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What is Legal Malpractice?

Fairfax Injury Lawyer Brien Roche Addresses What is Legal Malpractice

Brien Roche

Legal malpractice or attorney malpractice consists of actions or omissions on the part of an attorney that qualify as substandard or subpar behavior by that attorney which results in injury or loss to the client.

That definition is a bit of a mouthful.  Let me see if we can break down the different elements to answer the question of what is legal malpractice.

The relationship between an attorney and a client is a professional relationship.  In Virginia that relationship is considered to be based upon a contract. That contract may be either written or oral.

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.

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.

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.

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.

Another example. 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 Does Causation Mean-A Critical Analysis

The critical nature of analyzing a legal malpractice case from the point of view causation cannot be overemphasized. Causation or more importantly lack of causation is frequently the key issue in this analysis. The failure to fully understand that can cost everybody a lot of time and money. See the page on this site dealing with causation.

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

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What is Legal Malpractice?

Fairfax Injury Lawyer Brien Roche Addresses What is Legal Malpractice

Brien Roche

Legal malpractice or attorney malpractice consists of actions or omissions on the part of an attorney that qualify as substandard or subpar behavior by that attorney which results in injury or loss to the client.

That definition is a bit of a mouthful.  Let me see if we can break down the different elements to answer the question of what is legal malpractice.

The relationship between an attorney and a client is a professional relationship.  In Virginia that relationship is considered to be based upon a contract. That contract may be either written or oral.

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.

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.

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.

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.

Another example. 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 Does Causation Mean-A Critical Analysis

The critical nature of analyzing a legal malpractice case from the point of view causation cannot be overemphasized. Causation or more importantly lack of causation is frequently the key issue in this analysis. The failure to fully understand that can cost everybody a lot of time and money. See the page on this site dealing with causation.

For more information on what is 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