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. The elements of a legal malpractice claim are similar to a medical malpractice claim. You must prove that the conduct was substandard and that substandard conduct, on the attorney’s part, caused injury to you.

How to Prove Legal Malpractice

In a legal malpractice claim, the Plaintiff has to prove duty, breach, causation and damage. A summary of each of these elements is contained on this page.

Use the following links to jump to sections on the page about the different elements of legal malpractice claims:

Legal Malpractice Verdicts and Settlements

Experience matters in a legal malpractice case. Our firm has handled many different legal malpractice claims covering a variety of situations. Here are just a few examples of successful claims we have had the privilege of representing:

  • Legal Malpractice Settlement – $600,000.00 – Settlement of Legal Malpractice action for failure of attorney to incorporate terms into Property Settlement Agreement that should have been included.
  • Legal Malpractice Action Against Local Attorney, failed to diligently pursue wrongful death action – $550,000
  • Legal malpractice action on behalf of local physician – $500,000

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 exists. In order to create that relationship there need not be a payment of fees. A contract of employment with the attorney may be oral. Frequently the contract is implied from the acts of the parties. It is sufficient that advice of the attorney is sought and received even though there is no payment. There may be written evidence of what that oral agreement is in emails back and forth. They may indicate what the attorney is going to do for the client.  An oral contract in this instance is as enforceable as a written contract.  For obvious reasons it’s better to have a written contract. The writing clarifies what the terms are. Call, or contact us for a free consult.

Written Contract

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

The Contract Controls

That contract sets forth what the obligation is of the attorney. Also it states the obligation of the client.  Keep in mind that in a contract 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. Lawyers call this a material breach.

Privity

A question that arises is whether or not the lack of relationship, or what lawyers call lack of privity, is a bar to a legal malpractice claim.  That becomes important in estate matters. In estate matters most often the client is dead when the issue of the attorney’s fault arises. The beneficiaries of the estate may be able to sue the lawyer if they were the intended beneficiaries. That term has specific meaning.

Different Views On Privity

Some states have relaxed the strict legal malpractice privity rule.  California has adopted its own test in terms of legal malpractice privity. It applies several tests.  One test is the extent to which the transaction was intended to benefit the particular plaintiff. In addition there is the foreseeability of harm to that plaintiff. Also considered is the degree of certainty that the plaintiff suffered injury. Likewise the closeness of the connection between the lawyer’s conduct and the injury is a factor. Finally there is the policy of preventing future harm by attorneys.

Florida, Ohio and Colorado

Florida and Ohio have adopted a somewhat different rule. They maintain that a claim may be asserted by the heirs only if the client’s intent, as expressed in the will, is frustrated.

In 2016 the Colorado Supreme Court said that where non-clients are concerned the lawyer’s liability is limited. It is limited to where he has committed fraud or a malicious or tortious act. This includes a negligent misrepresentation.  As such Colorado, like many other states, continues to apply this strict legal malpractice privity rule.  In the case from Colorado it was alleged that the lawyer had failed to accurately advise the decedent regarding the impact of holding significant assets in joint tenancy with his wife. She was 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. Those latter children were not happy. Call, or contact us for a free consult.

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 lawyer’s duty of loyalty. It avoids the creation of a relationship between the attorney and third parties. Also it avoids the creation of situations where the attorney could be required to reveal confidences to those third parties. In addition it prevents lawyers from having liability to a potentially unlimited number of third parties. Finally it maintains the “cardinal rule” that the intent of the decedent should be ascertained from the will itself and nothing else.

No Assignment

One oddity of legal malpractice claims is that they may not be assigned(sold). You may not assign or sell that claim to someone else. The reason for that is the attorney-client relationship is deemed to be personal. In addition it is 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 governed by what is the norm within the profession as far as that particular type of matter.
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 lawyer would do in that context.

Per Se Breaches

There are some standards that are called per se standards. 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. This results in the statute of limitations expiring. Lawyers 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. It is 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.

Lack of Clarity as to the Standard

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. This is so if that testimony was needed from the expert.

Whether there was a breach may depend on whether appropriate financial arrangements had been made between lawyer and client as to who would pay. Were those arrangements made in time to designate and call the expert as a witness. As you can see from this example the standard of care is not as clear 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 tough. There may be a difference of opinion as to exactly what is the standard of care.

Lack of Legal Clarity

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. In that instance the standard of care may be that the attorney is obliged to tell the client the law is unclear. As a result the path forward is uncertain. In that case all the lawyer can do is to give advice as to which path to follow. This is 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 breach of the standard of care. As a result there may be no basis for a legal malpractice claim.

Judgment Calls

The practice of law is referred to as a profession. 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. This means that one lawyer may do things one way. Another lawyer, equally competent, may do things another way. They may both be acting within the standard of care. Even though their performance is dramatically different. Call, or contact us for a free consult.

In A Legal Malpractice Case Is Expert Testimony Required?

The expensive thing about legal malpractice claims is that not only does the Plaintiff need a lawyer to handle the case but also a legal expert to testify. The expert addresses what the standard of care was and how that standard of care was breached. The expert may also opine as to what the fault of the lawyer caused. Going to trial without an expert witness to support the legal malpractice claim in most instances would be reckless. It may in some cases be legal malpractice.

Type of Expert

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 a lawyer familiar with auto litigation. In some cases you can get into 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. She doesn’t have sufficient time to identify all of the at fault parties and all of their employers or principals. In an auto collision the police report may 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. Sometimes they misidentify parties. This may be due to sloppiness on the part of the officer or someone lied to the officer as to their identity.

Different Opinions on the Standard

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 the drivers. Nor does it name person on whose behalf the driver may be acting. That info 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. They need to be presented to an expert witness and factored into the decision of what is the standard of care and was it was violated.

As such the short answer to the question posed above is that in most cases an expert witness is required. Even if one is not required it is prudent to have one on board to testify in the event the need arises. That 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 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) dealt with this. There a lawyer holding himself out as a specialist was subject to a professional standard measured by other specialists. The standard would not to the lesser standard of a general practitioner. In fact a specialist may be liable under State Deceptive Trade Practices statutes if they have advertised themselves as being specialists. If they failed to perform at the level of a specialist that may be substandard. In addition to liability issues there may also be ethical issues. This is certainly so when in fact there is not a specialty designation that is recognized.

Specialist May Be Required

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 testify.

If the attorney involved is a general practitioner then the breach of duty by that lawyer may be the negligent handling of the matter. In addition it may be the duty of the attorney who is a general practitioner to refer the client to a specialist. Call, or contact us for a free consult.

Legal Malpractice Claims Involving Litigation

In legal malpractice claims involving litigation you have to prove two things or cases:
1. The underlying case would have resulted in a favorable outcome and how much.
2. In addition it has to be shown that there was fault on the part of the lawyer that was a cause of the unfavorable outcome.

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

Bifurcation

Some judges may give consideration to bifurcating or separating the two cases. For instance the underlying case may be tried first. Assuming that the 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. It is typically opposed by the plaintiff.

Immigration Issues

In the U. S. Supreme Court decision of Padilla v. Kentucky the Court dealt with an immigration issue. The failing to advise a defendant of immigration implications may be a violation of the Sixth Amendment requirement for effective assistance of counsel. However in Virginia the state Supreme Court has held 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. But the conviction is not going to be overturned. Criminal lawyers have not always been sensitive to immigration implications of criminal pleas. The thinking has been that this is the province of the immigration bar. Not so anymore.

Non-Litigation Malpractice

Where the negligence relates to something other than litigation there is no underlying case. In that context the negligence of the attorney simply must be proven and what damage that caused. Call, or contact us for a free consult.

Proving Causation in a Legal Malpractice Claim

Aside from proving that there is substandard or subpar behavior the plaintiff 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 an instance where the attorney allows the statute of limitations to pass. It may be that the lawyer is negligent as a matter of law. However suppose the underlying claim had no merit to begin with.  The attorney didn’t cause any loss to the client.  Even if the statute of limitations had been complied with the client would not have recovered any money because the case simply had no merit.

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.

Uncertain Causation

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 to allow a larger building that the client wishes to construct. The attorney then fails to file the necessary paperwork in a timely fashion. During that resulting delay period there is a change in the 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. How any one of them would’ve voted on this particular structure is uncertain.

Even though the attorney may have been negligent for the delay in filing it is tough to show that delay caused damage to the client. It may be the prior zoning board would have rejected the zoning request anyhow.

Failure to Appeal

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. The guesswork is trying to figure out what several judges on the appellate court may or may not do. That guesswork probably defeats the claim. It becomes almost impossible to conclude that the appellate court would’ve reversed the trial court decision. As such the 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 govern whether the claim is worth pursuing. Many lawyers reviewing a legal malpractice case look at the case from the backside. That is what might the case be worth assuming all the 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.

No Enhanced Value

If the underlying case is a auto accident case which the attorney handled in a substandard fashion then the legal malpractice case value is 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.

Types of Damages

Within the context of a legal malpractice case the damages that are recoverable may be referred to as “hard damages”. Or “economic damages” as opposed to “soft damages” or “non-economic damages”. The latter typically are not recoverable. Soft damages may be such things as emotional distress and other such non-economic losses. Economic damages are thought of as being able to be quantified. Non-economic 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 includable. What cannot be recovered in a legal malpractice case are any damages in the nature of non-economic 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 lawyer’s fault. Call, or contact us for a free consult.

Determining the Legal Malpractice Statute of Limitations

In consulting with a lawyer about a legal malpractice claim, one of the first things that the attorney will look at is the statute of limitations. The statute of limitations in Virginia may vary depending upon the agreement you had with the attorney.  If the agreement was in writing and signed by the attorney then the statute of limitations may be five (5) years.  If the agreement was not in writing or signed by the lawyer then the statute of limitations may be three years. This can be a tricky issue. You should seek legal help to define what your limitation period is.

The Continuing Representation Rule

Sometimes the difficult issue in determining the statute of limitations is exactly when the statute began to run.
If the attorney continued representing you for some period of time after the alleged negligent act then the statute may not begin to run until that representation ends.  That becomes a complex issue. 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 began to run can be a tough issue.  You should not assume that because the representation by the attorney has continued that therefore the statute has not begun. It may be the statute began to run when the attorney committed the negligent act. That is, when she breached the duty that was owed to you.
If the attorney is handling several different matters for you the continued representation as to the other matters may not stop the statute from beginning to run.

The Statute of Limitations In Different Jurisdictions

The issue of the statute of limitations can be further complicated in the DC area where many attorneys practice in DC and Maryland.  If that is the case then it may be that any lawsuit against the lawyer could be brought in either of those states. The statute of limitations for that jurisdiction may be the one that controls.  You may have a case where the statute for Maryland is what controls as to the claim brought in Maryland but the substantive law of Virginia applies to the merits of the claim. All of that becomes complex and requires some prompt expert analysis.

Call, or contact us for a free consult. 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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Contact Us For A Free Consultation