Legal malpractice

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Legal malpractice is the term for negligence, breach of fiduciary duty, or breach of contract by an attorney that causes harm to his or her client. In order to rise to an actionable level of negligence (an actual breach of a legal duty of care), the injured party must show that the attorney's acts were not merely the result of poor strategy, but that they were the result of errors that no reasonable attorney would make.

Furthermore, legal malpractice requires proof of what would have happened had the attorney not been negligent; that is, "but for" the attorney's negligence ("but for" causation).[1] If the same result would have occurred despite different (non-negligent) actions by the attorney, no cause of action will be permitted. "But for" or actual causation can be difficult to prove and usually results in a "trial-within-a-trial" which delves into the facts of the case for which the client originally retained the attorney.

In at least 11 jurisdictions, a person convicted of a crime who then sues his defense attorney must first prove that he was factually innocent (in other words, he must first petition for and obtain exoneration from the court that originally convicted him before filing suit) and that he was convicted only because of his attorney's negligence.[2] A plaintiff who lost a civil case must prove that the legal malpractice complained of caused the case to be lost, so that the plaintiff can then recover from the negligent attorney the damages that would have been owed by the underlying defendant. A defendant who loses a civil case must prove that they would have won the case (that is, obtained a defense verdict) but for the attorney's malpractice, which then means the attorney becomes exposed to the liability imposed upon their client in that case.

Legal malpractice can also occur when an attorney breaches a fiduciary duty to his or her client. This occurs when an attorney acts in his or her own interest instead of the client's, to the detriment of the client. A claim for legal malpractice may also arise when an attorney breaches the contract pursuant to which the client is represented.

A common basis for a legal malpractice claim arises when an attorney misses a deadline for filing a paper with the court or serving a paper on another party, and that error is irrevocably and incurably fatal to the client's case. This situation normally arises with the running of the statute of limitations (where the client timely reported a potential basis for a lawsuit to the attorney and subsequently authorized its filing, but the attorney failed to timely prepare and file the complaint) but can also arise in the context of failing to respond to dispositive motions filed by the opponent or failing to timely file a notice of appeal.

A less common basis is where an attorney misses a deadline and the error, while not fatal in and of itself to a claim or defense, still forces the client to spend far more to resolve the case than would have been necessary otherwise.

California alone has legalized attorney malpractice due to a California Supreme Court decision rendered January 13, 2011 in the case Cassel v. Superior Court.[3] In the Cassel case, the California Supreme Court ruled that California's mediation confidentiality statutes are so absolute that they prevent a client from giving or producing any evidence of attorney malpractice if it is in any way related to a mediation before, during, or after the mediation. This allowed attorneys to create a fraudulent settlement agreement outside of mediation in the case Hadley v. Cochran.[4]

Justice Ming stated in his separate but concurring decision in Cassel v. Superior Court,

″Attorneys participating in mediation will not be held accountable for any incompetent or fraudulent actions during that mediation unless the actions are so extreme as to engender a criminal prosecution against the attorney.″

″I doubt greatly that one of the Legislature's purposes in mandating confidentiality was to permit attorneys to commit malpractice without accountability.″

The California Legislature introduced bill AB2025[5] in 2012 to reform the statutes. Reform was immediately challenged and blocked by numerous organizations representing the interests of attorneys intent on keeping the lack of accountability and oversight for what amounts to legalized malpractice.. The Legislature responded by asking the California Law Revision Commission[6] to review the statutes and recommend changes if any. Organized attorney groups have heavily lobbied CLRC for no change to the statutes. Opposing them are only five clients who know about the study.[7]

Professor Richard Zitrin of UC Hastings has written,

″the Cassel case leads to an absurd result — one that allows lawyers to be sloppy, negligent and incompetent without cost to them, and even worse, to cheat their clients with impunity.″

A petition has been started on titled ″Stop Legalized Malpractice" asking CLRC to change the statutes so they no longer legalize malpractice. More examples of how attorneys have used these statutes to betray their clients is also given in the petition.

See also[edit]


  1. ^ Viner v. Sweet, 30 Cal. 4th 1232, 70 P.3d 1046, 135 Cal. Rptr. 2d 629 (2003).
  2. ^ Wiley v. County of San Diego, 19 Cal. 4th 532, 966 P.2d 983, 79 Cal. Rptr. 2d 672 (1998). In this case, the Supreme Court of California noted that 10 states have already squarely ruled that factual innocence is an essential element of a criminal convict's legal malpractice case against his attorney, and proceeded to join them. The Court also noted that the exceptions are Indiana, Michigan, and Ohio.
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