What is Legal Malpractice?
Malpractice occurs when a lawyer acts negligently or fails to act in a manner that is consistent with the ordinary care customarily used in the practice of law. Under California law , legal malpractice can be established if a plaintiff (the client) proves the three following elements:
- The attorney owed a duty to act in the best interests of a client.
- The attorney breached the duty of care to a client as a result of negligent actions or inactions.
- The attorney’s negligent conduct was the legal cause of the injury or damages.
Duties owed to clients generally are owed to present clients only, with some exceptions. Former clients, prospective clients, and third parties are similarly owed certain duties, for example, not to disclose confidential information.
Legal Malpractice Law in California
The laws governing legal malpractice in California, like those in many other states, derive primarily from common law and the rulings of the state’s courts. Since the California Rules of Court may mandate actions of the parties, they will not be discussed here. The California State Legislature periodically enacts new laws and amends or repeals existing ones, so there may be changes to be aware of. There are no rules in California which set out a statute of limitations for actions on legal malpractice, but pertinent case law has established limitations periods. The 1-year statute of limitations period provides that actions may be brought within one year after the plaintiff discovered, or should have discovered, the facts supporting the cause of action. The period stands at four years within which an action may be brought. This period runs from the date that the wrongful act was committed (the date of departure from the professional standard of care). Note that if the plaintiff fails to file a Notice of Intention to Commence Action against a defendant who is a health care provider, the time within which the action must be commenced by the plaintiff is tolled until the 90th day after the defendant served the plaintiff with the Notice of Intention to Commence Action. Unless necessary expert testimony is filed by the plaintiff, any action in tort or contract must be commenced within no more than five years. California courts follow the "but for" test when determining causation – that is, but for the legal malpractice, the plaintiff would have recovered a monetary settlement or judgment. A pre-existing condition or circumstance may have contributed to the damages that the plaintiff suffered, but for the plaintiff’s recovery to be diminished what needs to happen is that the legal malpractice on the part of the defendant must be shown to be the but for cause of the loss that the plaintiff suffered. Defendants may allege several affirmative defenses in a legal malpractice case. While improper pleadings are not to be condoned, reactions in the courts have meant that California has retained the strict "substance over form" rule. Other defensive tactics may include arguing for the application of the economic loss doctrine, claiming that the plaintiff failed to mitigate their damages, or accusing the plaintiff of a breach of contract.
Types of Legal Malpractice Claims
Common Types of Legal Malpractice Claims in California
Legal malpractice claims can vary in complexity and nature, but there are a few common types of claims legal practitioners should keep in mind. In California, the most common causes of action in a legal malpractice case are for negligence, breach of fiduciary duty, and breach of contract. These causes of action are often pled together. The basic elements of negligence and breach of fiduciary duty are very similar.
In a negligence action, a plaintiff must show the following: (1) the defendant had a duty to use due care; (2) the defendant breached that duty; and (3) the breach was the proximate cause of the plaintiff’s resulting injury. Likewise, the elements of a breach of fiduciary duty claim are (1) the existence of a fiduciary relationship; (2) a breach of fiduciary duty; and (3) damage proximately caused by the breach.
The breach of contract action is straightforward. In order to claim a breach of contract, a plaintiff must allege: (1) the existence of a contract; (2) the plaintiff performed its part or excuse its failure to perform; (3) the defendant failed to perform its obligations under the contract; and (4) the plaintiff was damaged as a result of the breach.
While the above actions require a plaintiff to show some sort of causation, the claims differ slightly. The main difference from the negligence and breach of fiduciary duty actions is that in order to state a legal malpractice claim, the plaintiff must allege the defendant committed a legal error during the proceedings that, but for the alleged legal malpractice, the result would have been more favorable to the plaintiff. The different elements from a simple negligence or fiduciary duty claim are that, for legal malpractice, a plaintiff must prove that the alleged legal error had an adverse effect on the case. In order to show causation, the plaintiff must establish the alleged legal error affected the outcome of the case.
For example, a plaintiff hired Attorney 1 to represent him in a civil suit against PQ Corporation. After litigation began, Attorney 1 had a conflict of interest, and thus represented another client in a dispute with PQ Corporation. He withdrew from representing the plaintiff, and Plaintiff then retained Attorney 2 to represent him. Attorney 2 subsequently settled the civil suit with PQ Corporation. Plaintiff later sued Attorney 1 for legal malpractice, alleging his representation was subpar because Attorney 1 had a conflict of interest and was not invested in his case. The Plaintiff would be required to show that because of Attorney 1’s conflict of interest, he got a worse deal than he would have if he had retained Attorney 2 from the beginning. This is a very fact-intensive inquiry.
There are additional causes of action that may be alleged in a legal malpractice action, such as intentional misrepresentation, negligence misrepresentation, intentional and negligent infliction of emotional distress, fraud, negligence, and breach of fiduciary duty. However, with the exception of these three actions, they are generally not as successful, unless they are very carefully pled.
Proving Legal Malpractice in California
To prove a legal malpractice case against an attorney, as with any type of case, there are requirements. In California there are 4 areas that must be proven: duty, breach, causation and damages. Duty is determined by the relationship between the attorney and the person bringing the case, known as the attorney/client relationship. An attorney is said to have "duty" if the attorney has given advice or exercised judgment on behalf of the client. (Greene v. Malk (2006) 145 Cal.App.4th 785, 791.) Breach of duty is how the attorney has deviated from a standard of care, and has applied to the type of representation they have given. It recognizes that there is a duty of care owed. They are different elements which cannot be interchanged. (Southern California Gas v. City of Santa Barbara (1975) 42 Cal.3d 719, 723.)
In the leading case on legal malpractice in California, Gilbert v. Sullivan (1988) 158 Cal.App.3d 423, 429 the Court of Appeal describes the elements of causation in the context of a legal malpractice case in which there was a missing statute of limitations defense and damages in the underlying case.
"The concepts of but-for and relative causation are useful to a legal malpractice case. In a nutshell, but-for causation is that the plaintiff would have obtained a more favorable result in the underlying matter if the attorney had not committed the act of legal malpractice. In relative causation, plaintiff must show that more likely than not the defendant’s act or omission was a substantial cause of the damages. Causation is generally a question of fact. The selection and interpretation of the law is a question of law.
"When the judgment that one seeks to set aside was entered in an ordinary civil action, and that judgment is neither a default nor the result of an evasive tactic in the litigation, the plaintiff must prove causation by establishing that he would not have suffered lost benefits if the attorney had provided an adequate defense. (Case v. M & N Plastering, Inc. (1987) 196 Cal.App.3d 1557, 1561.) "Ordinarily, the element of damages would include consideration of whether the plaintiff would be subject to a judgment by the result of the underlying action or would be entitled to judgment by reason of its outcome." (Jameson v. 5th Avenue Chemists, Inc. (1998) 203 Cal.App.3d 1266, 1274.)
Legal Malpractice Defenses
An attorney faced with a legal malpractice claim has a number of defenses that may vary depending on the facts at hand. The most common defense is a statute of limitations defense due to the time limits for bringing a legal malpractice suit under California Code of Civil Procedure Section 340.6. Another common affirmative defense is the doctrine of contributory negligence, which means that the plaintiff’s own wrongdoing contributed to the harm suffered as a result of the attorney’s alleged malpractice. Further, the common defense of lack of causation is based on the fact that no matter how negligent the attorney may have been, it would not have made any difference to the outcome of the underlying case.
In the context of a defense motion for summary adjudication in a legal malpractice action, the attorney may utilize his or her expert witness to establish these defenses. Many legal malpractice cases are decided based upon summary judgment prior to trial if these affirmative defenses are presented by the attorney in a successful motion with evidence in support thereof.
Picking the Right Attorney to Handle a Legal Malpractice Case
Legal malpractice cases require an attorney who has specific experience and expertise in handling these types of claims. When selecting an attorney to handle your legal malpractice case in California, it is important to consider the attorney’s experience in this area of law and their success rate.
An attorney who has a proven track record of handling legal malpractice cases similar to yours and a high rate of success is likely to be a good fit for your legal needs. When interviewing potential attorneys, ask about their experience with legal malpractice cases and their success rate, as well as any claims they may have handled that are similar to yours .
In addition to experience and success rate, it is also important to choose an attorney who you feel comfortable working with. Legal malpractice cases can be complex and emotionally charged, so it is vital to have an attorney who understands the unique challenges that come with these types of claims.
When choosing an attorney to handle your legal malpractice case, make sure to select someone with expertise and experience as well as a proven track record of success.
How an Attorney Should Prevent Legal Malpractice
Attorneys have multiple options and opportunities to avoid legal malpractice claims, if they want to. There are fundamentals that must be front and center if the malpractice suit is to be avoided. First, there is no substitute for good communication with clients. Each client should know the progress of the case regularly, and know what steps are being taken. They should understand the law, or at least have the sense of their own attorney as a skilled and knowledgeable lawyer. Providing clients the good and bad news in a timely manner is important. Waiting until something goes wrong to notify them that the news is not good, is simply not acceptable.
Second, it is crucial that clients’ case files be kept in orderly fashion, and maintained in case files. Nothing like a paper plea deal dating back years, or an offer without a follow-up, to pop up and lead to the result of a malpractice claim. Sure, it is unlikely that records will be preserved forever, but at least one is able to review the terms of an offer that was made, and provide some input as to whether it should have been taken. When the file lacks organization or clarity, and when potential issues can not be quickly appreciated, the set up is there for a disgruntled client to argue that there was something wrong.
Third, from a practical standpoint, get help as often as possible. Clients want their lawyers to be experts in many related fields of law. In truth, they are often only "competent" in those areas. That is not enough. Every case should be reviewed with seasoned counsel, perhaps more than once, before being signed up. Sometimes it is not an issue until the money is paid, and the case has really started, but even PI cases should be reviewed for obvious insurance and conflicts issues. Trust and estate clients should be examined for conflicts, and the same goes for business transactions. When in doubt, consult or refer.
Fourth, attend CLEs on a regular basis, and read relevant legal periodicals. Subscribing to good blogs should be part of the program.
Fifth, when there is a concern about being sued for malpractice, notify the E&O carrier in advance if you can.
The Effects of Legal Malpractice on Licenses and Careers
For plaintiff-side legal malpractice – much like the bulk of the run of the mill ones brought by plaintiff against defendant – bringing the case is a double-edged sword. If you win all is well, but if you lose it may well be a disaster!! For defendant-side legal malpractice – a case whereby a client sues an attorney for causing problems in the underlying case with a favorable outcome in mind – the case is almost always a disaster. When the underlying case is lost, the parting is like heart-break hotel, and none of the parties come out happy. The one caveat to this is if the defendant takes a pre-breach opportunity to act to reduce the damages. If he/she mitigates successfully, and damages end up being nil, there is no legal malpractice case. Damage limits, caps and fairness aside, the reveberating consequences of being named a defendant in a legal malpractice case are often greater than the loss of the case itself. The state bar does not look lightly upon members who have been accused of malpractice or who have had the case go south. For the bar, it is an easy case of which to make an example. The disciplinary actions seem always to follow to a martial law type of process. Frequently, a member named in a case and having lost a case is suspended from practice, sometimes with the condition that the malpractice case be won before reinstatement. Reinstatement may require additional study and examination. A quickly marshaled defense will not save the day, especially if the other side has a strong case – this is the case of "he said-he said" which always goes against the member. On the plaintiff-side of legal malpractice ties to all sorts of cross-over matters. One big issue which occasionally rears its head is that the insurance contracts which cover the attorneys for malpractice also provides an "advancing fees" clause. This allows for the attorney to get paid, while suing that same attorney. The ouch factor of the case now also becomes an internal family affair.
Legal Malpractice FAQs
Here are some helpful answers to some questions you may have about legal malpractice in California:
What is legal malpractice?
Legal malpractice occurs when a lawyer fails to perform competently on behalf of a client.
What kinds of legal malpractice are there?
There are three main types of legal malpractice:
Conduct – occurs when an attorney performs an act that is outside the scope of what a competent attorney would do.
Omission – occurs when the attorney fails to act when the law would require an act.
Negligent representation – this is when the conduct or omission is done negligently.
What do I do if I think I have been the victim of legal malpractice?
The first step is to contact an attorney to discuss your options . The attorney may be able to informally resolve the problem or may file a lawsuit against the offending attorney.
How long does a legal malpractice case take to resolve?
Every case is different, but the time it takes can range from 6 months to a few years.
What is the statute of limitations for legal malpractice in California?
The statute of limitations in California for legal malpractice is one year from the date of discovery of legal malpractice or four years from the last date of representation.
What if my case becomes a contingent legal malpractice case?
That will depend on the merits of your case and how confident your attorney is that it is a strong case.