Attorneys owe their clients duties of competence, good faith, and zealous representation. When an attorney breaches one of these duties and a client is damaged, she may be able to hold the attorney responsible in a claim for attorney malpractice. The client must show that, had the attorney not breached his duty, she would have been in a better position than she ended up. This might mean that she would have won her case, recovered more money via a settlement, or not lost trust funds that the attorney squandered. In order to recover, the client must prove the “case within the case,” that had the attorney not committed malpractice the client would have won the case.
The basic legal standard used in attorney malpractice cases is to evaluate whether the attorney did what a reasonably knowledgeable and competent attorney would have done under the same or similar circumstances.
Attorney Negligence
The single most common claim alleged in attorney malpractice actions is negligence. The common thread in attorney negligence cases is that the attorney’s mistake caused the client to suffer an avoidable loss. Examples include:
- Missing a deadline imposed by a relevant statute of limitations, causing the client to lose the opportunity to pursue relief
- Failing to ensure the client is properly protected when the attorney is tasked with drafting or reviewing a document such as a contract
- Failing to make a critical legal argument that would have resulted in recovery or increased compensation to the client;
- Failing to call a witness or do proper discovery, when a reasonable attorney would have done so
- Advising a client to take a settlement she should not take
- Failing to act with the required level of loyalty and safekeeping in reference to client funds
- Failing to preserve an argument for appeal or, on appeal, failing to make an argument that would have protected the client or entitled her to relief
- Failing to adequately prepare for or argue a case (essentially, losing a case he should have won)
Attorney negligence claims arise out of the special relationship between the client and the attorney, which is ultimately a fiduciary relationship. The negligence can be intentional, based on a misunderstanding in the law, or it may have been one of simple oversight. Either way, if the attorney’s breach of duty resulted in a loss to the client, then she may have a viable attorney malpractice claim.
Breach of Confidentiality
Lawyers owe clients a duty of confidentiality. The lawyer is not permitted to disclose sensitive client information to third parties without the client’s consent. If the lawyer breaches this duty by disclosing confidential information, then the client may have a claim for attorney malpractice.
Failure to Adequately Communicate
A lawyer has a duty to communicate with his client about developments in her case. For instance, if the opposing party offers a settlement and the lawyer fails to tell his client, this omission may form the basis for an attorney malpractice claim. In this example, the plaintiff must show that, had she known about the offer, she would have accepted it, and that ultimately not accepting it caused her a loss.
Damages in Attorney Malpractice Cases
Generally, the damages in an attorney malpractice case are what the client would have received had it not been for the attorney’s malpractice. However, consequential damages may also be an option in some cases. For example, if attorney negligence causes the irreparable deterioration of a relationship between a client business and a manufacturer of parts, and the client can no longer make its product without the manufacturer, then the client may seek lost profits as well.
David A. Axelrod & Associates: Proven Results in Attorney Malpractice Cases
David A. Axelrod & Associates has successfully represented clients in attorney malpractice cases. In one case, David A. Axelrod & Associates recovered $765,000 against an attorney who failed to preserve an argument on appeal, leading to the reversal of an award in favor of the client based on employment discrimination by General Motors Corporation.
In another case, David A. Axelrod & Associates won $730,000 from divorce attorneys who failed to discover the value of marital assets and consequently recommended that the client accept a settlement for hundreds of thousands of dollars less than she was entitled to under the law.
