Legal Malpractice

HOW DO I KNOW IF I HAVE A LEGAL MALPRACTICE CLAIM?

When an attorney makes a mistake in the representation of a client, and that mistake causes financial damage to the client, the client has the right to sue the attorney for that financial damage by bringing a legal malpractice case.

Whether the attorney’s mistake can be considered negligence, or “professional negligence” usually turns on the opinion of an expert. So, in a legal malpractice case, the plaintiff, or injured party, offers the opinion of another attorney – someone who is highly experienced and respected – that the defendant’s (the client’s former attorney’s) conduct fell below the standard of care expected of attorneys under the same or similar circumstances. The standard of conduct will be determined under this test: Did the attorney fail to use the skill and care that a reasonably careful attorney would have used in similar circumstances?

Often clients believe they have a legal malpractice case the moment their attorney makes a mistake in the case. However, one of the essential elements of legal malpractice is that damage was caused by the mistake. Many errors committed by attorneys don’t actually cause financial injury to the client until the case comes to judgment. So, for example, if the attorney was negligent for failing to timely designate the appropriate expert witness to prove a critical fact in the case, the financial damage caused by that error may not occur until the case comes to judgment. If the judgment is against the client because the client’s attorney couldn’t prove the critical fact without expert witness testimony, the financial damage occurs when judgment is entered in the case. That’s the moment that the client has a legal malpractice claim.

Should I worry about the confidentiality of my discussion with an attorney about a possible legal malpractice claim?

You may be worried about speaking with an attorney about what has happened in your case. The legal community is tight knit and a new attorney could be friends with your present attorney. Will he tell my attorney that I’m dissatisfied with his/her representation of me?

Attorneys are bound by rules of professional responsibility and by principles of fairness in the attorney-client relationship. When a person contacts an attorney to discuss a legal matter, that attorney is bound by the same rules of confidentiality that apply in every attorney-client relationship. Even if the attorney has not agreed to represent the client, if they’re discussing a matter that could lead to an attorney-client relationship between them, the attorney must maintain the confidentiality of those discussions, and maintain loyalty to the client. If the new attorney is friends with the client’s present attorney, he/she should advise the client of that friendship right away so that the client can decide whether or not to continue with the conversation. This often requires that the client disclose who their attorney is at the beginning of the conversation so that possible conflicts of interest are avoided.

SHOULD I REPORT MY ATTORNEY TO THE STATE BAR?

The State Bar of any American state is the regulatory agency for attorneys. Its role is to ensure that attorneys follow the rules of professional responsibility. State Bar associations do this by imposing disciplinary action against attorneys who have violated the rules. The types of disciplinary action vary from public admonition, to suspension of the license to practice, to disbarment (revocation of the license). In some circumstances where the attorney has improperly taken fees or other funds that belong to the client, the State Bar may order restitution of those funds.

The State Bar does not take action to address legal malpractice. Generally, the State Bar leaves malpractice cases to the civil justice system, in other words to a legal malpractice case filed by a private attorney or by the client him or herself. Moreover, even if your attorney has violated ethical rules, a complaint to the Bar will not be of much help to a legal malpractice case. Any disciplinary action taken against the negligent attorney by the Bar will not be admissible in a legal malpractice case.

This should not dissuade you from complaining about your attorney to the State Bar. When an attorney has violated professional ethics, the State Bar should know about it. Just as disciplinary action is not admissible against the attorney in a legal malpractice case, the fact that a State Bar complaint was made and the Bar declined to act upon it is also inadmissible. So, there is no downside to making a State Bar complaint.

WHAT IS THE DEADLINE FOR ASSERTING A LEGAL MALPRACTICE CLAIM?

In California, the statute of limitations for legal malpractice is complicated. The basic rule is that a legal malpractice case must be filed within one year from the date that the malpractice is discovered. (California Code of Civil Procedure section 340.6.) This rule is modified by a “tolling” provision. “Tolling” refers to a period of suspension of the time running toward the one-year deadline. The tolling rule applies in almost every case and states that the time calculated for the running of the one-year deadline does not include any time that the attorney against whom the legal malpractice claim is made continues to represent the client in the legal action where the negligence occurred.

So, for example, if an attorney is negligent in a case, but continues representing the client in that case for another year after the negligent act before being replaced by a new attorney, the one-year limitation period only begins running from the date that the negligent attorney left the case. Typically, in cases that are being litigated, the date that the first attorney is deemed to have ended representation of the client is the date that the substitution of attorney form announcing the new attorney is filed with the court.

The California statute of limitation is a “discovery” statute. This means that the limitation period does not begin running until the malpractice is discovered. Many clients believe this means that they have one year to file their case from the moment they realize they were the victim of malpractice. This is not correct. When you ‘realize’ your attorney was negligent is not the test employed under the discovery standard. Rather, the one-year limitation period begins running once a reasonably diligent person has been put on notice that something has gone wrong in the case. This is known as being put on “inquiry notice.” The client is given one year to take action against the attorney from the time that he or she is put on notice that some inquiry should be made into the issue of whether that attorney was negligent.

The California statute of limitation also provides a four-year outside limit on the time the client is given to ‘discover’ the malpractice, however, the four-year period does not run if the client has not, for some or all of the period, sustained actual injury. So, for example, if an attorney makes an error in drafting a trust or will, but the error is not discovered until the death of the trustor, 10 years later. Because the plaintiff did not sustain actual injury until the trust was revealed and the plaintiff began incurring legal bills in the probate case concerning the trust, the four-year outside limit does not apply, and the one-year limitation period has only just begun to run.

EMOTIONAL DISTRESS CLAIMS IN LEGAL MALPRACTICE

Under California law, emotional distress damages are recoverable for legal malpractice in very rare cases. For the most part, appellate courts have held that only financial losses can be recovered in legal malpractice cases.

There is only one appellate court decision in California upholding the award of such damages, and in that case the plaintiff had been wrongly convicted of manslaughter and imprisoned due to the incompetence of his lawyer. (Holliday v. Jones (1989) 215 Cal. App. 3d 102.) Subsequent cases discussing the issue have pointed out that the interest sought to be protected by the lawyer in the Holliday case was a personal interest – the interest in remaining free, not incarcerated – while the interest sought to be protected in most other cases is a financial, not personal interest. Damages for emotional distress are described as generally not allowable in legal malpractice cases.

A SPECIAL RULE FOR BRINGING A LEGAL MALPRACTICE CASE AGAINST A NEGLIGENT CRIMINAL DEFENSE LAWYER

If you were poorly served by a lawyer in a criminal case, you cannot bring a legal malpractice case against him or her unless and until you obtain a special finding from the judge in the criminal case that you were “factually innocent” of the charges. This requires a special motion in the criminal court, after the charges have been dismissed, called a “motion for an adjudication of factual innocence.” Factual innocence means actual innocence – not insufficient evidence to support the charges. You may be required to prove that someone else, not you, committed the crime, or evidence proving that you couldn’t possibly have committed the crime. There are criminal defense attorneys who have experience in bringing these motions. Stuart Law Firm can refer you to such an attorney.

HOW CAN THE ATTORNEY-CLIENT PRIVILEGE Be BROKEN?

The attorney-client privilege is held by the client, not by the attorney. Therefore, the attorney cannot ‘break’ the privilege unless and until his or her client gives authority for the privileged information to be divulged. If the client refuses to give such authority, the attorney must protect the privileged information.

Cases hold that when the client sues his/her attorney, for malpractice, or any other type of case such as a dispute over fees, the client is deemed to have waived (or given up) the attorney-client privilege. This is one circumstance where the attorney can ‘break’ the privilege without the client’s direct consent. The attorney-client privilege may also be overcome if it can be shown to be invoked in order to carry out criminal conduct. The privilege can also be overcome in order to prevent harm to someone. In other words, the lawyer can disclose confidential communications with a client if he/she reasonably believes it is necessary to prevent death or substantial bodily harm to another.

The exceptions to the protection of the attorney-client privilege are unusual and rare. Generally, the privilege is strong and carefully protected by the courts.