What Constitutes Legal Malpractice?
Legal malpractice is a type of negligence that occurs in the legal profession, most commonly when an attorney fails to provide competent representation to a client. This failure can result in significant harm, both for the attorneys involved and the people they are serving. Legal malpractice has some of the same basic elements of standard negligence laws, including the following:
• Duty – the actions of the lawyer or law firm must violate relevant rules of practice, such as the New York Codes, Rules and Regulations, to establish there is a duty .
• Breach – the violation of duty is what constitutes the breach, so the actions of the attorney in failing to follow the relevant rules is what causes legal malpractice.
• Causation – the breach leads directly to the damages suffered.
• Damages – the plaintiff in a legal malpractice case must experience some form of injury resulting in significant financial damages.
If you have been affected by legal malpractice, it is crucial that you have the strongest representation possible. Your attorney should be very familiar with legal malpractice laws, so they can provide relevant and helpful counsel. This is a specialized area, so make sure your legal team has adequate experience.
Duty of Care: Establishing an Attorney-Client Relationship
An attorney’s duty of care is a fundamental concept in legal malpractice. For the attorney, this duty is often intertwined with the establishment of the attorney-client relationship and the underlying contract with their clients. The contractual relationship between attorney and client goes further still. It is the basis on which a Court is persuaded that a duty of care exists. "In Metz v. Sumner (2011) 12 N.Y.3d 260, the Court of Appeals articulated the following three-part test for ascertaining whether an attorney owes a duty of care to a non-client: (1) whether the plaintiff is a client of the attorney, (2) whether the plaintiff is an intended beneficiary of the transaction between the attorney and the client, or (3) whether there exists a special relationship between the plaintiff and the attorney (see also Ginsburg v Pellman, 49 AD3d 403 [2008][finding that the need for an attorney and client to decide "who to sue and why" is a "key factor in finding that a duty to the client’s adversary existed").
A duty of care can also be extended to a third party, not based on a contractual obligation. The duty may arise based on the plausibility that the third party will be injured if the negligent conduct of the defendant attorney continues. (Sims v Blatchford, 9 AD3d 375 [2004]) Its characteristics are, of course, that the defendant has breached a duty of care that he/she owed to the plaintiff.
The Breach: What Happens When Attorneys Fall Short
One subject that causes clients to become quite upset is when they feel their attorney is not communicating with them. This can be a simple omission because the attorney has lost time; in these exact circumstances I have discussed in prior articles and blogs, simple mistakes are not legally actionable. An attorney who misses a deadline and then misstates the consequences of such for which a client suffers loss, then there may be the basis for a legal malpractice lawsuit. But if there is no loss, then it is most likely not actionable.
But meetings, emails and calls should be returned as soon as possible. Attorneys often have to travel and appear in court and there can be periods of lapse between times that they can return calls. However, the duty to the client does not end at any particular time or on any particular day. The client must feel secure that if his lawyer is in another state or country on business it will not mean more than a few hours at most before the person is able to communicate back with them. If not, the client’s case can become at risk and the client can seek damages for the legal malpractice; that is Breach of Duty.
The failure to meet a deadline is another example of Breach of Duty. The attorney knows (or should) that deadlines are inflexible and that failure to meet them can result in dismissal – the statute of limitations bar and countless other problems, including time and money. Let us say, for example, that you have an automobile accident case and the attorneys in New York breach the statute of limitations. How does that affect you? The insurance company may readily settle with NO better offer was forthcoming when the attorneys were timely. This would be a Breach of Duty because the attorneys intentionally missed the statute of limitations and the contract for legal services was not satisfied. It it satisfies the "but for" test, this legal malpractice.
Causation: Tying the Breach to Client Damage
Causation is the term which means "the negligence caused this harm to occur." Which harm? The harm for which there will be damages won. The idea is that the attorney did something wrong (breached) which caused the client harm (damages). It is not enough to show a breach, one must prove the connection, and that particular act or practice caused the client harm. Statute of Limitations begins to run upon an act of negligence, when the plaintiff could have known or discovered the claim, all in the client’s mind of cause and effect, and the Causation is at the very heart of legal malpractice. So the Appellate Division tells us today, August 12, 2014, in Bender v Lunsky, 2014 NY Slip Op 06069 (App. Div., 2nd Dept.) "Causation is an essential element of a cause of action to recover damages for legal malpractice, and it is incumbent upon a plaintiff to allege that the attorney’s negligence was the proximate cause of the damages sustained…" The (Supreme Court) erred by dismissing so much of the complaint as failed to allege home equity conversion as an element of the claim, as that allegation was essential to pleading a viable cause of action, and therefore, the cause of action was not properly pleaded, and was properly dismissed…" We know this. In every legal malpractice case, causation is the Gold Standard.
Damages: Evaluating the Client’s Harm
In a legal malpractice case, damages are generally understood to mean the harm suffered by the client as a result of the attorney’s errors or omissions. The damages claimed are typically financial losses, but they may also include emotional distress damages, and in rare circumstances, they may cover the other harms that result from an attorney’s conduct or omission in representing a client, even though these other damages may not directly result from the client’s financial loss. If the attorney incorrectly advised a client about the statute of limitations, for example, his or her damages from the underlying matter would be the value of the claim lost when the statute of limitations barred the claim.
Other damages, however, may be more difficult to quantify. In the situation described above, the damages comprise both the loss of the cause of action and the emotional distress that accompanies its loss . For instance, one court noted that "[o]bviously, an inherent element of the plaintiff’s emotional loss is the financial loss resulting from the defendant’s malpractice . . . . However, plaintiff’s emotional anguish is greater than simply the loss of money." A recent case illustrated this distinction. In that case, the attorney failed to explain the impact of an injury suffered by a woman during childbirth on her future health. After she learned of the failure to explain the effect on her future health, the woman was emotionally devastated by what had been expected of her life and what she would actually be able to do. She could no longer play with or hold her grandchildren, walk, bend over, or climb stairs.
The key to understanding legal malpractice damages is determining whether the client suffered some harm that transcends the money sought in a legal malpractice action. If so, damages are recoverable.
Legal Malpractice Defenses
When faced with a legal malpractice lawsuit, a lawyer has several defenses available. In some cases, these defenses can be raised at the outset of the litigation, while others may only be asserted as the litigation progresses.
Contributory Negligence
An alleged legal malpractice victim may have been responsible for some or all of the errors that led to the adverse outcome in the underlying matter. For example, consider the case of Clarke v. Solnik Chartered, No. 12 C 7995, 2013 WL 4500520 (N.D. Ill. Aug. 22, 2013). In that case, the plaintiff retained a law firm to represent him in an eviction matter, during which time the thirty-day period to appeal the eviction order expired while he was traveling. When the lawyer failed to seek a thirty-day extension on the grounds that the plaintiff was traveling, the plaintiff lost his right to appeal the eviction order.
When the plaintiff filed suit against the lawyer, the lawyer successfully asserted contributory negligence as a defense. The court held that the plaintiff could not show that the defendants had breached their duty of care because plaintiff himself contributed to the harm he was alleging against the defendants. Plaintiff’s actions contributed to the harm, and his failure to assist the defendants in protecting his rights should not prejudicially affect them. Since the plaintiff caused some or all of his own loss, he cannot collect for it. Id.
Statutory Limitations
If the underlying matter—i.e., the matter in which the plaintiff alleges the attorney committed malpractice—has expired based on the statute of limitations, the legal malpractice claim fails as well. It is crucial that any attorney who practices in multiple jurisdictions is familiar with the local laws and statutes of limitations in that area.
In many cases, the statute of limitations in the underlying matter will be the same as that in the legal malpractice claim. In other cases, however, the statute of limitations may differ. For example, the claim against the attorney may be barred by a certain number of years after the cause of action arises, while the claim against the underlying party is based on a different standard. As such, an attorney must be familiar with the particulars of the local policy in order to assert this defense.
Lack of Causation
An essential component of any legal malpractice lawsuit is the existence of proximate cause between the attorney’s conduct and the harm suffered by the plaintiff in the underlying case. In many cases, the plaintiff may have suffered some measure of damage in the underlying case, but it was not related to the alleged legal malpractice of the attorney. In Clarke v. Solnik Chartered, No. 12 C 7995, 2013 WL 4500520 (N.D. Ill. Aug. 22, 2013), supra, the plaintiffs claimed that the defendants had failed to maintain an eviction action in a timely manner, which had resulted in their losing the ability to appeal that decision. As a defense, the defendants argued that even if they had been timely in that process, their client would not have prevailed in an appeal of the adverse decision. Id.
The court, however, stated that, even though the plaintiff would have waited too long to file the appeal, the defendants’ argument did not defeat causation. Id. Defendants do not dispute that if they had filed the motion to extend, plaintiff would have had a reasonable period of time to file his appeal. Therefore, if plaintiff were eventually denied his chance to appeal, there is a genuine issue of material fact as to whether the defendants’ failure to file a motion to extend was a proximate cause of plaintiff’s inability to file an appeal. Id.
Advice on Legal Malpractice Prevention for Attorneys
The most effective way to prevent legal malpractice is to keep the lines of communication open with clients. While the occasional misunderstanding may still be possible even in the most thorough attorney-client relationships, the potential for confusion is lowered when you and your client are on the same page.
Keep Your Clients Informed
Your client should always understand the current state of his or her case. If there is a hearing coming up, be sure the client knows what to expect and whether a certain appearance is necessary. If a deposition is anticipated, explain the process to the client and see to it that they are well-prepared.
Remember that not every client will feel comfortable speaking up if they are confused or have questions; some are naturally reticent. This is where it’s important to pay attention to your client. An unsettled silence may indicate that something isn’t clear to them.
Follow Through
In addition to keeping your clients informed about any developments , do your best to follow through on everything you promise. Let your clients know when you’re available and be sure to make yourself reachable on a regular basis.
Set Appropriate Expectations
Well-informed and prepared clients are more likely to have realistic expectations. Use the initial consultation to set forth a clear explanation of the process and a realistic timeline.
Stay Organized
It goes without saying that appropriate documentation and diligent record-keeping is vital to avoiding a legal malpractice situation. By avoiding distractions, corruption, and disorganization, you can increase the accuracy of all of your documentation. If you’re short on time, consider investing in a legal malpractice insurance policy to help offset remaining risks.