Tag Archives: attorney malpractice
Emotional Distress in Legal Malpractice Actions
DAMAGES FOR EMOTIONAL DISTRESS ARE NOT TYPICALLY RECOVERABLE IN LEGAL MALPRACTICE ACTIONS. Generally speaking, plaintiffs in legal malpractice actions cannot recover damages for emotional distress resulting from the lawyer’s negligence (malpractice). However, damages for emotional distress may be available in legal malpractice actions where the client can prove: 1. The emotional distress was severe, and… Read More »
When Has a Lawyer Committed Malpractice?
WHAT IS LEGAL MALPRACTICE? Legal malpractice–sometimes also known as “professional negligence”–occurs when a lawyer engages in negligence, breach of contract, or breach of a fiduciary duty, and the lawyer’s actions (or failure to act) results in damages (harm) to another person — usually a client. Not all mistakes by lawyers rise to the level… Read More »
The “But For” Test for Causation in Legal Malpractice
WHAT IS THE “BUT FOR” TEST? The “But for” test is one of the two legal standards for proving causation in legal malpractice cases. This test requires the plaintiff to prove the defendant attorney’s negligent actions (or advice) actually caused the plaintiff to suffer damages or harm. Essentially, the plaintiff uses the facts of… Read More »
Causation in Legal Malpractice Actions
In order for a plaintiff to prevail in a legal malpractice action, the plaintiff must prove: 1. The defendant attorney owed a legally-recognized duty to the plaintiff; 2. The attorney breached that duty (under circumstances that were not legally excused); 3. The attorney’s breach of duty damaged the plaintiff; and 4. The attorney’s breach of… Read More »
When Are Lawyers Responsible for Other Lawyers’ Malpractice?
As a general rule, lawyers are responsible for their own professional negligence (malpractice) but not for the acts of others. From a policy standpoint, this makes sense: a lawyer should be liable only for his or her own conduct, or for the conduct of those (s)he supervises. However, there are some circumstances in which… Read More »
Malpractice Liability to Non-Clients: What About Other Lawyers?
The last few posts have taken a look at circumstances when courts may find an attorney liable for malpractice when the plaintiff was not the attorney’s client (or otherwise in “privity of contract” with the lawyer). Generally, an attorney only owes a professional duty of care to clients and other people with whom the… Read More »
Attorney Liability to Non-Clients, Part 2: The Intended Beneficiaries
As a general rule, attorneys can only be held liable for malpractice where the plaintiff (the injured party) was the attorney’s client at the time the malpractice occurred. However, courts have also held attorneys liable to non-clients in a narrow, specialized range of cases. One of these occurs when the person (or company) injured… Read More »
What is “Proper Attorney Diligence”?
The rules which govern attorney conduct state that a lawyer cannot accept or represent a client unless the attorney can dedicate a professionally-adequate amount of time and resources to handling and managing the client’s case or issue. This is a duty the lawyer owes to the client, and also to the justice system generally…. Read More »
What Effect Does Firing a Lawyer Have on Malpractice Lawsuits?
As we discussed last week, the statute of limitations, which governs how long a client has to sue a lawyer for malpractice (aka, professional negligence) is “tolled” – or paused – in certain circumstances. This week, we look on the effect a continuing attorney-client relationship has on that statute of limitations. To refresh: all… Read More »
Damages in Attorney Malpractice: What Must A (Former) Client Prove?
Damages are a mandatory element of a legal malpractice action. If the plaintiff has not incurred demonstrable damages as a result of an attorney’s wrongful conduct, the malpractice claim cannot prevail. Although it seems unfair to some people, “mere” breach of a professional duty–without measurable damages–does not create a legal malpractice claim. Nominal damages… Read More »
