Many clients do not realize they have been victims of legal malpractice. They may feel their lawyer did something wrong that negatively affected the outcome of their case, but they are not sure if they should report their attorney’s actions or even if there is anything to report.
Losing the case often isn’t enough to prove your lawyer acted wrongfully. To establish a cause of action for legal malpractice or lawyer malpractice, the plaintiff must show:
(1) The attorney owed a duty or obligation to the plaintiff.
(2) There was a breach of that duty and the attorney failed to conform to the standard required by law and;
(3) There is a causal connection between the conduct complained of and the resulting damage or loss.
The American Bar Association (ABA) Standing Committee on Lawyers’ Professional Liability prepares studies every few years ranking the most common legal malpractice claims by type in the United States and Canada, and giving a brief description of the malpractice action. These studies include data from many insurers and in 2000 to 2007 represented more than 42,000 legal negligence claims.
Of these insured lawyer malpractice< claims, the most prevalent legal malpractice alleged occurred in the area of personal injury, according to Legal-Malpractice-Lawyers-Attorneys.com. These personal injury claims amounted to about 25% of all insured claims. Another 16% of claims were in real estate law. Probate and estate claims made up about 10% of claims.
About one third of those who file legal malpractice claims against insured attorneys recover monetarily, and about 15% recover more than $100,000 in damages, according to statistics from Legal-Malpractice-Lawyers-Attorneys.com.
According to the 2000-2007 ABA studies, Failure to Know and Apply the Law is the top error resulting in more than 11% of lawyer malpractice claims during that time period.
This means the attorney was unaware of the legal principles involved or did the research but failed to ascertain the appropriate principles. It also applies where the lawyer fails to see legal implications of known facts or applies erroneous reasoning to known principles.
The second most common legal malpractice claim, according to the ABA studies is Planning Error—found in almost nine percent of cases. This generally applies where the lawyer has an adequate knowledge of the facts and law, but makes an error in judgment or strategy as to how the client’s matter should be handled.
The third most common legal malpractice, according to the ABA is Inadequate Discovery of Facts or Inadequate Investigation. This includes cases where the claimant alleges certain facts which should have been discovered by the attorney with the use of discovery procedures or in a careful investigation.
Errors in Failure to File Documents where there is no deadline involved ranked fourth in the ABA study and closely followed the total tally of Inadequate Discovery claims. Here the filing of a document or notice was necessary to perfect a client’s interest against the claim of another party. However, there was no deadline by which the act had to occur to be effective.
Failure to Calendar is the next most common lawyer malpractice claim. In these cases, the lawyer was aware of the existence of a time deadline, but did not initiate any kind of calendar entry to remind himself of the deadline. Failure to Know the Deadline is the sixth most common legal malpractice area.
Rounding out the top eight legal negligence complaints, at least for the 2000-2007 study, were Procrastination in Performance of Services of Lack of Follow-up and Failure to Obtain Client Consent or to Inform the Client. Here a client is asserting that if he had been fully informed of various risks or alternatives involved, he may have chosen a different course of action in proceeding with the case. This topic also covers where the lawyer should have communicated with the client and obtained consent to proceed but did not do so.
Conflict of Interest and Fraud made up about five percent of legal malpractice complaints. Conflict of Interest is when a lawyer had a conflicting interest with that of the client whether he (the lawyer) was aware of it or not. Fraud means that the primary cause of the action is the fraudulent act(s) of the attorney which may or may not be covered by malpractice insurance.
Many Ohio attorneys and Ohio law firms will not hold other attorneys accountable for their wrongful actions. Slater & Zurz LLP is not that type of firm.
For more than 40 years, the legal malpractice attorneys at Slater & Zurz, LLP have been helping victims wronged by others. Attorneys have en ethical obligation to help clients who have suffered losses and damages due to legal malpractice and we want to help those who have been injured in this manner.
Please call us at 1-888-534-4850 for a free consultation or fill out the FREE CASE REVIEW form on the upper right hand side of our web page.