case by the attorney or law firm can give rise to a legal malpractice claim if that analysis is deficient to the point where the client suffers loss as a result. However, as attorneys are considered to be professionals, a finding of malpractice requires proof that the attorney or law firm acted in a way that was outside of the prevailing standard of care or that the professional acted in breach of fiduciary duty.
An important factor in a legal malpractice case is whether there was an actual or potential case to be pursued. If the underlying action, which was prosecuted by the law firm or attorney in question, had no merit, then there is no case to pursue legal malpractice for. That is because in order to pursue a legal malpractice action, the plaintiff claimant must prove that he or she would have won the underlying case but for the malpractice. Therefore, the actions of the attorney or law firm must have been improper. The failure to correctly file a case is also not generally the basis for a legal malpractice case. This is because simply misfiling a case does not mean that the attorney or law firm had no chance of winning. An experienced legal malpractice attorney can further clarify these issues.
Types of Legal Malpractice Cases
Legal malpractice cases can vary widely in terms of the facts and the defendant’s conduct. However, almost all legal malpractice cases involve one of the following three causes of action: negligence, breach of contract, or breach of fiduciary duty.
Negligence
The most common claim in a legal malpractice lawsuit is a claim of professional negligence. To prove a claim of negligence, a plaintiff must show that the attorney violated his or her duty to act competently in handling the case. A plaintiff must also show that the improper conduct caused an actual financial loss (generally, the plaintiff had a valid legal claim that was not pursued effectively, but for the malpractice).
Breach of Contract
A legal malpractice claim can also be based upon breach of a contract. This cause of action cannot be brought against an attorney who is representing a client in litigation because the litigation contract is expressly conditioned upon the successful completion of the litigation. For example, an attorney-client contract may promise to represent a client in litigation in exchange for a percentage of any amount recovered by the plaintiff. If, however, the same attorney offers to handle the case on an hourly basis, and fails to keep accurate time records, then the attorney may be liable for breach of contract.
Breach of Fiduciary Duty
An attorney has fiduciary duties to his or her client. This means that the attorney must be loyal to the client and make decisions that are in the best interest of the client, without regard to any benefit to the attorney. For example, if an attorney represents two clients in the same case, that can be a conflict of interest that breaches the duty of loyalty owed to each client.
How to Prove Legal Malpractice
"A legal malpractice case is premised on the concept that an attorney was negligent; that the negligence resulted in damages, and that the damages are legally recoverable." (Leitner Weiner, 6:20).
"An attorney commits legal malpractice when he fails to exercise the degree of skill commonly possessed by other attorneys, and the failure to exercise the requisite degree of skill was a proximate cause of the plaintiff’s losses. (Bennett v Hunter, 81 AD3d 829 [2011].)
Negligence The elements of a legal malpractice claim are: "the existence of an attorney-client relationship, which encompasses a duty by the attorney to exercise ordinary reasonable skill and knowledge, failure of the attorney to exercise that degree of skill or knowledge, that the plaintiff suffered damage, and that the attorney’s departure from the required standard of care was the proximate cause of the plaintiff’s damages." (Lattimer v McGonagle, 2 AD3d 210 [2003].)
"The individual elements of a legal malpractice claim are . . . the existence of a lawyer-client relationship; the retention of a lawyer that fails to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the bar, the plaintiff sustained actual damages, and the lawyere’s negligence is the proximate cause of the plaintiff’s (Leitner Weiner, 6:13.)
The motion to dismiss was denied because "the complaint states facts from which it can be inferred that [plaintiff’s] assigned-claim against the former entity may have been for an amount sufficient to tender satisfaction for the full underlying claim. This inference is supported by . . . consent and general releases, and a stipulation dismissing the assigned claim with prejudice after the final payment" was made, to which plaintiff was not a party. (Pullara v Dyer, 274 AD2d 897 [2000].)
"A motion for summary judgment is to be denied if a genuine issue of fact exists as to any of the essential elements of the legal malpractice cause of action. (Duffy v Horton Mem. Hosp., 66 NY2d 473 [1985].)" 3rd Department
Personnel Placement Svc. v Shapiro, 240 AD2d 238, 238 [2d Dept, 1997]
Legal Malpractice Claims Process
Once the decision has been made that there is a possible legal malpractice matter based upon the facts of the case, typical steps are as follows:
Step 1: Extensive Research
The first step is to ensure that discovery has been completed within the prior case. If discovery is not complete, it may be necessary to retain a defense attorney to depose some of the individuals associated with the case. This is one of the most important pieces in the process. A deposition can reveal vital evidence, and the closer a potential legal malpractice matter is to the prior case as far as time, the more important the discovery process becomes. Once all of the facts are in line and research is conducted, the next step is to contact a professional legal malpractice lawyer who can explain if a case will hold up in court.
Malpractice attorneys will typically discuss whether or not you hold up a strong case. If you do, the next step is to file a legal malpractice claim. Keep in mind that these claims must be filed within a certain window of time, so it’s important to take action quickly. Many states have within two years in which to file a claim. However, in some areas, litigation may take place even up until a year after the case ends. It really depends on which state you’re in. Your malpractice attorney will be able to discuss the law and help you determine what route to take.
Step 2: Negotiation
Once a malpractice claim has been filed, your attorney will begin the negotiation process. Using a settlement conference, your attorney will discuss the option for settling the matter before it comes to trial or other aspects involved in the case. In some cases, they may ask for a court hearing or trial date. Either way, this process is important to the case because it allows the two parties to negotiate what should happen. Often, this is where you will begin to see what a case is worth and what type of compensation you could receive if a settlement was given.
In some cases, your attorney may feel that the case is not worth pursuing because they believe the law does not support a malpractice claim. These lawyers will usually discuss other avenues for compensation and help you determine the best course of action moving forward. In some situations, a case may be pursued in other ways, such as mediation or through another loophole in the law.
It always helps to have an attorney who is willing to take a chance and pursue a case that deserves attention. The most common mistake is assuming that there is no case, so it always pays off to consult a malpractice attorney first to discuss the options.
Recent Legal Malpractice Cases
One such case is the 2009 case known as Ballenger v Potruch & Adelson, P.C.. in SCSD Albany, 2009 NY Slip Op 07661. In Ballinger, et al. appellants (defendant attorneys) contended that the court erred in denying their motion for summary judgment, but the court disagreed. The facts were that plaintiff (and others) owned a restaurant (whose name was also the name of the venture) and after a dispute among the owners, plaintiffs sued the other owners. Defendant lawyers represented plaintiffs. A settlement was reached to be documented by a Stipulation of Settlement, which was prepared by defendants. However, the stipulation allowed the restaurant to incorporate, but not designated which entity owned the restaurant. Later, one of the parties to the stipulation sought to block the incorporation. 2 years passed, and plaintiffs (and others) sued the defendant attorneys. Defendants moved for dismissal but the court denied it. So here we are. In the end, the Appellate Division rules that "Defendants argue that plaintiffs’ claim for negligence is barred because plaintiffs "failed to establish that any of the defendants’ alleged breaches proximately caused plaintiffs’ injuries . " We agree with Supreme Court that this argument is without merit. Plaintiffs’ claim for legal malpractice was premised on their allegation that defendants failed to draft an enforceable settlement agreement that protected them from defendants’ former co-owners and successors, and there is no question that this conduct, if proven, is the type of negligence that would support a cause of action for legal malpractice (see e.g. Arnav Indus., Inc. v Abernathy & Chapman, 35 AD3d at 208). "When determining whether a plaintiff has established the requisite causal relationship between an attorney’s negligence and the loss sustained, the courts must be mindful of the difficulties with which clients are confronted in proving such a case" (Miglino v The Biordi Law Group, P.C., 49 AD3d 563, 565). "Thus, the law requires only that a plaintiff prove that the attorney’s negligence is a ‘substantial factor’ in causing the loss, not that the negligence was the proximate cause of the loss" (id. [emphasis omitted]).
Finding the Correct Lawyer for a Malpractice Case
We all need attorneys to handle our matters. A trust and estates case is far different than a divorce, a corporate case, a bankruptcy. So too, legal malpractice is a area of specialty, that must be handled by a legal malpractice attorney, who knows the law, and has handled similar cases in the past. Many attorneys are simply not competent (whether they believe it or not) to handle legal malpractice cases. Many times, they will admit it, and step aside, emulating the failure we have seen so often with physicians in other arenas. But many others, either will not, or are not allowed to step aside due to those pressures inherent in the legal profession. Peer pressure, or more colloquially, the "good ol’ boy" or "old girls" system will often make it difficult to refer such a case. The result is that many legal malpractice victims are without competent counsel, and their claims just die a slow death. We know, because many of them come to us years after a prior attorney has had their shot at the case, and has done little or nothing. The first step in any legal malpractice action is hiring no less than a competent legal malpractice attorney. The second step is to find a specialist or expert in the field who can execute your case to the fullest extent, resulting in a potential settlement and return of your loss.
How to Prevent Legal Malpractice
To prevent legal malpractice, an attorney may use several techniques at the outset of a client relationship. As every legal malpractice is taken very seriously, and can result in severe consequences, an attorney would be wise to set a solid foundation immediately.
1. Exclude Problematic Clients Immediately
It is important to take stock of the type of clients that your firm will take on. As mentioned previously in this blog, some bad clients are worth walking away from early, rather than wasting your time and money getting involved with them.
2. Ensure Communication is Present
Many legal malpractice cases involve poor communication, either between the attorney and the client, the attorney and the other attorneys, or the attorney and the judge, but generally poor communication between the attorney and other parties involved in the case . On the other hand, if communication between the attorney and the parties to the case is clear, then there is less chance that the client will have improper expectations about the outcome of the case.
3. Document
Just as with communication, documentation is key to preventing legal malpractice. The more documentation there is with respect to a case, the better the chances are that other parties involved will not be caught off guard by developments in the case. If the attorney documents well, then there is less chance that their client will come to them with questions, or question their conduct and strategies. Documentation, along with communication, is the most important aspect of any case and can help avoid some potentially sticky situations.