Legal Malpractice

Website design By BotEap.comLegal Negligence Liability Theories

Website design By BotEap.comLegal negligence is a broad term that encompasses various types of liability claims brought against lawyers for breach of duties that lawyers owe to clients and sometimes to other people causing 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.

Website design By BotEap.comNeglect

Website design By BotEap.comLawyers are required to represent clients who possess the requisite degree of skill, learning and ability necessary to practice law and will exercise ordinary and reasonable care and diligence in applying their skill and knowledge in representing clients. Malpractice claims are by far the most common claims filed against attorneys. The traditional elements of any negligence claim are:

Website design By BotEap.com1. the defendant owes the plaintiff a duty of care;

Website design By BotEap.com2. the defendant breaches that duty of care;

Website design By BotEap.com3. the breach of duty proximately caused the plaintiff’s injury; and

Website design By BotEap.com4. damages for such injury.

Website design By BotEap.comLawyers generally have a duty to care only for clients, and not third parties. The Texas Patron Jury Charges define professional negligence as the “failure to use ordinary care, that is, failing to do what an attorney of ordinary prudence would have done in the same or similar circumstances or to do what an attorney of ordinary prudence would ordinary prudence would have done”. not having done so in the same or similar circumstances”. Proof of the standard of care and its non-compliance generally requires the expert testimony of a lawyer.

Website design By BotEap.comBreach of fiduciary duty

Website design By BotEap.comAttorneys are fiduciaries and, as such, owe clients the utmost loyalty and are obligated to provide full and fair disclosure of all material facts to client 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 others, including other clients. Failure to comply with the duty of full disclosure amounts to concealment. Clients justifiably trust the integrity and fidelity of their lawyers.

Website design By BotEap.comAttorneys’ 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 a lawyer has breached a fiduciary duty, a presumption of unfairness arises and the lawyer has the burden of proving that the fiduciary duty was performed with perfect fairness, adequacy and equity.

Website design By BotEap.comFraud

Website design By BotEap.comFraud is a misrepresentation of a material fact, known to be false or recklessly made without any knowledge of its truth, made with the intent to cause another party to act on the representation, in which that other party reasonably trusts and suffers harm. Lawyers can be held liable for damages for defrauding their own clients; lawyers may also be liable for committing fraud against third parties. Fraud can also arise when a lawyer is required to disclose certain information and fails to do so, to the detriment of the client.

Website design By BotEap.comConspiracy

Website design By BotEap.comLawyers 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 torts in furtherance of the object approximately 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 furtherance of the conspiracy.

Website design By BotEap.comDeceptive business practices

Website design By BotEap.comThe Texas Deceptive Trade Practices Consumer Protection Act (DTPA) only applies to attorneys for claims for damages that are not based on the rendering of legal services the essence of which is the rendering of advice, judgment, or opinion. However, the DTPA applies to express misrepresentations or unreasonable 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 attorneys’ fees.

Website design By BotEap.comRemedies for legal negligence

Website design By BotEap.comcause

Website design By BotEap.comA plaintiff in a negligence or breach of fiduciary duty legal malpractice action 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 cause injury. Proximate cause implies predictability and factual cause. Predictability contemplates that the lawyer should have anticipated the client’s risk due to 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 expert testimony from a lawyer to link the breach of duty to the harm caused.

Website design By BotEap.comThe Texas Master Jury Charges define proximate cause as “cause which, in a natural and continuous sequence, produces an event, and without which that event would not have occurred. To be proximate cause, the act or omission by the one reported must be such that a lawyer using ordinary care would have foreseen that the event, or some similar event, could reasonably result therefrom. There may be more than one proximate cause of an event.”

Website design By BotEap.comDamages

Website design By BotEap.comThe most common remedy sought by clients of their former attorneys is recovery of damages caused by the attorney’s negligence or other breach of duty. The traditional method of establishing damages when a lawyer negligently represents a client is to try the “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 mispracticed 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 breach of fiduciary duty and DTPA cases.

Website design By BotEap.comIn 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 other wrongful acts committed with malice.

Website design By BotEap.comforfeiture fee

Website design By BotEap.comAn 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 as a result of the breach. Fee forfeiture cases are typically based on allegations that the attorney committed a serious breach of fiduciary duty or fraud. In the case of a forfeiture forfeiture trial, a jury will consider whether the attorney committed the claimed violation and the trial judge will determine whether the violation is clear and serious and, if so, the amount of fees to be forfeited.