Ellis Law Group

HOME     ABOUT US     PRACTICE AREAS     ATTORNEYS     ARTICLES     POWERPOINTS    CONTACT US

How to Avoid Legal Malpractice: Ethics for Every Attorney
© 2017, National Business Institute
I. Overview

More than one half of malpractice claims brought arise from errors related to:

  1. Failure to know/properly apply the law;
  2. Planning or procedural errors;
  3. Inadequate discovery or investigation;
  4. Failure to obtain client consent; and
  5. Procrastination in performance.

Failure to research substantive and/or procedural rules may result in dismissal of the client’s case and lead to malpractice liability – at the very least, it will subject the attorney to substantial embarrassment. See Mortgage Elec. Registration Sys., Inc. v. Estrella, 390 F.3d 522, 524 (7th Cir. 2004) (dismissing an appeal where counsel "failed to do any research into the requirements of federal appellate jurisdiction before filing this appeal and asserting that counsel for both appellant and appellee "deserve (and hereby receive) a public chastisement"); see Surfin' Safari--Why Competent Lawyers Should Research on the Web, 10 Yale J. L. & Tech. 82, 88.

A. Failure to Know, Interpret and Apply the Law

Failure to Know, Interpret, and Apply the law accounts for 11.3% of legal malpractice claims. Source: http://www.americanbar.org/publications/law_practice/home/law_practice (2010).

1. Knowing the Law – Legal Research

Errors in legal work, of course, may have grave repercussions for both attorneys and clients. In fulfilling the duty of competent research, a lawyer is expected to exercise ordinary care under the circumstances. A lawyer breaches this duty "if he or she fails to possess and exercise that degree of knowledge, skill and care which would normally be exercised by members of the profession under the same or similar circumstances." As in other professional malpractice cases, courts will usually require expert testimony to establish what members of the profession would ordinarily do.

In the context of both legal malpractice and/or ineffective assistance cases, the courts have had many opportunities to consider the adequacy of the lawyers' research.  Under Strickland v. Washington, 466 U.S. 668 (1984), the first prong of an ineffective assistance claim in the criminal context is whether the lawyer's performance was "deficient."  Id. at 687.  Deficiency is assessed based on what is reasonable "under prevailing professional norms."  Id. at 688

Courts often treat this standard interchangeably with the standard of ordinary care in civil malpractice cases.

An oft-repeated standard for reasonable care in terms of legal research was articulated by the California Supreme Court in Smith v. Lewis, 13 Cal.3d 349, 530 P.2d 589 (Cal. 1975), overruled on other grounds, In re Marriage of Brown, 544 P.2d 561 (Cal. 1976).  In Smith, the plaintiff sued her divorce attorney for malpractice for failing to include her husband's retirement benefits as community property.  Id.  The defendant claimed that since the community property status of retirement benefits was unsettled, he should not be held liable for malpractice even though he relied on his general knowledge of the field and did not specifically research the issue.  Id. at 592.

The California Supreme Court disagreed.  The court wrote while an attorney is not liable for every mistake, he

is expected. . . to possess knowledge of those plain and elementary principles of law which are commonly known by well-informed attorneys, and to discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques.

Id. at 595.

In addition, though Smith did not ultimately find the law to be unsettled, the court stated that where the law is unsettled: "an attorney assumes an obligation to his client to undertake reasonable research in an effort to ascertain relevant legal principles and to make an informed decision."  Id.

Many jurisdictions have followed suit in requiring attorneys to prove that they engaged in reasonable research to avoid liability in cases where the law was unsettled and they turned out to be wrong.  2 Mallen & Smith, Legal Malpractice § 18:6 (West ed.)

An important factor in these cases is that the attorney has conducted sufficient research to make an informed decision, even if that decision is ultimately proven wrong, or, under these circumstances, even if the attorney does not achieve a successful result for the client.  There is no actual malpractice so long as the attorney properly exercises his or her judgment based upon adequate research and knowledge.  Thus, while an attorney who makes an incorrect judgment call or prediction following reasonable research will not be liable for malpractice (Davis v. Damrell (1981) 119 Cal.App.3d 883, 888-889), an attorney who is correct in spite of having conducted no research on an issue can be held liable (Smith v. Lewis, supra, 13 Cal.3d at 359-361).  While these cases make clear that at least some research must be done, the gap between no research and reasonable research is not clearly defined.  But as the Smith Court noted, there is nothing “judgmental” about ignorance.  Id. at 359.

In assessing the adequacy of the research in malpractice and ineffective assistance cases, courts have considered a variety of issues.  Lawyers are expected to engage in research to stay current in the areas of law in which they practice.  Stanley v. Richmond  35 Cal.App.4th 1070, 41 Cal. Rptr. 2d 768, 781 (Ct. App. 1995) (an attorney should conduct "thorough, contemporaneous research and demonstrate "detailed knowledge of legal developments and debate in the field"); compare McGurk v. Stenberg, 58 F. Supp. 2d 1051 (D. Neb. 1997) (finding deficient performance in a malpractice case where counsel failed to find a case decided only seven months prior to trial). An attorney should also research and understand the procedural rules of the courts before which they practice.  See, e.g., Dixon Ticonderoga Co. v. Estate of O'Connor, 248 F.3d 151, 173 (3d Cir. 2001) (lawyer has a duty to research the statute of limitations).

The number of sources a lawyer considers may also be a measure of the reasonableness of the research.  Aloy v. Mash 38 Cal.3d 413, 696 P.2d 656, 657 (Cal. 1985) (finding a triable issue of negligence in a malpractice claim where a lawyer relied on an incomplete reading of a single case, rather than "surveying” all the pertinent authorities, state and federal). Courts may also find lawyers negligent for failing to find readily available existing authority.  See, e.g., Haas v. Warren, 459 S.E.2d 255, 255 (N.C. 1995) (finding a triable issue where lawyer reviewed statutory index but missed the relevant reference).

An attorney should also carefully supervise and review the work of all staff, including contract attorneys and other professionals.  The supervising attorney of record is ultimately responsible for the work of these individuals.

2. Interpreting & Properly Applying the Substantive Law

Of course, an attorney may be found liable for legal malpractice due to substantive errors, such as a failure to apply the law properly, or a failure to conduct adequate legal research into the substantive issues.

Again, lawyers owe their clients a duty to exercise "that degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer."  But this duty is not without some limits.  An attorney is never bound to exercise extraordinary diligence, or act beyond the knowledge, skill, and ability ordinarily possessed by members of the legal profession.  Likewise, an attorney has no duty to insure or guarantee a favorable result for a client.  Davis, supra, 119 Cal.App.3d at 889.

Legal Malpractice AttorneyCo-author of this article, Mark E. Ellis, is the managing partner of Ellis Law Group, LLP. Mr. Ellis is recognized by the attorney-ranking firms Best Lawyers and SuperLawyers as one of the nation's leading trial attorneys in the area of legal malpractice defense. See the Mark Ellis Profile for his detailed curriculum vitae.

To access other articles with topic related to this one, go to our Publications page.

Courts have been especially protective of lawyers' strategic or tactical decisions -- so-called "judgment calls."  See Ellis, The Defense of Attorney Judgment-Tactical Immunity Doctrine, (Exec-Sense 2012).  An attorney is not held to the rule of infallibility and is not liable for an honest mistake of judgment, where the proper course is open to reasonable doubt.  Exercising judgment by choosing one of several reasonable courses of action in good faith is not legal malpractice.  Davis, supra, at 888-889.  Otherwise, every losing litigant would be able to sue his attorney if he could find another attorney who was willing to second guess the decisions of the first attorney with the advantage of hindsight.

Some courts have articulated this sentiment in very broad terms.  See, e.g., Davis, supra, 119 Cal.App.3d at 889.  Mere errors in judgment by a lawyer are generally not grounds for a malpractice action where the attorney acts in good faith and exercises reasonable care, skill, and diligence.  Ibid.  If an attorney acts in good faith and in an honest belief that his acts and omissions are well founded in law and are in the best interest of his client, he is not answerable for an error in judgment.  Id.; Benching the Monday-Morning Quarterback: The "Attorney Judgment" Defense To Legal-Malpractice Claims, 52 Wayne L. Rev. 1051, 1054-1055.

3. When you Should or Should Not Refer the Case Out

Lawyers who are asked to handle a legal matter in an unfamiliar area for a family member or friend seem to feel obliged to help, and then find themselves dabbling in an area of law they do not know.  And, given the relationship, it can also be awkward for the lawyer to give a family member or friend independent legal advice.  Dabbling is dangerous—don’t do it.  Send the family member or friend to another lawyer, or learn the area of law!

It is a rare attorney who is interested in turning down new business or a potentially new client.  Obviously, if an attorney does not take on new clients, that attorney cannot make a living.  When taking a new case, you should evaluate the facts, the liability aspects of the case, as well as damages.  However, before undertaking the representation of any new personal injury client, not only the new case, but the new client as well, . . .

4. Make Sure You Are "Qualified"

It is equally important for an attorney to honestly ask himself or herself if he or she has sufficient skill, training, and experience to handle the legal matter presented by the client who has just walked in the door. Time and again, legal malpractice actions are filed against attorneys who decide to "dabble" in an area outside their ordinary sphere of expertise. A high percentage of malpractice cases are filed against, for example, the personal injury attorney who decides to take on a bankruptcy case, or the real estate lawyer who feels it should be no problem to draft a simple will for an existing client.

If the case or client, though potentially lucrative, is beyond the scope of your competence, and you do not have the time or resources to obtain the requisite knowledge and expertise, do yourself and the client a favor and decline the case.  Your client will be able to go elsewhere to obtain competent representation, and you will avoid a serious risk of liability for malpractice.

5. Develop A Checklist And Avoid High Risk Clients

In determining which clients to represent and which to decline, it is best to develop a checklist and stick to it. Additionally, while there are exceptions to every rule, avoid “high risk” clients. Experience indicates certain "red flag" clients are more likely to cause problems. For example, you may want to avoid any potential client who tells you he or she has previously brought "many" lawsuits.

Likewise, think twice about taking the case of any potential client who tells you he or she has previously sued one or more former attorneys.  It goes without saying that attorneys who take plaintiff legal malpractice cases should be particularly cautious.  Bear in mind that your potential client is one who obviously has no qualms about suing attorneys, and if the case does not go as well as he or she expects, you may be the next attorney served with a complaint.

Avoid any potential client who loudly proclaims that the judicial system stinks, or that all of his or her past lawyers were crooks and/or idiots (the client may be right, but he or she eventually may take his or her unhappiness out on you). 

You probably want to avoid any potential client whom you discover has "stiffed" a prior attorney on fees.  While the above list is by no means exhaustive, it may help you recognize the warning signals.

6. Conflicts Check

A fundamental element of careful screening is to perform a complete and thorough conflicts check.  The attorney must determine if handling the new client's case will create an actual, or even a potential conflict with the representation of a current or former client. This is an area in which the attorney should always err on the side of caution.  If there is any doubt as to whether such a conflict exists, the attorney should always obtain the written informed consent of the new client and all present and/or former clients with potentially conflicting interests. (It is not the purpose of this presentation to provide a comprehensive discussion of the circumstances under which a conflict may exist, or the circumstances under which the client must consent to the representation.)

If such consent cannot be obtained, or if the attorney's own interests conflict with those of a client, the attorney should decline the representation. The representation of potentially conflicting interests creates distinct and significant problems with respect to legal malpractice claims. Rightly or wrongly, the fact that an undisclosed conflict exists may itself cause the client to feel that he or she received less than undivided loyalty from his or her attorney, and may motivate the client to sue the attorney for malpractice regardless of the outcome of the underlying legal matter. Moreover, such circumstances may turn a "garden variety" claim for professional negligence into one for a breach of fiduciary duty.

7. Use Common Sense

Finally, use common sense and your own intuition.  No matter how good a case, or potentially lucrative a client, if you have a "bad" feeling about a potential client, decline to undertake the representation. After being sued for malpractice, many attorneys express regret at not having followed their own initial instincts and declined the representation.  Learn from their mistakes, and do not make the same mistake yourself.

Likewise, lawyers should tread carefully when giving advice or working on matters relating to law for a state where they are not admitted or for non-U.S. law. Not only is there a greater opportunity for making an error—your malpractice policy may not cover you in the event you make a mistake. Read your policy to confirm this.

Additionally, lawyers at firms of all sizes seem to have a dusty file or two that sits on the corner of their desks for far too long, and this makes a procrastination-related error possible. If you have one of those dusty files, you need to deal with it.  To determine how, first ask yourself this: Why are you avoiding this particular file?

Is it because you are uncomfortable with a point of law? Then do some research, get help from another lawyer, or transfer the file to another lawyer if you are not comfortable handling it. Is it because the client or the lawyer on the other side is especially difficult? Letting the file sit won’t make the related parties any less difficult.  If you don’t think you can or want to deal with them, refer the matter to another lawyer.

8. How to Reject a Case

If you turn away a potential client, take the next step of immediately confirming in writing that you have not undertaken, and will not undertake, to represent that potential client.  Many malpractice claims arise from, or at least are complicated by, the failure to send such letters.  This occurs when, for example, a potential client consults with an attorney about a matter, and the attorney verbally advises the potential client that he or she will not accept the matter.  Too often, the attorney fails to follow up with a confirming letter.

If the client never subsequently retains counsel and a limitations period expires, the attorney may wind up being served with a claim for malpractice, in which the potential client alleges that he or she "thought" the attorney had agreed to represent him or her.  Without a confirming letter in the file, it is the client's word against that of the attorney.

Accordingly, any time you decline to represent a potential client, you should immediately send a declination letter confirming that you will not be representing the client.  This is as true in transactional areas as in litigation.

Many attorneys and law firms create a form declination letter which is stored in their computer system.  The letter should minimally advise the potential client of the decision to reject the matter.  If this is solely a business decision and not reflective of the merits of the client's claim, you may want to say this (but only if this is true).

Opinion is divided about whether the actual reasons for rejecting the case should be delineated. Some attorneys explain in great detail the bases for their opinion that there is no malpractice.  This procedure carries the risk that the client will then abandon the case only to find later that there was indeed a cause of action, and then he or she sues the rejecting attorney.

The Model Rules of Professional Responsibility impose a duty of competence on lawyers.  Even so, ethics rules don’t automatically require you to refer out a matter that you’ve never handled before — or you’d never gain experience. The Rules acknowledge you may handle a case competently in a new area of law if you educate yourself. 

Of course, that doesn’t mean that you should take on a murder trial when you don’t have a clue as to what you’re doing.  But what you can do, in lieu of a referral, is to keep the case and bring in a more experienced lawyer either to consult with you through the various stages of the case, or take the lead if it’s a high-stakes matter.

Do not assume that you must also refer cases in jurisdictions where you’re not licensed to practice.  True, referrals are prudent for many smaller, state-specific practice areas like family law or criminal defense, where the client’s budget is unlikely to sustain both a primary lawyer and local counsel and familiarity with local venue offers a significant advantage.  But if you have a unique specialization or a national practice, teaming up with local counsel and appearing pro hac vice may be better than a referral. Not only can you retain the work, but your client can retain access to a qualified lawyer.

A bad case or a case with major issues usually happens in one of two ways.  One, a case within your expertise that you don’t want to take because of a major issue. Or two, a case that is not in your practice area, but you still know enough to realize it’s a not a great case.  Under either scenario, those are probably not the type of cases you should be referring to people you know.  See https://lawyerist.com/70306/dont-refer-bad-cases-clients/.

There is a pretty simple rule to recognize who you want to represent and who you do not: if the client is not an individual you want to represent, then simply decline representation. Sending them to someone else is a bad idea in the long run.  Lawyers have a very good memory about attorneys who have referred “problem clients.”

9. Multijurisdictional Practice

Clashes between and among professional standards may create professional liability and ethical dilemmas related to, among other things, the unauthorized practice of law (UPL).  The Scope section of the Model Rules and the Preamble of the Model Code of Professional Responsibility specifically state that violations of their respective standards do not form the basis of civil liability.  Many courts in recent years, however,  have shown an increasing willingness to permit expert testimony in malpractice actions concerning the defendant-lawyer's adherence to the jurisdiction's ethics code.

Return To Top

B. Planning Errors in Choice of Procedures

When an attorney fails to adequately plan for material contingencies in a case, or when the attorney’s strategy based on the facts and law involved in a particular matter turns out not to work, his or her actions may hurt the client.

These errors may lead to legal mistakes that can lose a case, prevent you from pursuing a claim, decrease the amount of compensation received via settlement or verdict and cause other harm.

C. Inadequate Discovery of Facts, Investigation (In and Outside of Litigation)

Inadequate investigation or discovery of facts is another substantive error that deserves special attention, since it is a common error.

In a transactional real estate deal, this type of claim might involve not delving into the client’s long- term plans for the property, and then failing to follow up on appropriate zoning or bylaw searches to ensure the client can use the property as intended.  Quick questions and quick answers without proper context being exchanged between people in a rush are often problematic.

The critical issue is that this error goes to the very core of what lawyers are supposed to do for their clients—give legal advice tailored to the client’s specific circumstances—and basically involves the lawyer not taking a bit of extra time or thought to dig deeper and ask appropriate questions on the matter.  To avoid this type of claim, you must take the time to read between the lines so you can identify all appropriate issues and concerns.  

Ask yourself: What does the client really want?  Does everything add up?  What issues or concerns should be highlighted for the client?  If something doesn’t add up, you need to ask more questions and dig deeper. See http://www.americanbar.org/publications.html

D. Conflict of Interest

An attorney who interviews a client in order to enter into a contract should take care to ascertain whether there are any other clients represented by the attorney whose interests are adverse to or in conflict with those of the client being interviewed.  Even where the initial interview does not show any adverse or conflicting interests, you may want to later include a reservation of the right to withdraw in cases where a conflict of interest might later arise.

Such a reservation might be worded as follows: "As explained to you, because of ethical considerations, we must reserve the right to withdraw as counsel in those cases.. . . where there is a conflict of interest, such as where we are also counsel for the opposing party."

E. Pre-trial, Pre-Hearing Advice Missteps

Attorney's negligence was the proximate cause of clients' harm claimed in legal malpractice action, where attorney admitted in a memorandum that he was late to a pretrial hearing, which resulted in the entry of a default judgment against clients.

Legal malpractice is an actual damages tort.  This means that even if the attorney breaches a duty of care, without more, there is no tort of malpractice.  Jackson v. Johnson,  5 Cal.App.4th 1350, 1355 (1992)

F. When is the Error Egregious Enough to Get You in Trouble?

When there has been a wholesale abdication of professional and fiduciary responsibility.

Return To Top

II. What to Do If You Think You Are in Trouble

The former Model Code included Canon 9, which stated “A Lawyer Should Avoid Even the Appearance of Impropriety.”  While not actually a Disciplinary Rule, the “appearance of impropriety” was “a favorite of some courts, which quoted it with great frequency over the years,” as Ronald Rotunda and John Dzienkowski note in their useful treatise, Legal Ethics — The Lawyer’s Deskbook on Professional Responsibility.  It was especially used as a basis for disqualifying lawyers for a broad range of conduct, ranging from conflicts to other kinds of misconduct.

Deeming the “appearance of impropriety” standard to be unfairly vague and imprecise, the Kutak Commission, which drafted the 1983 Model Rules, rejected it.  Until its amendment in 2003, Model Rule 1.9, the rule on former-client conflicts, even had a comment consisting of an express critique of the appearance of impropriety as a standard for disqualification.

Most courts have now rejected the “appearance of impropriety” as a standard for disqualification.

A. Crisis Management and Mitigation Strategies

Legal malpractice claims can occur in good or bad economic times.  During good economic times, the size and number of engagements accepted by law firms trend upward.  In such an environment, attention to detail may suffer, management supervision may be overstretched, and time for training and supervision is often reduced, creating increased potential for errors that might lead to claims.  

Equally, when economic times aren’t so good, and matters go badly, those on the losing end look for someone to blame, preferably someone with “deep pockets” – meaning the  malpractice insurer. 

A thoughtful legal malpractice risk management assessment and plan should: (1) define the risk appetite (risk tolerance) of the firm; (2) identify potential risks to the firm; (3) evaluate and prioritize these risks according to the relative likelihood of an event and the potential severity of an event’s impact on the firm in the context of the firm’s risk appetite; (4) implement risk mitigation strategies; (5) purchase adequate insurance to transfer those risks that pose a significant threat to the firm’s financial stability; and (6) monitor and update risk mitigation strategies appropriately as firm priorities and its operating environment change. http://www.chubb.com/businesses/csi/chubb4628.pdf; see also https://www.lexisnexis.com/law-firm-practice-management/documents /malpractice_book_final.pdf

B. Client Communication – What You Should vs. Should Not Say

Every malpractice claim begins with a dissatisfied client.  Poor client relations and conflicted working relationships can transmogrify into malpractice claims with amazing speed.  Inadequate attorney-client communication usually is at the heart of the problem. 

Repeated errors  include failure to obtain client consent, failure to inform a client of a case development or failure to follow the client’s instructions.  Many client relationship errors can be avoided by adopting a simple, commonsense approach to working with clients.

  • Explain clearly to each new client orally and in writing the purpose for which the firm was hired, the fee arrangements, the reporting and billing procedures and the client’s obligations.
  • Listen to the client.  Clients may want to pursue non-litigation avenues.  Time should be taken at the beginning of the attorney-client relationship to identify clearly the client’s goals or objectives.
  • Realistic client expectations should be encouraged.  Clear and documented explanations about the services to be performed or not to be performed are crucial.  Legal procedures should be explained in simple, clear language so the client understands what to expect from the representation and has a clear timetable in mind.
  • Maintenance of good client communications requires the prompt return of all telephone calls, keeping appointment times with clients and not keeping them waiting, sending regular case status reports and reporting negative information promptly. If the client is copied with correspondence or pleadings, the client must be informed as to their meaning and purpose.  Assignments should be completed on a timely basis. If an unforeseen delay arises, it should be explained and a revised expected completion date should be given. Clients should be billed regularly and all charges should be explained fully.  Clients should be encouraged to provide ongoing feedback on the quality of the representation they are receiving.
  • All discussions, recommendations and actions taken should be documented.
  • Letters of closure should be used at the end of the representation to document what was accomplished.
  • Support staff should be taught the importance of courtesy, timeliness, professionalism and confidentiality when dealing with clients.  Staff provides the interface between attorneys and clients. If staff is depressed, overworked, feel taken for granted or dissatisfied generally, it is important to understand that negative messages, however, unintended, are being sent to clients.

 

C. Should Your Client Pay for Your Mistakes?  Discussion on Fees

Fees have a complex relationship with legal malpractice. While definitive statistics regarding the impact of legal fees on legal malpractice are not available. Fee issues often provoke or aggravate legal malpractice claims. Learning to avoid fee issues can have a significant impact on risk loss avoidance.              

Lawyers should make an initial determination about whether clients will be able to pay fees.  Obtaining and replenishing retainers can avoid disputes over unpaid fees later.  If retainers are not obtained, lawyers may consider credit checks on clients who will incur large fees.  Intentionally taking on pro bono matters is quite acceptable-it is the unintended ones that are a malpractice risk.

Clients are often angered when they receive fee bills they do not expect, and anger is what often drives clients to sue for malpractice. Anything that can be done to explain in advance how much the legal fees are likely to cost is positive. Putting fee agreements in writing may help avoid the anger associated with unanticipated legal fees. Frequent billing when a matter involves hourly rates allows the client to pay the bill in smaller chunks. If the client fails to pay timely when billed frequently, the attorney may consider withdrawing before the amounts of money at stake are large.

Suits and interventions for fees should generally be avoided. Legal malpractice is a mandatory counterclaim in a fee suit and a defense to payment of fees.  Lawyers often fail to analyze whether their time is more valuable spent on other paying clients rather than on pursuing uncollected fees. Fee suits are often started against clients who have no easily attached sources to fund a judgment. If a fee agreement is not in writing, a lawyer may have a difficult time showing that he or she is entitled to a fee.

Of most concern in fee suits, however, is that lawyers often fail to appreciate how a malpractice claim might be pursed in the course of the fee suit. If a client does not get a result from the legal representation that a lay jury will understand as positive, lawyers may be saddled with a malpractice suit. Getting a result where your client merely pays half as much as they would have might be a great result your lawyer friends will applaud, but a lay jury may not. 

Many lawyers fail to realize that their actual bills will often be evidence of what was or was not done for a client in a legal malpractice case. Depending upon the circumstances, it may be appropriate for a lawyer include more or less detail in a bill than they would otherwise. For example, if a client is claiming that the lawyer did not discuss a particular issue with the client, a detailed billing entry indicating what issue was discussed at a conference will support the lawyer’s version of the story.

Fees are often a significant aspect of a legal malpractice case. If you have a client who is not paying fees, seek to withdraw early in order to avoid a claim of prejudice from your withdrawal. Writing off a portion of a fee when questioned by a client may avoid problems later.

D. Does Forgetfulness Warrant Disciplinary Report?

In legal malpractice, the major areas of complaint are in the following areas: (1) errors which could be classified as “forgetfulness” such as allowing the statutes of limitation to expire, missing court appearances, and misfiling documents; (2) errors in legal judgment; and, (3) allegations of dishonest acts or omissions.  Where the “mistakes” become frequent, discipline may follow.

E. Administrative Errors

Taken together, administrative or procedural errors — which include tickler system errors, clerical and delegation errors, lost file or document errors, and procrastination — may lead to reported claims.  A failure to file documents is the top administrative-type error in the studies (at 8.6 percent).  A failure to calendar (i.e., a limitation period was known but not properly entered in a calendar or tickler system) is a very common error.  A related, but less common error is the failure to react to a calendar system (i.e., the limitation period was correctly entered but missed owing to a failure to use or respond to the tickler reminder). Clerical and delegation errors include things such as simple clerical errors (e.g., filing a document in the wrong file), errors in mathematical calculations and work delegated to an employee that is not checked.                                      

Delegation of tasks to knowledgeable support staff is an essential part of the operation of every practice. Ultimately, however, the lawyer is responsible for the delegated work and has to take steps to ensure that delegated work is reviewed appropriately. Extra care is especially warranted if there is something different or unusual about the matter. In addition, you should make sure staff members feel there is an “open door” policy any time they have a question or concern about the work they are doing for you.

But beyond that, with good time management skills and the proper use of tickler systems, administrative types of errors are probably the easiest malpractice issues to prevent.

Practice management software programs such as Amicus Attorney and Time Matters are excellent tools for helping lawyers and their staff manage deadlines and tasks.

F. Key Elements of Legal Malpractice Cause of Action

A client's action to recover for an attorney's malpractice may sound either in contract, on the theory that the defendant breached the obligations of his or her employment, or in tort, on the theory that the defendant was negligent. 

In an action for legal malpractice, a plaintiff must plead that the defendant attorney owed the plaintiff a duty of due care arising from the attorney-client relationship, the defendant breached that duty, and, as a proximate result, the plaintiff suffered actual damages. A client fails to allege a cognizable cause of action to recover damages for legal malpractice where the complaint fails to plead facts to the effect that, but for the attorney's alleged negligence with regard to matters within the scope of his or her retention, the client would not have suffered some actual, ascertainable damages.

To prevail on a malpractice claim, a client must show: (1) employment of the defendant attorney; (2) failure of the attorney to exercise ordinary care, skill, and diligence; (3) that such negligence was the proximate cause of damages to the client; and (4) that but for defendant's conduct, the plaintiff would have obtained a more favorable result in the underlying transaction than the result that occurred.

G. Ethical Investigations and Legal Malpractice Claims

Ethics violations and legal malpractice are two distinct realms, but they often intersect. There are often unsettled lines between professional responsibility and professional liability and, accordingly, between attorney disciplinary systems and the civil justice system.

It is generally understood that ethics rules are adopted to guide lawyers in their professional conduct; they provide a benchmark for disciplining those lawyers who behave improperly. By contrast, the language prefacing the Model Rules indicates that they are not to be used to impose civil liability.

H. The Effect of a Disciplinary Action on a Professional Liability Case

Every court addressing the issue has held that the Rules of Professional Conduct do not provide the basis for a civil action.  Nevertheless, the plaintiff in a legal malpractice case may seek to introduce evidence of disciplinary rules and/or the defendant attorney’s violation thereof. Courts have taken four different approaches regarding the admission of disciplinary rules as evidence of an attorney’s duty of care.                 

Courts generally allow the Rules of Professional Conduct to be introduced as evidence where the plaintiff has alleged a breach of fiduciary duty. See, e.g., Mirabito v. Liccardo, 4 Cal App 4th 41, 5 Cal Rptr 2d 571 (1992) (“[Disciplinary] rules, together with statutes and general principles relating to other fiduciary relationships, all help define the duty component of the fiduciary duty which an attorney owes to his client.”). The courts also may consider these rules in addressing motions to disqualify counsel, regardless of whether a disciplinary action has been initiated.

In other words, the failure to comply with the Rules of Professional Conduct is “one circumstance that may be considered along with other facts and circumstances in determining whether an attorney acted with reasonable care.”

A few courts find ethical rules inadmissible as evidence of an attorney’s duty of care. Hizey v. Carpenter, 830 P.2d 646 (Wash. 1992) (“We therefore hold in a legal malpractice action that the jury may not be informed of the CPR or RPC, either directly through jury instructions or through the testimony of an expert who refers to the CPR or RPC.”); accord Byers v. Cummings, 87 P.3d 465 (Mont. 2004); Cf. Orsini v. Larry Moyer Trucking, 833 S.W.2d 366 (Ark. 1992) (affirming the trial court’s refusal regarding the introduction of the Model Rules of Professional Conduct); Tilton v. Trezza, 819 N.Y.S.2d 213 (2006)

I. The Effect of a Professional Liability Case on a Disciplinary Action

Often an attorney facing both a malpractice action and a bar complaint may be able to request a stay of the disciplinary proceeding. Deferment may even be granted when the bar complaint involves serious allegations of fraud or dishonesty, perhaps because of the perception that such complaints may be instituted for improper purposes and may amount to nothing more than litigation tactics.

Return To Top

_____________________________________________________________________
This article is not to be considered legal advice by the author or Ellis Law Group, LLP. Any person or agency with specific legal questions must consult with the legal counsel of their choice.