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Legal Malpractice Law in USA

Submitted By
Sadanand Naik
Bangalore
11th Feb, 2010

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Index

1. Legal malpractice

2. Legal malpractice and unauthorized practice of law:

3. Professional responsibility and Legal malpractice:

4. Legal Malpractice and Legal Outsourcing:

5. Governing law:

6. Jurisdiction:

7. Statistics on legal malpractice:

8. Statutory limits for filing

9. Remedies/actions for Legal Malpractice:

10.What amounts to legal malpractice?

11.Burden of proof on the Plaintiff

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Legal malpractice:

When the patient is injured by the negligence of doctor, doctor bears the legal
responsibility. When the driver of car rash and negligently drives a car and causes
the death of person, a driver bears the responsibility. When the building collapses
as the poor construction work of contractor or engineer, an engineer or contractor
bears the responsibility.
Similarly, the laws related to legal malpractice in USA are made to compensate the
clients by Attorneys.
An attorney is always the defendant in legal malpractice case. Legal malpractice
is an act of attorney which causes harm to the client when the attorney
breaches his fiduciary or contractual duty towards a client.
It is also become common in USA that when attorneys sue clients for attorneys'
fees, many clients assert malpractice as a defense.

Legal malpractice and unauthorized practice of law:

Although both the term refers to an act towards the client, there is quite difference
between the both. It is the right of an every individual to represent them before the
court. When the person represents others, it requires proper education, training and
an experience. A lawyer needs to act / practice within the scope/ definition of
practice of law1. When he breaches such duty it amounts to unauthorized practice of
law. E.g. practice of law by Californian attorney in New York without the license from
the bar council of New York.

Professional responsibility and Legal malpractice:

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the practice of law involves giving legal advice to clients, drafting legal documents for clients, and representing
clients in legal negotiations and court proceedings such as lawsuits,

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While the Professional responsibility encompasses the duties of attorneys to act in a
professional manner, obey the law, avoid conflicts of interest, and put the interests
of clients ahead of their own interests2. Legal malpractice occurs when there is a
breach of professional responsibility towards the client

Legal Malpractice and Legal Outsourcing:

An attorney is not said to made legal malpractice by outsourcing legal process to


outside providers. However the law requires that client has the information about
his work being outsourced to the LPO providers, and there shall be supervision by
an attorney towards the work performed by LPO providers. There is also an opinions
of American Bar council and many bar council of the states as to the outsourcing
the legal process and have opined that there is no unethical practice involved in
outsourcing legal process to LPO providers.

Governing law:

Most of the civil laws of the states in USA govern the law related to the Legal
malpractice. Federal law is also applicable when it relates to a federal question.
Besides the judge made law, ruling, decisions and opinions on the cases will govern
the Legal malpractice cases.

An attorney also subjected to the criminal law if he commits fraud/ theft on the
client account.

Ethics of the bar council of the state also govern in initiating the disciplinary
proceeding against an attorney.

Jurisdiction:

Generally cases are brought before the state courts where the case was filed /
where the attorney represented the client and the breach is occurred. However,
case is also filed in federal district courts when it involves the federal question.
Federal Courts would be having exclusive jurisdiction over the legal malpractice
case when it requires the resolution of a substantial question of federal patent law3.

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http://en.wikipedia.org/wiki/Professional_responsibility
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http://www.patentpracticeliability.com/2010/01/articles/federal-jurisdiction/exclusive-federal-court-jurisdiction-
over-patent-legal-malpractice-claims-where-are-we/

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But it is still unclear about the jurisdiction of by state or federal courts when the
cases arise form IP matters4.

There is also an issue as to filing legal malpractice cases against the lawyers from
other state. Case is particularly filed in the state where the attorney represented
the client and in the state where the attorney has license to practice.

Statistics on legal malpractice:

Every 4 to 5 law professional out of hundred have to face a lawsuit in a year 5. Each
year, over 35,000 lawsuits are filed against insured lawyers for legal
malpractice. Figure would be more if included uninsured lawyers6.

Statutory limits for filing7:

Statutory limits for filing legal malpractice suit against the Lawyers varies from 1 to
4 years. It is 2years in Alabama, Alaska, and Arizona. In Nevada 4 years or 2 years
from discovery, whichever occurs earlier.

In Louisiana State, case shall be brought unless filed in a court of competent


jurisdiction and proper venue within one year from the date of the alleged act,
omission, or neglect, or within one year from the date that the alleged act,
omission, or neglect is discovered or should have been discovered8

In New York State, three years from the date of the legal malpractice or
from the date until the attorney stops representing the client in that
matter9. (NY CPLR § 214(6),)If it is against the minor if the victim is a
child under 18 years old, his or her statute of limitations does not
even start to run until he or she is 18, so normally it would expire on

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http://www.martindale.com/legal-management/article_Hinshaw-Culbertson-LLP_556120.htm
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http://ezinearticles.com/?Legal-Malpractice-Insurance---Quick-Overview&id=2648383
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http://www.legalmalpracticelawfirms.com/

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http://www.statutes-of-limitations.com/case_type/malpractice-other-professions

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http://law.justia.com/louisiana/codes/123/108277.html
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http://www.splaw.us/PracticeAreas/Statute-of-Limitations-in-Legal-Malpractice-Claims.asp

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his or her 21st birthday10. In New Jersey, a lawsuit must be filed
within six years of when the malpractice occurred11.
In Pennsylvania, legal malpractice claim must be brought within 2 years 12 from the
date the plaintiff should have reasonably learned about the malpractice.
In Texas, the general rule is that legal malpractice cases must be brought
within two years from the time the injured party knew or should have
known of the legal malpractice13. Likewise different states have
adopted different types of statutes of limitations and the beginning
of limitation period and certain exceptions to the limitations etc.

Remedies/actions for Legal Malpractice:

When the client assigns his case to an attorney, he is expected to act prudently and
within the contract with the attorney. How can a client tolerate with the injury
caused by an attorney to a client? There are laws in USA to address these remedies;
a client injured in a legal malpractice case can file a civil law suit against the
attorney in the competent court of the state to recover damages. An attorney also
subjected to criminal prosecution when he commits a fraud or theft on the money or
the property entrusted with the attorney. A client can also bring the act of legal
malpractice to the notice of disciplinary committee of the bar council of particular
state where the bar council imposes sanctions including disbarment or the payment
of fine to state bar association.

What amounts to legal malpractice?

A lawyer has the duty, in all dealings and relations with a client, to act with honesty,
good faith, fairness, integrity, and fidelity. A lawyer must possess the legal skill and
knowledge that is ordinarily possessed by members of the profession.

Once the lawyer and the client terminate their relationship, a lawyer is not allowed
to acquire an interest that is adverse to a client, in the event that this might
constitute a breach of the Attorney-Client Privilege. In addition, a lawyer cannot use
information that he obtained from a client as a result of their relationship.
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http://www.michaels-smolak.com/lawyer-attorney-1501237.html
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http://www.nylitigator.com/PracticeAreas/Legal-Malpractice-What-You-Want-to.asp
12
http://www.philadelphiamedicalmalpracticelawyerblog.com/2007/11/pennsylvania_legal_malpractice.html
13
http://www.texaslegalmalpractice.com/about.htm

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Every state in USA has adopted its own ground for claiming Legal malpractice. In
general, legal malpractice may arises from

1. Existence of professional duty to the person harmed.


2. Professional negligence (violation of a duty owed to the client);
3. Missing of deadlines for filing of suit within time limit law required by statute.
4. negligent errors,
5. negligence in the professional relationship,
6. fee disputes,
7. Breach of duty towards the client to provide with a detailed and accurate
account of money or the property handled. Mishandling of client money.
8. Failure to show cost involved in court fees and other reasonable expenses
from the money advanced to an attorney.
9. Fee-splitting arrangements with non-attorneys.
10.Any types of error that would have been avoided by a lawyer
11.Disclosure of confidential information.
12.Giving improper advise
13.Preparing the documents improperly
14.Failure to file a documents
15.Making faulty analysis in examining the title to the real estate
16.injury caused to a third party
17.Breach of Fiduciary Duty
18. Conflicts of Interest e.g same lawyer or firm representing both the sides in
law suit.
19.Failure to Properly Investigate & Perform Discovery
20.Errors During Trial
21.Improper Settlement
22.Improper Documentation
23.Accounting Malpractice
24.Probate & Estate Planning Legal Malpractice
25.Failure to meet court deadlines.
26.Failure to act within the statute of limitations.
27.Failure to return phone calls or communicate with a client.

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28.Failure to resolve conflicts of interest.
29.Failure to know the law or perform adequate research.
30.Abuse or misuse of a client's trust account, including commingling trust
account funds with the attorney's personal account.
31.Improper withdrawal from representation.
32.Failure to file a lawsuit or motion in time
33.Overbilling
34.Failure to obtain client's consent before agreeing to a settlement / plea
bargain
35.Failure to discuss a settlement offer with client
36.Failure to file a case before the statute of limitation expires
37.Making mistakes in drafting contracts, wills, trusts, and other legal
documents
38.Failure to present relevant evidence at trial

Burden on the Plaintiff:

Filing a legal malpractice suit is not an easier one; a plaintiff needs to establish
certain things against the lawyer. There is a burden on the plaintiff to show cause
that there are prima facie grounds against the lawyer to prove legal malpractice.
Burden of proof also may vary defending on the law of the state. In general plaintiff
needs to show following Prima facie elements

1. must establish that there is an attorney and client relationship.: an attorney


client relationship can arise by either express agreement or by implication from the
parties actions.

2. Must prove the breach of duty toward the client (breach of contract/ violation of
standard of care) e.g. Not representing client properly, not filing documents in time,
misusing the money and property entrusted with the lawyer.

3. That the negligence was a proximate cause of an injury: A plaintiff needs to show
that the negligent act of the defendant was the proximate cause (and not some
other reason) of the damages to the plaintiff (person filing the lawsuit).

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4. Must prove that the client was injured due to the malpractice. If there is no injury,
then there is no ground for proving the case case.

5. Damage: Plaintiff shall prove the damages actually suffered and the nature and
amount of the damages suffered. Even if all other elements are proved and the
damage is not proved the case is likely to be dismissed.

Defenses:

1. Error due to an issue of law was unsettled or debatable.


2. The "Attorney Judgment Rule": under this rule a lawyer is not liable for small
errors in the judgments where the attorney made those judgments in good
faith
3. Changes in the law – A lawyer shall not be made responsible for wrong
advice, merely because the attorney's advice or representation turns out to
be faulty based upon subsequent changes in the law.
4. The "Case within a case"(suit within a suit) - this involves a retrial of the
original litigation within the context of the subsequent malpractice action - a
case within a case.
5. Attorney-Client Privilege - In defending against an accusation of malpractice,
a lawyer may be permitted to use what were formerly privileged
communications from the plaintiff in order to respond to plaintiff's
accusations.

6. Proximate Cause: attorney's negligence did not proximately cause14 of his


client's claimed damage. An attorney take defense as to his negligence was
not the proximate cause of the damage to the plaintiff.

In one of the case, an attorney had made a mistake in the legal description of
land encumbered by a mortgage that he was retained to foreclose which
delayed the sale of the property, giving the mortgagor time to raise the
money required to redeem. The attorney's client sued him for malpractice,
seeking to recover the loss of the increased value of the property. A jury

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It refers to the act which when performed leads to the injury almost consequently but in form of natural,
undependable or uniterrupted form resulting from that act.It means that if that act was not performed, the injury
would not have occurred. http://www.legal-explanations.com/definitions/proximate-cause.htm

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awarded the client $55,000 in damages. On appeal, the reviewing court
stated that the attorney's negligence, if any, could not be a proximate cause
of the client's loss.

Similarly failure to obtain expert witness, failure to submit affidavit, failure to


join parties in litigation, failure to file a complaint, late filing of answers to
request for admissions, failure to adequately investigate party's assets and
insurance coverage, failure to inform client of dismissal of case, failure to
prevail on a meritless defense, failure to uncover evidence in suit on option
contract, failure to move for judgment n.o.v., failure to inform bankruptcy
judge of bid for bankrupt estate, failure to submit affidavit prepared by client,
failure to "adequately" represent client, failure to invoke a statutory defense,
failure to prevent client's suicide, failure to identify all of spouse's assets,
failure to move for default, and failure to inform client of settlement offer
would not always be ground for legal malpractice unless there is a proximate
cause of the Attorney15.

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"Proximate Cause: The Final Defense in Legal Malpractice Cases"

Maloy, Richard H W "Proximate Cause: The Final Defense in Legal Malpractice Cases".
http://findarticles.com/p/articles/mi_qa3843/is_200604/ai_n17185632/

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