Defending legal malpractice claims

 In Legal Malpractice

Professional liability claims—whether against lawyers, doctors, accountants, engineers, or any other professionals—are, generally speaking, negligence claims based on typical tort negligence concepts: a breach of a duty owed by the defendant, which causes damage to the plaintiff. However, unlike typical negligence claims like a car wreck, where the defendant’s duty is to drive safely, in a professional liability claim the duty owed is a professional one—and it usually has to be established by expert testimony. This makes professional liability claims far more complicated than ordinary negligence claims, and, generally speaking, it makes them much easier to defend than to prosecute.

For example, in a legal malpractice claim, the breach of duty is alleged to have been committed by the lawyer for the client in an underlying case or transaction. The plaintiff is required to show that but for the lawyer’s breach of duty, the underlying case or transaction would have been successful. This is really just the causation element of the professional negligence claim, and is why legal malpractice cases are often called “the case within the case.” The idea being that if the underlying case would have failed for any reason, then there’s no damages that are attributable to the professional malpractice. It’s also a fertile area to attack from the defense side, because as all lawyers know, no case is “perfect.” In fact, some old war horse lawyers will say that a case is never as  good as the first day it came to the firm.  In legal malpractice cases based on underlying personal injury claims, for example, the extent of the plaintiff’s injuries and medical treatment are often a prime place to defend, as questionable medical treatment or exaggerated injuries aren’t made legitimate simply because the lawyer committed malpractice and the defendant is now the client’s former lawyer, not the at-fault driver or premises owner. In cases based on accounting malpractice, very often the damages that the former client wants to claim include the taxes owed to the government, but the accountant is almost always able to successfully defend on that element of damates, at least, by arguing that the client owed those taxes anyway, so those aren’t damages that the client can recover for.

Countless legal malpractice claimants have commented and believe that their case against their former lawyer is better than their original underlying matter.  However, on top of the hurdles related to the amount of appropriate damages from the underlying case, the plaintiff bringing a professional negligence claim also has to show that a successful result in the underlying would have been collectible to satisfy the causation requirement. So a blown statute on a claim against an entity that was bankrupt is not converted from a bad—i.e., worthless—case into a good one against the lawyer’s malpractice insurance policy, simply because there’s a lawyer involved. Likewise, if the underlying claim against an entity based on vicarious liability would have failed because the “employee” was really an independent contractor—or someone with no insurance or assets—then the legal malpractice claim, even if the malpractice is clear and palpable, is going to be ultimately worthless as well.

There are, of course, other factors to consider, including whether a duty was even owed or breached in the first place, but generally speaking the attorney-client relationship is easier to prove, and the breach tends to be rather obvious, so professional negligence claims don’t often focus on those elements. But, in the right circumstances, whether a lawyer even agreed to represent a client with respect to a particular matter could be very important and fact intensive issue. Careful drafting of engagement letters and contracts can be helpful in establishing the limits of the representation.  Moreover, non-engagement letters and disengagement letters are also helpful to end a duty or prevent the assumption by a prospective client that a duty was assumed by the lawyer.

Chandler & Moore Law takes pride in the fact that we represent both plaintiffs and defendants in legal malpractice matters, and our experience on both sides gives us unique insight into these claims. If you’ve received a claim letter or have been served with a lawsuit, feel free to contact our office and we can assist you.

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