Legal Malpractice

Fairfax Injury Lawyer Brien Roche Addresses Legal Malpractice Cases

Brien Roche

Legal malpractice is something that lawyers never like to talk about. It does exist. If it does occur and you have been injured as a result of attorney malpractice then you may have a basis for making a claim against that attorney. The elements of an attorney malpractice claim are similar to a medical malpractice claim. You must prove that the attorneys conduct was substandard and that substandard conduct, on the attorney’s part, caused injury to you.

Proving Legal Malpractice

In any tort claim the Plaintiff has to prove the existence of a duty; a breach of that duty; that the breach caused some injury ;then finally what that injury or damage is.  The same applies in an attorney malpractice claim.

Legal Malpractice Claims Are Premised on Proving the Relationship

One issue that sometimes arises in legal malpractice claims is whether or not an attorney-client relationship even exists. In order to create the attorney-client relationship there need not be a payment of fees. A contract of employment of the attorney may be oral. Frequently the contract of employment is largely implied from the acts of the parties. It is sufficient that advice of the attorney is sought and received even though there is no compensation.

Written or Oral Contract

If the contract is written then typically it is in the form of a Retainer Agreement.  However the written agreement may also be simply in the form of a letter that the attorney sends to the client confirming the terms of representation.  The client doesn’t necessarily have to sign that letter in return in order for there to be a contract.  The letter itself may set forth the terms of the contract which the client accepts by allowing the attorney to represent the client.

The contract between the attorney and the client may also be oral.  There may be some written evidence of what that oral agreement is, for instance communications back and forth indicating what the attorney is going to do for the client.  The basic terms of the agreement may be oral.  There is nothing wrong with that.  An oral contract in this instance is as enforceable as a written contract.  For obvious reasons it’s better to have a written contract because that clarifies what the terms are of the agreement.

That contract in large measure sets forth what the obligation is of the attorney and also what the obligation is of the client.  Keep in mind that in a contract typically the agreement is a two-way proposition.  What that means is that there are certain obligations imposed on the attorney.  There may also be certain obligations imposed on the client.  Either party can breach that contract.  Once a contract is breached then typically the breaching party cannot enforce it.  A breach of a contract means that there has been some violation of the terms.  Normally that violation has to go to the heart of the deal i.e., it has to be material.

A question that arises is whether or not that lack of relationship, or what lawyers call privity, is a bar to a legal malpractice claim.  That becomes especially important in estate matters because most often the client is dead when the issue of the attorney’s negligence arises.

Some states have relaxed the strict legal malpractice privity rule.  California has adopted its own test in terms of legal malpractice privity applying several issues.  The factors to be considered in California are the extent to which the transaction was intended to benefit the particular plaintiff, the foreseeability of harm to that plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the lawyer’s conduct and the injury and the policy of preventing future harm by attorneys.

Florida and Ohio have adopted a somewhat different rule maintaining that a claim may be asserted by the heirs only if the client’s intent, as expressed in the will, is frustrated.  In a 2016 decision from the Colorado Supreme Court that court said that where non-clients are concerned the attorney’s liability is limited to circumstances of where he has committed fraud or a malicious or tortious act including a negligent misrepresentation.  As such Colorado, like many other states, continues to apply this strict legal malpractice privity rule.  In the particular case from the Colorado Supreme Court it was alleged that the attorney had failed to accurately advise the decedent regarding the impact of holding significant assets in joint tenancy with his wife who is the mother of two of his children from the second marriage.  Upon his death the real estate passed to the stepmother and therefore the stepchildren received greater benefit than did the children from the first marriage.

Legal Malpractice Privity-Reasons for the Rule

There are a number of reasons as to why the strict privity rule should be maintained.  It does protect the attorney’s duty of loyalty, it avoids the creation of a relationship between the attorney and third parties, it avoids the creation of situations where the attorney could be required to reveal confidences to those third parties, it prevents attorneys from having liability to a potentially unlimited number of third parties and it maintains the “cardinal rule” that the intent of the decedent should be ascertained from the will itself and nothing else.

One oddity of legal malpractice claims is that they may not be assigned. For instance if you have a legal malpractice claim against your attorney, you may not assign or sell that claim to someone else. The reason for that is because the attorney-client relationship is deemed to be personal and confidential and therefore should not be subject to assignment.

Defining Substandard Behavior

The basic obligation of the attorney in a contract with a client for legal representation is that the attorney will comply the what is called “the standard of care”.  The standard of care is a standard although typically it is not written down.  That standard is normally governed by what is the norm within the profession as far as that particular type of representation.
The attorney who is being sued is not held to the highest standard of care nor is he allowed to operate at the lowest standard of care. What is expected is what a reasonably prudent practitioner would do under the circumstances.

There are some standards that are called per se standards and when violated they are referred to as per se violations.  A per se violation would be such a thing as an attorney failing to file a lawsuit in time and therefore allowing the statute of limitations to pass.  Attorneys are supposed to know what the statute of limitations is.  If they don’t know it or fail to comply with it, that may be a violation that is referred to as a per se violation.

If an attorney has committed a per se violation then at least one prong of establishing a legal malpractice claim has been proven: substandard behavior.
In the context of trying an automobile accident case there may be certain standards of care that apply to how the trial should be conducted. For instance the failure to call an expert witness to prove the plaintiff’s injuries may be a breach of the standard of care if in fact that testimony was necessary from the expert, the appropriate financial arrangements had been made between attorney and client as to who would pay for the expert and those arrangements have been made in time to properly designate and call the expert as a witness. As you can see from that example the standard of care is not as clear-cut and crisp as it is in the instance of failing to file suit on time. In many instances trying to establish the standard of care can be difficult. It can be especially difficult in those instances where there may be a difference of opinion as to exactly what is the standard of care.

In some cases it may be impossible to truly establish what is the standard of care. For instance, in a case where the law is unclear there may be no standard of care as to what the attorney is obliged to do or not do. In that type of instance where the law is unclear the standard of care may be simply that the attorney is obliged to tell the client the law is unclear and therefore the path forward is uncertain. In that instance all the attorney can do is to give advice as to which path to follow with both parties recognizing there is a degree of uncertainty. In that instance if the attorney happens to be wrong there may not be any violation of the standard of care and therefore no basis for a legal malpractice claim.

The practice of law is referred to as a profession because it involves a good deal of judgment. The use of judgment inherently means that sometimes there is no bright line rule to be followed. There is simply judgment to be exercised. That realm of judgment may be very broad; meaning that one attorney may do things one way and another attorney who is equally competent may do things another way. They may both be acting within the standard of care even though their performance is dramatically different.

In A Legal Malpractice Case Is Expert Testimony Required?

Going to trial without an expert witness to support the legal malpractice claim in most instances would be reckless and probably itself would be legal malpractice on the part of the attorney handling the legal malpractice case.

The type of expert that is needed is going to be determined by the nature of the case. If the underlying case is an auto collision then the expert witness should be someone familiar with auto litigation. In some instances you can get into some very subtle issues of what is the standard of care. For instance in an auto collision case the attorney is obliged to file suit within the statutory period against the wrongdoer. Suppose however the attorney is only hired days before the statute of limitations expires and therefore doesn’t have sufficient time to identify all of the responsible parties and all of their employers or principals. In an auto collision the police report typically will identify all of the involved parties. The police however are not infallible. Sometimes they make mistakes. Sometimes they do shoddy work. Over the years I have seen police reports that do not identify all of the involved parties and sometimes even misidentify parties either due to sloppiness on the part of the officer or because someone lied to the officer as to their identity. If the attorney coming in the case at the last minute doesn’t have time to check all of that out then a lawsuit may be filed that doesn’t identify all of the proper parties. In addition a police report frequently does not identify the employer of all of the drivers or the person on whose behalf the driver may be acting. That information can be important because that may have some effect on the amount of available insurance coverage. If all of the potentially responsible parties have not been named in the lawsuit then their insurance policy may not apply. Exactly what the standard of care is in a case like that is very fact specific. What that means is that all of the pertinent facts need to be gathered, presented to an expert witness for evaluation and then factored into the determination of what is the standard of care and whether it was violated.

As such the short answer to the question posed above is that in most instances an expert witness is going to be required and even if one is not required it is probably prudent to have one on board to be prepared to testify in the event the need arises. That obviously adds to the expense of a legal malpractice case. The last thing that any attorney in a legal malpractice case wants to do is to commit legal malpractice.

Standard of Care For A Legal Specialist

The standard of care for a legal specialist may be different than that for a general practitioner. The Second Restatement of Torts provides that a professional is held to a general standard of care unless that person represents that he or she has greater or lesser skill or knowledge than members of the profession normally have.

The California case of Wright v. Williams 121 Cal. RPTR. 194 (Court of Appeals 1975) ruled that a lawyer holding himself or herself out as a specialist is subject to a professional standard of care measured by other specialists and not to the lesser standard of care to which a general practitioner may be held. In fact a specialist may be liable under State Deceptive Trade Practices statutes if they have advertised themselves as being specialists but have failed to perform at the level of a specialist.In addition to liability issues there may also be ethical issues to be considered for a lawyer holding himself out to be a specialist when in fact there may not be a specialty designation that is even recognized.

The down side of establishing a professional standard of care applicable to a specialist is that the Plaintiff may need a specialist in that field to establish the standard.

If the attorney involved is a general practitioner then the breach of duty by that attorney may not only be the negligent handling of the matter but it may be handling the matter at all. It may be the duty of the attorney who is a general practitioner to refer the client to a specialist who is qualified to comply with that professional standard of care.

Legal Malpractice Claims Involving Litigation

In legal malpractice claims involving litigation you have to prove two cases:

1. The Plaintiff has to prove that the underlying case would have resulted in a favorable outcome.

2. In addition it has to be shown that there was negligence on the part of the attorney that was a cause of that unfavorable outcome.
That general rule applies to any negligence claim against an attorney dealing with the mishandling of litigation.
In the U. S. Supreme Court decision of Padilla v. Kentucky the Court indicated that the failing to advise a defendant of immigration implications may be a violation of the Sixth Amendment requirement for effective assistance of counsel. In a unanimous decision, the Virginia Supreme Court indicated that issues relating to the ineffective assistance of counsel are not sufficient to overturn a final sentence in cases such as this.

What this decision does is to clarify, at least in Virginia, that lawyers who have failed to advise defendants of immigration implications may be guilty of malpractice and the scope of damages has been clarified, i.e. the damages being the deportation risk and/or reality. Criminal lawyers historically have not been sensitive to immigration implications of criminal pleas thinking that this is the province of the immigration bar. Not so anymore.

If the underlying case for which the attorney was retained is a medical malpractice case and the attorney’s handling of that case was somehow substandard then the party suing the attorney in the legal malpractice case must present the medical malpractice case and prove that there would’ve been a favorable verdict in that case for a certain amount. That proof then constitutes the loss that was caused by the attorney’s substandard behavior. As a practical matter then you are trying two cases. First the medical malpractice case has to be presented and then the evidence in support of the legal malpractice claim must be presented. Some judges may give consideration to bifurcating or separating those two cases. For instance the medical malpractice case may be tried first and assuming that that verdict is in favor of the party bringing the claim then the legal malpractice case will be presented. If the case is a jury trial then one jury will hear both cases. Bifurcation is something that is frequently sought by the defense in these types of cases and typically is opposed by the plaintiff.

Non-Litigation Malpractice

Where the negligence relates to something other than litigation, then of course there is no underlying case. In matters that are non-litigation-based, the negligence of the attorney simply must be established and then what damage that caused.

The expensive thing about legal malpractice claims is that not only does the Plaintiff need a lawyer to handle the case but then also needs a legal expert to testify as to what the standard of care was and how that standard of care was breached.

Proving Causation in a Legal Malpractice Claim

Aside from proving that there is substandard or subpar behavior, to prevail in a legal malpractice claim the client must be able to show that substandard behavior caused injury to the client. That issue of causation frequently becomes a tricky one.

For instance in regards to an instance where the attorney allows the statute of limitations to pass, it may be that the attorney is negligent as a matter of law in that instance but it may also be true that the underlying claim had no merit to begin with.  As such the attorney didn’t cause any loss to the client.  Even if the statute of limitations had been complied with and the lawsuit had been filed on time the client still would not have recovered any money because the case simply had no merit to begin with.

Of course if the attorney tries to make that argument in defense of a legal malpractice claim that raises the question of why the attorney took the case to begin with.

Suppose the attorney is handling a zoning transaction for the client. The task for the attorney is to convince local zoning officials that the property should be rezoned in order to accommodate the larger building that the client wishes to construct. The attorney fails to file the necessary paperwork in a timely fashion. During that resulting delay period there is a change in the political composition of the zoning board. The majority of the new zoning board is opposed to this larger structure. The political composition of the prior zoning board is a bit of an unknown i.e. how any one of them would’ve voted on this particular structure. Even though the attorney may have been negligent for the delay in filing the paperwork it is going to be extremely difficult to show that delay caused damage to the client because the prior zoning board may have rejected the zoning request anyhow.

Another example. Your attorney has tried a case for you and the verdict was unfavorable. The attorney did a fine job at trial. You instruct the attorney to file an appeal. The attorney misses the deadline for filing the appeal. This is a per se violation and the attorney is probably negligent. The question then becomes would you have prevailed on appeal. That involves a large dose of guesswork i.e. trying to figure out what several judges on the appellate court may or may not do. That guesswork probably defeats the claim i.e. it becomes almost impossible to conclude that the appellate court would’ve reversed the trial court decision. As such the critical element of causation is missing.

In A Legal Malpractice Case What Damages Are Recoverable May Define The Merits Of The Case

In a legal malpractice case what damages are recoverable frequently govern whether the claim is worth pursuing. Many attorneys reviewing a legal malpractice case look at the case from the backside i.e. what might the case be worth assuming all the necessary elements can be proved. In looking at the value of the case it must be kept in mind that a legal malpractice case is just a contract case. It is not a tort case. Contract damages are different than tort damages.

If the underlying case is a auto accident case which the attorney handled in a substandard fashion then the legal malpractice case value is going to be governed by what the auto accident case was worth. If the auto accident case was only worth $10,000 then the legal malpractice case will be worth no more than. There is no add-on because the attorney was negligent.
Within the context of a legal malpractice case the damages that are recoverable are frequently referred to as “hard damages” or “economic damages” as opposed to “soft damages” or “non-economic damages” which typically are not recoverable. Soft damages may be such things as emotional distress and other such non-economic damages. Economic damages are generally thought of as being readily quantifiable. Noneconomic damages are more subject to variation.

If the underlying case properly involved the recovery of non-economic damages or soft damages then those damages are properly includable within the scope of what may be awarded in a legal malpractice case. What cannot be recovered in a legal malpractice case are any damages in the nature of noneconomic damages that were not part of the underlying case. For example there is no basis for recovery for emotional distress damages as a result of the attorney’s negligence unless those damages were properly a part of the underlying case.

Determining the Legal Malpractice Statute of Limitations

In consulting with any attorney about a legal malpractice claim, one of the first things that the attorney should look at is what the statute of limitations is.  The statute of limitations in Virginia may vary depending upon the agreement you had with the attorney.  If the agreement was in writing then the statute of limitations is five (5) years.  If the agreement was not in writing then the statute of limitations is three (3) years.  Typically an agreement with an attorney for representation is going to be in writing.  That writing may be evidenced simply by a letter signed by the attorney or by a formal Retainer Agreement.  You need to first determine whether or not you have such writing.

The Continuing Representation Rule

Sometimes the difficult issue in determining the statute of limitations is exactly when the statute of limitations began to run.

If the attorney continued representing you for some period of time after the alleged negligent act occurred then the statute of limitations may not begin to run until that representation ends.  That becomes a complex issue because the representation must have been for the same matter for which you are claiming legal malpractice.

One thing that cannot be overemphasized is that if you think you have a basis for a legal malpractice claim, you need to move quickly.  Determining exactly when the statute of limitations began to run can be a difficult issue.  You should not assume that because the representation by the attorney has continued that therefore the statute of limitations has not begun to run.  It is conceivable in some cases that the statute of limitations began to run when the attorney committed the negligent act i.e., breached the duty that was owed to you.

For instance if the attorney is handling several different matters for you and the attorney’s negligence only relates to one of those matters, the continued representation as to the other matters may not necessarily have any impact on when the statute of limitations began to run on the matter wherein the attorney was negligent.

The Statute of Limitations In Different Jurisdictions

The issue of the statute of limitations can be further complicated in the Washington, DC area where many attorneys practice in DC or Maryland.  If that is the case then it is conceivable that any lawsuit against the attorney could be brought in one of those neighboring jurisdictions in which event the statute of limitations for that jurisdiction may be the one that controls.  That is, you may have a case where the statute of limitations for Maryland is what controls as to the claim brought in Maryland but the substantive law of Virginia may apply to the actual merits of the claim itself.  All of that becomes rather complicated and requires some prompt expert analysis.

See the other pages on this sitefor a review of Virginia case law on this subject.
For more information on legal malpractice see the paes on Wikipedia.

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Legal Malpractice

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