What Is Legal Malpractice?

When an individual hires an attorney (a lawyer), that attorney is held to the highest standards of professionalism in handling all aspects of any lawsuit or case. It is required that an attorney always conduct himself or herself ethically, professionally and with the client’s best interests in mind.

Unfortunately, statistics show that too often attorneys do not abide by these requirements, and as a result, an attorney may be guilty of legal malpractice. Approximately 35,000 people annually file claims against lawyers who maintain legal malpractice insurance.

Understanding Legal Malpractice

Even though legal malpractice is commonly referred to as attorney negligence, it can take many different forms such as simple negligence, gross negligence, negligence per se (a legal doctrine whereby an act is considered negligent because it violates a statute or regulation), fraud, breach of contract and breach of fiduciary duty.

Lawyers can inflict damages upon their clients through forms of neglect such as failing to designate proper experts and witnesses, missing a statute of limitations (the necessary time within which to start a lawsuit) or failing to conduct and respond to the required discovery of documents, witnesses, information and other necessary items during a lawsuit. A lawyer may be guilty of having a conflict of interest where he or she represents a party notwithstanding the inability to do so because there were competing interests, which made it unlikely that the attorney could proceed with fairness on behalf of his or her client. An attorney may have made a mistake as simple as a drafting error in preparing a document. Your lawyer or his or her staff may have made an administrative error in calendaring an important court date, resulting in dismissal of your case in court. In any case, the damages incurred by the client in the event of even one of these mistakes may prove to be substantial.

Proving Your Case

In pursuing a legal malpractice claim in New York, one must first understand that the damages caused to a person by an attorney must be measurable and that not all mistakes made by attorneys cause damages. For instance, if a lawyer chooses one strategy over another in handling a case, and that decision is eventually considered to be a reasonable error in professional judgment, that lawyer is generally not liable.

One aspect of a legal malpractice case that makes it unique compared to other types of cases is that it is inherently a “case within a case,” or a two-pronged lawsuit. In any legal malpractice lawsuit, there was an original case which it is claimed was handled unprofessionally or improperly by the lawyer in question. The facts of this underlying matter must be fully understood in order to effectively prosecute a legal malpractice case against the original lawyer. The reason is that not only must it be proven that the original lawyer’s negligence or unprofessional conduct led to an adverse outcome for the client, but it is also required that there is proof of whether the outcome of the underlying case would have been successful if he or she had a lawyer who performed adequately. This means that the following must be proven in a New York court in order to successfully prosecute a legal malpractice case:

1. An Attorney-Client Relationship: This may be the result of a contract for legal services through a retainer agreement or the relationship can arise by words or actions of the parties. Where there is an explicit undertaking to perform a specific task, an attorney-client relationship is established. The existence of an attorney-client relationship does not depend on a formal retainer or the payment of a fee.
2. The Attorney’s Failure to Exercise That Degree of Care, Skill and Diligence Commonly Possessed by a Member of the Legal Profession: What this means is that in order to sustain a cause of action for legal malpractice, a party must show that an attorney failed to exercise “the ordinary reasonable skill and knowledge” commonly possessed by a member of the legal profession. An attorney does not, except by express agreement, guarantee results. What is determined to be ordinary reasonable skill and knowledge depends upon the facts and circumstances surrounding what occurred as well as the law at the time of the surrounding circumstances. Often there may be the need for expert testimony by another attorney in order to show and prove what ordinary reasonable skill and knowledge means under the circumstances. An expert witness will be able to provide the degree of skill commonly used by an ordinary member of the legal profession in order for a jury to evaluate whether a lawyer has committed malpractice.
3. Causation: To recover for an attorney’s legal malpractice, the plaintiff or victim must show that the malpractice was a substantial factor in causing his or her damages, losses or harm. In other words, the plaintiff will be required to prove that “but for” the attorney’s negligence or malpractice, the plaintiff would have obtained a more favorable result in the underlying litigation or would not have sustained the damages and losses in the underlying litigation, case or transaction. Therefore, it is important to prove that the damages, losses or harms would not have occurred “but for” the breach by the attorney. This “but for” causation standard is what results in proving a lawsuit within a lawsuit where the claim arises out of representation in litigation.
4. Damages: The damages recoverable in a legal malpractice action include any loss “within the range of probable contemplation”. The damages must be “the actual and ascertainable losses resulting from the attorney’s negligence or malpractice.” In a legal malpractice suit arising from the loss of a cause of action, the measure of damages is generally the value of the claim lost. Additionally, a legal malpractice plaintiff may recover litigation expenses incurred in an attempt to avoid, minimize or reduce the damage caused by the attorney’s wrongful conduct. Therefore, an attorney who admittedly requested a jury charge based on the wrong statutory provision and thereby placed his client at an unwarranted disadvantage was liable for the additional attorney’s fees and costs that the client incurred in appealing from the resulting verdict and participating in a second trial. Further, damages sustained by reason of an attorney’s failure to prosecute a claim are not to be reduced by the amount of the contingent fee the attorney would have received had he or she performed proper services. When a cause of action is lost as a result of an attorney’s negligence, the client’s injuries are measured by the amount that would have been collected on that cause of action

Examples Of Attorney Malpractice

In pursuing a legal malpractice claim in New York, one must first understand that the damages caused to a person by an attorney must be measurable and that not all mistakes made by attorneys cause damages. Attorneys are also not expected to be infallible or free from honest mistakes of judgment. For instance, if a lawyer chooses one strategy over another in handling a case and that decision is eventually considered to be a reasonable error in professional judgment, that lawyer is generally not liable.

The following are examples of common mistakes that are a few among many on a long list of mistakes made by lawyers, one of which must be proven to have been committed by a lawyer and caused the client damages in order to successfully prosecute a legal malpractice case:

• Missed statute of limitations: This occurs when a lawyer fails to file a lawsuit containing all the necessary causes of action available to you or your loved ones within the appropriate period of time under the law, which results in the inability to sue for all the damages you claim you were entitled to.
• Breach of fiduciary duty: Attorneys are required to put their clients’ best interests first. When they fail to meet that minimum standard of care, individuals who have retained them become victims of legal malpractice. The hidden interests of an attorney violate the law and their oath to avoid conflicting interests. Fiduciary duty to avoid conflict of interest arises when a lawyer’s judgment is affected. Some examples of lawyer conflict of interest include representing multiple clients in the same accident where there may be competing interests, such as a driver and a passenger in the same vehicle. Other examples involve representing both sides of a situation or representing a plaintiff against a defendant who is insured by an insurance company that the lawyer represents or has represented. Other examples involve not telling the client about settlement offers or lying to a client about important case information or inappropriately using money that belongs to the client.
• Failing to name a necessary defendant/party to a lawsuit: In this instance, a lawyer may not adequately investigate or prepare a lawsuit, which results in an important party being left out of a lawsuit once the lawsuit is started. If the statute of limitations has passed and it is too late to bring the necessary party into the lawsuit, the client may have sustained substantial damages as a result of the loss of this party to a lawsuit. For instance, in any type of accident case, there may not be enough insurance coverage available as a result of the party or parties who were sued and therefore all of the client’s damages and losses may not be covered. Had there been a proper lawsuit against another responsible party with additional insurance coverage, this situation would not occur.
• Preparing incomplete and/or improper litigation documents and other paperwork: When proceeding with a case in court, there is necessary paperwork and litigation documents that must contain the parties’ claims and/or defenses. If this information is not correctly stated or pleaded properly, the proof will not be able to be presented in court and such a claim or defense may be lost to the party at the time of trial. This can have a devastating effect or impact on the ability to claim damages, losses or harms as well as in defending a case against any claim or allegation by the opposing party.
• Negligence: An attorney who undertakes to represent a client is expected to exercise a reasonable degree of skill, be familiar with the applicable rules of practice and the settled principles of law, and exercise reasonable care in representing the client. Reasonable care means that degree of care commonly exercised by an ordinary member of the legal profession. However, an attorney is not a guarantor of a favorable result and is not liable simply because the client did not achieve the best possible result or the result the client sought. Similarly, if an attorney explains to the client the nature of the risks involved in a certain course of action and the client elects to follow that course, the attorney is not responsible for the consequences as long as the attorney pursued the course using a reasonable degree of skill and care. Additionally, as long as an attorney acts in a manner that is reasonable and consistent with the law as it existed at the time of the representation, he or she is not liable for failing to advise the client or take action based on a novel or questionable legal theory pertaining to the case.
• Negligent misrepresentation: This occurs when an attorney mistakenly makes a false statement to the client and the client’s reliance on the information in this false statement leads to the client’s sustaining of damages.
• Breach of contract: This occurs when there are oral, written or implied terms of the contract between a lawyer and his or her client that are violated by the lawyer. Implied terms of conduct for lawyers include disclosure of all conflicts of interest, confidentiality, competence in the specific field and an obligation to obtain consent from the client prior to settling a case. The duty of an attorney may be limited by the nature and scope of the retainer agreement or written letter of engagement that was given to the client. Letters of engagement and retainer agreements must explain the scope of the legal services to be performed. Where a written retainer agreement plainly indicates the specific purpose of the representation, an attorney will generally not be held liable in malpractice for failing to explore legal issues outside the scope of the agreement.
• Theft/conversion: This occurs when an attorney takes a settlement payment that belongs to the client or bills a client for fees that were not incurred.
• Fraud/fraudulent inducement: This occurs when a lawyer intentionally misrepresents a fact, event or other circumstances in the case to the client and the client’s reliance on this false information leads to the client’s detriment and damages or other harms and losses.

Other Considerations

It should be noted that an attorney is not expected to be infallible or free from honest mistakes of judgment where the proper course of action is open to reasonable doubt. Therefore, the selection of one among several reasonable courses of action does not constitute malpractice. This may occur if the law is in doubt and not well settled which would make an attorney’s error one of judgment for which an attorney may be not held responsible.

However, an attorney may be held liable in malpractice for ignorance of the rules of practice, failure to comply with conditions that are necessary prior to starting a lawsuit, neglect to prosecute an action or failure to conduct adequate research. Attorneys should familiarize themselves with current legal developments so that they can make informed judgments and effectively counsel their clients. Likewise, an attorney may not shift to a client the legal responsibility that the attorney was hired to undertake because of his or her superior knowledge.

Usually, it is a question for a jury to determine whether or not an attorney’s conduct met the required standard of care. However, when the evidence presented shows clearly that an attorney’s conduct fell below any permissible standard of due care, there may be no question at all for a jury and the client plaintiff will be entitled to judgment as a matter of law. An example is where an attorney who knew of a deadline for filing a lawsuit or a condition precedent to a lawsuit, such as a Notice of Claim, failed to do so.

Additionally, if a client dies, a legal malpractice claim will survive the client’s death and may be prosecuted by the client’s Estate representative.

Disciplinary And Ethical Rules In New York

There are many provisions that are part of the New York Rules of Professional Conduct that govern attorneys and may have a bearing on responsibility in any attorney malpractice lawsuit. These rules refer to competence, scope of representation and allocation of authority between a client and a lawyer, diligence, communication, fees and division of fees, confidentiality of information, conflict of interest, duties to clients, and various other requirements. Regardless of what is stated in a retainer agreement or letter of engagement between a client and a lawyer, a lawyer cannot avoid his or her professional responsibilities by inserting limitations on his or her ethical duties in a retainer agreement or letter of engagement.

There can be no doubt that proceeding with a legal malpractice case against an attorney or law firm as a result of damages, harms or losses sustained can be very complex, thereby requiring a full and complete investigation into all circumstances concerning the malpractice in addition to retaining all necessary experts in order to prove all of the elements of the case. The attorneys at the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C., are thoroughly experienced in this area of the law and know what needs to be done in order to prove all elements in an attorney malpractice lawsuit. Call our office at 212-668-0100 to discuss your case with our attorneys, or contact us online to schedule your free consultation.