Lawyers are becoming an increasingly popular target for professional negligence suits.
Although there is no precise definition of legal negligence, generally a lawyer commits
negligence when he or she fails to provide quality legal services to a client by carelessness.
Filing a lawsuit against an attorney for negligence is different from filing a complaint about an attorney with the State Bar of California. A legal negligence lawsuit, like a medical negligence lawsuit, entails proving the professional committed negligence and entitles a successful plaintiff to damages. A complaint filed with the State Bar of California is processed through the bar association’s lawyer grievance system and, if valid, may subject the attorney to disciplinary action. Damages are not recoverable through the lawyer grievance system.
Legal malpractice traditionally has been characterized as an action for professional negligence against an attorney by a former client claiming that the attorney has failed to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the task or task which they undertake. This does not mean that an attorney is liable if the result is against their client.
In addition, the plaintiff must also prove some actual loss or damage resulting from the attorney’s negligence. These losses and/or damages may not be based upon sheer speculation. The mere possibility, or even probability, that damage will result from wrongful conduct does not render it actionable.
Attorneys may be liable for emotional distress damages and punitive damages if it is proven that the attorney is guilty of oppression, fraud, or malice by clear and convincing evidence.
For information on Professional Negligence/Legal Malpractice, please visit the topics below. In addition, our Frequently Asked Questions on Professional Negligence has further information that may be helpful to you.
- Duty of Care
- Breach of Duty
DUTY OF CARE
In general, an attorney owes a duty of care to a person once that person hires the attorney and becomes a client. However, sometimes there can be confusion as to whether an attorney has been hired. Many consumers mistakenly believe that consulting an attorney is the same as retaining or hiring an attorney. It is not. After an initial consultation, consumers are strongly encouraged to clarify with the attorney whether or not the attorney has been retained.
The duty that a lawyer owes a client has two components–competency and fiduciary. The lawyer must exercise the same legal skill as a reasonably competent attorney. No lawyer is expected to know the law so well that he or she can give perfect answers to every legal question, but lawyers are expected to know how to research issues and to recognize the limits of their knowledge. As a fiduciary of a client, an attorney is obligated to treat all information relating to a client’s representation as confidential and to zealously represent the client’s interests. This duty includes the disclosure of any conflicts of interest that might impair the attorney’s ability to represent the client.
Some courts are expanding an attorney’s duty of care to persons who are not clients. For example, beneficiaries to a Will might bring a lawsuit against an attorney who improperly prepared or executed a client’s Will, resulting in the Will being held invalid.
BREACH OF DUTY
A lawyer breaches his or her duty of care if the lawyer fails to provide reasonably competent representation or violates his or her fiduciary obligation. While proving that an attorney had a conflict of interest or otherwise violated his or her fiduciary obligation may be straightforward, proving an attorney failed to provide reasonably competent representation is more difficult. Lawyers may disagree about whether a particular course of action was reasonable. And, it may be unclear whether an alternative course of action would have provided a different result. However, there are some behaviors that clearly go beyond the bounds of competent representation. An attorney who simply forgets a filing deadline and permits the statute of limitations to expire, thereby destroying a client’s cause of action, is an obvious candidate for a professional negligence action.
Causation is easy to prove if an attorney misses a deadline or gives advice that is clearly wrong. However, proving causation can be more difficult in cases in which an attorney pursues a particular strategy that ends up injuring the client. In suing the attorney, the client must show that his or her injury was sufficiently related to the attorney’s breach of duty to be the proximate cause. This may entail trying to prove what would have occurred had the attorney chosen a different course of action. But the variables attendant to proving “what might have been” are numerous, and a defendant-attorney may argue the injury would have occurred regardless of his or her chosen course of action.
Suffering an injury as a result of an attorney’s representation is not the same as professional negligence. An attorney might have caused an injury, but if the attorney did not breach the duty of care, he or she will not be liable for damages. Successful plaintiffs are entitled to compensatory and, in rare cases, punitive damages.