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

What Are My Options As a Commercial Lawyer?

Commercial law functions across a broad spectrum of business and commercial transactions including finance, accounting, management and trade. Often referred to as business law, it is one of the most widely practiced legal areas. Regularly overlapping with other areas of law and engaging many different types of clients, commercial law can offer lawyers a diverse and varied portfolio of work.

Not all roles, however, are the same. When it comes to legal recruitment in corporate law, consider all the options available to you.

In-house role. Because the focus of it is business, it is an area of legal practice that presents many opportunities for in-house positions. Many businesses employ in-house legal teams or lawyers to deal with their legal issues. In-house legal roles in this area are good positions for lawyers interested in the business world.

Law firms. Most large law firms offer expertise in commercial contract law, and most will working for these larger firms will be involved in some aspect of contract law. If you’d like to be involved in the nitty gritty of business law and interacting with those involved, smaller or boutique commercial law firms will offer more frontline opportunities. When it comes to commercial law, the age-old dictum proves true for many – bigger is not necessarily better!

International work. In today’s global world, business often crosses national boundaries. Many commercial lawyers, therefore, will be involved in international business, trade or finance dealings. Commercial law therefore offers the opportunity for lawyers to travel for work. Those looking to relocate overseas, however, will find it harder to find positions where local industry knowledge is often coveted and essential to business dealings.

If you’re interested in commercial law jobs, there are a number of different career prospects and opportunities available to you. Deciding which area and arena of commercial law you would like to work in will help you narrow down your job prospects and choose a role that suits your career objectives.

When Do You Need to Hire A Commercial Lawyer?

How do you know you need a commercial lawyer? Many people who enter the business world are often focused on making profits, not realizing that there are more that can be done to make their daily operations more efficient. The financial aspect of a business is one thing but to promote a high standard and stable company would mean taking small details into consideration. It is true that legal matters can sometimes be given the least importance but would you rather wait for your company to lose a lot just because of legalities and formalities? The simple task of making company contracts secured may never be possible without the help of someone specializing in the judicial system. So how do you know you need a commercial lawyer?…You don’t need to think for a lot of reasons because you will need a commercial lawyer long as your business is operating.

You will need the services of a commercial law firm at a certain point and so it is important to establish a relationship with a qualified lawyer as early as now. The success of you business with any case or legal matters depends on how well your lawyer knows the ins and outs of your business. A lot of known cases are reported wherein companies lose a lot of assets because of their incapability to protect their interests legally. The judicial system is a vast universe of laws and regulations and you can’t possibly handle legal dilemmas on your own. You will always need the help of a professional who spent years studying and mastering the judicial system. For any commercial establishment or business, a commercial lawyer will be the main defender.

Some businessmen would rather wait for anything unexpected to happen before taking appropriate actions. Situations become more unpleasant in cases when rushed legal advice or defense cannot help in any way because it is already too late. These are the times when all you can do is to follow what the law dictates.

Times when competitors violate your interests are just some of the instances when you will need a commercial lawyer. Other instances are: employment contract concerns, fraud on business transactions, merging companies, legal issues, securities, legal paper works, expansion, and many other legal tasks related to businesses. The role of a commercial lawyer is important in maintaining the professional image of a company. He may also serve as the representative of the whole company to other businesses.

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