Legal Negligence Theories of Liability

Legal malpractice is a broad term that encompasses several types of liability lawsuits brought against attorneys for breaches of duties the attorneys owe to clients and sometimes to others who cause harm. An attorney’s particular conduct may violate the professional standard of care, disciplinary rules, civil statutes, and even criminal statutes. Such conduct may result in monetary damages, loss of dues, disqualification and loss of license.

Negligence

Attorneys imply representing before clients that they possess the requisite degree of skill, learning and ability necessary to practice law and will exercise reasonable and ordinary care and diligence in applying their skill and knowledge in representing clients. Negligence claims are by far the most common claims brought against attorneys. The traditional elements of any negligence claim are:

1. the defendant owes the plaintiff a duty of care;

2. the respondent breaches that duty of care;

3. the breach of duty proximately caused the plaintiff’s injury; Y

4. damages for such injury.

Lawyers generally have a duty of care only to clients, and not to third parties. The Texas Master Jury Charges define professional negligence as the “failure to use ordinary care, that is, not doing what an attorney of ordinary caution would have done in the same or similar circumstances or doing what an attorney ordinary prudence would have done. not having done so under the same or similar circumstances”. Proof of the standard of care and its noncompliance generally requires the expert testimony of an attorney.

Breach of fiduciary duty

Attorneys are fiduciaries and, as such, owe clients the duty of the utmost loyalty and are obligated to provide full and fair disclosure of all facts material to the clients’ representation. Therefore, lawyers have a duty of good faith and fair dealing with their clients and all dealings between lawyers and clients must involve the full integrity and fidelity of the lawyers. Lawyers must put the interests of clients before the interests of lawyers or other persons, including other clients. Failure to comply with the duty of full disclosure amounts to concealment. Clients justifiably trust the integrity and fidelity of their attorneys.

Attorneys’ fiduciary duties include, but are not limited to, avoiding impermissible conflicts of interest, safeguarding client confidentiality and property, fully disclosing all material information, following client instructions, and not engaging in activities adverse to the client. When a client alleges that an attorney has breached fiduciary duties, a presumption of injustice arises and the attorney has the burden of proof that the fiduciary duty was performed with perfect fairness, propriety and fairness.

Fraud

Fraud is a misrepresentation of a material fact, known to be false or recklessly made without any knowledge of its truth, made with the intent that another party act on the representation, in which that other party reasonably trust and suffer prejudice. Lawyers can be held liable for damages for defrauding their own clients; attorneys may also be liable for committing fraud against third parties. Fraud can also arise when an attorney is required to disclose certain information and fails to do so, to the detriment of the client.

Conspiracy

Attorneys involved in a civil conspiracy may be liable to clients and third parties. A civil conspiracy consists of a combination of two or more persons with the specific intent to accomplish an object or a course of action that is an unlawful purpose or a lawful purpose by unlawful means where there has been one or more overt unlawful acts in furtherance of the object roughly resulting in damage. Therefore, an attorney may be liable for conspiracy for knowingly agreeing to defraud a third party. Each co-conspirator is legally responsible for all acts performed by any of the co-conspirators in support of the conspiracy.

deceptive business practices

The Texas Deceptive Trade Practices Consumer Protection Act (DTPA) only applies to attorneys for damages claims that are not based on the provision of legal services in essence the provision of advice, judgment, or opinion. However, the DTPA applies to express misrepresentations or unconscionable acts that cannot be characterized as advice, judgment, or opinion. The advantages of pursuing a DTPA cause of action are a somewhat lower standard for proving causation of damages and the potential to recover multiplicative damages and attorney fees.

Remedies for legal malpractice

cause

A plaintiff in a legal malpractice action for negligence or breach of fiduciary duty must prove that the attorney’s breach of duty immediately caused the plaintiff’s injury, resulting in damages. Not all negligent acts or breaches of fiduciary duty by attorneys result in injury. Proximate cause implies foreseeability and factual cause. Foreseeability contemplates that the lawyer should have anticipated the client’s risk for the negligent act. In fact, cause requires that the negligent act or omission be a substantial factor in causing the damage without which the damage would not have occurred. Proof of causation in legal malpractice cases generally requires the expert testimony of an attorney to link the breach of duty to the harm caused.

Texas jury pattern charges define proximate cause as that “cause which, in a natural and continuing sequence, produces an event, and without which such event would not have occurred. To be a proximate cause, the act or omission by the one reported must be such that an attorney using ordinary care would have foreseen that the event, or some similar event, could reasonably result from it. There may be more than one proximate cause of an event.”

Damages

The most common remedy clients of their former attorneys seek is recovery of damages caused by the attorney’s negligence or other breach of duty. The traditional method of establishing damages when an attorney negligently represents a client is to prove a “claim within a claim.” The plaintiff must prove that, but for the attorney’s negligence, he would have recovered the judgment in the original case, the amount of that judgment, and that the judgment would have been collectible. In the event that the attorney has mishandled a defendant’s case, the client must prove that, but for the attorney’s negligence, the client would have prevailed on a meritorious defense. However, the “case within a case” standard of proof may not be required in breaches of fiduciary duty and DTPA.

In other legal malpractice cases that do not involve underlying litigation, traditional damages rules state that the client can recover all foreseeable damages caused by the attorney’s wrongful actions or omissions. And, exemplary damages may be recoverable for attorney fraud or for other wrongful acts committed with malice.

confiscation fee

An attorney who commits a clear and serious breach of duty to a client may be forced to lose some or all of the attorney’s compensation in the matter, even if the client suffered no actual harm by virtue of the breach. Typically, fee forfeiture cases are based on allegations that the attorney committed a serious breach of fiduciary duty or fraud. In the case of a fee forfeiture trial, a jury will consider whether the attorney committed the alleged violation and the trial judge will determine whether such violation is clear and serious and, if so, the amount of fees to be forfeited.