Defenses to legal malpractice claims

 In Legal Malpractice

Just because a lawyer did something wrong does not mean that there is a viable legal malpractice claim. If the alleged legal malpractice arose out of other litigation, then the plaintiff must show that but for the lawyers mistake the plaintiff could have been successful in the other litigation. In fact, there are several kinds of defenses to legal malpractice claims. Some of these defenses are more potent than others. Or at least, some defenses result in more successfully defended claims.

The attorney-client relationship

The first requirement of a legal malpractice claim is an attorney-client relationship. If there was no attorney-client relationship, there are no duties owed. And if there are no duties owed by the lawyer, it goes without saying, there can be no malpractice. Of course, what matters is what the client reasonably believed about the existence of the relationship. Did the client sign a fee agreement? Did the lawyer do some things, but not others which would leave a reasonable person to believe that the lawyer owed the person a duty? For example, was there an e-mail chain between lawyer and client that suggested the lawyer was working for the client? These can be fact-intensive questions, but if the client’s belief in an attorney-client relationship was not reasonable, there’ll be no duty owed and no viable malpractice claims.

Duties, breaches, and causation—the case within the case

Lawyers often describe legal malpractice claims as being “the case within the case.” What does this mean? To prevail in a legal malpractice claim, a plaintiff must show that they would have prevailed in the underlying matter but for the lawyer’s mistake. Because a plaintiff has to prove the underlying case, that’s the case “within” the malpractice case.

Generally speaking, this is nearly always fertile ground for defending a claim. Defense lawyers argue that a plaintiff would have lost their case anyway, no matter what the lawyer did or didn’t do. For example, that the underlying case was so speculative that a jury wouldn’t have sided with the plaintiff. Another favored tactic is to blame an intervening lawyer, who may have allegedly had a chance to fix the first lawyer’s mistake. If the second lawyer failed to do so, that actually cuts off causation as to the first lawyer. But, there may be a viable claim against the second… what they knew or should have known about the alleged mistake and when they knew it will be important!

Judgmental immunity is another important defense, which protects the litigation decisions of counsel that were made in good faith during trial. In other words, a client doesn’t have a legal malpractice claim just because they lost at trial. If the lawyer simply showed up and tried the case, chances are any decisions made by the lawyer during the trial would be protected, even if they weren’t “good” decisions from a strategic point of view. The law really only requires the minimum standard of representation, not the best possible representation. (This point is often hard for plaintiffs who’ve been wronged to accept, unfortunately.)

Other, less common defenses

Some less common, but still important, defenses include the several flavors of “estoppel.” Basically, if a plaintiff asserts one position in one case, and then tries to assert a contrary position in a malpractice action, they will be “estopped” or barred from doing that. It most often comes up related to bankruptcy petitions, where a plaintiff failed to list a personal injury claim on the petition. The insurance company could move to dismiss based on judicial estoppel in that case. This also can arise in the legal malpractice context, particularly if the plaintiff is a corporation going through a bankruptcy. However, amending the petition timely usually solves this problem.

Of course, a major defense is the statute of limitation. This is generally held to be two years for damages arising in tort, and four or six years for damages arising in contract (verbal or written). Waiting more than four years to bring a legal malpractice claim is highly unwise.

When we talk with potential plaintiffs or defendants in legal malpractice matters, we discuss all of these defenses, and more. If you believe you have a potential matter to discuss, please feel free to give us a call.

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