Most lawyers work hard to maintain their professionalism and to avoid legal malpractice claims, although the definition of legal malpractice is largely misunderstood by many. If an attorney fails to provide the legal services and professional care that should reasonably be expected from an attorney, and if a client is harmed because of that failure, it’s legal malpractice. If someone pursues a legal malpractice claim against a lawyer, that person’s new attorney must prove that:
- The original attorney failed to satisfy the accepted professional standard of care.
- And if the original attorney had handled the matter properly, the case or legal procedure would have had a better result for the client, and the client would not have suffered harm.
In our legal system, clients must be able to trust their attorneys completely. Professionalism requires every lawyer to provide aggressive advocacy, complete confidentiality, and to prioritize the interests of clients. If an attorney fails to maintain client confidentiality, fails to return client phone calls, or has a conflict of interest, a client may have grounds to claim legal malpractice. What are the most common legal malpractice claims?
Pasadena personal injury attorney Gregory Vanni is the managing partner of Thon Beck Vanni Callahan & Powell, and he is a past president of the Pasadena Bar Association. Mr. Vanni has handled a number of legal malpractice cases, and he says that the most common legal malpractice claims are claims regarding fee disputes, claims regarding the failure to communicate with clients, and claims regarding an attorney’s possible conflicts of interest.
WHAT IS THE MOST COMMON LEGAL MALPRACTICE CLAIM?
According to Mr. Vanni, “Fee disputes are probably the most common claims – especially when a lawyer sues a client for fees, resulting in a retaliatory claim of malpractice. Fortunately, in our practice, the client knows exactly what the fee will be from the outset: our fees are on a contingency. If no recovery is obtained, then no fee is owed. Our fee structure allows even those people with no means to hire a lawyer and have access to justice. We provide the same caliber of legal talent that the most expensive hourly fee lawyers offer.”
In all malpractice claims, but particularly in fee disputes, clients believe they did not get what they paid for. To minimize the outset from any possibility of a fee dispute, clients should always review the original fee contract and inform the lawyer about any fee-related concerns. Flat fee and contingency fee arrangements allow attorneys and clients to reach fee agreements that, in most cases, a client can honor.
While fee disputes are the source of the largest number of legal malpractice claims, the failure of attorneys to communicate appropriately with clients also ranks high. Attorney Vanni says, “The other most common reason for malpractice lawsuits is the failure to communicate: failing to respond timely to calls and emails. The failure to keep the client informed at all stages, so there are no unexpected surprises, is sadly common. We diligently return phone calls and emails all day, every day.”
WHAT CONSTITUTES A FAILURE TO COMMUNICATE?
Open and clear communication between client and attorney is essential in any legal case or proceeding, so if a lawyer fails to return calls or provides only vague details when a client needs precise information, that lawyer may be guilty of legal malpractice. Failing to communicate properly with clients is not only legal malpractice, but it is also an ethical violation. The American Bar Association (ABA) rules state that a lawyer “shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation” and shall also:
- promptly inform the client of any decision requiring the client’s informed consent
- reasonably consult with the client about the way the client’s objectives are to be achieved
- keep the client reasonably informed about the status of the matter
- comply promptly with reasonable requests for information
- consult with the client about limits on the lawyer’s conduct when the client expects assistance not allowed by ABA rules or the law
HOW IS A “CONFLICT OF INTEREST” DEFINED?
Pasadena personal injury attorney Gregory Vanni says, “The final most common reason for malpractice claims is failure by the lawyer to address a conflict of interest. This can arise in cases of multi-client representation, e.g., in a wrongful death case of a child where the parents are divorced, or a car accident in which the lawyer represents both the driver and passenger, where the driver may share fault. Written disclosure is required by State Bar rules, but some practitioners fail to advise the clients on this issue, which is almost certain to create tension and generate a claim.”
A booklet entitled Managing Conflict of Interest Situations published by the Lawyers’ Professional Liability Indemnity Company defines a conflict of interest as “a compromising influence that is likely to negatively affect the advice that a lawyer would otherwise give to a particular client.” In other words, a conflict of interest is a set of circumstances likely to impact negatively the lawyer’s judgment concerning a client, the lawyer’s loyalty to a client, or the lawyer’s safeguarding of the interests of a client.
Conflicts of interest are troubling because loyalty and independence of judgment are essential to the effective representation of a client by an attorney, and a conflict might make it difficult or impossible for an attorney to exercise the necessary loyalty and independent judgment. The best way for an attorney to avoid conflict of interest claims is simply to decline any representation where a conflict may exist or appear to exist. All actual and potential conflicts should be identified, as far as possible, before representation begins.
WHAT SHOULD CLIENTS EXPECT?
Malpracticing attorneys hurt clients, hurt other attorneys, and hurt the entire legal system. Every client – of every attorney – should be treated with the utmost respect and should be offered every possible professional consideration and courtesy. Most importantly, anyone seeking legal assistance for any reason should be represented by a conscientious, ethical attorney who has built a reputation for the highest professional standards of excellence.
Lawsuits and most other legal proceedings are adversarial, so at the conclusion of almost any matter, one party or the other is likely to be unhappy. That means legal malpractice claims will probably always be a part of any legal system. Nevertheless, attorneys and clients both have a responsibility to be aware of what constitutes legal malpractice and to take the precautions necessary to avoid it.