What Constitutes Legal Malpractice?
Defining legal malpractice is relatively straightforward. Legal malpractice occurs when a lawyer fails to provide services on par with that of other attorneys under similar circumstances. There are three main components needed to form a legal malpractice case: The negligent party must be a licensed attorney who was working within the confines of an attorney-client relationship. Legal negligence does not extend to non-legal professionals, even if they provide similar counsel on a personal level. In the same sense, legal malpractice cannot be claimed outside of the attorney-client relationship . For example, if a lawyer advises a friend regarding a personal legal matter and causes them damages, the friend cannot claim legal malpractice, as no attorney-client privilege existed. Beyond the basic definition, legal malpractice can become complex when exploring the many ways that an attorney may fail their client. Having a general knowledge of the most common circumstances surrounding legal malpractice can empower those seeking to file a claim. As retaining the services of an attorney has become an increasingly complex process, proving that an attorney acted negligently has become a challenge for victims of legal malpractice.
Signs of Legal Negligence
The first step in legally analyzing a potential legal malpractice case is to identify the improperly performed legal service – that is, to identify the underlying action which allegedly placed the plaintiff in a worse legal position. An attorney-defendant must be held to the standard of care applicable to "an attorney with ordinary skill" (Sperber v Gordon, 190 AD2d 698, 594 NYS2d 689 [2d Dept 1993][citations omitted]). Almost invariably, the legally inadequate representation involves one or more of the following six basic elements of an attorney’s duties: the duty to advise, to supervise, to communicate, to follow and to use skill and diligence. It also may include the following: the duty to be competent, thorough, zealous, to advocate for the client, to inform, to disclose, to warn of other potential causes of action or claims.
Collecting Evidence for a Claim
Proving malpractice is harder than it sounds in a vacuum. If the lawyer did something inappropriate, is that negligence? If the lawyer made a good decision, but failed to communicate it to you, how does that enter into the picture? We start with all contemporaneous documents such as letters, e-mails, memos, pleadings, filings, assignments of rights, notices of claim and other communication as well as the final document which allegedly should have been delivered, provided or filed before the statute of limitations was expiring. In the APL case, we’ll be taking an a transcript of the meeting with the insurance agent and also taking the deposition of the agent as a witness.
What else did you expect? If you had an older family member, a nice old grandmother perhaps, who also tried to get the same result as you did, she will be a witness. An old neighbor across the street may have seen the lawyers come and go from the house to help you. The lawyer who was going to take on the case, the lawyer who was going to file an appearance, the paralegals who helped out, everyone becomes a witness for the purpose of retention and lost time on the job. The lawyer can testify as to what he would have done, could have done, might have done in his opinion; so the lawyer is now a witness.
We need statements from you to determine who, what, where, when, why. We need to interview all the witnesses who may have first hand knowledge of any aspect of the alleged legal malpractice. We need statements from the insurance agent, the homeowner’s association president, the religious organization and others involved in the story. We will be taking the deposition of representatives of the attorneys, their paralegals and others. The trick is: HOW DO WE GET THE INFORMATION WE NEED?
Expert Witnesses in Legal Malpractice
Expert witnesses not only establish the standard of care, but they help make the case that the breach of that standard is the proximate cause of the loss sustained. A good expert will explain to a trier of fact and a jury why an otherwise competent attorney either committed an obvious blunder or failed to do something that an competent lawyer would have done that would have avoided this loss. For instance, if a case is dismissed on the eve of trial due to the failure to file a document or to appear, an expert will explain to the jury how that would not have taken place had competent counsel represented the plaintiff instead of the defendant attorney. The expert will explicate what should have been done, why it should have been done, and that had it been done, the case would not have been lost.
Navigating Common Issues
Many plaintiffs struggle to prove every element of a legal malpractice case, particularly causation, control of the case, attorney-client privilege and even "bad lawyering" on the part of a former attorney. In many ways these often-overlooked elements of winning a legal malpractice case can be more problematic and significant than proving breach of attorney duties. It’s very true that almost no one ever goes to get a $1.0 million verdict against a defendant with no damages recoverable. That means that getting a $1.0 judgment can be easy… collecting it is another matter. "Bad Lawyering" refers to the attorney conduct itself, and whether it is winnable or indefensible . This is the one facet of legal malpractice that strikes plaintiffs in a most jarring way. No attorney ever tells a client when they part ways that their case will be lost, so they are now on the hook for substantial legal fees. As such, the former client must be immersed in the question of whether they suffered at the hands of their former counsel and whether they have a compelling case for legal malpractice. Control of the case refers to having the right to decide whether to settle or pursue the action, etc. A formal retainer agreement provides control; the lack of one does not. Causation issues refer to the problem of proving loss. That is the finding that someone owes you money. Breach issues are rare in a legal malpractice case.
Statute of Limitations and Legal Options
We recently blogged Proving Legal Malpractice in New York, how hard it is, in general terms. Practical Step One: Prepare the Case. Then, make certain you’re within the Statute of Limitations period, or have a thorough understanding of when time starts to run. A legal malpractice claim based on lawyer negligence must be brought within 3 years after the date the malpractice was committed. CPLR 214(6); see Mastroianni v. Ershr, 261 A.D.2d 391, 691 N.Y.S.2d 73 (2d Dept. 1999). However, a contract or breach of contract claim has a 6 year statute of limitations. CPLR 213. In either case, time begins running when the former attorney is not re-retained and the relationship ends. The time for suit starts when the malpractice occurs and ends 3 years later. If the statute of limitations expired before a new Attorney is retained or a lawsuit is filed against the old attorney assuming you can use a breach of contract theory- you are out of luck. Equitable estoppel will apply if the delay is attributable to the former Attorney’s conduct and not you. Otherwise, you are on your own.
Attaining Representation
One of the most important factors in successfully proving legal malpractice is to find a qualified malpractice lawyer who is able and willing to handle your case. There are a few essential steps that a potential client should take before rushing headlong into the first legal malpractice consultation. First, when searching for a malpractice lawyer, it is crucial to choose someone with a dedicated practice in this area who specializes in legal ethics and professional responsibility. Although other lawyers may be competent in their fields, those who do not have extensive experience in handling legal malpractice cases specifically may not be the best fit for a potential client. Second, potential clients should not be afraid to ask the difficult questions at the initial consultation, including how much the potential lawyer has won in damages for previous clients, to find out whether he or she has a strong litigation background, or to find out what the attorney’s experience has been in handling specific types of legal malpractice . This information will help potential clients decide whether or not they are comfortable trusting their case to this particular lawyer. A potential client should give careful consideration to the form of representation offered by the attorney, especially when the attorney suggests a possible fee arrangement. If the attorney broaches the subject of a contingent fee arrangement, this could be a red flag that the particular lawyer does not have the experience needed to successfully handle the case. A contingent fee arrangement means that the lawyer will not be paid unless he or she wins the case by obtaining a monetary recovery for the client. In legal malpractice cases, a contingent fee representation can never be appropriate.