What is Legal Malpractice
A general understanding of Legal Malpractice is important for any potential client. Lodging a legal malpractice case is not only important for the individual who has suffered from bad client service, it’s also important for their lawyer (who may be protected by liability insurance or deep pockets), and most importantly, our judicial system.
From a practical perspective, a legal service provider is acting in a fiduciary capacity, and owes his client, the highest duty of care. The duty extends beyond the actual "representation" and can include the selling of securities, or other products. A lawyer or law firm has a duty to protect the financial interests and confidentiality of their client. They must take the steps necessary to ensure that the client is not harmed financially or otherwise by relying on the advice given.
The American Bar Association defines legal malpractice as violation of standard conduct in an engagement. A violation is deemed to have occurred when a legal service provider neglects a legal duty. This could be as simple as a missed statutory deadline i.e. a failed Statute of Limitations result. Or in the case of a financial engagement, selling the wrong product, or overstating a financial return on investment risk ratio.
Legal Malpractice occurs when a lawyer fails to competently carry out the terms of the employment contract resulting in a loss or extended damages for the client.
The most common types of legal malpractice are:
Exceeding the Statute of Limitations. Failure to file suit within the appropriate time limits .
Misappropriation of funds or trust accounts, often associated with embezzlement.
Improper Maintenance of Client Files. This is an interesting area of legal malpractice. If you were to ask most lawyers, they might say that any document or communication sent to a client, becomes the client’s property, and should be retained in a file for the client. However, a counter argument is that the documents were not the basis of the retaining or termination of the engagement. There appears to be a split in the circuit courts in Louisiana on this issue. The 9th Circuit seems to take the more liberal view, and the 4th Circuit seems to take the conservative view that no documents must be given to the client if the lawyer had not used them in representing the client. In either case, it is a duty of a lawyer to be reasonable and civil in the termination of the representation, and that certainly includes the duty not to remove all evidence of prior representation.
Failure to provide competent counsel. The most frequent means of liability for legal advisors is the failure to provide competent counsel. Legal advisors are required to possess knowledge of pertinent facts when advising clients. There has to be an understanding of the law, and an awareness of the fundamental principles of fairness including what is appropriate action, and what is not.
All cases involving legal malpractice are different and require careful consideration of the circumstances in each case. However, generally speaking, legal malpractice cases occur when the conduct of your lawyer is negligent according to the American Bar Association definition.
Indications that You Have a Legal Malpractice Case
In Louisiana, there are a number of signs that can indicate a legal malpractice case. One of the most obvious is when a lawyer has missed a deadline that may or may not have been avoided, but regardless of whether it was, it does still indicate a failure of the attorney to act in his client’s best interest.
Another is lack of communication, particularly one that leads to the client missing out on a major development in their case due to being completely out of the loop. It’s not uncommon for lawyers to lose track of their clients, especially for those who have heavy caseloads or are working in associated law clinics for underserved populations-while people obviously deserve legal help for their issues, it’s hard to be personally familiar with all the details when you’re not getting paid a lot for the work. This makes it all the more important that you have an attorney who can remain in contact with you.
Conflicts of interest can also be problematic, especially when the conflicts are major. Finding out a lawyer has been enriching themselves at your expense by failing to bill their time appropriately to your case, or giving your confidential information to another client, can make it difficult to trust that your case will be handled properly and that your lawyer is looking out for your best interests.
All of these are signs that you may have a legal malpractice case, but all are primarily relevant if there is actual demonstrable harm. That means the lawyer’s actions had to have hurt you in a major way by the time you find out what happened. Cases filed under these circumstances can potentially result in a large monetary settlement for you, so having professional legal help is essential.
How to Select a Legal Malpractice Lawyer in Louisiana
Louisiana legal malpractice attorneys come from similar traditions as their brethren in other states. First, how to find the right person to guide you through the process and help you accomplish your goal of being satisfied with the case outcome. Here is a list of items to focus on when considering an attorney:
- Has the attorney been involved in cases similar to yours?
- Has the attorney been successful in cases similar to yours?
- Does the attorney have the credentials that indicate higher likelihood of success?
- Has the attorney successfully settled cases similar to yours?
- Does the attorney have a network of contacts to help pursue your interest in settlement?
- Will the attorney go to trial if necessary?
- Is the attorney held in high regard by charismatic, experienced legal malpractice attorneys?
- Has the attorney gone to trial with success in cases similar to yours?
- Where does the attorney stand on the issues of capture (understanding that bigger law firms sometimes bend to the will of big business), and dead weight?
- Has the attorney been involved in mediation, and settle or take to trial?
- Has the attorney been in charge of cases a long time and willing to get through the case as long as it takes?
- Can you trust your gut feeling about the attorney?
This is a start. Ask questions, have the experience of your friends, family and/or associates speaking for or against the attorney. Do research. Trust your gut.
The Process of Taking Legal Action in a Malpractice Case
For the majority of legal malpractice cases, and for our purposes, we will focus on negligence, there are several steps that make up the legal process of filing a claim:
Initial Consultation
This first step is sometimes referred to as fact investigation. Your lawyer will review your case with you thoroughly and objectively. The attorney may ask you to gather additional evidence that will be useful to your case before proceeding.
As a result of the initial interview, the attorney will decide whether or not to accept the case. A common reason for refusing to accept a case is the unlikelihood of the client winning.
Pleading Stage
The next step is for the lawyer to draft a complaint. The complaint will detail the complaintant’s allegations. Included in the complaint is a prayer for relief, a statement of what is being requested .
The petition is filed in state court together with the sheriff’s certificate of service within 30 days of service. The procedure for serving the defendant is one of several available under the Louisiana Code of Civil Procedure. The procedure would include service of process by the sheriff’s office upon the defendant, a possible waiver of citation, or by publication.
Discovery
Next is the fact finding stage known as discovery. From that point, the judge will hold a conference in which the attorneys meet and confer about the evidence that needs to be obtained, the scheduling of the trial, and other items. After jury selection and instructions, a determination is made by the judge and jury.
In a legal malpractice case, the plaintiff goes against the original defendant, the lawyer that committed the malpractice, and his client, the lawyer’s former client.
Possible Outcomes and Damages in Malpractice Cases
The outcomes available in legal malpractice cases for clients include monetary compensation and injunctive relief. Obviously, the damages recoverable must be the direct result of the attorney’s malpractice, which is itself a factual finding based upon evidence, as noted below. It is important to note that not every positive outcome from the legal malpractice case is monetary. Often an outcome is so positive that a client can be salvaged from what may have been a disastrous outcome. This prior comment notwithstanding, some of the relief awarded in legal malpractice cases includes: (a) That the attorney counts any credits available from the malpractice action towards the damages they owe in the legal malpractice case (e.g., if the client prevails in the legal malpractice action, but has filed a malpractice action and has received a settlement or judgment in the earlier case on which he claims his lawyer was negligent, the attorney can receive a credit in their legal malpractice case for whatever damages were paid in the underlying case- this type of decision was heard in the Louisiana cases of American General Finance Inc. v. Beaurgard, 2000-1765 (La. App. 1 Cir. 12/19/01), 803 So. 2d 1091, and Brown v. Roberson, 2006-0500 (La. App. 1 Cir. 2008). (b) That a court orders injunctive relief against a prior attorney where a prior attorney holds an estopped position on an issue in the underlying case (e.g., an attorney is enjoined from arguing to a court that a claim has prescribed, if a prior attorney admitted in the underlying case that the claim did not prescribe). (c) That the plaintiff and defendant agree to (a) dismissal and (b) a settlement of damages in the underlying case. (d) That the bar (either by disciplinary action or otherwise) sanctions the attorney involved.
Common Questions Regarding Legal Malpractice in Louisiana
Here are some common legal malpractice issues and answers:
What do I need to know before I can file a case against my attorney?
You must be able to determine if your attorney committed legal malpractice in order to file suit. This entails answering the following questions:
- Did there exist an attorney-client relationship?
- Did your attorney neglect to perform a certain action on your behalf, and would he or she have done it, had he we not been negligent?
- What is the amount of damages that you suffered from your attorney’s negligence?
What type of damages can I recover in a legal malpractice case?
The type of damages that you can recover involve money. Depending on the severity of the legal malpractice, the amount of damages can be substantial . Monetary damages can include:
- Cost of hiring a new attorney to correct the malpractice
- Cost of litigation
- Punitive damages
What are some of the more common types of legal malpractice claims?
- Failure to file a timely lawsuit
- Failure to respond to discovery
- Failing to pursue certain avenues of discovery
- Seeking a settlement without proper authority
- Unauthorized distribution of funds
- Misappropriation (theft) of client funds
- Poorly worded contracts
- Failure to file necessary court documents
- Failing to introduce evidence
- Negligent recommendation for a settlement
What is the statute of limitations?
Louisiana has a one year statute of limitation for professional malpractice. No matter the circumstances that surround your issue, it is imperative for you to file your claim within the specified time.
