Legal Malpractice Substandard Behavior-Defining It
The basic obligation of the attorney in a contract with a client for legal representation is that the attorney will comply the what is called “the standard of care”. The standard of care is a standard governed by what is the norm within the profession as far as that particular type of matter.
The attorney who is being sued is not held to the highest standard of care. Nor is he allowed to operate at the lowest standard of care. What is expected is what a reasonably prudent lawyer would do in that context.
Per Se Breaches
There are some standards that are called per se standards. When violated they are referred to as per se violations. A per se violation would be such a thing as an attorney failing to file a lawsuit in time. This results in the statute of limitations expiring. Lawyers are supposed to know what the statute of limitations is. If they don’t know it or fail to comply with it, that may be a violation. It is a per se violation.
If an attorney has committed a per se violation then at least one prong of establishing a legal malpractice claim has been proven: substandard behavior.
Legal Malpractice Substandard Behavior-Lack of Clarity
In the context of trying an automobile accident case there may be certain standards of care that apply to how the trial should be conducted. For instance the failure to call an expert witness to prove the plaintiff’s injuries may be a breach of the standard of care. This is so if that testimony was needed from the expert.
Whether there was a breach may depend on whether appropriate financial arrangements had been made between lawyer and client as to who would pay. Were those arrangements made in time to designate and call the expert as a witness. As you can see from this example the standard of care is not as clear and crisp as it is in the instance of failing to file suit on time. In many instances trying to establish the standard of care can be tough. There may be a difference of opinion as to exactly what is the standard of care.
Lack of Legal Clarity
In some cases it may be impossible to truly establish what is the standard of care. For instance, in a case where the law is unclear there may be no standard of care. In that instance the standard of care may be that the attorney is obliged to tell the client the law is unclear. As a result the path forward is uncertain. In that case all the lawyer can do is to give advice as to which path to follow. This is with both parties recognizing there is a degree of uncertainty. In that instance if the attorney happens to be wrong there may not be any breach of the standard of care. As a result there may be no basis for a legal malpractice claim.
Judgment Calls
The practice of law is referred to as a profession. It involves a good deal of judgment. The use of judgment inherently means that sometimes there is no bright line rule to be followed. There is simply judgment to be exercised. That realm of judgment may be very broad. This means that one lawyer may do things one way. Another lawyer, equally competent, may do things another way. They may both be acting within the standard of care. Even though their performance is dramatically different. Call, or contact us for a free consult.
In A Legal Malpractice Case Is Expert Testimony Required?
The expensive thing about legal malpractice claims is that not only does the Plaintiff need a lawyer to handle the case but also a legal expert to testify. The expert addresses what the standard of care was and how that standard of care was breached. The expert may also opine as to what the fault of the lawyer caused. Going to trial without an expert witness to support the legal malpractice claim in most instances would be reckless. It may in some cases be legal malpractice.
Attorney Negligence Substandard Behavior-Type of Expert
The type of expert that is needed is going to be determined by the nature of the case. If the underlying case is an auto collision then the expert witness should be a lawyer familiar with auto litigation. In some cases you can get into subtle issues of what is the standard of care. For instance in an auto collision case the attorney is obliged to file suit within the statutory period against the wrongdoer.
Suppose however the attorney is only hired days before the statute of limitations expires. She doesn’t have sufficient time to identify all of the at fault parties and all of their employers or principals. In an auto collision the police report may identify all of the involved parties. The police however are not infallible. Sometimes they make mistakes. Sometimes they do shoddy work. Over the years I have seen police reports that do not identify all of the involved parties. Sometimes they misidentify parties. This may be due to sloppiness on the part of the officer or someone lied to the officer as to their identity.
Different Opinions on the Standard
If the attorney coming in the case at the last minute doesn’t have time to check all of that out then a lawsuit may be filed that doesn’t identify all of the proper parties. In addition a police report frequently does not identify the employer of the drivers. Nor does it name persons on whose behalf the driver may be acting. That info can be important because that may have some effect on the amount of available insurance coverage.
If all of the potentially responsible parties have not been named in the lawsuit then their insurance policy may not apply. Exactly what the standard of care is in a case like that is very fact specific. What that means is that all of the pertinent facts need to be gathered. They need to be presented to an expert witness and factored into the decision of what is the standard of care and was it was violated.
As such the short answer to the question posed above is that in most cases an expert witness is required. Even if one is not required it is prudent to have one on board to testify in the event the need arises. That adds to the expense of a legal malpractice case. The last thing that any attorney in a legal malpractice case wants to do is to commit legal malpractice.
Standard of Care For A Legal Specialist
The standard of care for a legal specialist may be different than that for a general practitioner. The Second Restatement of Torts provides that a professional is held to a general standard of care unless that person represents that she has greater or lesser skill or knowledge than members of the profession normally have.
The California case of Wright v. Williams 121 Cal. RPTR. 194 (Court of Appeals 1975) dealt with this. There a lawyer holding himself out as a specialist was subject to a professional standard measured by other specialists. The standard would not to the lesser standard of a general practitioner. In fact a specialist may be liable under State Deceptive Trade Practices statutes if they have advertised themselves as being specialists. If they failed to perform at the level of a specialist that may be substandard. In addition to liability issues there may also be ethical issues. This is certainly so when in fact there is not a specialty designation that is recognized.
Specialist May Be Required
The down side of establishing a professional standard of care applicable to a specialist is that the Plaintiff may need a specialist in that field to testify.
If the attorney involved is a general practitioner then the breach of duty by that lawyer may be the negligent handling of the matter. In addition it may be the duty of the attorney who is a general practitioner to refer the client to a specialist. Call, or contact us for a free consult.
Legal Malpractice Claims Involving Litigation
In legal malpractice claims involving litigation you have to prove two things or cases:
1. The underlying case would have resulted in a favorable outcome and how much.
2. In addition it has to be shown that there was fault on the part of the lawyer that was a cause of the unfavorable outcome.
That general rule applies to any negligence claim against an attorney dealing with the mishandling of litigation.
Legal Malpractice-Bifurcation
Some judges may give consideration to bifurcating or separating the two cases. For instance the underlying case may be tried first. Assuming that the verdict is in favor of the party bringing the claim then the legal malpractice case will be presented. If the case is a jury trial then one jury will hear both cases. Bifurcation is something that is frequently sought by the defense. It is typically opposed by the plaintiff.
Immigration Issues
In the U. S. Supreme Court decision of Padilla v. Kentucky the Court dealt with an immigration issue. The failing to advise a defendant of immigration implications may be a violation of the Sixth Amendment requirement for effective assistance of counsel. However in Virginia the state Supreme Court has held that issues relating to the ineffective assistance of counsel are not sufficient to overturn a final sentence in cases such as this.
What this decision does is to clarify, at least in Virginia, that lawyers who have failed to advise defendants of immigration implications may be guilty of malpractice. But the conviction is not going to be overturned. Criminal lawyers have not always been sensitive to immigration implications of criminal pleas. The thinking has been that this is the province of the immigration bar. Not so anymore.
Non-Litigation Malpractice
Where the negligence relates to something other than litigation there is no underlying case. In that context the negligence of the attorney simply must be proven and what damage that caused. Call, or contact us for a free consult.
There are several other blogs on this site dealing with different aspects of legal malpractice:
