American Bar Association
General Practice, Solo, and Small Firm Division
The Compleat Lawyer
Winter 1998
© American Bar Association. All rights reserved.

Client v. Lawyer
How to Prosecute Malpractice

BY ANITA J. ANDERSON

Anita J. Anderson is board certified by the Texas Board of Legal Specialization and is a graduate of the University of Texas School of Law. She handles medical and legal malpractice litigation in San Antonio, Texas.

Legal malpractice litigation is one area of the law where you should pick your fights even more carefully than others. We all make mistakes, so one need not be perfect to apply for the job of straightening up the brethren. Some mistakes are more spectacular than others, with more devastating results, and beg to be corrected.

One would think that suing lawyers for fun and profit would be easy. Given our current poor standing in the hit parade of professionals and the abundance of lawyer jokes, just threatening to drag a lawyer to the courthouse should produce a pocketful of change without much effort. Unfortunately, as a group we are even less likely than the general public to admit our faults and rectify our wrongs.

Examine the Case

Even the most outrageous treatment of a client by a lawyer may not make a case. A close look at all the elements of the case, especially the client, is advisable. These are tougher cases than most. For starters, the burden of proof is doubled—the case against the lawyer may be easy, e.g., a slipup on the statute of limitations, but was the slip-and-fall case he slipped up on a cinch or a slippery slope?

Secondly, the defendant-attorney's resistance is in direct proportion to his or her ego. The threat of embarrassment is not enough to make a good lawyer tremble and pay, and it is likely to make a bad one fight all the harder.

What's more, professional liability insurance carriers are reluctant to settle up in a hurry for fear that their insureds will accuse them of betrayal. The defense attorney who is defending a lawyer has an imminently knowledgeable client to please and can be forced to be extraordinarily creative. Or the carrier may be so fond of its cash reserves that it is happy to try dodges and hedges and excuses that the lawyer would be embarrassed to assert in his own defense.

Of the legal malpractice cases that go to trial, more than half are won by the lawyers. How come? Sometimes, the lawyer who in reality is a rogue and a scalawag appears to the jury to be just a likeable dog; and the jury is charmed into excusing even the poorest behavior. A jury on a legal malpractice case is happy to turn its back on a client if the guy's a whiner or one of those people who is not willing to take personal responsibility for the trouble he helped create.

A Basic Tort Claim

A cause of action for legal malpractice is, despite the fact that it arises out of a contract, a basic tort claim, with the same elements of duty, breach, cause, and harm.

The standard of care for a lawyer is the same as for any other professional or layperson: What would a reasonably prudent lawyer, looking out for her client and not primarily herself, do under the same or similar circumstances? There's no good faith defense in most jurisdictions. Meaning well and doing some work, but not what it takes to get the job done, is not enough.

There is, however, still room for the judgment call. Litigation tactics, advice dispensed based on years of experience, and the discretion necessary to help a client resolve his difficulties are what makes this a profession and not a trade. However, not following clearly defined law is inexcusable.

Defining the duty to the client is probably the easiest part of the legal malpractice suit. One of the benefits of suing another lawyer is that you are already familiar with his territory and with his profession's rule books for performance. We have an abundance of well-known and not-so-well-known chugholes in which to fall in our profession, and they are all in print: rules of procedure and evidence, statutes, and case law.

Then there are our rules of professional conduct. The Code of Professional Responsibility spells out the duties of a lawyer rather concisely. Even though some jurisdictions are careful to state that a mere breach of the code does not create a cause of action, the code nevertheless has been held almost universally to define the minimum duty owed by a lawyer to his or her client.

While some duties are common to all lawyers, e.g., avoiding conflicts of interest, the nuances of meeting that responsibility to a corporate client can be substantially different than to a client in a child custody case, and what constitutes a breach of that duty can also differ significantly.

Whether or not that duty has been breached can be a question of law or fact depending on the circumstances. Malpractice in appellate law, for instance, is an area a layperson has no business deciding, according to many jurisdictions, and is solely a matter of law. Legal malpractice cases can be nipped in the bud by a sympathetic jurist.

Expert testimony is, of course, generally required. The rule of law may be simple, and its breach easily decided (sometimes as a matter of law by the court), but proximate cause and an explanation of how the law works requires an old hand. When it comes to expert witnesses, the greyer the hair, and the longer the track record in the same area of law, the better. Retired judges do nicely. A past grievance or malpractice case against your expert is not necessarily a fatal flaw. Mistakes corrected graciously and honestly go a long way toward making the defendant who is resisting doing the same look worse by comparison.

The toughest element in a legal malpractice case, however, is proximate cause, since it requires proving that the client, but for the negligence of the lawyer, would have prevailed in the underlying lawsuit.

Proving the Underlying Case

Even the gut cinch case of negligence—the no answer default—won't turn over unless you are prepared to prove the big "but for." The proximate cause issue is most often the clincher in the suit: but for this lawyer's profound neglect, would the case have been a winner? And not only was it winnable, but were the damages collectible, or a settlement solution available? Proving a malpractice case does not require or contemplate that the jury and judge in the underlying suit be queried as to whether or not they would have decided the client's fate differently had the lawyer brought in the witness that would have made the case, for instance. The question is what the fact finder should have found if the case was properly prepared, or what could have been reasonably accomplished with the opposing party in terms of settlement had the lawyer not missed the deadline or lost the evidence.

All of the elements of the underlying cause of action have to be proven before you can demonstrate that the lawyer lost it for the client. How one goes about proving it varies with the nature of the case. It can be enough to have a seasoned trial lawyer explain that based on his experience, the personal injury case had settlement value even if trial of the suit was difficult.

Failing to establish proximate cause can leave even the most egregious conduct unpunished. A lawyer who was fooling around with his client's second wife during the poor fellow's child custody fight with his first wife recently escaped a million dollar jury verdict. The judge decided that the client's case had not suffered as a result of the affair.

Damages are more easily established. One of the nice things about a botched personal injury case, for instance, is the demand letter or pleadings the defendant-attorney produced in the underlying case. No matter how inflated you know the numbers are, the lawyer of course had the obligation not to make allegations he did not reasonably expect to be able to prove.

One of the added burdens in a legal malpractice case, however, is the necessity of proving that damages would have been collectible. Even the best drunk driver car wreck case filed too late isn't worth a legal malpractice action if the drunk did not have insurance or a pocket deep enough to cover the damage...or the client did not have uninsured motorists coverage. What's more, even if the lawyer's liability coverage is for a million with an umbrella, the carrier and the defendant have every right to assert the limits of the policy the defendant in the underlying case had.

Defensively, all the warts the defendant-attorney discovered about the case and client are fair defenses when the tables are turned. The attorney-client privilege is waived when the lawyer becomes the defendant. It's a good idea to ask the defendant-attorney in discovery what he felt the weaknesses of the case were, rather than relying on the client to be fully forthcoming.

Typically, limitations are governed by tort standards, and are generally tolled until the lawyer ceases to represent the client, or the judgment in a case is final. Appealing a botched case, in the vain hope that dragging it out for a while longer might run out the statute of limitations, won't save the malpracticing lawyer. Fraudulent concealment of bad facts extends the time as well. A lawyer has a duty to disclose every fact relevant to his client's case, even if it means telling on himself.

Also, settlement of the underlying lawsuit does not bar complaining about the lawyer. A lawyer's failure to disclose the omissions that led to the poor offer, or the impact of the loss of critical evidence due to his procrastination, can be used to force a lawyer to make up the difference between the sorry settlement and the reasonable value of the case.

The toughest cases are the ones that involve not merely malpractice but malfeasance. There was the poor woman who asked a lawyer to help her secure a loan on her undivided one-third interest in her late father's farm, to get her through some rough times while the family waited for a good buyer. The lawyer never found her a loan, but ran up a bill for $75,000, tacked a lien on the property for his fee, and refused to release it when the property sold unless he was paid in full. Fortunately for the client, the insurance carrier decided it might really have been just negligence that the bill was run up so high, and not fraud; otherwise, the insurance carrier would have had to accuse their own insured of being a thief, thus risking being sued by the lawyer for non-defense.

Suing another lawyer can make you a better lawyer. Even just entertaining the idea of whether or not to sue a fellow lawyer can be a useful exercise in self-examination. It should not be undertaken lightly. As in any litigation, the nature of the harm involved and the benefit to be gained for the client should be carefully weighed. A client's unmet expectations are very different than destroyed opportunities.

However, it's a fight worth fighting if you believe that this is a profession of service for the benefit of all and not just another way to make a buck. We need someone to make us honest, and the layperson needs an equalizer. "Nobody has a more sacred obligation to obey the law than those who make the law" (Sophocles).

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