Attorney malpractice may be brought under theories of (1) attorney negligence; (2) breach of fiduciary duty; or (3) breach of contract.
Attorney negligence most frequently requires examination of the underlying matter. It is often described as a case within the case. That is, absent the mistake, would the underlying matter have been successfully concluded. Thus, it is not merely whether the attorney was negligent but whether that negligence was the proximate cause of the loss and the damages that followed. If one was seeking recovery, the recovery would have been collectible. If one was defending a lawsuit, the loss sought is the amount the client paid in satisfaction of the judgment.
An attorney’s breach of fiduciary duty may arise from a variety of circumstances including conflicts of interest, failure to abide by the client’s direction and failure to keep the client fully informed. As in a negligence claim, establishing proximate cause is essential to the success of such a claim. Breach of fiduciary claims generally forego the right to a jury trial.
The attorney’s breach of contract is generally a narrower theory and may be beneficial where the engagement agreement was breached in carrying out the responsibilities agreed upon. While both negligence and fiduciary claims can be incorporated into the breach of contract theory, these claims most generally fit into disputes over excessive legal fees and costs.
The scope of claims against attorneys is very broad. Without suggesting a limited view, we frequently are consulted on such matters where the underlying matter involved:
● Estate planning mistakes;
● Statute of Limitations that barred Personal injury and Wrongful Death matters;
● Intellectual Property losses;
● Transactional errors;
● Conflicts of Interest;
● Real Estate errors;
Generally, the attorney malpractice lawsuits result from failure to abide by the Rules of Professional Conduct that require competence, diligence, communication, and conflicts of interest.
The attorneys at SCHIFF GORMAN are committed to thoroughly investigating each claim. This involves reviewing the underlying file, determining the reasons that the underlying matter was not successful, consulting with experts in the specific area of law and determining whether the attorney failed to meet the minimum standard of what a reasonably well qualified attorney was obligated to perform.