Attorney Negligence: Did It Cost You Your Case?

Attorney Negligence: Did It Cost You Your Case?

Statistics show that legal malpractice claims have become more frequent for the last three decades. There are several instances where a client loses confidence in the abilities of his lawyer because the latter made matters worse instead of providing a resolution to the problem. If you suffered damages due to your lawyer’s wrongful conduct, may it be due to his negligence or intentional act, you may consider the option of bringing a legal malpractice action. However, proving a legal malpractice claim could be challenging as it often involves extensive search for appropriate arguments and corroborating evidence. Despite the existence of actual damages, there are other factors that need to be examined to determine whether a claim of legal malpractice should be filed.

Damages

If the client can prove that the attorney’s negligence or wrongful act resulted in damages, such damages could be recovered by filing a legal malpractice lawsuit. However, there are cases where damages are not easily ascertainable. In such cases, the California Supreme Court held that recovery of damages could still be awarded even if the existence and the cause of such damages are difficult to determine. On the most part, however, damages that are based on speculation or mere threat of future harm are usually not awarded by California courts.

Clients are likely to be more successful with the recovery of so-called “direct” damages. These are damages that have been the direct result of an attorney’s negligence or misconduct. For instance, in a case where an attorney wrongfully advises his client to file for bankruptcy and sell his home for a lower price than its market value, the court is likely to award the client damages to the extent of what he lost from the sale. In another case, a California court awarded damages to a physician due to the loss of his good reputation and the increase in premiums for his medical malpractice insurance due to his attorney’s negligence.

If the client can show clear and convincing evidence that the attorney can be held liable for fraud, malice or oppression, even punitive damages may be recovered, see California Civil Code § 3294. However, client-plaintiffs who have been denied the award of compensatory damages will not be entitled to punitive damages. In general, it is more difficult to prove the existence of punitive damages as courts usually require specific facts to prove that the attorney acted with oppression, fraud or malice. In one rare case, the court of appeals awarded punitive damages due to an attorney’s “conscious disregard of plaintiff’s safety”. In that case, the attorney, who was also a physician, advised his client to postpone the surgery in order to strengthen their medical malpractice lawsuit even though he knew about the urgency of a surgery.

Furthermore, if the client-plaintiff lost his claim for punitive damages in the underlying action, it is very unlikely that courts will award him punitive damages in a legal malpractice lawsuit. The California Supreme Court held that such damages are based on speculation and plaintiffs should not be entitled to damages that cannot be proven with certainty. Otherwise, lawyers would be exposed to more risks of liability, resulting in an increase in the cost of malpractice insurance.

Attorney Negligence

In a legal malpractice action based on the attorney’s negligence, the courts will look into four factors. First, the client-plaintiff needs to show that the attorney-defendant has the obligation to apply the skill, prudence and diligence required from his profession. Second, there has to be proof that the attorney failed to fulfill the above mentioned duty. Third, the client-plaintiff also needs to show that the attorney’s breach of his duty resulted in the damages he suffered. Lastly, as mentioned above, the client-plaintiff needs to present evidence of the existence of such damages and not just mere speculation. According to the California Supreme Court, client-plaintiffs who are facing criminal charges need to prove their actual innocence before they can bring an action against their attorneys. This way, the clients who have been found guilty by a criminal court would not be allowed to go after their attorneys and recover civil damages. An exception to this rule is a malpractice action that is not based on the quality of legal services provided by the attorney. For instance, a fee dispute between the client and the attorney can still be pursued in court even if the client was charged by a criminal court because such a dispute merely involves the attorney’s billing practices.

Typical Cases of Malpractice

The most common basis of malpractice action is the failure of an attorney to adhere to the deadlines set by the Code of Civil Procedure as well as other statutory filing deadlines. As mentioned above, attorneys are expected to apply the required skill, prudence and diligence in providing legal services. The failure to file a lawsuit, initiate a proceeding or bring an action within the so-called statutes of limitation could constitute a strong claim for legal malpractice.

An attorney can also be held liable if the court in the underlying case issues a default judgment against his client due to his failure to file a pleading, see California Code of Civil Procedure § 585. Furthermore, if he fails to relieve his client from the default by filing a motion in a timely manner, namely within six months after the issuance of the default judgment, the client would have another ground to file a malpractice lawsuit against him assuming that the motion could have been successful.

It is also possible to hold an attorney liable for not raising viable defenses in a legal action. In such cases, however, the client-plaintiff needs to show that the defenses that were not asserted can be proven in court and would have led to a more favorable result. In one case, for instance, a California court denied the award of damages to the plaintiff because the attorney decided to leave out weak defenses.

In general, attorneys have an obligation to adhere to their clients’ preferences particularly with regard to legal decisions involving their substantive rights. The failure to follow these instructions can be a basis for a malpractice action. In one case, for instance, a California court held an attorney liable for his failure to file a complaint despite of his client’s specific instructions to do so.

However, courts have held that an attorney can make decisions without his client’s consent if authority has been given in an agreement. Decisions involving procedural matters are also instances where attorneys can act independently. California courts have not yet drawn the line as to how to differentiate procedural matters and legal decisions. Thus, establishing a legal malpractice action based on the failure to adhere to clients’ instructions could pose several challenges. On the other hand, courts have consistently held that attorneys are not obliged to follow instructions that can result in an illegal or unethical conduct. Furthermore, an attorney can reject a case if he determines in good faith that the case lacks merit.

Another frequent basis for a legal malpractice action involves settlements. According to the California Rules of Professional Conduct, an attorney needs to provide his client specific information pertaining to the settlement such as the amount, and the terms and conditions of the offer, see California Rules of Professional Conduct Rule 3-510. To be successful with a malpractice action, a client-plaintiff needs to prove three things. First, there has to be evidence showing the attorney’s failure to inform the client about the settlement (or parts of the settlement). Second, the client-plaintiff needs to attest that he would have accepted the settlement offer if he had known about it (or had sufficient information about it). Last, evidence should be presented that the client would have benefited more from the settlement than the actual outcome of the case. The amount of damages in such a case will be determined by the difference between the actual outcome of the case and what the client-plaintiff would have received from the settlement offer.

Statutes of Limitation

In general, clients can file a legal malpractice lawsuit one year after the discovery of circumstances that support the malpractice claim or four years after the attorney’s act of misconduct, whichever comes first, see California Code Civil Procedure § 340.6(a). There are, however, exceptions to this general rule that could prolong the periods of limitation, giving plaintiffs more time to file a lawsuit. For instance, periods where the plaintiff is physically unable to bring a legal malpractice action against his attorney will be considered as tolled. The same applies to cases where the attorney-defendant is still representing the client-plaintiff in the same case where the attorney’s misconduct is at issue. In such cases, the time limit for bringing a legal malpractice action could be exceeded.

Seeking Legal Advice

The success of a legal malpractice lawsuit will mainly depend on the evidence and arguments which will support the claim that the attorney has been negligent in representing his client. Even procedural matters such as determining the applicable deadline could pose some challenges as well. Thus, in cases that involve complex issues, consulting a lawyer who is experienced in legal malpractice cases is inevitable in order to prevent the occurrence of further damages to the client.

Sources:
California Code of Civil Procedure
California Rules of Professional Conduct

For further reading:
George Lindahl J.D., California Torts, 2012
Suzan Herskowitz Singer, Attorney Responsibilities & Client Rights, 2003
Robert W. Schachner Esq., How & When to Sue Your Lawyer, What You Need to Know, 2005

Reduce Attorney Fees – 7 Strategies That Can Save You a Bundle

No one likes to pay excessive legal fees, but few clients know the simple steps they can take to reduce attorney fees. This article contains seven strategies that can save you a bundle in attorney fees.

1. Avoid Unscrupulous Attorneys. Most attorneys are dedicated professionals who take great pride in their work and serving the best interests of their clients. Unfortunately, there are some really rotten ones out there that give the legal profession a bad reputation. Before hiring an attorney, learn about their reputation in the legal community. Avoid unscrupulous attorneys who have a reputation for doing unnecessary work, transforming simple legal procedures into complex ordeals, and making every dispute exceptionally acrimonious – all designed to maximize the attorney fees.

2. Understand How Attorneys Charge. Attorneys typically charge clients an hourly rate, flat fee or contingency fee. The type of case will largely determine how the attorney will charge for their services. For example, an attorney representing a personal injury victim in an auto accident case will typically charge a contingency fee (i. e., one-third of the recovery). An attorney representing an individual in a divorce or criminal proceedings may charge a flat fee. A business law attorney will charge a corporate client an hourly fee to negotiate a contractual relationship and draft the agreement.

3. Initial Consultation. The initial consultation is the place to explain your legal problem to the attorney, state your desired outcome, and ask five specific questions that will help reduce attorney fees. First, what is the attorney’s initial assessment of your problem? Second, what steps would the attorney recommend to achieve your desired outcome? Next, how does the attorney charge for representation in your type of case? Fourth, what action can the client take to control the cost of legal services? Finally, if you retain the lawyer, what is the next step in the process?

4. Get A Second Opinion. If you are uncomfortable with one attorney’s assessment of your case or have misgivings about their representation, seek a second opinion. There are many different ways to approach a legal problem. It is important that you establish a comfort zone when you retain an attorney and have confidence in their approach to your legal problem.

5. Understand The Attorney-Client Agreement. The Attorney-Client Agreement is the legal contract that defines the relationship between the attorney and client including a thorough explanation of how the attorney will be compensated and charge for expenses related to your case. For example, if the Agreement states that the attorney will charge an hourly fee, understand that every minute that the attorney spends working on your case (telephone calls, reviewing letters and emails, client meetings, etc.) will later show up on your statement.

6. Review Your Statement. Most attorneys prepare itemized statements that state how the attorney’s time was spent and provides an explanation of the expenses. Be sure to review every statement for accuracy. If you don’t understand a charge, ask for an explanation.

7. Don’t Be Unreasonable. Unreasonable clients should expect to charged accordingly. One of the most important ways for a client to reduce attorney fees is by making informed and reasonable decisions about the management of their case.

Armed with these seven simple strategies, you’ll be in a strong position to level the playing field when you hire an attorney and save a bundle on attorney fees.

Finding an Attorney – Know Some Basics

At some point in life, just about everybody is going to need an attorney for something. It may be as mundane as signing finance documents to close on the purchase of a home or writing a simple will to issues as serious as accident liability or criminal defense. Whatever the situation, it is important to have wise and competent counsel. The problem is, most of us don’t need the services of an attorney very often, may not know one, or know how to go about finding an attorney that’s right for you. Like most things in life, the more you know and the more you are prepared the better. Selecting an attorney is no different. Let’s start at the beginning and work through the process.

It may sound simple, but the starting point should be to define if and why you need an attorney. There are times when not having one, or putting off contacting one, can actually make things worse. Don’t fall for ads claiming you can write your own will, handle your own divorce or set up your own Limited Liability Company (LLC). It may be possible to so with some of the packages that are offered, but what you don’t get is important legal counsel to advise you of any legal vulnerabilities, how to be sure your rights are being protected or whether those documents will stand up if challenged in court. There’s some truth to the old axiom, “A person who acts as his own attorney has a fool for a client.”

Once you’ve defined why you need an attorney, decide what type of attorney you need. Some attorneys are “general practitioners” while others are specialists in one particular area of law. If you are going to be involved in a personal injury case or a divorce, it may be wise to seek out an attorney who has experience specializing in that area.

Finding the right attorney is going to take a bit of work on your part. You can always start by checking the Yellow Pages or web sites, but the most effective means is to ask people you know or professionals in your community for referrals. You can also check with the state bar for a list of attorneys in your area as well as consult a legal referral service. Whatever you do or however you begin your search, you must do your due diligence. The more you know, the more satisfying the results of your search.

When you’ve narrowed your list of potential attorneys, the next step is to begin contacting them. That contact may be made by phone, or by scheduling a meeting, and many attorneys don’t charge for a “first consultation.” However, before scheduling such a meeting, be sure you understand whether there will be any fee involved. Through the process of choosing an attorney, remember that you are the consumer purchasing their services. Don’t be shy about asking questions. It’s always best to be a smart consumer.

During your search and consultation meetings, be prepared and specific about your expectations. If there are any documents that pertain to the situation you will be discussing, have them with you should they be needed for reference or verification of information. It is also a good time to talk about the attorney’s fees. Depending on the case, fees may differ. Some examples are:

Hourly: Many attorneys base their fees on an hourly rate. This can vary significantly depending on the experience of the attorney and the size of the law firm.

Flat Fee: Some cases may be charged a flat fee. For example, a simple divorce, bankruptcy or basic will may be handled for a set amount with any additional charges added like mileage or court fees.

Retainer: There may be times when an attorney asks for a certain amount up front to work as an account to draw against as the case progresses. In other instances, like for a business, an attorney may be retained on a continuing basis for an agreed upon fee.

Contingency: In this case, the attorney receives a percentage of the judgment as the fee. This is most common in personal injury and liability cases. The fee is paid once the court has set the judgment. If the judgment does not go in your favor, there is no fee.

Be sure you understand and agree to the fee schedule before signing an agreement with an attorney.

The last step in choosing an attorney is interviewing, checking credentials and references. When you hire an attorney, think of it as hiring an employee. In many ways, that’s what they are. They are working for you. Don’t be afraid to ask questions. Ask about other cases they have had that are similar to yours and what was involved in the case. You need to know what the attorney’s previous experience is. He or she may have been practicing law for twenty years, but they may not have extensive experience with cases like yours.

Ask for references. A reputable attorney will not have a problem with this as long as giving you such information does not breech any attorney/client privilege. It may not be out of order to ask what the attorney’s success rate is. In some instances it may help give you an impression of their skill or complexity of the cases they handle. Ask what percent of the cases handled by their firm is normally devoted to cases like yours.

Be prepared to answer personal questions that may be relevant to your case such as information regarding your finances, marital status, lifestyle or criminal record. Should you be asked such questions, be truthful. Your attorney cannot be effective if you don’t tell them the truth, even if it’s embarrassing or you think it may hurt your case.

There can be a great deal involved in working with an attorney when you need one. It is important to find one you feel comfortable with and trust. Taking the steps discussed above is by no means a comprehensive list of everything you may need to do to select an attorney that is just right for you, but it will give you a good start.

Remember to be proactive, do your due diligence in your search and don’t be afraid to compare and ask questions. Choosing the right attorney is a big decision, but one that you can make with confidence when you have done your research and come prepared.