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LITIGATION
ARTICLES
LEGAL MALPRACTICE CLAIMS
By Carmen D. Caruso
In Illinois, claims for professional liability against lawyers (or other
professionals) may be based on either tort law (negligence), contract law (the agreement of the parties), or breach of fiduciary duties. The principles discussed on this page are generally applicable to any claim of professional liability.
To succeed in a legal malpractice case, the plaintiff must show
(i) the existence of an attorney-client relationship giving rise to a duty of care and/or contract, (ii) a violation of that duty by the attorney which in turn (iii) caused or was the proximate cause of (iv) a loss or damages.
Professional Negligence
An attorney normally owes his client an obligation to exercise a reasonable degree of care and skill in the performance of his legal duties. The determination of what is “reasonable” is based on the standards of the legal community, and is usually established by expert testimony (the opinion testimony of another lawyer). The lawyer is required to “use the same degree of knowledge, skill and ability as an ordinarily careful professional would exercise under similar circumstances.”
Generally speaking, the duty of care under negligence law represents the minimum duty that a lawyer owes to a client. The expert witness will inform the jury of the standard of care, and will offer an opinion whether the defendant/attorney met that standard on the facts of the particular case.
Conflicts of Interest
A common source of negligence complaints is that a lawyer acted with conflicts of interest or otherwise violated the Attorney's Code of Professional Responsibility, which are admissible as standards in a negligence action against a lawyer. The risk of a conflict of
interest is most prevalent where:
-- The lawyer is representing an entity (e.g. a corporation) and confuses the entity with a person at the entity (who might be sending the legal business to that lawyer).
-- The lawyer represents multiple parties.
-- The lawyer engages in business dealings with the client or another party to the matter.
-- The lawyer or his law firm has other clients who are adverse to the client (or who were previously adverse, although this situation is murkier).
Malpractice in Litigation
Common examples of malpractice claims against litigation attorneys include:
-- Missing the statute of limitations.
-- Failing to properly investigate the facts of the case.
-- Misunderstanding the applicable law.
-- Failing to properly advise the client, and thus inducing the client to take an unacceptable risk.
-- Taking a case for which the lawyer is not qualified.
-- Improperly withdrawing from a case.
-- Missing court deadlines.
-- Otherwise mishandling the case.
Malpractice in Legal Transactions
In transactional matters, common examples of alleged negligence include:
-- Acting with conflicts of interest.
-- Basing legal advice on a misunderstanding of the law
-- Basing legal advice on a misunderstanding of the facts, where the lawyer should have known the correct facts.
-- Failing to properly advise the client and thus inducing the client to take an unacceptable risk.
-- Committing an error in the language of the legal document, such that the clients’ rights are not protected.
-- Otherwise mishandling the legal matter to which the lawyer was entrusted.
Causation
In a litigation matter, proof that a lawyer’s negligence caused
injury to the client requires proof as to “what would have probably happened but for the negligence.” This is known as the “case within a case.” If the malpractice plaintiff was also the underlying plaintiff, he or she must prove that the claim would have been probably successful in the first case. However, if the malpractice plaintiff was the defendant in the first case, then the lawyer who allegedly committed malpractice has the burden of proving that the client would have probably lost anyway, even without the alleged malpractice.
A complication arises when the malpractice occurs in a case that was settled before trial. In effect, the malpractice plaintiff must now prove that he or she would have probably achieved a better result but for the alleged malpractice.
A further twist is whether the alleged malpractice was discovered before or after the settlement, i.e. whether the client accepted a settlement with the knowledge of an alleged malpractice claim. In this situation, a conflict of interest has arisen between the lawyer and the client, and the client should be advised to get an independent opinion from another lawyer before deciding upon the settlement. Failure by a lawyer to disclose his or her malpractice to the client is a breach of fiduciary duties, and further malpractice.
In addition, in litigation cases, a malpractice plaintiff who was also the plaintiff in the underlying action must prove that any judgment would have been collected. However, when the plaintiff was a defendant in the underlying case, the collectibility requirement is not involved. The entry of an adverse judgment is usually sufficient injury for a legal malpractice action regardless of whether the judgment has been paid.
In criminal cases, the former criminal defendant must prove by a preponderance of the evidence that he is innocent of the crime charged.
Waiving the Privilege
When clients allege legal malpractice against their former attorney, they may waive the attorney/client privilege that they had enjoyed with the previous attorney, to the extent that the attorney, who is now a defendant, must rely on the earlier privileged communications to establish his or her defense. The former client, as plaintiff, may seek a “confidentiality order” from the court, to provide that the formerly privileged communications may not be disclosed beyond the scope necessary for the malpractice trial.
Contract Claims
Under the law of Illinois, an attorney’s duty to a client is measured by the representation sought by the client and the scope of the authority conferred. Thus, an attorney may voluntarily accept a higher duty than imposed by mere negligence law. In this situation, defining the “scope of the engagement” may be critical.
For this reason, the client should expect a written engagement letter from their lawyer.
Fiduciary Duties
Attorneys also owe their clients a duty of undivided loyalty, which is a fiduciary duty. More serious claims for legal malpractice may arise if there is a breach of fiduciary duties.
Expert Witnesses
It is mandatory to present the testimony of an expert witness in any action for professional malpractice.
Case Study
Mr. Caruso recently put these principles to work in obtaining a confidential settlement for his client in a legal malpractice case against one of Chicago's leading intellectual property law
firms.
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