Legal malpractice is something that lawyers never like to talk about. It does exist. If it does occur and you have been injured as a result of attorney malpractice then you may have a basis for making a claim. The elements of a legal malpractice claim are similar to a medical malpractice claim. You must prove that the conduct was substandard. In addition you must show that substandard conduct, on the attorney’s part, caused injury to you.
How to Prove Legal Malpractice
In a legal malpractice claim, the Plaintiff has to prove duty, breach, causation and damage. A summary of each of these elements is contained on this page.
Issues to be considered in evaluating a legal malpractice case are:
- Proving a relationship
- Defining substandard behavior
- Proving causation
- What damages are recoverable
- Statute of limitations
Legal Malpractice Verdicts and Settlements
Experience matters in a legal malpractice case. Our firm has handled many different legal malpractice claims. They have covered a variety of situations. Here are just a few examples of successful claims we have had the privilege of handling:
- $3,000,000 settlement for failure to sue the correct party
- $650,000 settlement for failure to obtain full pension benefits in divorce
- Legal Malpractice Settlement – $600,000.00 – Settlement of Legal Malpractice action for failure of attorney to incorporate terms into Property Settlement Agreement that should have been included.
- Malpractice Action Against Local Attorney, failed to diligently pursue wrongful death action – $550,000
- Legal malpractice action on behalf of local physician – $500,000
Legal Malpractice Proving Relationship
One issue that sometimes arises in legal malpractice claims is whether or not an attorney-client relationship exists. In order to create that relationship there need not be a payment of fees. A contract of employment with the attorney may be oral. Frequently the contract is implied from the acts of the parties. It is sufficient that advice of the attorney is sought and received. There may not be a payment. There may be written evidence of what that oral agreement is in emails back and forth. They may indicate what the attorney is going to do for the client. An oral contract in this instance is as enforceable as a written contract. For obvious reasons it’s better to have a written contract. The writing clarifies what the terms are.
What is important is that the contract be signed not only by the attorney but by the firm. The one not signing may be governed by a three year SOL. The one signing is then governed by a five year SOL.
Call, or contact us for a free consult.
Written Contract
If the contract is written then typically it is in the form of a Retainer Agreement. However the written agreement may also be in the form of a letter that the attorney sends to the client. This letter may confirm the terms of representation. The client doesn’t have to sign that letter for there to be a contract. The letter may set forth the terms of the contract which the client accepts by allowing the attorney to represent the client.
The Contract Controls
That contract sets forth what the obligation is of the attorney. Also it states the obligation of the client. Keep in mind that in a contract the agreement is a two-way street. What that means is that there are certain obligations imposed on the attorney. There may also be certain obligations imposed on the client. Either party can breach that contract. Once a contract is breached then typically the breaching party cannot enforce it. A breach of a contract means that there has been some violation of the terms. Normally that violation has to go to the heart of the deal. This is called a material breach.
Privity
A question that arises is whether or not the lack of relationship, or what lawyers call lack of privity, is a bar to a legal malpractice claim. That becomes important in estate matters. In estate matters most often the client is dead when the issue of the attorney’s fault arises. The beneficiaries of the estate may be able to sue the lawyer if they were the intended beneficiaries. That term has specific meaning.
Different Views On Privity
Some states have relaxed the strict legal malpractice privity rule. California has adopted its own test in terms of legal malpractice privity. It applies several tests. One test is the extent to which the transaction was intended to benefit the particular plaintiff. In addition there is the foreseeability of harm to that plaintiff. Also considered is the degree of certainty that the plaintiff suffered injury. Likewise the closeness of the connection between the lawyer’s conduct and the injury is a factor. Finally there is the policy of preventing future harm by attorneys.
Florida, Ohio and Colorado
Florida and Ohio have adopted a somewhat different rule. They maintain that a claim may be asserted by the heirs only if the client’s intent, as expressed in the will, is frustrated.
In 2016 the Colorado Supreme Court said that where non-clients are concerned the lawyer’s liability is limited. It is limited to where he has committed fraud or a malicious or tortious act. This includes a negligent misrepresentation. As such Colorado, like many other states, continues to apply this strict privity rule. In the case from Colorado it was alleged that the lawyer had failed to accurately advise the decedent regarding the impact of holding significant assets in joint tenancy with his wife. She was the mother of two of his children from the second marriage. Upon his death the real estate passed to the stepmother. Therefore the stepchildren received greater benefit than did the children from the first marriage. Those children were not happy. Call, or contact us for a free consult.
Legal Malpractice Proving Relationship-Privity
There are a number of reasons as to why the strict rule should be maintained. It does protect the lawyer’s duty of loyalty. It avoids the creation of a relationship between the attorney and third parties. Also it avoids the creation of situations where the attorney could be required to reveal confidences to those third parties. In addition it prevents lawyers from having liability to a potentially unlimited number of third parties. Finally it maintains the “cardinal rule” that the intent of the decedent should be ascertained from the will itself and nothing else.
Virginia recognizes the third party beneficiary principle. What that principle says is that if a person is an intended beneficiary of a contract or other instrument, then that person may have standing to sue if it is damaged as a result of some breach of that instrument. That is codified in Virginia Code § 55.1-119. That statute does not expressly say that the person has to be an intended beneficiary but it does say that the contract or promise must be made for the benefit of that person. Therefore it is possible that the person may not be an intended beneficiary but may be simply an incidental beneficiary.
Virginia Code § 64.2-520.1 then says that in spite of this latter Code section in the context of estate planning, unless the instrument expressly states that it intends to confer benefit upon a third party by a specification to Code § 64.2-520.1, then that person is not owed a legal duty by the attorney.
Attorney Malpractice-No Assignment
One oddity of these claims is that they may not be assigned(sold). You may not assign or sell that claim to someone else. The reason for that is the attorney-client relationship is deemed to be personal. In addition it is confidential and therefore should not be subject to assignment.
There are several other blogs on this site dealing with different aspects of legal malpractice:
