Legal Malpractice

August 31, 2015

Today’s subject is legal malpractice. ‘Tis true; attorneys make mistakes. Really!

Malpractice is a term synonymous with professional negligence. Although one sounds ugly and the other doesn’t, they have the same meaning. And that meaning? Per The Free Dictionary

Malpractice refers to negligence or misconduct by a professional person, such as a lawyer, a doctor, a dentist, or an accountant. The failure to meet the standard of care … that is recognized by a profession reaches the level of malpractice when a client or patient is damaged because of error.

Some appellate court opinions—and yours truly—nibble at the edges of this definition but, for our purposes, it suffices.

So, if I make a mistake I’ve committed malpractice? No. First, there is that “standard of care” thing. The standard of care represents, in any given situation, how an average attorney will handle a given set of circumstances. Defending a legal malpractice where the attorney has made mistakes challenges defense counsel, for the average person who will sit in a jury box assumes attorneys are not expected to make mistakes. Still, errors and substandard work are not always equivalent. (In 1961, in Lucas v. Hamm, the California Supreme Court did not hold an attorney liable for alleged errors associated with the Rule against Perpetuities, an arcane part of trust law. Too complicated for an attorney of average skill and ability.)

Who sets the standard of care? Ultimately, it’s the court or the jury, but they gain the knowledge they need to make a decision from expert witnesses. In a legal malpractice case that means attorneys, hired by the plaintiff and defendant to share their knowledge about how attorneys practice, as it relates to the issue. On occasion a case may be clear enough on standard of care that no experts are necessary—two year statute of limitations on a car crash, attorney is hired a week after the accident, and he fails to sue within two years—but those situations are unusual.

Often, there may be a clear breach of the standard of care, but no malpractice. Why? Malpractice or professional negligence requires damages and causation aka a nexus between the breach of the standard of care and the damage. If my error harms no one, there’s no malpractice. And if the client has been damaged, but the breach of the standard of care did not cause the damages, there’s no malpractice.

Practical examples? Attorney does not timely file a client’s lawsuit. Pretty clear breach of the standard of care—deadlines-r-us—and the issue for the jury will likely be, Was the client’s suit any good and, if so, what was it worth? Attorney represents multiple clients, favoring one and disadvantaging others. Attorney does a lot split for clients, but does not do it properly, forcing clients to pay someone else to get it right.

I work both sides of the malpractice divide, representing attorneys who are sued and, from time to time, suing an attorney. I also testify as an expert witness on standard of care and causation issues.

This piece is part of a loose series of law posts which are designed to introduce some practice areas at the Law Office of Mark Rubin.

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