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, You must also prove that substandard conduct, on the attorney’s part, caused injury to you.

Proving Legal Malpractice

As you will see from other pages on this website, 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.

Attorney malpractice claims are probably the most difficult tort claims to handle because of the requirement that you prove the “case within the case” as mentioned above.  Frequently what exists in a legal malpractice claim is that the attorney may have been negligent.It becomes very difficult to prove that negligence in fact caused damage to the client.  Just to give an example in the context of the “case within the case”. Although the attorney may have been negligent in terms of not winning the case it may have been that there never was a viable case to begin with.  If that is the situation, then the attorney is not guilty of malpractice. His negligence did not cause any damage to the client since the client probably would not have won the case even if the client had been represented by the most competent lawyer in the world.

Most attorneys carry malpractice insurance coverage.  That malpractice insurance coverage provides not only a defense in the event they are sued but also indemnification for any judgment or settlement.

My practice in handling legal malpractice cases is to fully investigate them. I then make contact with the attorney directly in order to get the attorney’s “take” on things. I then consult with the client as to what that attorney says.  Legal malpractice claims that only involve judgment calls by the attorney are inherently difficult claims to pursue.  By judgment calls I mean such things as whether to call a particular witness at trial; whether to ask a particular question; whether to present a particular item of evidence.  Those types of judgment calls become very subjective.  On the other hand the failure of an attorney to file a lawsuit in time in compliance with the statute of limitations does not involve any judgment call on the attorney’s part. It rather it is simply negligence for the failure to file on time.
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.

Legal Malpractice Claims Involving Litigation

That general rule applies to any negligence claim against an attorney dealing with the mishandling of litigation.

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.

The concept of standard of care is much the same as what applies in a medical malpractice case. That is an expert, typically a lawyer, would need to testify as to what should have been done.

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.

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.

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.

For more information on professional liability claims, see the other pages on this site.

Legal Malpractice and Immigration Issues

Lawyer malpractice practitioners received some clarification on January 13, 2011 when the Virginia Supreme Court indicated that criminal sentences could not be amended more than 21 days after the date of the final order unless the defendant was still in jail and filed a habeas corpus petition within two years of the date of sentencing. 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 not only may be guilty of malpractice and now 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 you think you have a basis for a legal malpractice claim, contact us. Brien Roche is a Virginia attorney with over 35 years of experience and is waiting to serve your legal malpractice needs.

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

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Legal Malpractice

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Contact Us For A Free Consultation