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Malpractice doesn’t just apply to doctors and dentists. It may also apply to lawyers.
The term “legal malpractice” is a rather broad catch-all phrase that includes a variety of civil liability claims filed against attorneys who breached their duty to clients. There are also rare exceptions when an attorney may also be sued for breaching duties to another person/third party.
Breaches may include violating civil or criminal statutes, violating the stated standard of care a lawyer must practice, breaching disciplinary rules or even committing a criminal offense. However, it is worth noting that not all negligent acts or breaches by lawyers cause injury, just like in medical malpractice cases, where not all bad outcomes due to a medical procedure are malpractice.
If lawyers are found in breach, they may face losing their license to practice, be disqualified or disbarred, face fee forfeiture or be required to pay damages.
Lawyers, by implication, represent themselves to any potential clients that they have the skills, the learning and the abilities to handle their case. They imply they know the law and will practice it with due diligence to the best of their abilities. They imply they will use care when using their skills and knowledge to handle a client’s case. Not performing up to the standards implied and doing so negligently may result in the attorney being sued.
To file a malpractice claim against your lawyer, there needs to be several elements present to prove negligence. Those elements are that the lawyer had a duty of care to their client, that the duty was breached, that the breach was the direct cause of injury to a client and a claim for damages.
Proximate or direct cause in cases dealing with legal malpractice means foreseeability and cause in fact, meaning the lawyer should have known the act would cause the client harm. There is one distinction here that is important to note, and that is that attorneys usually owe a duty of care to clients only – not third parties.
To prove that this standard of care was breached usually requires the expert testimony of a lawyer, which may seem a bit like the fox guarding the hen house. However, this is no different than needing a medical expert for a medical malpractice trial. In other words, proof of the required standard of care and that the standard was breached would be testified to by another attorney.
Many clients don’t realize that lawyers are actually fiduciaries, which means they owe their clients complete loyalty and are mandated to provide honest and complete disclosure of everything to their client while they are handling their case. This, in a nutshell, means the attorney must put their client’s interests before and above theirs and other people.
If the lawyer does not keep the client up-to-date on everything the client needs to know, this may be regarded as hiding information. Believe it or not, lawyers are mandated to very strict and rigorous standards. Those who fail to live up to them may pay the ultimate price of disbarment.
When lawyers make mistakes, this is called legal malpractice. It’s their duty to serve their clients ethically.
Lawyers owe their clients a certain level expertise, a duty, to provide ethical, professional and competent legal services. From time to time, a lawyer may breach these duties and harm a client. Actions that breach the duties owed to clients may fall into a variety of areas that include violations of the professional standard of care or disciplinary rules, or a violation of civil or even criminal statutes. This kind of conduct, if indeed proven, may end up with the attorney paying damages, forfeiting fees and disqualification and/or a loss of their license to practice. Legal malpractice is serious business.
The fact that lawyers have many years of training to become experts in the law and that they have graduated with a degree and have set up a practice, means they are representing themselves to their clients that they have the skills, the know-how, learning and ability to competently practice law. In that representation it is implied that they will apply due care and diligence when using their knowledge to handle client’s legal matters.
“Generally speaking, the most common claim brought against lawyers is negligence. To file a negligence claim against an attorney there needs to be several elements present: that the lawyer owed a duty of care to the plaintiff; that the attorney breached that duty; that the breach of duty caused the plaintiff harm and that damages are owed for the injury,” outlined Brooks Schuelke, an Austin personal injury attorney with Perlmutter & Schuelke LLP. “You should also be aware that lawyers don’t normally owe the duty of care to third parties, though that area of the law is changing rapidly,” he added.
In Texas, the Pattern Jury Charges says that professional negligence is the “failure to use ordinary care, that is, failing to do that which an attorney of ordinary prudence would have done under the same or similar circumstances or doing that which an attorney of ordinary prudence would not have done under the same or similar circumstances.” In order to try a case like this, the proof of the standard of care and the breach of it usually requires the expert testimony of an attorney.
Another common area of legal malpractice is called breach of fiduciary duty. Lawyers are classified as fiduciaries and that means they owe their clients supreme loyalty and must tell them everything that is going on with their case. This isn’t something they do to please their clients; it’s a “must do” duty that involves good faith and dealing fairly with integrity. Put another way, lawyers must place the interests of their clients above all others and if they don’t fully disclose what is going on, this amounts to concealment.
“Some of the fiduciary duties a lawyer has are the duties to avoid conflicts of interest, keep client communications in confidence, reveal all material information to the client, follow all instructions the client issues and not get mixed up in activities that would adversely affect the client. In breach of fiduciary duty cases, the burden of the proof is on the lawyer to prove that the lawyer complied with the duties,” remarked Schuelke.
“If you feel you have been a victim of legal malpractice, seek legal counsel immediately and discuss the case with an attorney who has experience in this area of the law. This is serious business and you deserve unimpeachable representation. If you have any questions, call me,” Schuelke suggested.
Contact Perlmutter & Schuelke LLP at http://www.civtrial.com or (512) 476-4944.
On March 31, National Business Institutes is replaying a CLE seminar entitled Legal Ethics 101: Malpractice Prevention and Conflicts of Interest. The speakers are Judge-elect Amy Clark Meachum and me. If you need a couple of ethics hour before the end of the month, listen in.
Last Thursday, a San Antonio jury returned a $72.6 million dollar verdict against Akin, Gump in a case where the plaintiff alleged that the patent lawyers failed to properly obtain patents on a device that the plaintiff invented.
The verdict is another in the trend of larger verdicts against large law firms. The American Bar Association publishes a semi-regular survey of legal malpractice claims as reported by legal malpractice insurers. In September 2008, the ABA’s latest version came out, covering claims from 2004-2007. The previous study looked at claims from 2000-2003. One of the more stunning statistics in the study is that claims that were in excess of $1 million doubled from the 2003 survey to the 2007 survey. It’s my hypothesis, not mentioned or addressed in the study, is that one of the reasons is more successful claims against mega-firms.
Interestingly, Akin, Gump is also a party to a legal malpractice case (Akin, Gump v. Nat’l Development and Research Corporation) currently before the Texas Supreme Court, and the ultimate decision promises to be critical to the legal malpractice jurisprudence of our state.
It’s not an uncommon fact pattern. A corporate officer or employee will be testifying at a deposition or in a courtroom with the corporation’s lawyer present. The officer/employee says something bad that subjects themeselves to liability. And when things go south, the officer/employee ends up suing the corporation’s attorney for not protecting the officer/employee.
In such a situation, the fight is almost always whether an attorney client relationship existed between the officer/employee and the attorney. In Texas, the relationship can be created where (1) the attorney told the officer/employee he was being represented, or (2) it was reasonable for the officer/employee to make the assumption the officer/employee was being represented and the attorney did nothing to dispel that understanding. (The two leading cases on this, Parker v. Carnahan, 772 S.W.2d 151 (Tex. Civ. App. – Texarkana 1989, writ denied) and Perez v. Kirk & Carrigan, 822 S.W.2d 261 (Tex. App. – Corpus 1991, writ denied), just happen to be sitting on my desk for a brief.)
A high profile version of that fact pattern is playing itself out now. You may have seen that Laura Pendergest-Holt, the former Chief Investment Officer of Stanford Financial Group, is currently facing criminal prosecution. But she’s not being prosecuted for stealing money; she’s being prosecuted for lying to Securities and Exchange Comm’n investigators. You see, at the suggestion of a company lawyer, Ms. Pendergest-Holt sat down with the SEC for an interview. The company attorney was then there at the interview.
During the interview, the attorney repeatedly told SEC investigators that he was there on behalf of the company and not as Ms. Pendergest-Holt’s personal attorney, but did he really explain to her what that means? I’m not sure. I just know it’s a strange situation. The lawyer withdrew from representation of the company just a few days after the interview, and then he wrote the SEC disavowing everything he had told them about the client. I don’t know how this is going to turn out, and if it wasn’t so hard to bring a legal malpractice case against criminal lawyers in Texas, I might think a legal malpractice case was a certainty. You can read more details on this mess in a recent Law.com article.
This fact pattern should be a “teaching moment” for all attorneys that represent entities. In my speeches on how to avoid legal malpractice claims, one emphasis is always to clarify who you represent, and maybe more importantly, who you DON’T represent, with a warning that the unrepresented should get their own counsel.
Hat tip to Texas appellate lawyer Don Cruse for the link to the story.
Lawsuits about Ponzi schemes seem to be all the rage now. At the end of last year, mega-firm Holland & Knight formed a Madoff Advisory Group. The head of the group stated that:
Holland & Knight is already assisting a number of companies, financial institutions, charitable foundations and individuals who have been impacted by the Madoff entities. We are providing important guidance in assessing claims against the Madoff entities, in positioning our clients to reduce the likelihood of third party claims against them, and in accessing and providing avenues for governmental relief for aggrieved parties.
And at the end of last week, Texas law firm Strasburger & Price was one of two law firms that filed a multi-billion dollar lawsuit against insurers stemming from R. Allen Stanford’s alleged Ponzi scheme.
The problem? In May, Holland & Knight was sued for allegations that its conduct contributed to the Ponzi scheme of Florida investment advisor Arthur Nadel. And Strasburger & Price was a defendant in a lawsuit alleging that the firm helped one of its clients defraud investors through an oil and gas Ponzi scheme.
I don’t know how the case against Strasburger turned out or how the case against Holland and Knight is going to turn out. But I think it makes sense that if you’re hiring a firm to pursue a claim based on a Ponzi scheme that you ought to make sure the firm hasn’t been accused of participating in Ponzi schemes itself.
In 2005, Tae Bo creator Billy Blanks won a $30 million legal malpractice verdict against Seyfarth Shaw based on allegations that the firm failed to file court papers on time in the right venue. Earlier this week, a California appellate court found that the damage instructions were improper and sent the case back to the trial court, wiping out the huge legal malpractice verdict. Fortunately for Blanks, the finding of malpractice appears to still stand.
A plaintiff always likes going to a jury and not asking whether the plaintiff is owed something, but only asking how much.
In the last two weeks, Texas appellate courts have decided two legal malpractice cases on behalf of the attorneys because the client couldn’t prove that he would have prevailed in the underlying case.
Last Friday, in Hackett v. Littlepage & Booth, 2009 Tex. App. Lexis 1166 (Tex. App. – Austin, Feb. 20, 2009), the Court upheld summary judgment in favor of the defendant lawyers. Hackett hired Littlepage & Booth to file claims against Celebrex alleging that Celebrex caused one of his medical conditions. That suit was eventually dismissed, and Hackett filed suit against the firm for not suing the two physicians that prescribed the Celebrex.
In the legal malpractice claim, Hackett retained a physician expert that offered opinions that Celebrex caused his condition and that the physicians should not have prescribed the drug. Littlepage & Booth challenged the expert’s testimony as unreliable, arguing that there were no epidemiological studies to support the link between Celebrex and Hackett’s condition. The trial court (Judge Stephen Yelenosky here in Travis County) granted the motion. Once the expert was deemed unreliable, Hackett didn’t have any evidence to support the case within a case, and the court granted the law firm’s motion for summary judgment.
The Austin Court of Appeals upheld both rulings, and Hackett lost because he could not prevail on the case within a case. There was also an interesting issue regarding Deceptive Trade Practices Act claims in the legal malpractice context, but I think I’ll save that discussion for a later post.
A similar result was reached in Simon v. Miller & Associates, PLLC, 2009 Tex. App. LEXIS 989 (Tex. App. – Houston [14th Dist.], Feb. 12, 2009). Simon filed a small claims suit against his apartment complex, and the judge told him that he had sued the wrong defendants. Simon then hired the law firm to pursue the claim, but the law firm never amended to add the correct parties. The firm then withdrew from representing Simon shortly before the trial. Simon’s claim was eventually dismissed because he had the wrong parties.
After the dismissal, Simon filed suit against the law firm pro se (meaning he was acting as his own attorney). At trial, all of the parties agreed that the firm breached its duty and was negligent. However, the trial court heard the evidence, decided that Simon would not have won his suit, and ruled for the defendant. That finding was upheld by the Court of Appeals.
Both of these cases help demonstrate that the most fruitful defense in many legal malpractice cases is the challenge to causation. In many suits, there is no question that the defendant breached its duty to the client, but the defendant is able to make some hay as a defense by arguing causation.
This often produces a weird dynamic in cases against plaintiff’s lawyers, particularly when they had the underlying case on a contingent basis. The defendant lawyer is essentially arguing that the claim that he was pursuing in the underlying case, even if he agreed to do it on a contingent basis, was a frivolous claim. These defenses can lead to some fun depositions for the legal malpractice plaintiff’s lawyer.
I often have the misfortune of having to explain to prospective clients that even though their previous attorneys had acted in a way that is almost unthinkable, I can’t help them because they weren’t hurt enough. I have to explain that legal malpractice cases are expensive and that the damages have to be significant to justify the expense.
Today’s Lodi, California newspaper has an article on a legal malpractice case that serves as a perfect example of what I tell potential clients. From late 1996 to early 2004, attorney Michael Donovan represented the city of Lodi in a lawsuit over groundwater contamination. After criticism from the judge overseeing the case, the city fired Donovan and hired another lawyer. The city eventually settled with all the parties.
After the firing, the city sued Donovan for legal malpractice. Donovan, though paid over $14 million by the city, countersued saying that the city still owed him fees. Donovan claimed he was owed millions more, a percentage of all the settlements, and interest.
The case settled with the city agreeing to pay Donovan an additional $1 million. The primary motivating factor was the potential cost of the litigation. Through the settlement, the city had spent $2.5 million on the case and expected to spend an additional $1 million for the planned six week trial and another $1 million for a potential appeal. The city noted that the city’s attorneys took more than forty depositions in the case and would have to call numerous experts to talk about the underlying claim.
Admittedly, this is an extreme case. The underlying case involved complicated issues and more than 100 parties. But the same principles apply. It’s a tough row to hoe having to hire experts to prove up any underlying case and then also having to hire attorney experts to prove up the legal malpractice claims. But despite all the reasons and rationales, it doesn’t make it any easier to tell clients that have been wronged that you can’t help them.
Part of my standard spiel to lawyers on “how to avoid malpractice claims” is for the lawyer to take steps to avoid becoming the unintended lawyer. Any time there are multiple potential parties who think they may rely on the attorney’s advice, the attorney needs to clarify in writing who the attorney does and does not represent. This problem can occur in any number of fact patterns, but I tell lawyers that one of the most common fact patterns is when an attorney represents a corporate entity in litigation, and employees of the entity are being deposed and think the lawyer represents them individually.
If you don’t do what I recommend, then you may end up with a case like Bergthold v. Winstead Sechrest & Minick, a case decided by the Ft. Worth Court of Appeals last week.
Bergthold was an employee of Southwestern Bell Yellow Pages. SWB was sued by its employee, Bingham, and Winstead was hired to defend SWB. During Bingham’s lawsuit, Bergthold was cooperating with Bingham and his attorneys, meeting with Bingham’s attorneys to discuss the facts in the lawsuit and to discuss the possibility that Bergthold might file his own suit against SWB.
During the course of the Bingham suit, Bergthold and several other SWB employees were deposed. Mr. Bergthold spoke to a Winstead attorney a couple of times before the deposition, but Bergthold continued to cooperate with Bingham, even having private conferences with Bingham’s lawyer during breaks in the depo. When Bergthold was asked during his depo about his meetings with Bingham’s lawyer, Bingham’s lawyer objected based on attorney-client privilege.
At the depo, Bergthold brought several confidential SWB documents that the Winstead attorney did not know about it. After the depo, the Winstead attorney told Bergthold that Bergthold could be in trouble for bringing the docs. Sure enough, Bergthold was later fired.
Bergthold filed suit against Winstead, contending that in his two or three conversations with the Winstead attorney, the Winstead attorney told Bergthold that the attorney represented SWB and its employees. Bergthold made two arguments in his suit: (1) Winstead was his attorney and was negligent for failing to tell him not to produce the documents; or (2) Winstead was negligent for not advising him that Winstead was not acting as his lawyers. The trial court granted Winstead’s summary judgment, and the case went to the Fort Worth court of appeals.
At the Court of Appeals, all three judges on the panel concluded that there was no attorney-client relationship, but the court was split 2-1 on whether Winstead was negligent for failing to inform Bergthold that there was no attorney-client relationship. Had the Winstead lawyer sent Bergthold a simple form letter saying “I represent the company, and I’m not representing you” the case would have been a slam dunk. Instead, even with Bergthold cooperating with the opposing party and relying on the advice from the other side, one appellate judge still thought Berthold was entitled to pursue his claim.
This case should serve as a cautionary tale for all of us. As I said, this is a fairly common fact pattern, and Winstead should have had simple forms clarifying its role. But because it didn’t, it was involved in costly and protected litigation.
It should also serve as a warning that even the best of us can be victims of legal malpractice claims. Winstead is a very good firm (I have several friends in the local office), and they know better. But even the best lawyers can get in trouble when not following routine advice.
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