Legal malpractice is probably less well-known by most people than is another type of malpractice issue: medical malpractice. However, legal malpractice cases can be just as serious as are their medical counterparts. They have potentially far-reaching impact upon the lives of people who have been involved in a legal battle that ended unfavorably due to incompetency or intentional misrepresentation on behalf of the attorney(s) who represented them.

What constitutes legal malpractice and how do you determine whether you may have cause for a legitimate case?

Here are 7 guidelines for discerning whether you may have grounds for a case. Note, however, that it is essential that you consult with a licensed attorney to help you determine if there are grounds for a legitimate case in your particular situation:

Guideline 1: A legal malpractice cases is really a case within a case: Such cases must by definition come about after the close of another case whereby the would-be plaintiff has experienced an unfavorable decision - either a loss or an inadequate settlement. In this sense, a legal malpractice case is really a case within a case. If all of the qualifying conditions for are met, such a case may be brought against the attorney representing the client in the underlying (i.e., original) case. If the first attorney is found to have been negligent or misleading, he or she may be liable for damages to the original plaintiff.

Guideline 2: The concept rests upon the assumption that attorneys are obligated to act competently: Legal malpractice cases are built upon the premise that attorneys, when representing clients in legal cases, are expected to conduct themselves in a professional and competent manner. Like other professionals, attorneys are implicitly trusted by their clients to do everything reasonable within their power to act on behalf of their clients. The failure to do so, especially if a particular legal case ends in an unfavorable decision for the client, may represent grounds for a legitimate case.

Guideline 3: Legal malpractice proceedings may be called for when any of at least three types of conditions are met: There are three primary situations whereby a client may have grounds for a case: if the attorney in the case missed an important court-related deadline (e.g., a filing deadline), if the attorney intentionally misrepresented material facts to the client, or if the settlement resulting from a case was inadequate. Meeting one or more of these conditions does not automatically qualify as grounds for a legitimate case, but they are necessary for the case to move forward at all.

Guideline 4: The plaintiff must prove that the underlying case had merit: Before bringing a case against the attorney in the initial case, the would-be plaintiff of the new case must first prove that the underlying (i.e., original) case had merit. If it cannot be shown that the underlying case had sufficient merit such that it could have otherwise potentially won in court, then any statements made about the incompetency or misrepresentation by the attorney in that case become moot.

Guideline 5: The second attorney must thoroughly investigate the underlying case: If one approaches a second attorney about the possibility of representing them in a legal malpractice case, this second attorney is obligated to thoroughly investigate the underlying case to verify whether it indeed had merit. In fact, if the second attorney fails to do so before initiating a case, they themselves could potentially in turn be held liable.

Guideline 6: The second attorney must make sure there are no other legal options available: Another prerequisite for the secondary attorney taking on a malpractice case is that they make sure that their client has exhausted all other legal options for the underlying case. In other words, it must be shown that the case would be the only justifiable way for the client in the original case to have the chance of receiving justice.

Guideline 7: To be successful, the initial attorney must be proven to have acted incompetently: Acting incompetently and being proven to have acted incompetently are of course two different things. Even if the second attorney is convinced that the original case acted incompetently, the second attorney must still be prepared to prove that this was indeed true. Ultimately, to win a case, there needs to be substantial evidence that the first attorney did indeed act in a manner that is not commensurate with the duties and obligations of a professional, practicing attorney.

Initiating a legal malpractice suit may be the best path to justice for those who have met with unfavorable outcomes in past legal cases whereby there is strong reason to believe that their representing counsel was acting incompetently or that they intentionally misrepresented the potential success of the case. The guidelines shared above can help you preliminarily determine whether you might have grounds for a case. Please consult with a seasoned attorney to confirm whether you may have a case.

By: Daniel B. Ross
You can contact Daniel B. Ross through his Web site: http://www.myrosslaw.com. Mr. Ross is licensed as an attorney by the Supreme Court of the State of Texas and has years of experience fighting for the rights of clients.

Many legal malpractice claims share common allegations/themes that can be avoided if law firms have the proper risk management measures in place. Implementation and maintained use of some very rudimentary systems and procedures can reduce the likelihood of being sued, or in the event you are sued, can bolster your defense. Below are some basic tips law firms can utilize to help reduce their legal malpractice exposure.

Engagement Letters - Legal malpractice claims often hinge on whether or not the claimant can establish that they were a client of the attorney (or at least owed a duty of care in 3rd party claims) and that the attorney agreed to handle the matter in question. A written engagement letter prepared for each client or potential client can serve to establish the facts of the lawyer-client agreement. Ideally an engagement letter would include the following:

• Name of client

• Scope of services (and in certain circumstances specifying what services are not being performed/included is also appropriate)

• Fee amount and billing schedule, including payment expectations

• Identification of any potential conflicts of interest

• Name and contact information of primary attorney handling the matter including outline of firm’s communication guidelines (i.e. timeframes for responses to phone calls, faxes, letters, etc.)

• Client’s obligations to the attorney and/or firm

• Dispute resolution method and initiation procedure

Non-Engagement/Declination Letters - These are often the difference in getting a meritless claim dismissed. As important as engagement letters are, non-engagement/declination letters are equally important. Written documentation to the former potential client advising that you will not be representing them is critical in establishing that no professional relationship existed. Non-Engagement/Declination letters should include the following:

• Name of potential client

• Date the attorney and/or firm met with potential client to discuss representation

• Details of the potential case which were discussed

• Statement clearly advising the potential client of the attorney’s/firm’s decision not to accept the case

Disengagement Letters - Various circumstances may arise that prompt a severing of the professional relationship between a lawyer and client. This often occurs before the matter for which the attorney was hired has reached a final resolution. In such circumstances it is crucial the “disengagement” be documented in a letter to the client. If the client subsequently hires new counsel who makes an error, the disengagement letter may be the best defense to establish who the responsible attorney was at the time the error occurred. Disengagement letters should include the following:

• Name of client

• Date the attorney and/or firm are terminating their representation of the client

• Statement clearly advising the client of the attorney’s/firm’s reason for disengagement (i.e. case concluded, client request, non-payment of fees, etc)

• Successor counsel: if known include their name, if not include a statement advising client to seek new counsel

Professional Liability Insurance - Consistent use of the letters described above may help you reduce the possibility of being named in a malpractice suit, however they won’t eliminate the possibility of claims. Lawyers professional liability insurance won’t eliminate claims either, but it can serve to minimize the impact a malpractice claim might have on your firm.

When deciding whether or not to carry professional liability insurance, consider the following:

• Frequency of client claims and malpractice law suits are on the rise. The National Law Journal has reported that an attorney can now expect to be sued at least once during their career.

• Defending a malpractice claim is expensive. History tells us that approximately 35% of loss payments in professional liability claims are due to litigation expenses, so even if you prevail with your defense it will be costly.

• Your personal assets may be at risk without appropriate professional liability insurance in place.

• Many clients, especially larger companies, are now requiring proof of professional liability insurance before they will enter into an engagement.

• Many, if not most, referral services require the attorney or firm have professional liability insurance in place before they will begin referring cases.

• Some states and jurisdictions now require that you disclose to clients whether or not professional liability insurance is in place.

DISCLAIMER: The information in this article is provided for general discussion purposes only, and does not constitute legal advice. For specific advice contact your own legal, financial, insurance and/or other advisor.

By: Jason Ingle
If you are a small or mid-sized law firm that has experienced difficulty finding lawyers professional liability insurance due to paid claims or disciplinary actions, DefenseProSM Lawyers Professional Liability may be able to help. Administered by Lockton Risk Services, a subsidiary of Kansas City-based Lockton Companies, the largest independently-owned commercial insurance broker in the United States, DefenseProSM is specifically designed to meet the professional liability needs of distressed law firms. For more information, visit the DefenseProSM website at http://www.defenseproliability.com.

Jason Ingle, RPLU
Sr. Underwriter
Lockton Risk Services
7300 College Boulevard, Suite 500
Overland Park, KS 66210

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