Attorney Negligence: Did It Cost You Your Case?

Attorney Negligence: Did It Cost You Your Case?

Statistics show that legal malpractice claims have become more frequent for the last three decades. There are several instances where a client loses confidence in the abilities of his lawyer because the latter made matters worse instead of providing a resolution to the problem. If you suffered damages due to your lawyer’s wrongful conduct, may it be due to his negligence or intentional act, you may consider the option of bringing a legal malpractice action. However, proving a legal malpractice claim could be challenging as it often involves extensive search for appropriate arguments and corroborating evidence. Despite the existence of actual damages, there are other factors that need to be examined to determine whether a claim of legal malpractice should be filed.

Damages

If the client can prove that the attorney’s negligence or wrongful act resulted in damages, such damages could be recovered by filing a legal malpractice lawsuit. However, there are cases where damages are not easily ascertainable. In such cases, the California Supreme Court held that recovery of damages could still be awarded even if the existence and the cause of such damages are difficult to determine. On the most part, however, damages that are based on speculation or mere threat of future harm are usually not awarded by California courts.

Clients are likely to be more successful with the recovery of so-called “direct” damages. These are damages that have been the direct result of an attorney’s negligence or misconduct. For instance, in a case where an attorney wrongfully advises his client to file for bankruptcy and sell his home for a lower price than its market value, the court is likely to award the client damages to the extent of what he lost from the sale. In another case, a California court awarded damages to a physician due to the loss of his good reputation and the increase in premiums for his medical malpractice insurance due to his attorney’s negligence.

If the client can show clear and convincing evidence that the attorney can be held liable for fraud, malice or oppression, even punitive damages may be recovered, see California Civil Code § 3294. However, client-plaintiffs who have been denied the award of compensatory damages will not be entitled to punitive damages. In general, it is more difficult to prove the existence of punitive damages as courts usually require specific facts to prove that the attorney acted with oppression, fraud or malice. In one rare case, the court of appeals awarded punitive damages due to an attorney’s “conscious disregard of plaintiff’s safety”. In that case, the attorney, who was also a physician, advised his client to postpone the surgery in order to strengthen their medical malpractice lawsuit even though he knew about the urgency of a surgery.

Furthermore, if the client-plaintiff lost his claim for punitive damages in the underlying action, it is very unlikely that courts will award him punitive damages in a legal malpractice lawsuit. The California Supreme Court held that such damages are based on speculation and plaintiffs should not be entitled to damages that cannot be proven with certainty. Otherwise, lawyers would be exposed to more risks of liability, resulting in an increase in the cost of malpractice insurance.

Attorney Negligence

In a legal malpractice action based on the attorney’s negligence, the courts will look into four factors. First, the client-plaintiff needs to show that the attorney-defendant has the obligation to apply the skill, prudence and diligence required from his profession. Second, there has to be proof that the attorney failed to fulfill the above mentioned duty. Third, the client-plaintiff also needs to show that the attorney’s breach of his duty resulted in the damages he suffered. Lastly, as mentioned above, the client-plaintiff needs to present evidence of the existence of such damages and not just mere speculation. According to the California Supreme Court, client-plaintiffs who are facing criminal charges need to prove their actual innocence before they can bring an action against their attorneys. This way, the clients who have been found guilty by a criminal court would not be allowed to go after their attorneys and recover civil damages. An exception to this rule is a malpractice action that is not based on the quality of legal services provided by the attorney. For instance, a fee dispute between the client and the attorney can still be pursued in court even if the client was charged by a criminal court because such a dispute merely involves the attorney’s billing practices.

Typical Cases of Malpractice

The most common basis of malpractice action is the failure of an attorney to adhere to the deadlines set by the Code of Civil Procedure as well as other statutory filing deadlines. As mentioned above, attorneys are expected to apply the required skill, prudence and diligence in providing legal services. The failure to file a lawsuit, initiate a proceeding or bring an action within the so-called statutes of limitation could constitute a strong claim for legal malpractice.

An attorney can also be held liable if the court in the underlying case issues a default judgment against his client due to his failure to file a pleading, see California Code of Civil Procedure § 585. Furthermore, if he fails to relieve his client from the default by filing a motion in a timely manner, namely within six months after the issuance of the default judgment, the client would have another ground to file a malpractice lawsuit against him assuming that the motion could have been successful.

It is also possible to hold an attorney liable for not raising viable defenses in a legal action. In such cases, however, the client-plaintiff needs to show that the defenses that were not asserted can be proven in court and would have led to a more favorable result. In one case, for instance, a California court denied the award of damages to the plaintiff because the attorney decided to leave out weak defenses.

In general, attorneys have an obligation to adhere to their clients’ preferences particularly with regard to legal decisions involving their substantive rights. The failure to follow these instructions can be a basis for a malpractice action. In one case, for instance, a California court held an attorney liable for his failure to file a complaint despite of his client’s specific instructions to do so.

However, courts have held that an attorney can make decisions without his client’s consent if authority has been given in an agreement. Decisions involving procedural matters are also instances where attorneys can act independently. California courts have not yet drawn the line as to how to differentiate procedural matters and legal decisions. Thus, establishing a legal malpractice action based on the failure to adhere to clients’ instructions could pose several challenges. On the other hand, courts have consistently held that attorneys are not obliged to follow instructions that can result in an illegal or unethical conduct. Furthermore, an attorney can reject a case if he determines in good faith that the case lacks merit.

Another frequent basis for a legal malpractice action involves settlements. According to the California Rules of Professional Conduct, an attorney needs to provide his client specific information pertaining to the settlement such as the amount, and the terms and conditions of the offer, see California Rules of Professional Conduct Rule 3-510. To be successful with a malpractice action, a client-plaintiff needs to prove three things. First, there has to be evidence showing the attorney’s failure to inform the client about the settlement (or parts of the settlement). Second, the client-plaintiff needs to attest that he would have accepted the settlement offer if he had known about it (or had sufficient information about it). Last, evidence should be presented that the client would have benefited more from the settlement than the actual outcome of the case. The amount of damages in such a case will be determined by the difference between the actual outcome of the case and what the client-plaintiff would have received from the settlement offer.

Statutes of Limitation

In general, clients can file a legal malpractice lawsuit one year after the discovery of circumstances that support the malpractice claim or four years after the attorney’s act of misconduct, whichever comes first, see California Code Civil Procedure § 340.6(a). There are, however, exceptions to this general rule that could prolong the periods of limitation, giving plaintiffs more time to file a lawsuit. For instance, periods where the plaintiff is physically unable to bring a legal malpractice action against his attorney will be considered as tolled. The same applies to cases where the attorney-defendant is still representing the client-plaintiff in the same case where the attorney’s misconduct is at issue. In such cases, the time limit for bringing a legal malpractice action could be exceeded.

Seeking Legal Advice

The success of a legal malpractice lawsuit will mainly depend on the evidence and arguments which will support the claim that the attorney has been negligent in representing his client. Even procedural matters such as determining the applicable deadline could pose some challenges as well. Thus, in cases that involve complex issues, consulting a lawyer who is experienced in legal malpractice cases is inevitable in order to prevent the occurrence of further damages to the client.

Sources:
California Code of Civil Procedure
California Rules of Professional Conduct

For further reading:
George Lindahl J.D., California Torts, 2012
Suzan Herskowitz Singer, Attorney Responsibilities & Client Rights, 2003
Robert W. Schachner Esq., How & When to Sue Your Lawyer, What You Need to Know, 2005

Where Did Our Business Laws and Regulations Come From – How Have They Changed?

The Business Laws in our nation and our regulations have become so complex they seem to be choking the viability of not only our court system, but also adding layers of laws to companies to the point of suffocation.

The bureaucracy is not only in government, but it has reached all levels of business small, medium and large. Of course, some rules of the game are needed to help our economic machine with standardization.

But, with all the case law, written laws and lawsuits, the laws no longer serve the purpose of allowing business to know in advance what to expect or give them adequate measure to dictate policies within their companies.

One thing that I have noticed is that if you pick up an old business law book prior to 1940, well, there is no much in it. It’s pretty simple and down to earth. When reading through the chapters you’ll find that it all makes sense, it’s all traceable and you can find meaning.

Today things are much different. I would advise any MBA student or individual looking to get into business law to read old business law books and text books. In fact, let me recommend a very good one to you that I have in my own personal library:

“A Text Book of Law and Business” by William H. Spencer; McGraw-Hill Book Company Incorporated; New York, NY; 1938.

If you ever find yourself asking the questions; 1.) Where Did Our Business Laws and Regulations Come From or; 2.) How Have Our Business Laws Changed Over the Years? Then just reading through this work will shed some light on the subject. So, think on it.

Arizona Lawyers Are Regarded As Some of the Best Lawyers in America

In case you are caught in some legal case in Arizona the best option would be to hire the services of an Arizona lawyer since he would know the court system of the state of Arizona in the best possible manner.

In case you are caught in some bankruptcy case in Arizona as per the law of Arizona you can file for bankruptcy which prevents all the creditors from claiming debt from you until and unless the matter gets sorted out as per the law of Arizona. In order to file for bankruptcy one must collect all financial information related to them and you could file for bankruptcy yourself or through a lawyer. The best option would be to hire for services of a bankruptcy lawyer.

Get in touch with the Arizona State Bar Association legal referral service to get a referral or research on the internet or search through yellow pages for information on Arizona bankruptcy lawyers

You can even search through various Arizona lawyers’ directories to get information on various lawyers by going through their database. You can get information regarding lawyers related to Immigration Law, Family Law, Personal Injury, Bankruptcy, Business Law and Criminal Law.

In case you are caught in some legal issues related to taxes in Arizona opt for the services of Arizona attorney as they have to obtain specialized certificate from the Arizona Board of Legal Specialization therefore you know that you have the got a knowledgeable person to deal with your case.

So in case you reside in the state of Arizona and are looking forward to seek the services of an Arizona lawyer it would be a good option to check up with your friends or relatives or peruse the internet for information related to the lawyer. Keep in mind that lawyers from Arizona are regarded as one of the best lawyers in America.

Megan’s Law – It’s Only Half The Battle

Spend some time in any PTA meeting, Mommy & Me group, or even a playdate with friends and it isn’t long before the conversation turns into a worried discussion about Megan’s Law and the sex offender information that parents can now readily access with just a few clicks of their computer mouse.

Parents everywhere are feverishly checking these websites, sometimes weekly or even daily, to see if a registered sex offender resides nearby. Unfortunately, there are a few flaws in this perceived “safety net” that well-intentioned parents should know.

Don’t get me wrong, I am a HUGE proponent of Megan’s Law and the information it provides. I strongly believe that once a sex offender has been released back into the community, the public has the absolute right to know their whereabouts.

But… focusing solely on this component of child safety can do a serious disservice to our kids, IF we stop there.

A Basic Overview of Megan’s Law

Megan’s Law is a federal law, signed on May 17, 1996 by President Bill Clinton. It is named for 7 year old Megan Nicole Kanka of Hamilton Township, New Jersey, who tragically, was sexually abused and killed in 1994 by a twice-convicted pedophile who lived across the street from her home. Unaware of his presence and criminal history, Megan’s parents, Maureen and Richard Kanka, were devastated and outraged. They established the Megan Nicole Kanka Foundation and lobbied government officials to create a law which would require all 50 states to release information regarding the presence of convicted sex offenders in our communities. In it’s most basic terms, the law mandates that the public has the right to know the whereabouts of convicted sex offenders once they have been released, and that all 50 states must make this information available to the public.

Many states have created a dedicated Megan’s Law website, to which the public can log onto through their own personal computer and research the data pertinent to their town or local community.

There are several ways you can check the Megan’s Law sex offender register in your state. In my home state of California, the website is meganslaw.ca.gov. To access the information in your state, you can visit familywatchdog.us. This website provides a free national sex offender registry link and also contains excellent safety information. You may also check your state’s Attorney General’s website, your State Police website, or visit megannicolekankafoundation.org.

Only Part of the Solution…

While Megan’s Law is an excellent awareness tool and provides vital information to the public, parents must remember that it can only do so much.

To begin with, a sex offender register is not a perfect system. In some instances, registered offenders may or may not actually be living where they are listed. Depending on which state you live in, you may even have some registered offenders whose whereabouts are not made public due to an exclusionary clause in the law. For example, some offenders fall into the “undisclosed category” – which means they areregistered with the state, but their information is not accessible on the website. According to the California Dept. of Justice, approximately 25% of registered offenders are excluded from public disclosure by law, depending on the type of crime that person has been convicted of.

More importantly, parents must remember that there are plenty of sex offenders out there who simply haven’t been caught, and therefore, are not listed on any register. As a result, we need to protect our kids from those who may be “flying under the radar” as it were.

What’s A Parent To Do?

Be a PRO-ACTIVE parent rather than a REACTIVE one. A PRO-ACTIVE parent can beat a sex offender at their own game. By now, many parents are somewhat familiar with the real statistic that 90% of child sexual abuse happens by someone the child knows, not by a stranger. Since that’s the real issue, it’s time we started looking at prevention education in a way actually protects our children.

Kids need to be taught how to recognize and defend their personal boundaries with adults they interact with. They need to understand what is appropriate and inappropriate behavior from a grown up (or even an older child), and what to do if they get a red flag or “uh-oh” feeling from someone’s improper actions.

In plain English, kids need to know what to do if “Coach Smith” tries to touch a private part of their body, or if a babysitter or relative wants to play a physical “touching game” that just feels weird or “yucky”. These are much more common scenarios than the stranger who may or may not be living down the street.

Megan’s Law is a good start in protecting our kids. Yet, it’s still only half the battle. With smart prevention education in conjunction with Megan’s Law, we can offer each other a real solution to keeping our children safe.

10 Prevention Tips for Parents

1. Don’t equate stranger with danger. Teach your child how to recognize a potentially dangerous action or situation instead. (“Thumbs up or thumbs down!”)

2. Be involved in your child’s activities. As a “visible parent”, you’ll have a better opportunity to observe how other adults interact with your child.

3. Screen caregivers and babysitters carefully. Always check references – no matter who they come recommended by.

4. Pay attention to clues and cues in other adults’ behavior around your child. A predator’s grooming tricks can be very subtle at first. For example, is there someone who continually tries to arrange “alone time” with your child, often working very hard to create the opportunity by using flattery or suggesting outings that don’t include you?

5. Listen to your child, especially if they consistently don’t want to be around a particular person, such as a babysitter, relative, or family friend. They may be sensing “a red flag” that you are unaware of.

6. Let children decide for themselves how they want to express affection. Do not force them to a hug or kiss another person if they don’t want to.

7. Spend quality time with your children. Kids who are starved for affection or attention can be vulnerable targets for a child molester or predator.

8. Be alert to anyone who insists on being physical with your child (hugging, kissing, tickling, wrestling, touching) especially when the child seems uneasy or has asked them to stop.

9. Let children know they have the right to say NO to any unwanted touches or physical attention. It’s okay to say NO even to a grownup or a bigger kid, and then immediately tell a grownup they trust (like mom or dad) as soon as they can.

10. Review and practice basic safety skills with your children often. Children need to hear the information more than just once to really understand.

What Are My Options As a Commercial Lawyer?

Commercial law functions across a broad spectrum of business and commercial transactions including finance, accounting, management and trade. Often referred to as business law, it is one of the most widely practiced legal areas. Regularly overlapping with other areas of law and engaging many different types of clients, commercial law can offer lawyers a diverse and varied portfolio of work.

Not all roles, however, are the same. When it comes to legal recruitment in corporate law, consider all the options available to you.

In-house role. Because the focus of it is business, it is an area of legal practice that presents many opportunities for in-house positions. Many businesses employ in-house legal teams or lawyers to deal with their legal issues. In-house legal roles in this area are good positions for lawyers interested in the business world.

Law firms. Most large law firms offer expertise in commercial contract law, and most will working for these larger firms will be involved in some aspect of contract law. If you’d like to be involved in the nitty gritty of business law and interacting with those involved, smaller or boutique commercial law firms will offer more frontline opportunities. When it comes to commercial law, the age-old dictum proves true for many – bigger is not necessarily better!

International work. In today’s global world, business often crosses national boundaries. Many commercial lawyers, therefore, will be involved in international business, trade or finance dealings. Commercial law therefore offers the opportunity for lawyers to travel for work. Those looking to relocate overseas, however, will find it harder to find positions where local industry knowledge is often coveted and essential to business dealings.

If you’re interested in commercial law jobs, there are a number of different career prospects and opportunities available to you. Deciding which area and arena of commercial law you would like to work in will help you narrow down your job prospects and choose a role that suits your career objectives.