Safety and Health Reporter
Brien Roche Law > Blog > Professional Negligence > What Does Standard Of Care Mean In A Legal Malpractice Case

What Does Standard Of Care Mean In A Legal Malpractice Case

Fairfax Injury Lawyer Brien Roche Addresses What does standard of care mean in a legal malpractice case

Brien Roche

What does standard of care mean in a legal malpractice case? The short answer is that “it depends”. It depends on the nature of the case and it depends on the particular activity within that case.

What Does Standard Of Care Mean In A Legal Malpractice Case–Per Se Violation

Let me try to be more specific. In an auto accident case the standard of care dictates that the attorney file suit within the statute of limitations. That is the standard of care. The failure of the attorney to file suit within that period of time is a breach or violation of the standard of care. The attorney may be liable for legal malpractice in that instance.

The failure to file any lawsuit to preserve the client’s rights would generally be a per se violation. A per se violation is one wherein the attorney is negligent per se. Changing the context a bit, it would be like a surgeon operating on the wrong leg.

What Does Standard Of Care Mean In A Legal Malpractice Case – No Per Se Violation

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-Better Safe Than Sorry

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 less 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.

For more information on legal malpractice see the other pages on this site and also see the pages on Wikipedia

Comments are closed.

Contact Us For A Free Consultation

What Does Standard Of Care Mean In A Legal Malpractice Case

Fairfax Injury Lawyer Brien Roche Addresses What does standard of care mean in a legal malpractice case

Brien Roche

What does standard of care mean in a legal malpractice case? The short answer is that “it depends”. It depends on the nature of the case and it depends on the particular activity within that case.

What Does Standard Of Care Mean In A Legal Malpractice Case–Per Se Violation

Let me try to be more specific. In an auto accident case the standard of care dictates that the attorney file suit within the statute of limitations. That is the standard of care. The failure of the attorney to file suit within that period of time is a breach or violation of the standard of care. The attorney may be liable for legal malpractice in that instance.

The failure to file any lawsuit to preserve the client’s rights would generally be a per se violation. A per se violation is one wherein the attorney is negligent per se. Changing the context a bit, it would be like a surgeon operating on the wrong leg.

What Does Standard Of Care Mean In A Legal Malpractice Case – No Per Se Violation

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-Better Safe Than Sorry

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 less 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.

For more information on legal malpractice see the other pages on this site and also see the pages on Wikipedia

Contact Us For A Free Consultation

Contact Us For A Free Consultation