Posted in General Information

A Tale of Two Grievances— (1) $20 too late, and (2) $650 too much

If you believe an attorney has been unethical in dealings with you, one option is filing a grievance with your state bar. 

Many if not most state courts have grievances online. For example, Connecticut has grievance decisions going back to 1994 to 2014 online here. See my links page here for additional grievance decision links for some other states.

Generally, an attorney who is found to have violated the Rules of Professional Conduct may be subject to various consequences such as reprimand, continuing education classes in ethics, ongoing supervision by other attorneys, suspension, or temporary or permanent disbarment. Sometimes the grievance committee may require restitution or an assessment of costs. Though a reprimand by itself does not result in anything other than a public record, attorneys who have multiple reprimands will likely be dealt with more harshly later on even for something that might otherwise only require a reprimand.

While grievance decisions are primarily to guide attorneys and how they practice law, they also may help clients understand what attorneys may or may not do, and, more specifically, whether your attorney is acting in a way that violates the rules of conduct and merits filing a grievance.

From time to time, starting now, I will blog about some of these decisions (in no particular order of severity), ones that I believe will help readers of this blog understand some of the bottom line requirements for being an ethical attorney.

The first two grievances are on almost opposite ends of the spectrum: in one, an attorney was reprimanded for deducting $20 for stopping a check to a client. In another, an attorney was reprimanded for giving money ($650) to a client.

In the first grievance of interest, an attorney represented a client selling his house. The attorney miscalculated the amount due at the closing, so the client brought a bank check that was $69 more than the client needed to pay.  The attorney was honest and advised the client of the mistake at the closing. However, months went by, and the client had not received a refund. The client called multiple times, wrote, and even sent a registered letter to the attorney over a period of months. A few days after sending the registered letter, at long last, the client received a refund. Except, the refund check was for $49. It turns out the attorney had deducted $20 for stopping a check for $69 that the attorney claimed he had previously sent.

The client objected to the deduction. The attorney responded with a voice message stating that he would not return the $20, and that the former client could sue him for the money. That bit of bravado was a mistake. Of course, no one is likely to sue someone for $20 but because this involved an attorney, the former client had a right to file a grievance. The attorneys excuse? He claimed that he had sent a full refund to the client. The only glaring problem with the excuse is that the attorney sent the refund to the address of the property that the attorney had closed for the client. As the committee noted: “We are of the opinion that the Respondent should have known that the Complainant could not be living at the address that the check was sent to since the Respondent had conducted the closing for the Complainant and was well aware that the Complainant had sold that property.”

 The committee ordered the attorney to provide restitution to the former client for the $20. It is not mentioned why  the committee did not also have the attorney reimburse the client for the registered letter. In any case, the committee specifically found that this attorney violated Rule 1.3, which requires attorneys to act with reasonable diligence and promptness. The attorney was reprimanded.

The second grievance may be surprising to you, since it turns out that attorneys can get into trouble by giving money to clients, even for a noble purpose.  

In this particular grievance, the attorney represented a client in three matters, two motor vehicle accidents and a divorce. There was a settlement for one of the accidents, but sometimes it takes a while before an insurance company issues a check. In the meantime, this particular attorney gave the client $600 to purchase a new automobile (this was in 1991) prior to receiving the check from the insurance company.

At another time, this same client complained to the attorney that he was unable to make child support payments, so the attorney gave the client $50 in cash. Finally, the attorney provided money to the client so he could be examined by a physician in connection with injuries from one of the accidents.

The local grievance panel (where complaints in Connecticut go first), did not find any violation of a rule. However, these determinations are reviewed by the statewide committee which decided to pursue the matter. The statewide committee found that the attorney violated RPC 1.8(e) and reprimanded him.

RPC 1.8(e) specifically prohibits lawyers from giving give clients financial assistance other than optionally advancing the costs and expense of litigation, or representing indigent clients to pay court costs and expenses. The committee noted that while it was sympathetic to the attorney’s concerns regarding the client, the rule specifically prohibit attorneys from doing that and reprimanded the attorney.

A reprimand is a warning to an attorney. It does not have a particular punishment attached to it, but in Connecticut at least,  an attorney who receives three reprimands in the five years preceding any complaint, automatically has to have the case considered by the Connecticut Superior Court. It is possible that an attorney may be given a harsher sanction because it is part of a pattern of behavior. This is important for clients to know because it means that even grievances that do not rise to the level of requiring suspension or disbarment may a future impact on protecting others, since your grievance may be used at a later date by the grievance committee to assess additional consequences to an attorney who short-circuits the rules of professional conduct on a repeated basis.

(Speaking of the rules, in Connecticut, the Rules of Professional Conduct are found in the Practice Book. The 2015 version is found here  (the rules are on pages 4-66). Links to the rules from some other states are found here.)

Howard Altschuler

 (Click here for a brief summary of my other blog posts on various legal malpractice related issues)  

(Disclaimer: http://legal-malpractice.com/disclaimer/ Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2015 by Howard Altschuler, All Rights Reserved

Posted in Issues Related to UNETHICAL CONDUCT of Attorneys

The Statute of Limitations: Now you see it, now you don’t…

One of the first things I need to find out from a potential client is when the events took place. That is because virtually all potential litigation causes of action have a strict deadline for commencing litigation (the statute of limitations). The deadline is usually set by state law, though it may be set by the highest court of a state, or by federal law.

Sometimes it is difficult to figure out when the statute begins to run, and other times when it ends. For example, it is easy to know the exact time and place of an accident, but it is not always so easy to figure out when a lawyer’s malpractice occurred. Legal malpractice statutes of limitations also tend to be a bit more complicated because your attorney may have represented you on more than one issue.

While this blog post is not about the complexities of statutes of limitations, I did want to point out one more problem to be aware of: sometimes the statute of limitations changes. Although this is a relatively rare occurrence, it does happen from time to time, which means that whatever you are told by an attorney about the statute of limitations for a particular cause of action, when deciding what to do, be aware that the statute of limitations can change.

In New York this is happened at least twice. For many years, New York courts interpreted the law to mean that there was a six year statute of limitations for legal malpractice claims. However in 1996 the state legislature passed a law making the statute of limitations for legal malpractice three years. Potential litigants who had been relying on the six-year statute of limitations would find that they were out of luck if they brought the case after the new law went into effect.

More recently, the New York Court of Appeals held that the statute of limitations for a violation of Judiciary Law §487 (which exposes an attorney who engages in deceptive practices during the course of litigation to treble damages as well as up to a year in prison) was six years. The state legislature could theoretically change that again. And that ruling does not help the many litigants whose cases were thrown out for decades when lower New York courts held that the statute of limitations for Judiciary Law §487 was three years.

There have been proposals in New Jersey to change the six-year statute of limitations to a two-year statute of limitations. 

In other words, when deciding what to do about a claim, you certainly use the statute of limitations as a guidance. However, if you are seriously considering to litigate a particular matter, but decide to delay for whatever reason, you should at least monitor developments in your state for the particular cause of action just in case ythe state legislature decides to change the statute of limitations.

 Howard Altschuler

 (Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2014 by Howard Altschuler, All Rights Reserved

Posted in STATUTE OF LIMITATIONS

Silence is Not Always Golden

If an attorney violates ethical rules, a complaint may be filed against the attorney with your state grievance committee. Courts also have jurisdiction over the conduct of attorneys and may impose sanctions particularly for conduct during the course of litigation.

 

The burden of proof for finding a violation of ethics, at least in Connecticut, is clear and convincing, which means that it has to be highly probable that it is true.

 

Importantly, all attorneys have a responsibility to be ethical, including associate attorneys. For example, in one case, an associate attorney was reprimanded for allowing misrepresentations take place during arguments during a court hearing. On appeal, the court upheld the reprimand although one judge dissented  and did not believe there was clear and convincing evidence of a misrepresentation. The case went to the Connecticut Supreme Court.

 

The associate argued on appeal that although he was present during the court hearing in question, it was his employer, not he, who made the statements to the court. The Connecticut Supreme Court held that an associate attorney has an obligation to correct misstatements of other attorneys, even if the attorney employs the associate. In this particular case, it was the associate who had a conversation with a third attorney that was being relayed during the court hearing. The Connecticut Supreme Court held that it was unethical for an associate attorney to remain silent and such silence  may form the basis for a disciplinary action.

 

When considering filing a grievance against a law firm for unethical conduct, please keep in mind that more than one attorney may share responsibility.

 

Howard Altschuler

 (Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2015 by Howard Altschuler, All Rights Reserved

Posted in Issues Related to UNETHICAL CONDUCT of Attorneys

Litigation Rule # 3: Don’t wait until the last minute to serve a complaint…you never know what will happen.

Every lawsuit has to start somewhere.

 

One of the very first things that happens in the litigation process after a complaint is drafted is that a physical copy of the complaint must be properly served on the defendant. Without proper service of process the case can be dismissed no matter how good the claim might be.

 

In some states, the lawsuit formally commences by filing a complaint with the court. At that point, there is a time limit to physically serve the complaint on the defendant. In other states, a defendant is served first and then the complaint is filed, along with an affidavit of service. Either way, the process server has to follow certain rules.

 

Though serving a complaint should be a straightforward process, sometimes things go wrong.

 

For example, in one recent case, the affidavit of service stated a particular attorney had been served with the complaint. The problem? The attorney was out of state at the time as proven by plane tickets. The legal malpractice plaintiff in that case managed to avoid a loss of a claim by asserting that the process server was misled into believing the right person was served. Many times plaintiffs are not so lucky and their claims are dismissed. 

 

If the statute of limitations expires while there is a dispute over whether service of process was proper, and if services found to be improper, the claim will be lost because the plaintiff will be unable to re-serve the complaint within the statute of limitations. It is better to avoid this risk altogether by serving a complaint far enough in advance of the expiration of the statute of limitations so that it can be re-served if a problem is discovered. The defendant claiming improper service will have to disclose why it was improper so if the service takes place far enough in advance it is unlikely the defendant will even raise the issue knowing that the complaint can be re-served based on the information the defendant is now disclosing. 

Howard Altschuler

 (Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2014 by Howard Altschuler, All Rights Reserved

Posted in Service of Process

Is an expert needed to prove a breach of fiduciary duty? It depends….

Although attorneys have a fiduciary duty toward their clients, most errors and omissions by attorneys do not rise to the level of a breach of fiduciary duty. How it that possible? Legal malpractice claims generally involve questions about the quality of legal work.

A breach of fiduciary duty that merits a separate cause of action generally has to involve issues related to conflicts of interest, dishonesty, or immorality, such as an attorney misappropriating money or engaging in inappropriate conduct.

I have previously written about the necessity for a legal malpractice plaintiff to have an expert, but the question here is whether a claim for a breach of fiduciary duty against an attorney also requires an expert. The answer? It depends.

In a recent Connecticut Superior Court decision, two brothers hired an attorney to set up trusts to transfer assets to their respective children, while still maintaining control over the assets. The trusts were created, but instead of the trust being controlled by the two brothers, only one brother and the attorney were set up to manage the trust. This prevented one brother from having any control over the assets.

While there were several interesting issues raised by this case, the court found that the plaintiff’s failure to name an expert was fatal to the plaintiff’s legal malpractice claim. However, the court found that no expert was needed for the breach of fiduciary duty claim. The court made this finding despite rejecting one of the plaintiff’s key arguments on this point. 

In Connecticut, when there is a fiduciary relationship, and when the claims involve fraud, self-dealing, or a conflict of interest, the burden of proof shifts to the fiduciary to prove the transaction was fair.  The court in this case stated that in order for there to be a shifting of the burden of proof, the attorney would have had to have obtained a possible benefit from the transaction or there were suspicious circumstances. Apparently there was no allegation that the attorney had misappropriated trust funds. Without providing specific facts, the court concluded that the attorney was not going to financially benefit from the trust, and therefore, the burden did not shift to the attorney to prove that the transaction was fair. If the attorney-defendant did not have the burden, that would likely have meant the plaintiff would need an expert.

But that was only the first step of the court’s analysis.  The court concluded that despite the fact the burden was not shifted, the plaintiff still did not need an expert because the attorney-defendant claimed that the trust document defined the attorney’s duties as trustee. Essentially the court turned this into a breach of contract analysis and concluded that whether the attorney did or did not carry out the duties specified “seems well within the ability of common jurors to understand and decide. Unlike the issue of legal malpractice …. it does not require knowledge of the intricacies of estate planning, creations of trusts, funding of trusts, and transfers of assets in order to assess the conduct of the defendant.”

Though the plaintiff lost on one argument but ultimately prevailed on the main issue, my view remains: unless the specific circumstances of your legal malpractice/breach of fiduciary case have been previously found by the highest court in your state to not require an expert, an expert should be retained to avoid the possibility of dismissal because you failed to hire an expert.

Howard Altschuler

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)
(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)
Copyright (c) 2014 by Howard Altschuler, All Rights Reserved

Posted in Experts in Legal Malpractice

What percent of civil cases make it to trial?

Filing a civil suit generally means the plaintiff is seeking monetary damages from the defendant. Sometimes, the plaintiff might be seeking other kinds of relief such as an injunction, but whatever is being sought, the filing of a complaint begins a long and sometimes arduous process that ultimately should be resolved at trial (assuming that the case is not settled, dismissed, or otherwise resolved).

It is critical for an attorney taking a case for litigation to proceed from day one as if the case were going to be tried. But it is also important for a client to understand that the litigation process is long. Sometimes it seems cases go on almost forever. See my post here about such almost never ending cases.

 

However, whether through the great work of attorneys, or litigants simply deciding to move on, the vast majority of cases settle or are resolved by motion practice. Some interesting statistics for Connecticut cases are found on the Connecticut Superior Court website here.  For example, the following is a chart showing how many cases were resolved by trial and how many ended some other way (such as motion for summary judgement, settlement of the parties, or withdrawal of the case by the plaintiff).

 

Year (July 1 to June 30) Connecticut Cases resolved by trial Connecticut Cases disposed of by ways other than trial % of cases tried
2013-2014 4,293 64,796 6.63%
2012-2013 3,690 65,447 5.64%
2011-2012 3,679 66,733 5.51%
2010-2011 3,557 74,367 4.78%
2009-2010 3,582 66,044 5.42%
2008-2009 3,125 60,945 5.13%
2007-2008 3,061 52,811 5.80%

 

So, it appears that approximately 1 out of every 20 cases ends up in trial in Connecticut. While that is low, the percentage is much lower for federal cases (in 2002, it was less than 2%, or 1 out of 50 cases).

 

Unfortunately, the statistics do not indicate whether these trials took place before a judge or jury, or when these dispositions took place. Often cases are settled shortly before trial, or even during a trial, so the statistics do not give a complete picture as to the intensity of litigation.

Howard Altschuler

 (Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2015 by Howard Altschuler, All Rights Reserved

Posted in General Information

Suing someone else’s attorney for legal malpractice: what’s aggrievement got to do with it?

I recently read an interesting case that applied the concept of “aggrievement” to a legal malpractice matter. It was interesting because “aggrievement” primarily is mentioned in cases having to do with challenges to administrative agency decision or governmental actions. 

What is aggrievement? It is a legal term that basically means that you have a right to bring a claim for a particular issue. It is usually brought up  in the context of challenging administrative agencies, and not legal malpractice.

Sometimes standing can be established by statute where a law specifically gives a certain group of people a right to bring a lawsuit. Not surprisingly that is known as statutory aggrievement, that is, your right to sue is established by law. For example, there may be a statute giving schools a right to challenge the installation of power lines within a certain distance of the school. Others not mentioned in the statute would not have that right.

In New York, there actually is a statute related to attorneys that gives parties to litigation the right to sue an attorney who deceives the court, even if the attorney is not your attorney. (Judiciary Law §487). In essence, someone suing under that statute would be claiming statutory aggrievement (although you would not normally use the term “aggrievement” to describe the situation).  See blog post here.

 As I have also previously written here. Connecticut does not have an equivalent statute and in fact does not permit the bringing of a lawsuit against an attorney who did not represent you for deceptive acts in court.

But there is another way to create standing through something called “classical aggrievement”. You don’t need a particular law to have a right to sue but you do need to prove two things: first, “the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision.

In other words, you have to prove that the decision impacts you personally or legally, and you also have to show that the decision of the organization or governmental body that you are challenging has the potential of causing you this direct harm. For example, if your local zoning board permitted a law office to be constructed next your business and you don’t particularly like lawyers, you probably won’t be considered aggrieved. On the other hand, if the administrative agency overseeing power companies permitted the construction of additional poles and lines on your property, requiring the clearing of income producing trees, you probably would have aggrievement.

The other thing to keep in mind about aggrievement is that the issue is usually brought up at the very beginning stage of litigation. At that point you only have to show that there is “a possibility, as distinguished from a certainty, that some legally protected interest… has been adversely affected.”  For example in one case aggrievement was found because there was the possibility that a particular decision would increase traffic in front of someone’s house.

However, in legal malpractice cases, “As a general rule, attorneys are not liable to persons other than their clients for the negligent rendering of services.” That means you generally can’t sue attorneys who did not represent you. Sometimes you might have a claim against an attorney who did not represent “if the primary or direct purpose of the transaction was to benefit” you. That is where the issue of aggrievement might be applied in a legal malpractice or breach of fiduciary claim.

For example, in one case, the Connecticut Supreme Court permitted someone to sue the attorney who drafted his mother’s will incorrectly. However, that has been interpreted very narrowly with few if any other exceptions.

One take away from this is that you cannot assume an attorney representing someone else is going to be looking out for your interests. You can’t necessarily assume that about your own attorney (which is partly what legal malpractice is about), but if your attorney does do something below the standard of care and causes you financial harm, you may have an avenue of redress through a legal malpractice claim.

It is important to be aware of this issue because there may be times an attorney representing someone else is actually doing something that will impact you. For example, you might be investing in a business and rely on the other attorney’ s opinion, or you might be the beneficiary of the trust. You probably won’t have standing (aggrievement) to sue. However, there may be other claims where you might be able to establish standing (for example, negligent misrepresentation, or fraud).

Of course, like most areas of law, is very dependent on the facts of your case, in which jurisdiction you are in, which is why you should seek the advice of an attorney in your jurisdiction regarding your case.

Howard Altschuler

 (Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2014 by Howard Altschuler, All Rights Reserved

 

 

Posted in Standing

You have a legal malpractice expert? Great …. but that’s still NOT good enough…

One of the reasons why legal malpractice cases are generally complex is because a client suing a lawyer needs to hire at least two lawyers, the one to bring the suit, and another lawyer from another firm to be the expert.

The expert will almost always be deposed during discovery, and if the case moves forward to trial, testify at trial. However, it is important to remember that simply showing up with an expert by itself is not enough.

In a recent case in Connecticut (Song v. Collins), a Connecticut appellate court upheld a jury’s decision which found that the plaintiff’s expert’s testimony at trial did not prove that the defendant -attorney failed to meet the “standard of care”. The court wrote:

“the jury was free to disbelieve, in whole or in part, the testimony of either or both of the expert witnesses who testified at trial. Moreover, the jury may well have been unsatisfied with either the clarity or the completeness of the evidence regarding the standard of care applicable to the allegations of legal malpractice in the third count. It was the plaintiff’s burden not just to elicit some evidence regarding the standard of care but to sustain its burden of proving by a preponderance of the evidence the standard of care applicable to the defendant.”

In other words, one of the uncertainties for both sides in legal malpractice cases is how their experts will perform. The jury is free to agree or disagree, believe or disbelieve, in whole or in part. In this particular case, the plaintiff’s expert was asked if the defendant fell below the standard of care, answered yes, and gave an explanation as to what she thought the attorney should have done. However the appellate court did not believe plaintiff’s expert had testified specifically enough about the standard actually. The court also criticized the expert for not testifying as to “what an average prudent attorney would have done under the circumstances.”

The lesson here is that you not only need an expert to testify, you need to make sure the expert addresses the issues in a comprehensive way. Just one more example of the many complexities of litigation in general and legal malpractice in particular.

Author: Howard Altschuler

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2014 by Howard Altschuler, All Rights Reserved

 

 

Posted in Experts in Legal Malpractice

Summertime

Taking a brief break from blogging, but will return shortly…

 

Posted in Uncategorized

How to protect yourself from a lawyer’s retaining lien

In my previous blog post, I briefly discussed the little known (at least to clients) retaining lien. That’s because most lawyers don’t tell clients about this. By the time most clients find out about the retaining lien, it is usually too late to do much about it other than bring an action against your former law firm to get your documents back.

Most (but not all) states permit attorneys to refuse to turn over documents or property of the client if the attorney claims that money is owed. An attorney doesn’t actually have to prove that the money is owed, but simply needs to make the claim. (For further information, a detailed law review article on the topic can be found here.) Imagine you have a dispute with an attorney and you decide to obtain different legal counsel. Your new attorney needs the documents to complete the legal task but your former attorney refuses to turn the documents over until you pay fees that you dispute. If you did seek a new attorney, the chances are pretty good that you weren’t happy with the representation that you received and you probably do not believe the attorney deserves to be paid what is claimed. Basically a retaining lien is the law firm’s way of saying to you: “too bad for you that you are unhappy with our work, pay up or else.” 

Usually, if there is a fee dispute with an attorney, this would be resolved through negotiation, litigation or dispute resolution such as arbitration. However, the retaining lien is designed to give attorneys leverage over former clients. Some states even allow attorneys to hold onto documents or property that are not even related to the dispute. Because some states do not permit this and other states have various exceptions, it is not necessarily a black-and-white situation, but there is a big enough gray area in what needs to be turned over by an attorney, and when, that the better approach for clients is to avoid the problem in the first place, at least as far as documents go. Even if you do not think that there is any possibility that the documents you turn over to an attorney may be needed at some future date , the fact is that you will likely need those documents if you ever dispute legal fees or make a claim that the attorney was negligent.

The best way to approach this is to address it prior to retaining a law firm. For example, unless there is a particular reason to provide originals, only give your attorney copies of documents rather than originals, and keep a copy of everything you give the attorney. Even better, scan your documents or have them scanned by a copy place, and provide your attorney with a PDF version of the documents. That way you have a permanent, easy to store copy, and the law firm does not have to scan the documents. Most often you can scan the documents for less than you will be charged to do this by a law firm. You can find this out simply by asking the law firm what it charges to scan, and compare that with the charge from a local copy place. You may even want to consider purchasing a scanner with a sheet feeder and scanning the documents yourself.

Whether you keep scanned or paper copies of your documents, that only addresses part of the issue. The other part of the issue is that during the course of representation, attorneys are likely to create and to receive numerous documents. The amount and nature of the documents depend on what you’re being represented for, but there will often be email communications between your law firm and others, research, draft documents, as well as final versions of documents. If the case involved litigation, there may be discovery of documents, pleadings, and orders from the court. Prior to retaining a law firm, you may want to find out what its policy is regarding providing copies of documents during the course of representation. Although things have changed dramatically with the advent of computers (making it extremely easy for law firms to provide copies of everything in real time), by doing so a law firm will not be able to use the retention of documents as leverage if there is a future dispute over fees. That may be one reason why many law firms do not automatically copy everything during the course of litigation.

Because it is so easy to provide copies nowadays simply by sending an email, if the law firm you are considering hiring balks at doing this, you may want to find out the reason. If there is some reasonable explanation of why it would be difficult to provide copies of everything during the course of representation as the copies are created, you may also want to consider proposing to the law firm a provision where the law firm waives its right to a retaining lien. If the firm is not going to assure you that you will be getting copies of everything and if the firm refuses to waive its right to a retaining lien, you will then have to decide whether this issue is important enough for you to look elsewhere for legal representation.

 

Author: Howard Altschuler

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!) Copyright (c) 2014 by Howard Altschuler, All Rights Reserved

Posted in General Information, Retaining Liens

What is a retaining lien, and how do lawyers get away with it?

Our legal system has its faults, but it is still the best way of resolving differences. At least it’s an improvement over dueling.  Unfortunately, the public’s perception of the ethics and honesty of lawyers is low (although not as low as members of Congress).

While there is not one particular reason why the legal profession is viewed so negatively overall, one of the reasons probably relates to the little-known…. “retaining lien.”

Before I briefly explain what a retaining lien is, let me give you an analogy from medicine: imagine you are the middle of a heart operation (you are the patient), the doctor wakes you up and tells you that things aren’t going so well, but unless you pay the doctor all the money that he or she claims you owe, then and there, the operation will not be completed.

Or, staying with doctors, imagine you just gave birth, but the doctor refuses to let you take your newborn baby home until you pay all the money that the doctor claims you owe (even if you dispute the amount of money).

Of course those are outrageous examples, since such things (hopefully) would never happen in real life. But with only slight modifications, that is essentially what happens when a lawyer uses a “retaining lien” against a former client.

Without going all the details of this complicated topic, many, if not most states permit lawyers to refuse to turn over a client’s property, or a client’s documents, if the lawyer claims that the client owes the lawyer money.

As one commentator wrote: “except for the fact that a lawyer has a legal right to do so, asserting a retaining lien would be [extortion]”.

Extortion. Blackmail. Yet completely legal in most states.

There are important exceptions to the retaining lien, which I will detail in a future blog, but it is ironic that if the dispute results in litigation (such as filing a malpractice suit against the attorney), the attorney will have to turn over these documents as part of discovery.

Of course, clients should pay their attorneys if the money is actually owed and the attorney has done the work as promised. But having reviewed lawyers invoices for many years, a client also has a right dispute a lawyer’s fees. The retaining lien is essentially a way for the legal profession to give itself not only an unfair advantage, but an advantage that is directly contradictory to the ethical obligations lawyers have to protect their clients. The idea behind the retaining lien is to harm clients as a way of forcing them to pay.

There is a way you can protect yourself from retaining liens, at least as far as lawyers holding on to documents that you need, which I will outline in my next blog.

To be continued….

Author: Howard Altschuler

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2014 by Howard Altschuler, All Rights Reserved

 

 

Posted in General Information, Retaining Liens

How Albert Einstein, of all people, may be helpful in collecting more damages in your legal malpractice case….

One thing to consider during litigation is whether you may be entitled to collect interest on damages. Why? Litigation can take a long time, a very long time. If you can only collect damages and not interest on the damages, this decreases the value of the litigation the longer the litigation takes.

As I noted in a recent post, the world record for the longest litigation is 761 years.  Don’t worry, your legal malpractice case won’t take nearly as long as it took Mr. Thorat’s descendents to have their day in court, but it will probably take two to four years, though sometimes cases take even longer.

How important is interest to your case? Potentially, very. In one case that made it to the United States Supreme Court, the prevailing party was awarded $9 million in actual damages PLUS $11 million in prejudgment interest.  On the opposite end of the spectrum, but just as good news for the prevailing party, a plaintiff was awarded $50,000 in damages, and about $44,000 in interest

Depending on the circumstances of your case and the laws of your state, interest could make a significant difference to the amount of money you are awarded. If your attorney has not discussed this issue with you, you may want to find out what the options are in your state.

But let’s not forget the  persistence and patience of the 35 generations of Thorats. What happened in the their 761 year old case? While I haven’t found any record online as to the actual amount awarded the Thorats, I can tell you, more or less, what the potential award was. I have never previously had a chance to comment on a case that reportedly took 761 years to resolve. However, whether the Thorats had cause to celebrate in 1966 depends entirely on whether any interest awarded was simple or compound. 

Simple interest is the amount of interest times the amount of principal. If you have one dollar and you get 5% simple interest, you would get five cents per year interest, year in and year out. Compound interest, on the other hand, is based on the original amount plus the interest that has accrued. In other words, you are also getting interest on interest previously earned.

Since we are talking about the year 1205, in the Middle Ages, in India, let’s assume the original Mr. Thorat had suffered 10 cents worth of damage and the judge in the year 1966 awarded 5% SIMPLE interest. If so, the total interest awarded in 1966 would have been $3.58. Add the 10 cents of original damages, and the total award would have  been $3.68. If the Thorats’ attorney had been working on a 1/3 contingency, the attorney would have been paid about $1.22, and the Thorats would have gone home with $2.46 (before taxes). Probably not worth waiting 761 years.

However, if the Thorats had been awarded COMPOUND interest, they not only would have been very happy, it would have made headlines around the world.  Why? Albert Einstein is reported to have once said that “the most powerful force in the universe is … compound interest.” When it comes to money, he was exactly right. Using an online compound interest calculator,  it turns out that 5% compound interest on $.10 damages incurred in the year 1205 would be worth about 1.31 quadrillion dollars in 1966.

Estimates of the world’s wealth vary somewhere between 140 trillion dollars and 250 trillion dollars. Perhaps the higher estimate includes money kept in mattresses and piggy banks. But whatever the actual number, the Thorats would be at least five times wealthier than the entire rest of the world if only the original Mr. Thorat had been entitled to compound interest. Clearly he wasn’t, or most of us would now be working for the Thorats. Of course, if the amount awarded included compound interest there would have been the slight problem of trying to collect.

But what is really interesting to me is how that the huge quadrillion number at 5% interest quickly dwindles into almost nothing as the rate of interest goes down.

Year 1205 Value Rate of interest compounded once yearly Value in 1966(761 years later)
Ten Cents 5% $ 1,333,695,212,541,497.50  (That’s QUADRILLION dollars)
Ten Cents 4% $ 917,003,949,940.31 (BILLION)
Ten Cents 3% $ 587,662,530.17(MILLION)
Ten Cents 2% $ 350,534.45
Ten Cents 1% $194.30
Ten Cents 1/10 of 1% A MEASLY 21 CENTS

The amount of interest drops dramatically to almost nothing at 1% and 1/10 of 1%. What is really interesting about the 1/10 of 1% is that is the approximate amount of interest being paid on regular bank accounts by the largest bank in the United States (J.P. Morgan Chase) as of the date I am checking this (February 2014). To describe that as an incredibly cheap amount of interest on the part of Chase would be a huge understatement. However, it’s understandable. J.P. Morgan holds about $2.3 trillion in assets which would not have covered even a small portion of the compound interest due to Mr. Thorat if he had managed to convince the judge to award 5% compound interest. But it does not look as if one of Chase’s main expenses is how much interest it pays out on regular accounts.

By the way, there actually was one person in the world with a net value of 92 quadrillion dollars. In July 2013, PayPal accidentally credited someone’s account for that amount. The temporarily lucky person said that he would have first paid off the national debt if he had  been able to keep the money. Actually, he was thinking too small. He could have paid off the public debt for the entire world (currently about 53 trillion dollars and growing), and still have had enough money to give each person on the face of the earth about $140,000 per person, and would still have had about 280 trillion dollars left over. Of course, PayPal would no longer be in business, but that would be a small price to eradicate all debt on the planet.

Author: Howard Altschuler

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2014 by Howard Altschuler, All Rights Reserved

Posted in Damages, Prejudgment Interest

SURPRISE ENDING: A court found that a particular legal malpractice plaintiff did not need an expert but only because the plaintiff spent seven years pursuing a legal malpractice case that he did not have….

I pointed out in an earlier post that legal malpractice plaintiffs almost always need to retain one or more experts to testify on their behalf. A failure to get an expert in a legal malpractice case is almost always a recipe for disaster. In a recent court decision (2014), that principle was turned inside out and upside down in a surprising way.

In Cammarota v. Guerrera, the plaintiff  got through discovery and went all the way to trial for a legal malpractice claim (and did so without any legal malpractice expert). The plaintiff (Cammarota) hired the original attorney (Guerrera) to handle a real estate transaction. As a result of what occurred during the transaction in about 2005, Cammarota sued Guerrera for legal malpractice in 2007.

Litigation often takes a long time but this case seemed to take longer than usual for a case that did not appear overly complex, with the trial in the matter taking place in 2012, about five years after the legal malpractice action was originally filed.

After the plaintiff presented his case to the jury, and before the defendant presented his case, the legal malpractice defendant filed a motion asking the court to direct a verdict in favor of the legal malpractice defendant partly on grounds that the plaintiff did not have a legal malpractice expert testify at trial. Translated, that means the defendant was asking the judge to throw the plaintiff’s case out of court. And that is what the judge did. Victory for defendant!

While the attorney accused of legal malpractice was undoubtedly happy after having the plaintiff’s case thrown out in the middle of the trial, that happiness only lasted about two  years. On an appeal that took two years, in 2014, the appellate court reversed the trial court’s decision and remanded the case back to the trial court for a new trial, where the whole process will start once again.

What is particularly interesting about the appeal is the reason given for reversal. On the surface it would seem as if the plaintiff had won a tremendous victory in being permitted to pursue a legal malpractice claim without an expert, a very rare occurrence. The reality is less stunning…. The court pointed out that even though the plaintiff had labeled the case as legal malpractice, the court was not bound by the characterization a party gives to a claim.

Apparently the issue in dispute at trial did not involve the defendant’s professional judgment but involved instead the attorney’s handling of money in the real estate transaction. The court emphasized the legal reality: “If the case ultimately required resolution of the question of whether the defendant committed professional negligence, then ordinarily expert testimony would be required to prove the applicable standard of care and, perhaps, deviation from the standard of care.” In other words, if you have a legal malpractice case you still almost always need an expert.

What happened? Well, in this particular case the court believed that the real issue in dispute was related to Attorney Guerrera  handing over a check payable to someone else after he had been warned about that person by Cammarota.  As the court noted: “The question of whether handing a check to the wrong person constitutes negligence is within the common experience of the jury and does not require the use of peculiar or specialized knowledge.” Basically the court stated the general principle that if the issue “is within the realm of the jury’s ordinary knowledge” an expert is not needed.

One important lesson from this case is that in the litigation process not everything is necessarily what it seems to me. Here, the plaintiff pursued his case on grounds of legal malpractice, only to find out seven years later on appeal that his case had nothing to do with legal malpractice. Lucky for him because if it had been a legal malpractice claim he would have lost the appeal.

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2014 by Howard Altschuler, All Rights Reserved.

 

Posted in Experts in Legal Malpractice

How long does it take to litigate a lawsuit from start to finish? Could it take … 1 year … 3 years … 28 years … 48 years or … 716 years? (Amazingly, the answer seems to be… yes.)

Potential legal malpractice litigants need to consider many factors before actually commencing a lawsuit. One factor is understanding (and accepting) that the litigation process may take a long time.

For a legal malpractice plaintiff who seeks justice and a day in court, it is important to understand this from the outset because it will likely take significant time before your case is actually tried. The good news is that as a plaintiff, you get to choose whether to be involved in this usually long process. A legal malpractice defendant does not.

Legal malpractice cases in particular tend to be more complicated than most other cases. That is because you have to prove that whatever your original attorney did, the outcome would have been more favorable to you if it had been done correctly. And you have to prove measurable damages. This means there is usually discovery not only related to the legal malpractice case, but also related to the transaction or case that the original attorney handled on your behalf.

I am admitted to practice law in a number of states (CT, NY, NJ, PA), and multiple federal trial courts and federal appeal courts including the United States Supreme Court. In some states where I practice, courts have special procedures for highly complex cases (which is what legal malpractice cases usually are). For example, in Connecticut there is a complex litigation docket which either party can request. One judge is then assigned to the case, and there are usually deadline set relatively early on that are not set in cases going through the regular track of litigation.

A typical legal malpractice case generally takes about two to three years from the time the suit is commenced until the completion of the trial, depending on the complexity of the case.

The real wildcard in when a case will be finally concluded once and for all is the appellate process. That is because one outcome of an appeal may be a new trial, which means you have to start the trial process all over again. It is possible at least in theory that there could then be another appeal.

This is one reason why such a large percentage of cases settle. Sometimes they settle during the trial itself because the uncertainty of the appellate process impacts both the plaintiff and the defendants. That is why it is important to be prepared for a long process including being prepared to go through the appeal process as well.

But how long can an appeal take?

To give one example, for the past 18 months or so, I have been tracking decisions in one particular court system. I log on most days to see the decisions. I have been surprised to see that there is no pattern to how long decisions take. Some are issued a few weeks or a few months after oral arguments, but some have taken as long as three years.

One particular case I am tracking was argued in October 2012 and has yet to be finally decided. (Note: the case that I was tracking was preliminarily “decided” in April 2014, when it was transferred to a different appellate court for further action, which may add yet another significant delay).

I may have to track that case for nearly another two years or even more. There is no way for me to know. As far as I know, no appellate court gives any hint as to when it will issue a decision.

Of course, it is preferable to get thoughtful justice that takes longer than a quick decision that does not consider the facts and the law. But imagine being a litigant waiting for a decision and not really having any clear idea of when you will find out.

As mentioned, one of the things you will be waiting to find out is whether you might have to redo part or all of the case and start the trial process all over again. For the most part, trial judges want to move their cases forward, but appellate judges have a tremendous workload and there is only so much that they can do. 

I was very surprised, however, when I recently came across a case decided in February 2012 by the Connecticut Supreme Court detailing a litigation history covered a span of 28 years. The case made its way to the Connecticut Supreme Court on three occasions during that time. The plaintiff ultimately won but he had to wait nearly three decades for justice.

I assume that case is unusual because I don’t remember ever seeing a recent case where the litigation process took so long. Multi-decade litigation was probably more the norm earlier in America’s history. I do know that the 28 year legal odyssey in Connecticut falls far short of the record held in the United States for the longest litigation.

Gaines v. Hennen apparently made its way to the United States Supreme Court 16 times, and to the Louisiana State Supreme Court eight times. The case began in 1834 and was not finally decided until 1892. It involved determining the rightful heir of a large estate. By the time the case was resolved 58 years after it began, the heir seeking resolution had been dead herself for six years. Though her estate ultimately prevailed, most of the money was owed to creditors (I don’t think it is a wild guess that the biggest creditors were probably the estate’s attorneys).

While 58 years may seem like a long time, it pales in comparison to the unofficial (and disputed) world record purportedly held by a case where a suit was commenced in the year 1205 filed by Maloji Thorat of India. (For history buffs, that was 10 years before the Magna Carta.) The Thorat case was not finally decided until April 1966, 761 years later, where Mr. Thorat’s descendant, Balasaheb Patloji Thorat, prevailed. That is about 35 generations later (which I think would make the 1966 Mr. Thorat the great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great-great grandson). There is no indication in the record of how much was awarded in 1966. (See note below.)

Fortunately, none of these very long-term cases were legal malpractice cases. While my general expectation is that a legal malpractice appeal would be decided in a year or two, there is no guarantee. As a potential plaintiff (or defendant), don’t expect a quick resolution of your case and be prepared for the process to take its course.

But why do appeals potentially take so long? This question is raised even for an appeal that “only” takes three years, which is a long time to wait for any kind of decision let alone one that could have an impact on your life or finances.

In the federal system, there are less than 200 federal appellate judges for the entire United States. These judges hear all the appeals from every federal case.

While I do not know the exact number of state Supreme Court judges, the number is probably around 500 covering all 50 states (assuming each state Supreme Court has 10 justices which is probably a bit high). Each state also has a middle level of appellate courts and I would guess there are probably several thousand of those judges in the United States.

But there are literally millions upon millions of cases litigated every year. Therefore, it is not surprising that it takes some time to get through the appellate process.

Since, in my view, you should only bring a case that your attorney has advised you, at a minimum, has a reasonable chance of prevailing, slow justice is better than no justice at all. However, whatever kind of litigation you are involved in, sometimes things take much longer than they should because your attorney is not pursuing the case at a reasonable pace.

Hopefully, your attorney is keeping you informed of where things stand and you are aware of any upcoming deadlines and the general status of your case. If you have not heard from your attorney for an extended period of time, you may want to contact the attorney to find out where things stand. Unfortunately, one area of malpractice is when a lawyer takes a case or legal task (whether litigation or transactional) but does not follow through.

From my perspective, there is no longer any excuse for attorneys not to keep their clients up-to-date at all times since it is so easy to communicate via email. However, sometimes you have to be proactive. If you are not being kept up to date by your attorney and the case involves litigation, you may want to find out if your state has online access where you may be able to see what papers have been filed and in some instances actually read the papers that have been filed.

For example, all cases filed on or after January 1, 2014 in Connecticut are now accessible by anyone, including access to the actual documents filed (except if the documents are under seal).

I am surprised by the number of calls that I get from people who don’t know what is going on with their own cases and don’t realize (and have not been told by their lawyers) that they can get specific information about their case online at any time.

A more serious situation is where a lawyer has claimed to have filed a lawsuit but, in reality, has not done so. Again, this is something you may be able to check out for yourself if your state has online access and if you have not heard from your own attorney.

I always raise the issue of litigation time requirements with potential clients in advance, so they are aware of and accept the possibility that the case may take years so that they include this as part of their decision-making process about the litigation. Lawyer-defendants only deal with the issue after the lawsuit commences. Since most such defendants do not have any direct experience with legal malpractice cases (unless they have been sued before), they tend not to look at the big picture until much later in litigation.

If your former attorneys are not fully computerized and the file is substantial, it will probably take them a lot of time and effort to put their file together to turn over for discovery. Depending on the number of witnesses, there may be many depositions and then an extended trial. All of this takes time as well.

Still, although the wheels of justice often turn slowly, they do turn, and as long as you proceed with this awareness, and as long as you are kept up-to-date by your attorney as to what is going on, you will have an opportunity to present your case either to the judge for summary judgment or to a jury or judge if the case goes forward to trial. Your legal malpractice case will rise or fall depending on its strength no matter how long it takes.

Author: Howard Altschuler

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2014 by Howard Altschuler, All Rights Reserved

Posted in General Information

May my negligent lawyer blame ME for his or her legal malpractice?

The short answer to the question is a qualified yes (at least in some states). While clients are not liable for legal malpractice, there are circumstances where the client may have done something or failed to do something that contributed to the bad outcome. This might result in the reduction or elimination of damages in the legal malpractice case at the time of trial. 

Yes, clients have responsibilities too (such as such as being truthful, turning over all documents requested, and responding to questions from their attorneys in a timely fashion).

In one case, the clients were represented by legal counsel in the sale of their business for more than $2 million. Only a very small portion of the sales price was paid up front. The buyers of the business not only defaulted almost immediately after the sale, but also criminally misappropriated $1 million from the business. After a jury trial in the legal malpractice action, the legal malpractice defendants in that case were found to be negligent for failing to advise the clients to get sufficient security for the sale.

However, the jury reduced the amount of damages awarded to the clients after it determined that the clients were responsible for failing to investigate the background of the buyers. (The technical legal term for that is “comparative negligence”)

In that case, it turned out that the law firm was not retained to do the investigation of the buyers, and had suggested to the clients that the buyers be investigated.

When you hire an attorney, it is important that you seriously consider any advice given because if you don’t follow it, the bad outcome may end up being your responsibility, at least in part.

Another point to remember– make sure you understand what you are being represented for and don’t make any assumptions. This is particularly true for business and real estate transactions when there may be many things that are required above and beyond the lawyer simply advising about the transaction and drafting a contract. An attorney is not likely to be held negligent for something beyond the scope of responsibility as detailed in a retainer agreement.

An interesting side note to the above case: the law firm also tried to blame the buyers (who had committed criminal acts related to the purchase), claiming the attorneys could not have foreseen such criminal conduct. The jury held that the attorneys were responsible regardless of what the buyers did because the attorneys had negligently failed to give the proper advice regarding security for the sale that would have protected the sellers.

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2014 by Howard Altschuler, All Rights Reserved

Posted in General LEGAL MALPRACTICE issues

How do I know if I have a “good” legal malpractice case?

“Do I have a good legal malpractice case?” I am often asked that question by potential clients in our first conversation.

And while that question is perfectly reasonable, unfortunately, the answer is often more complicated than a simple yes or no.

Part of the reason for that is the inherent complexity of the litigation process. A moderately complicated legal malpractice case could take two or more years to get to trial. Document intensive cases, or cases where there are many witnesses, could take even longer. Win or lose at trial, there still could be an appeal. Therefore, even if you have an excellent case, one of the things you need to decide early on is whether the wait will be worth it to you.

As to the factors that make up a good case, that is very specific to the factual circumstances of your situation, the people involved, and the relevant legal issues. However, there is one general rule of thumb that applies to most cases: the more the facts are documented, the better it will be for you (assuming the facts are favorable to you). That is because the outcome will be less dependent on the credibility of witnesses.  No matter what resources your attorney’s attorney may have, a well-documented case more than evens the playing field.

Still, it is often difficult to know for sure how strong a case a client has until the case has commenced. Many times a client does not have all the documents that were produced by the law firm being sued. Therefore the attorney handling the legal malpractice case won’t always have access to all the documentary evidence at the beginning of the case. Hopefully material uncovered in discovery will support the client.

Although a book could be written about this topic, one important thing to keep in mind is that, depending on how things go in discovery, however “good” your case was at the beginning of the litigation, this can change significantly during the course of litigation, for the better or for the worse. It is important that your attorney keep you informed of developments as they occur, and provide you with copies of everything relevant to your case, so you can stay informed about where things stand and adjust your expectations based on the reality of your case.

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2013 by Howard Altschuler, All Rights Reserved

 

Posted in Issses Related to LEGAL MALPRACTICE

Update: the “American Rule” and legal malpractice

In a prior post, I briefly talked about what is known as the “American Rule.”

That “rule” applies in litigation and basically means that unless there is a specific law in your state, or you have a contractual agreement, each party to litigation pays its own legal fees and expenses, whether you win or lose.

It is called the “American Rule” because America is one of the only countries in the world to use it. Virtually every place else uses what is known as the “English Rule”, where the losing party pays the litigation expenses of the party that prevailed.

One of the interesting historical footnotes about the “American Rule” is that the rule developed early on in America because of the hostility that the colonists had towards attorneys.  Apparently at one point there were even “attempts to ban lawyers entirely.”

The fact is that despite whatever problems there may be with the legal profession, the rule of law is ultimately what distinguishes civilization from anarchy, and it was probably a wise decision not to outlaw lawyers.

In any case, perhaps thinking that it would dissuade litigation,  Americans decided to require each litigant bear their own litigation costs.  However, the good news for legal malpractice plaintiffs suing their attorneys is that a majority of state courts have either decided the American Rule does not apply to legal malpractice cases, or else these courts have simply carved out an exception. (As of this writing, only one state in the union follows at least a modified version of the “English Rule” and that state is Alaska.)

Part of the reason for this exception is the unique nature of a legal malpractice case. It involves how lawyers discharge their duties to their clients. Moreover, a plaintiff in a legal malpractice action has a unique responsibility not found any other type of case– proving a “case with a case.” That is, in “virtually every case, the injured plaintiff will be required to hire a second attorney to prosecute the malpractice action against the negligent attorney and will be required to pay that second attorney.” Shoemake v. Ferrer, 182 P.3d 992, 996-97 (Wash. Ct. App. 2008), aff’d, 225 P.3d 990.

The Shoemake case actually understates the problem because, in reality, virtually all legal malpractice litigants must also hire at least one at least one additional attorney, the legal malpractice expert who will testify about the standard of care. See Grimm v. Fox, 33 A.3d 205, 303 Conn. 322 (2012) (holding that a pro se plaintiff could not use negative comments regarding the plaintiff’s former attorney by the Connecticut Supreme Court in lieu of an actual expert).

Legal malpractice cases generally require the plaintiff to prove that the outcome of their legal matter would have been different if they are original attorney had not committed legal malpractice.

If the underlying case involved litigation, this could mean, for example deposing witnesses who were not originally deposed, and conducting discovery related to the original case that the original attorney failed to do. If the legal malpractice was transactional (such as a real estate deal, or purchasing a business), it likely requires re-doing the original attorney’s work (such as completing any due diligence required, analyzing sales documents and transactional facts to prove, for example, how the transactional document should have been drafted).

One of the first state courts to allow recovery of legal malpractice expenses was in California in the 1960s. Since then, the majority of states allow such recovery in some form or another. For example, in a case decided just a few weeks ago at the time this blog was written, the Iowa Supreme Court joined the majority of states that rejects the application of the almost universally accepted “American Rule” in legal malpractice cases: “We adopt the majority and better-reasoned rule … that legal fees incurred by a malpractice plaintiff are recoverable.” Hook v. Trevino, No. 12-0283 (Nov. 8, 2013).

Some courts do not even analyze the issue as an exception to the American Rule. For example, in Post v. St. Paul Travelers Ins. Co., 691 F.3d 520 (3rd Cir., 2012), the Third Circuit Court of Appeals made no mention of the American Rule and held that “attorneys’ fees—both amounts paid by the client to the negligent attorney as well as expenses incurred by the client to prosecute its malpractice claim against the attorney—are an item of damages in a legal malpractice claim.”

Legal  malpractice is one of the more complex areas of law. Fortunately, more and more courts have begun to recognize this, and have recognized that it is not fair for a client who has been poorly represented either in litigation or in some other area of law, to then have to pay more attorneys to recover damages due to the first attorneys mistake.

Fairness is more difficult to achieve, if the plaintiff cannot recover some or all of the legal malpractice expenses. Of course, it is important that you check with an attorney in your state to find out the current status of the law on this issue.

Author: Howard Altschuler

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2013 by Howard Altschuler, All Rights Reserved

 

Posted in Recovering Legal Fees FROM Attorneys

My attorney’s legal malpractice caused extreme stress, emotional upset, or worse: may I sue the attorney for punitive damages?

The most common purpose for suing someone, whether you are suing an attorney or someone else, is to be compensated for any and all financial losses you suffered. These kinds of damages are referred to as compensatory. To `give a simple example, let us say your attorney incorrectly advised you regarding the terms and conditions of a business contract and as a result  the contract ended up costing you $100,000 more than it would have cost but for the improper advice of your attorney.  The basic compensatory damage in that situation would be $100,000.

Another kind of damage that may be available in some states is called punitive damages (or exemplary damages).  Punitive damages, where available, are designed to punish wrongdoers, or deter such activity in the future. If imposed, they are an extra payment above and beyond the actual monetary losses. It is the equivalent of a fine.

Most but not all states allow punitive damages, and most states have strict limitations as to when it can be awarded and what it includes.  While this area a law is changing all the time, a summary of punitive damage laws from 2011 will give you an idea of its complexity.

One study found that out of the 25,000 civil trials that took place in 2005 throughout the United States, only about 700 resulted in an award of punitive damages. The average award for punitive damages that year was $64,000, but that included cases where there were punitive damages in the millions of dollars. There is no indication in this study of how many legal malpractice cases resulted in punitive damages, but my guess is that it is likely very few.

The reason for this is that legal malpractice cases generally allege an attorney has been negligent in how representation was handled, rather than intentionally doing something wrong to damage you. While the specifics differ in each state, punitive damages usually require  “a high degree of moral turpitude“, and “such wanton dishonesty as to imply a criminal indifference to civil obligations.”   Although you may not have used the word turpitude recently, it is one of those legal terms that means really really bad, close to immoral conduct.

Since the idea behind punitive damages is to punish past wrongdoing, or dissuade  future wrongdoing, punitive damages almost always apply to outrageous intentional or reckless actions, not negligent actions. However, one state supreme court recently held that punitive damages could be sought if the attorney was grossly negligent.

Though punitive damages may not be available for legal malpractice claims in your state, in some jurisdictions punitive damages may be available for breach of fiduciary claims.  What is the difference between legal malpractice and breach of fiduciary duty?  A breach of fiduciary duty by an attorney will generally involve intentional, reckless, or dishonest behavior. Breaches of fiduciary duty may include such things as conflicts of interest, mishandling of client funds, and disclosure of attorney-client information.

The take away from this is that if you do have a legal malpractice case, you should ask your attorney about punitive damages to see if there are any exceptions or circumstances that would make this a possibility in your jurisdiction. In addition, if your attorney advises you that you may have a breach of fiduciary duty claim, you may want to find out whether there is any possibility these breaches of fiduciary duty would permit a claim for punitive damages.

In a future blog I will address in more detail a related but different circumstance: What happens if your attorney (the one you want to sue for legal malpractice) originally represented you in a case where you were seeking punitive damages from someone else (such as in a personal injury case, a libel action, medical malpractice, etc.), but as a result of the legal malpractice of your attorney, punitive damages were not awarded?

Can you collect the punitive damages that you believe that you would have been awarded in the original case but for the legal malpractice of your attorney?

In other words, you are not seeking punitive damages against the attorney simply because he or she committed legal malpractice or breached a fiduciary duty, but you are claiming that the original case involved punitive damages, and that you lost the punitive damages because of the legal malpractice.

While most states have not addressed this issue, there is a split in states that have, with some permitting the recovery of lost punitive damages, and others not permitting that.

Author: Howard Altschuler

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2013 by Howard Altschuler, All Rights Reserved

Posted in Legal Malpractice Damages

The most misunderstood part of a legal malpractice lawsuit: the “suit within a suit” a/k/a the “case within a case”

Any time you hire a lawyer, there is at least the potential the lawyer will make a mistake. This is true whether the lawyer is representing you in a business transaction, a real estate matter, civil litigation, divorce, probate, or any other conceivable matter.

However, in a legal malpractice case, you not only have to present evidence that the lawyer made a mistake (which, in a strong legal malpractice case, may be relatively easy to prove), you also have to prove that whatever legal issue was handled by the lawyer on your behalf would have turned out more favorably for you if the mistake had not been made.

What this means in practice is that when you pursue a legal malpractice case against an attorney, you are actually pursuing two lawsuits at the same time, in the same court, before the same jury. However, there is only one defendant, your former lawyer or law firm. Though your former employer is the only defendant, the original case may literally have to be re-created and presented to the jury to decide how that would have turned out.

This applies to virtually every kind of legal malpractice case. For just one example: imagine you hired a law firm to represent you in a civil action against a former business partner. Your lawyer failed to file the action within the statute of limitations (or filed it, but made some mistake which resulted in the case being dismissed). In the legal malpractice action, you would have to re-create the original civil action against the former business partner. This might mean calling witnesses who would have testified at that original trial. The difference is, in this example, although your former business partner may testify at your legal malpractice trial, that partner is no longer liable for any damages. The jury would have to decide that you would have won if your lawyer had properly handled the litigation against the former business partner. But it would be your lawyer (or the insurance company if there is malpractice insurance) who would have to pay the damages. The former business partner would only have to deal with the inconvenience of testifying.

In other words, whatever kind of case or issue your attorney represented you in may have to be re-created in whole or in part during the course of the legal malpractice action. If you were represented in a divorce action, this might mean having the same witnesses who would have testified in a divorce trial testify during the legal malpractice case (including your ex-spouse,  a forensic psychiatrist, or your children if old enough). If your lawyer represented you in a real estate transaction that fell through, the original parties to that transaction might have to testify, etc. etc.

Sometimes, part or all of the evidence you need for the “case within a case” may be presented by an expert. But even the expert testimony still has to be based upon evidence, whether it is in the form of documents or testimony. There may be different options of presenting this evidence from the original case and different strategic considerations for each option.

Since I represent plaintiffs in legal malpractice cases, from my perspective, the better the documentary evidence that you have the better the chance of prevailing. That is why discovery is extremely important in a legal malpractice action and why legal malpractice cases often take several years to litigate. For example, you might have to depose a former business partner, or an ex-spouse, or as many witnesses as it might take to prove your original case.  As one court nicely summarized it:  “The manner in which the plaintiff can establish what should have happened in the underlying action, but for the attorney’s conduct, will depend on the nature of the attorney’s error. …  a plaintiff must recreate an action that was never tried. The plaintiff must bear the burden the plaintiff would have borne in the original trial. And the lawyer is entitled to any defense that the defendant would have been able to assert in the original trial.”

I will provide some specific cases in a future post, but for now the important point is that legal malpractice cases usually are complex because of the requirement that you prove the “suit within a suit”.  If your legal  malpractice case gets to a jury, that means you are engaged in two trials simultaneously, being heard at the same time. Depending upon the circumstances, this could mean having witnesses testify who had nothing to do with your lawyer, but were involved in the issue for which you hired the lawyer. Is one of the reasons why handling legal malpractice cases is an attorney is so interesting, I have an opportunity to learn about many different areas of law, not just one. 

Author: Howard Altschuler

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2013 by Howard Altschuler, All Rights Reserved

 

Posted in General LEGAL MALPRACTICE issues

In Connecticut, do attorneys have “a license to lie” during court proceedings?

According to one Connecticut Supreme Court justice, the answer to the question–  do Connecticut attorneys have “a license to lie” during court proceedings– is at least a qualified yes

In Simms v. Seaman23 A.3d 1 (2011), a divided Connecticut Supreme Court held that attorneys cannot be civilly liable for fraud engaged in during the course of litigation.

Translating that legalese, if a Connecticut attorney lies, misrepresents facts, hides evidence, or otherwise engages in fraudulent litigation activity during the course of litigation, the victim of the litigation fraud cannot sue the attorney for damages suffered as a direct result of that litigation fraud. This does not limit you from suing your own attorney, but only an attorney who does not represent you.

It is important to note that the Simms Court majority did point out that there are other remedies potentially available, such as seeking sanctions against an attorney, filing a grievance, or opening a judgment rendered if it was based upon the attorney’s fraud. While an attorney in Connecticut who engages in fraudulent activity during litigation could potentially suffer serious consequences, including disbarment, if you are monetarily damaged by an attorney’s Connecticut litigation fraud, you cannot seek compensation in civil court for those damages.

This is a surprising decision because there are states, such as New York, where attorneys who commit fraud during litigation are not only subject to civil suit, they are also subject to potential criminal charges and even imprisonment. See, e.g., N.Y. Judiciary Law § 487. A party damaged by a New York attorney’s litigation fraud can collect treble damages. That means, for example, if you prove that there were $200,000 in actual damages as a result of the litigation fraud, a New York court would award $600,000. That extra amount is considered to be a penalty for egregious conduct.

In contrast, in Connecticut, if you suffered $200,000 in damages as a direct result of attorney fraud during the course of litigation, you would likely not be able to collect a penny from the attorney (unless you could obtain at least partial compensation through the imposition of sanctions)

What is also interesting about the Simms case is how the majority opinion and the dissent viewed the same facts and case law so differently. While getting into details is beyond the scope of this particular post, for one example, the majority opinion lists 12 states that have statutes that specifically impose liability for fraud during litigation (the states include Arkansas, California, Indiana, Iowa, Minnesota, Montana, New York, North Carolina, North Dakota, Oklahoma, South Dakota, and Wyoming). In addition, the majority noted that the Hawaii Supreme Court also determined attorneys could be liable for litigation fraud. Based on this, the majority concluded: “in contrast to these jurisdictions, the Connecticut legislature, like more than thirty-five other state legislatures, has not chosen to follow a similar path.”

The Connecticut Supreme Court justice who dissented in Simms viewed the law totally differently, stating that “the large majority of jurisdictions that, upon consideration of the issue, have expressly declined, either judicially or by statute, to broaden common-law immunity to include fraud.” (Emphasis added) Both interpretations of the law cannot be simultaneously true.  It is an interesting side note to this very interesting case and it illustrates just how complex the law can be (even Connecticut Supreme Court justices have diametrically opposed views as to what the law actually is), and why litigation in general can be frustratingly complex for non-attorneys.

Before you have a totally cynical reaction to the Simms decision, the Connecticut Chapter of the American Academy of Matrimonial Lawyers[filed a brief in the Simms case seeking to have the Court impose liability on attorneys for such fraud. As the AAML wrote: “To allow attorneys immunity from claims for fraud based on their actions in court, where attorneys should be at the height of their ethical vigilance, would send the wrong message to lawyers. Moreover, it would send the wrong message to the public who relies on the ethical underpinnings of the legal system. Such a ruling would have a particularly pernicious effect on proceedings in family court, where each party is so dependent on proper disclosure by the other.” Unfortunately, a majority of the Connecticut Supreme Court did not agree.

It is important to note that this decision does not really give a license to lawyers to lie in Connecticut but it does make it virtually impossible to directly collect damages through a civil suit for such fraudulent activity during litigation against an attorney who does not represent you. Depending on the circumstances and facts of your case, there may be other options, but they do not come close to equaling the options in states that permit direct recovery for damages incurred as a result of an attorney’s fraudulent activity during the course of litigation

As usual, clients should stay informed of what is going on in their cases, and, of course consult an attorney for your own particular case.

Author: Howard Altschuler

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2013 by Howard Altschuler, All Rights Reserved

Posted in New York: Judiciary Law §487, Sanctions

Legal Malpractice litigation: some of what you need to know BEFORE you decide whether to sue your lawyer

Legal malpractice plaintiffs should understand what they are getting into before they make a final decision to actually litigate a dispute with an attorney. I do this in part with my clients by explaining the “Big Litigation Picture”, which includes five phases of legal malpractice litigation, so they can see the whole forest, not just the trees.

Some people who contact me for legal representation are in the middle of a significant dispute with their current attorney and want to get advice quickly to resolve the matter or minimize damages as it is happening. I then usually work behind the scenes, sometimes to help resolve the problem, and other times to help create a record to document the problem for later litigation.

Unfortunately,  most clients do not realize there is a problem with how they have been represented (or the extent of the problem) until it is too late to correct the mistake, that is, after the attorney has completed the work (or failed to complete it). For example, you may have an attorney who gave you poor advice regarding settling a case, or improperly handled a business or personal transaction. Most often, it is not  until the smoke clears that a client begins to realize that a former attorney may be at fault for an unsatisfactory outcome.

By that time, the damage usually has been done and the question will be: what are your options to recover damages or legal fees from the attorney or law firm that mishandled my legal matter? (Of course, if it is possible for you to undo the damage, even if that means hiring another attorney, that usually would be the first priority.)

Whenever you realize that there is a problem, there will be various options, such negotiations, mediation, or arbitration. These and other options have their pluses and minuses, depending on your circumstances. But, more than likely, at some point you will need to at least consider the option of suing your former attorney  (and sometimes, even your current attorney) for legal malpractice, breach of fiduciary duty, breach of contract, or other potential claims.

In considering whether to bring suit against an attorney or law firm as a result of poor or incompetent representation, excessive or fraudulent legal fees, conflicts of interest, or other ethical issues, keep in mind that no matter how good a case you believe you have, legal malpractice cases are usually defended by deep pocket insurance companies or attorneys representing themselves.

Hopefully, any litigation you engage in will end either in settlement or judgment at trial, and the judgment is collectible. But before you ever get involved in legal malpractice litigation you should know what you may be in store for. In other words, you need to not only know your end-goal, but the obstacles, detours, pitfalls, and dangers that you may encounter on the way: what I refer to as the “Big Litigation Picture”.

This is particularly important in legal malpractice cases, because they generally tend to be more complex than most litigation. One of the reasons for this is that most legal malpractice cases require expert testimony. Another reason is that you will not only have to prove that the attorney fell below the standard of care, but that the attorney’s failures actually damaged you.

Usually this means that you have to prove that whatever the issue the attorney represented you in, whether it was a business transaction, litigation, a divorce, administering an estate, the purchase of a home, defending you in a lawsuit, etc., would have turned out more favorably for you if the attorney had not made the mistake. This is sometimes referred to as the “case within a case” or “suit within the suit.” That issue is worthy of a separate blog post, but, for now, it just means that legal malpractice litigation usually is complex.

So, what are the five overall phases of litigation?

Phase 1 is where an attorney evaluates your case, usually by reviewing documents, getting all the facts, sometimes speaking with witnesses, and researching the applicable law. At the end of this phase, you should get a written opinion from the attorney outlining his or her assessment of the case, and your options. Hopefully the attorney will give you a no-holds-barred opinion about the pluses and minuses of your case so you can decide whether it makes sense to go any further.

Phase 2 is something that some attorneys may skip over or include as part of litigation, but I generally recommend it to my clients as a separate phase. Basically, this is the time when a client not only decides what to do, it will also include the initial preparation for whichever step the client chooses. If advisable under the circumstances, it may include contacting the attorney with whom you have dispute, either to make certain demands, or potentially, to negotiate before litigation begins.

Phase 3: This marks the great divide. Once you enter into this phase, you have decided to pursue a formal process of conflict resolution. This phase involve the formal filing of the appropriate action. The case will resolve itself only by settlement, judgment (or dismissal of your claims by a judge before a trial). Phase 3 is usually the most involved phase of all, including everything and anything to do with litigation such as document production and discovery, depositions, retention of experts, pre and post trial motions, and, ultimately, if no settlement is reached or the case is not resolved sooner, an actual trial.

The relatively good news is that approximately 98% of cases are resolved prior to trial. Some of the cases are dismissed, some of the cases are resolved on summary judgment, and a majority of cases settle. The not so good news is that since there are about 20 million civil cases filed every year, that means that there are still hundreds of thousands of civil trials every year. That also means that your case should be handled from the very beginning with the assumption that it is going to trial. It will soon become obvious to the other side how prepared your attorney is and this will impact their willingness to settle.

Phase 4: The worse news is even if you win at trial, the other side can appeal.  This is not a theoretical possibility, but probably one of the major reasons why most cases that survive a motion to dismiss or a motion for summary judgment end up settling. According to one study, about 15% of state civil trials are appealed. Most attorneys will not include an appeal as part of their retainer agreement, which means you should find out from your attorney upfront what will happen if there is an appeal.

Phase 5 really includes two stages. If you won at trial and the other side does not appeal, congratulations except for one thing: you still have to collect. Even if the defendant had legal malpractice insurance, the legal malpractice policy may not cover all of the causes of action that were brought, or its policy limits may not cover the damages awarded. If the defendant does not have enough money to pay, you may have to bring a collection action against the defendant. Collection actions are also generally not included as part of a retainer agreement to litigate.

The second alternative part of phase 5 is dealing with the outcome of an appeal. While there are many different issues that may be raised on appeal, one possible outcome of an appeal is that the appellate court will order that a new trial take place. If you were on the winning end of the trial, you will now have to go through the whole process again, and there is no guarantee the outcome will end up in victory the second time around. And it also means there could be another appeal after a second trial, although that is less likely. Though the chances of a decision being reversed are relatively small (I have seen estimates of somewhere between 9% and 30%), it is a very real chance that needs to be considered by both sides.

There is much more to  litigation than what I write above. Despite the twists and turns of litigation, there are still millions of civil cases of all types filed every year. Legal malpractice defendants are, by definition, attorneys, so they will likely have a much better idea of what to expect than a legal malpractice plaintiff.   I believe legal malpractice plaintiffs should be have at least a general idea of the entire litigation process so they know what they are getting into before actually getting into it.

Author: Howard Altschuler

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2013 by Howard Altschuler, All Rights Reserved

 

Posted in General LEGAL MALPRACTICE issues

What are the chances that MY attorney/law firm is committing legal malpractice and I don’t know about it?

If a doctor is negligent, you will almost always know it. The impact of a doctor’s malpractice will affect your physical health sooner or later.

If an attorney is negligent, unfortunately, the chances are good that you, as a client, may never learn that the attorney has been negligent. How is that possible? There are many ways for an attorney to commit legal malpractice….and many involve complicated issues of law or rules of procedure that you, as the client, would not have any knowledge of.

Lawyers are involved in virtually every aspect of our lives.  A lawyer may represent you or your business in civil or criminal litigation, in personal transactions (such as drafting of wills, purchasing of a home, administering an estate), or business transactions (such as the sale of the business, negotiating contracts, and complying with regulations). Lawyers are also usually in the center of most contested divorces or child custody cases.

Often, legal malpractice occurs when a lawyer does not do something he or she should have done in a particular case or transaction. Since you are not an attorney, you may never know that.

Or, a lawyer may advise you to take a particular course of action but gives you the wrong advice because the lawyer is misstating the law or your legal situation. Because you are relying on the lawyer, it is unlikely you will notice. If the lawyer is truly negligent, the lawyer may not even realize it.

While I receive a lot of inquiries from people who are currently being represented by an attorney and have begun to suspect there is something wrong (and ask for my guidance behind the scenes), most often I am contacted after the fact, when an individual or business learns (or at least begins to suspect) that the legal representation received was negligent.

In another post I will write about some of the warning signs that might alert you to the possibility that your law firm may not be doing its job. This post addresses a simpler but just as interesting a question: what are the chances that your attorney in your particular case may be improperly advising you or representing you?

Consider these statistics:

  • There are about 1.2 million lawyers in the United States. There are about 314 million people in the United States. That means there is approximately one lawyer for every 261 people. (To graphically illustrate, at the last Super Bowl, about 70,000 people attended. That means nearly 300 of those people likely were attorneys).
  • There are about 15 million to 20 million state civil cases filed every year.  
  • There are about 6 million domestic relation cases filed (such as divorce or child custody) every year.

For those two kinds of state cases alone, that means there are between 21 to 26 million court cases filed every year. But that is just the tip of the iceberg:

  • There are about 20 million criminal cases filed every year.
  • There are about 2 million juvenile cases every year.
  • There are about 300,000 appeals filed every year in state courts.
  • There are 55,000,000 to 60,000,000 traffic violation cases every year.

Those are just cases brought in state courts. There are federal courts in all 50 states hearing both civil and criminal cases.

Although attorneys are not involved in every single case, they are involved in most of them. If you add up the numbers above for state courts alone, there are probably 80 million or more opportunities every year for attorneys to negligently advise clients in litigation. If attorneys were negligent in only 1% of those cases, that would represent nearly 1,000,000 cases a year where attorney negligence  occurred.

Of course, attorneys do a lot more than litigate. They advise individuals and businesses in all aspects of the law. Since litigation of any kind is usually very time-consuming, there are probably far more attorneys  who do transactional work such as wills, contracts, probate, closings, and advising businesses than attorneys who litigate. If there are 80 million state cases filed every year, there are probably many times that number of transactions where attorneys advise clients on personal or business issues.

Why am I even bothering to write about these approximate statistics? What that means is that there are probably hundreds of millions of times attorneys give advice every single year in America. Even if only a very small percentage of the times the advice given is  negligent, that is still a very substantial number.

(I have not even addressed another very significant issue: while attorneys can handle a client’s matter negligently, there is another whole area of potential mischief by attorneys: breaches of fiduciary duty such as conflict of interest, mishandling of client funds, or disclosure of confidential information.)

The fact is that legal malpractice is often committed by very competent attorneys. One of the causes of legal malpractice is that attorneys often overextend themselves, taking on too many cases or too many clients. Almost all of the attorneys I have brought cases against have been extremely experienced and in some cases very well known in their areas of practice. For example, I once brought a legal malpractice action against an attorney who had served as a legal malpractice expert on a number of occasions.

Everyone makes mistakes. If lawyers in America have a 99% perfect score in representing clients, and only make a mistake one time out of 100, that means there are still millions of times every year  even competent attorneys make mistakes. Not every mistake is legal malpractice (because ultimately you have to prove that you were monetarily damaged as a result of the mistake) but what this does mean is that if you do have concerns about how your attorney is handling a particular matter, you should not necessarily assume your attorney is doing a good job.

According to one survey, legal malpractice claims are on the rise. Because of the Internet, clients have a much greater ability to get information and to educate themselves and to become an informed consumers of legal services.

Of course this post is not a scientific analysis. I write  just to informally illustrate that while it is likely most lawyers handle most cases in a competent fashion, there is still a very substantial number of times legal malpractice occurs simply because there are so many legal matters handled every year.

That raises the question:  how are you as a client going to find out about the mistake if it has to do with an area of law you know nothing about? I will address that issue in an upcoming post….

Author: Howard Altschuler

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2013 by Howard Altschuler, All Rights Reserved

Posted in General Information

Does the statute of limitations for legal malpractice place clients at an unfair disadvantage?

What should be the easiest question to answer– what is the statute of limitations for a cause of action– is often a complicated mess. It is surprising how many cases rise or fall on a determination of what the statute of limitations is.

If you go to Google Scholar, select your state court, and do a simple search on “statute of limitations”, you will likely see thousands of cases where the issue is at least mentioned.

There is another significant yet little known problem regarding the statute of limitations for legal malpractice: in some states, the statute of limitations for legal malpractice is substantially less than the statute of limitations that an attorney has to bring a breach of contract claim for legal fees against the client. What this means is that in some states an attorney can wait until the day after the legal malpractice statute of limitations expires, and then file a lawsuit against the client for claims related to legal fees with at least a certain level of confidence that the attorney will not be subject to legal malpractice counterclaims in return.

What is a statute of limitations? Every cause of action that you might have against another person, company, or governmental agency must be brought within a certain time limit. This time limit is created by law. This limit is an artificial legal creation, and the technical term is “statute of limitations.”

Every state has different limits for causes of action. For example, currently (as of May 31, 2013), the statute of limitations for legal malpractice is six years in New Jersey, three years in New York, three years in Connecticut, and two years in Pennsylvania.

In addition, because the statute of limitations is set by law, the law can change at any time.  For example, there is proposed legislation in New Jersey to reduce the legal malpractice statute of limitations to two years. At one time, the statute of limitations for legal malpractice in New York was six years. Although statutes of limitations do not change that frequently, it does happen and therefore even if you were told by an attorney at a particular time as to the length the statute of limitations, it is possible that could change.

It is always a good idea to get a legal opinion about your potential legal malpractice action as soon as possible. If your case is not brought within the statute of limitations, then no matter how good a case you have, you will lose.

It is also important to realize that if you are considering litigation or have concerns about the representation you received from an attorney, it may take some time for a legal malpractice attorney to evaluate your case. If a legal malpractice complaint is merited, it takes time to draft a complaint. What that means is although there is a statute of limitations imposed by law, it is still your responsibility to bring the case to an attorney sufficiently in advance of the statute of limitations so that the proper procedures can be followed in your state for preserving the statute of limitations.

The unfairness that exists at least in some places is that most states have a six-year statute of limitations for breach of contract. In states that have less than a six-year statute of limitations for legal malpractice, this means that your claims against the attorney may expire before the attorney’s potential claims against you expire. For example, in Connecticut, breach of contract currently has a six-year statute of limitations. Legal malpractice claims currently have a three-year statute of limitations. As noted, in such a situation, an attorney could file a breach of contract claim against you for overdue fees the day after the statute of limitations expires for legal malpractice, and then you will be barred from bringing a counterclaim for legal malpractice (unless there is an exception tolling statute of limitations for you).

The closer your case is to the statute of limitations, the more likely it will be difficult to find an attorney who is willing to take your case. Of course that depends upon specific facts of your case, the complexity, and the attorney’s current schedule, but procrastination is never a good idea when it comes to legal malpractice claims.  This is especially true in states where the statute of limitations is longer for breach of contract or fee dispute claims than it is for legal malpractice.

If you have concerns about how you are represented, and there is any chance that you might bring a legal action against the attorney, having the facts of your case reviewed by an attorney sooner rather than later is usually good practice.

The reason I believe that a disparity in statutes of limitations for claims between attorneys and clients is unfair is because the issue of whether legal fees are due to an attorney often involves questions about the quality of representation. While these issues potentially could be raised after the legal malpractice statute of limitations expires, again depending on the circumstances, it is likely you would not be able to recover consequential damages for legal malpractice even if questions about the quality of representation reduced or eliminated the legal fees being sought.

Author: Howard Altschuler

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2013 By Howard Altschuler, All Rights Reserved

Posted in STATUTE OF LIMITATIONS

Can you collect legal fees as part of legal malpractice damages if you win your case?

Whether your legal malpractice case is being handled on a hourly basis, flat fee, partial contingency, or full contingency, an important potential source of damages are the legal fees you incur to pursue the malpractice case. However, there is something called the “American Rule.” In American courts, unless there is a statute or legal agreement to the contrary, both sides pay the cost of their own legal fees and expenses. This is very different than in England, where the loser pays all the legal fees.

There has been much written about which system is better and both systems have pluses and minuses. For example, while England’s system may eliminate questionable cases from being litigated, it may also dissuade someone with limited resources from pursuing a just cause of action.

Significantly, one area where some courts have held that the American Rule does not apply is legal malpractice. This can be of extreme significance to a litigant because legal fees or contingency fees may represent a substantial portion of any recovery.

This is a developing area of law (which few attorneys seem to know about) since there are a relatively small number of cases addressing the issue.

One state leading the way in carving out an exception for the “American Rule” for legal malpractice cases is New Jersey. The most important New Jersey case on this topic is found in Saffer v. Willoughby, 143 N.J. 256 (1996), which you can read here.

Since that case was decided by the New Jersey Supreme Court, it is the law of the land in New Jersey. However, there are many states where the question has yet to be answered in a published case or addressed by that state’s highest court (Different states have different names for the highest court, for example, in New York, the initial court is the Supreme Court, and the highest court is the Court of Appeals. In Connecticut and New Jersey, the highest state court is the Supreme Court.)

Author: Howard Altschuler

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2013 By Howard Altschuler, All Rights Reserved

Posted in Legal Malpractice Damages

When is a legal malpractice expert not an expert, and why should I care?

One of the reasons legal malpractice cases are usually extremely complicated is that the new attorney you hire to sue your former attorney almost always needs to retain one or more experts to establish that your former attorney fell below the standard of care and, as a result, monetarily damaged you.

Generally this means hiring a very experienced second attorney to be the expert. The lawyer-expert testifies and explains to the jury about the “standard of care.” Though states may vary in how the standard of care is defined, it generally means what a reasonable attorney of average competence would do under similar circumstances and whether the attorney who is being sued failed to live up to that standard. In addition, the lawyer-expert is needed to establish that whatever the defendant-attorney may have done wrong contributed in whole or in part to the damages suffered by the former client. Hiring the right expert is also often critical to achieving an appropriate settlement prior to trial.

Yes, you read that correctly. You hire an attorney to pursue a legal malpractice case. In almost every legal malpractice case, your attorney must hire (or have you hire) at least one other additional attorney. The second attorney is the one who will provide an expert report, be deposed, and testify at trial.

In very rare cases, because the malpractice committed is so egregious, a litigant is allowed, in essence, to get away without an expert.** (see note below).  It is almost never worth the risk to  litigate a legal malpractice case without an expert.  A legal malpractice attorney’s failure to hire a legal malpractice expert is potentially legal malpractice, depending upon the circumstances.

Even though an expert is almost always needed by a plaintiff in a legal malpractice case, it is surprising there are so many cases reported where a plaintiff (or, more usually, the plaintiff’s attorney) decides not to retain an expert.

In a relatively recent case that made it all away to the Connecticut Supreme Court, a pro se plaintiff made a valiant but ultimately unsuccessful effort to argue that he did not need a legal malpractice expert in his case because the Connecticut Supreme Court itself had previously criticized his attorney as to how that attorney handled aspects of the underlying case for which malpractice was sought.

The legal malpractice case is Grimm v. Fox, 303 Conn. 322 (2012). The earlier case where the Connecticut Supreme Court strongly criticized Mr. Grimm’s law firm was Grimm v. Grimm, 276 Conn. 377 (2005).

In the original Grimm v. Grimm 2005 decision, the Connecticut Supreme Court upheld the appellate court’s decision on grounds “that the record was inadequate for appellate review in the defendant’s claim was abandoned because of inadequate briefing.” The Supreme Court stated Grimm’s lawyers failed “to follow certain basic principles of appellate procedure.” In a footnote in the 2005 decision, the Connecticut Supreme Court stated that Grimm’s lawyers “violently” disregarded the rules regarding the organization of appellate briefs.

(One other thing that the 2005 case illustrates is that it is important for clients to read judicial decisions in their cases because there may be hints, red flags, or outright statements of what the attorney failed to do. In another post, I will discuss some more red flags that may alert a client to the potential that legal malpractice has been committed.)

By the time it reached the Connecticut Supreme Court a second time in 2011, it appears that Mr. Grimm took these criticisms seriously and brought a legal malpractice action against his former attorneys, representing himself pro se.

Mr. Grimm argued he did not need an expert because he had the opinion of the Connecticut Supreme Court itself as evidence that the attorney had failed to meet the standard of care.

Although you can read the decisions yourself by clicking on the links above for each case, in essence the Supreme Court acknowledged that it had made statements that were “critical in tone and content” but they had not nor could they have given any opinion about the reasonableness of what the lawyers did, whether what they did have some strategy behind it, “or whether other attorneys would have performed similarly in a comparable situation.”

The glaring problem is of course that there is really no circumstance an attorney would have any strategic justification to file an inadequate record, or “violently” disregard the rules of appellate procedure.

There was a concurring opinion in the case where one of the Justices disagreed with the majority’s conclusion that an expert was needed to establish that the lawyer had violated the applicable standard of care. The concurring Justice agreed, however, with the ultimate outcome of the case. He noted that expert testimony was needed for Mr. Grimm to establish that the standard of care “was the proximate cause of the damages that the plaintiff allegedly sustained.” The 2005 Connecticut Supreme Court decision did not say anything about proximate cause and therefore could not be used by Mr. Grimm.

What is proximate cause? It is a linchpin of a legal malpractice action and worth a separate post. Briefly, you have to show not only that the attorney made an error but that this particular error contributed to the damage. Therefore, while the concurring Justice believed that the error was obvious and no expert was needed about that,  the damage for the error was not obvious and did need an expert. Either way, Mr. Grimm loses the appeal.

While I think the concurring opinion had the better argument, the bottom line is that the end result was the same because an expert still was needed on the issue of proximate cause. The experts still would have been needed to prove that had these procedural issues been handled correctly that the outcome would have changed and that there were measurable monetary damages.

In this particular case, the mistake was made by a pro se litigant, but there are many cases, most in fact, where the failure to obtain an expert is the failure of an attorney handling the legal malpractice case.

Your legal malpractice case may rise or fall on the testimony of the expert. If you are representing yourself in a legal malpractice action, you are taking an extremely big risk to proceed without an expert or experts to testify at trial. If you do have a legal malpractice action, you should talk with your attorney about the expert or experts, find out why that particular expert was chosen, read any expert disclosures or reports, and attend or read the depositions of any experts.

Author: Howard Altschuler

** [Paul v. Gordon, 754 A.2d 851 (Conn. App. 2000) is an example of a case where, at least in Connecticut, an expert was not needed. In Paul, the client followed the lawyer’s advice to stop paying rent as a result of a dispute with the landlord. When served with an eviction notice, the client gave the notice to Paul, who said that he would handle it. The client repeatedly contacted Paul attorney to find out the status but received no response. Ultimately, they were evicted and lost $30,000 deposit.  In the legal malpractice action, Paul’s legal malpractice attorney did not name an expert. The trial court granted the defendant-attorney’s motion for summary judgment. The clients appealed and won a rare reversal. As the court noted, although legal malpractice plaintiffs generally need to have an expert in order to explain the standard of care to the jury so that the defendant-attorneys’ actions can be evaluated in comparison to the standard, there is an exception when “there is such an obvious and gross want of care and skill of the neglect is clear even to a layperson.” Interestingly, and not uncommon for published opinions, there is no discussion as to how Mr. Paul was going to prove proximate cause, that is, assuming the attorney had handled the case properly rather than negligently, that the outcome of the eviction would have been different.]

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2013 by Howard Altschuler, All Rights Reserved

Posted in Experts in Legal Malpractice

Lawyer joke is no joke: what do you do about attorneys who lie, or otherwise engage in deceptive conduct?

First, the joke:

An engineer, a physicist, and a lawyer were being interviewed for a position as chief executive officer of a large corporation.The engineer was interviewed first, and was asked a long list of questions, ending with “How much is two plus two?” The engineer excused himself, and made a series of measurements and calculations before returning to the board room and announcing, “Four.” The physicist was next interviewed. Before answering the last question, he made many calculations through his University supercomputer, and also announced “Four.”The lawyer was interviewed last, and was asked the same questions. At the end of his interview, before answering the last question, he drew all the shades in the room, looked outside the door to see if anyone was there, checked the telephone for listening devices, and asked “How much do you want it to be?

I have been an attorney for almost 20 years. Unfortunately, I have seen more than my share of attorneys who are not honest, at least in the process of litigation. For example,  an attorney may allege facts that cannot be true because there are indisputable documents that prove the attorney is wrong. For most of us, that would be considered lying (especially if someone continues to make the same misrepresentations of fact after it is pointed out).

You may be surprised to know that in at least one state where I practice (New York) there is a law related to deceptive practices of lawyers which allows injured parties to collect damages. (All states have grievance procedures for filing a complaint about unethical conduct, and in some egregious cases, some states have funds to reimburse clients under certain circumstances at least in part for losses suffered through attorney misconduct.)

But this New York law (Judiciary Law §487) goes a step beyond  and has some serious teeth. A violation of  Judiciary Law §487 is a criminal offense with at least a potential for jail time for the lawyer. In addition, a party who is injured by deceptive conduct covered by this law and who can prove it in court, is entitled to triple damages.

What this means is that if you can prove a violation of Judiciary Law §487 (a big if), and if you can prove damages  (an even bigger if), the court will triple the damages that are to be paid to you. If you proved $500,000 in damages, the court would award $1.5 million.

This blog is not meant to be a detailed analysis of the law, but just to alert you to its existence. Because of its complexities and the way that it has been interpreted by courts, you  definitely should seek the advice of legal counsel if you believe a New York attorney may have violated the law.

Here is the current (as of February 2013) text of the law (Judiciary Law §487):

§ 487. Misconduct by attorneys. An attorney or counselor who:
1. Is guilty of any deceit or collusion, or consents to any deceit or
collusion, with intent to deceive the court or any party; or,
2. Wilfully delays his client’s suit with a view to his own gain; or,
wilfully receives any money or allowance for or on account of any money
which he has not laid out, or becomes answerable for,
Is guilty of a misdemeanor, and in addition to the punishment
prescribed therefor by the penal law, he forfeits to the party injured
treble damages, to be recovered in a civil action.

What is also very significant about this particular law is that you could potentially bring an action against an attorney who has not represented you. In a legal malpractice action, there has to be an attorney-client relationship. In an action based on Judiciary Law §487, any party who is injured by an attorney during court proceedings has the potential to bring this action.

I will be writing future blogs with more details about the law, but  for me one of the most interesting things about  Judiciary Law  § 487 is its long history. The language in this particular statute (which was originally passed in New York in 1807) can be traced all the way back to the earliest days of our legal heritage. In 1275, only 60 years after the signing of the Magna Carta, the English Parliament enacted the first provision of law regulating the professional conduct of counselors at law in language that is almost but not quite identical to the current law:

“if any Serjeant, Pleader or other, do any manner of Deceit or Collusion in any King’s Court or consent in deceit of the Court or beguile the Court or the Party and thereof be attainted, he shall be imprisoned for a year and a day and from thenceforth shall not be heard to plead in that Court for any Man.”

Until recently, there was very little case law on this particular statute in New York. That all changed in 2009 when the New York Court of Appeals decided the case of Amalfitano v. Rosenberg, 12 NY 3d 8 (2009) and  “dramatically changed the traditional understanding of New York Judiciary Law § 487.”

The Amalfitano case re-establishes that even an attorney’s unsuccessful attempts at deception, when directed at a court,  may be actionable an subject to triple damages.

In future blog posts, I will talk about specific cases, but for now just remember that at least in New York  whenever talking to an attorney about malpractice,  you should also find out if you have a viable claim under Judiciary Law §487.

Author: Howard Altschuler

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2013 By Howard Altschuler, All Rights Reserved

Posted in Issues Related to UNETHICAL CONDUCT of Attorneys, New York: Judiciary Law §487, Recovering Legal Fees FROM Attorneys

What options do clients have to dispute legal fees with Connecticut, New York, or New Jersey attorneys?

What options does a client have if he or she disputes the legal fees charged by an attorney? What if an attorney demands money from you that you do not believe you should have to pay? Can you dispute legal fees when they are paid from a contingency agreement? What if an attorney sues you for legal fees?

Last question first: of course, if you are sued you should immediately seek the advice of an attorney. But unless you are sued, you probably will have several options depending on your circumstances and where the attorney is located.

This post won’t review every option, but just provide an overview. I primarily practice in Connecticut and New York courts and provide helpful links on my link page for additional information.

A fee dispute is different than a legal malpractice claim although they often go hand in hand. In other words, you may have an attorney who has done a good job for you overall, but may be overcharging you for the work, or charging for work never done. Maybe an attorney has done some work that wasn’t necessary or was done without your approval.

If the attorney has not done a good job, the chances are that you will be unhappy with the fees that have been charged.

Sometimes attorneys do not keep very good track of their time, and  fill in time-sheets at the end of the day or even later, and their bills may not be accurate.

You may be charged for expenses as well, either during the case, or the end of the case if payment is based on contingency. Has the attorney given you an accounting of every expense?

A fee dispute may arise because you believe the attorney has overcharged you, charged for work the attorney did not do, or for work that was done incompetently. A fee dispute may also arise if an attorney believes you owe the attorney money that you have not yet paid.

There are many different reasons to question legal fees and expenses. The question here is what options there are to resolve your concerns besides going to court.

First, you should always look at whatever written agreement you have with an attorney since it may have provisions specifically addressing how disputes are resolved. If you and the attorney have both signed this agreement, that is what would control, then unless there is some question about the validity of the agreement itself.

If  you have an agreement that you must arbitrate any dispute, taking the case to court is not an option. If there are no limitations on how disputes are handled, you could then file a lawsuit. Though there are sometimes circumstances when this is the best option, it is usually the most expensive and drawn out process.

What else can you do?

In New York, clients generally can have fee disputes arbitrated (although there are certain limitations), and attorneys in New York generally would have to notify the client of this option.

In Connecticut, fee arbitration is optional and may depend upon the agreement that you have with your attorney. If it is a part of your agreement, then there will be arbitration. If it is not, then either party can request it, but the other party can refuse.

If you have a good relationship with your current attorney, you may consider discussing your concerns or questions. However, if your concerns are serious or you suspect unethical conduct or malpractice, you may want to obtain the advice of an attorney before you communicate with your attorney. In arbitration, the parties let the arbitrator decide and are bound to follow the arbitrator’s decision.

If there is no arbitration requirement, you may want to consider mediation, which brings all the parties together to negotiate, but any agreement is optional.

A fee dispute is different than a legal malpractice case, although sometimes you may have both at the same time. Legal malpractice has to do with what kind of representation you received and whether the attorney’s errors or omissions damaged you monetarily. You may have an attorney who has done excellent work for you but you still might dispute their fees.

One of the problems I have seen time and again over the years is that most attorneys and law firms do not provide clients with detailed records of what they do. Although you would think it would be easy for law firms to provide billing statements that show the exact time they started and the exact time they ended a particular task, all of the invoices I have examined over the years usually lump together multiple activities that make it very difficult for client to figure out how much time was spent on any one activity.

Whatever the problem,  it is always best to try to work out any issue regarding fees with your attorney, but this is not always possible.

One word of warning: if you have a fee dispute, you also may have a potential legal malpractice cause of action. You have to be extremely careful on how the fee dispute is handled so that you do not lose your right to bring the legal malpractice action.

Different states handle this differently, but in New York for example, you are expected to raise legal malpractice issues at the same time you have a fee dispute. Yet, the fee dispute process itself may not  alert you to this important fact.

See my links page for links to additional information regarding the New York and Connecticut fee dispute programs. I will be adding other links for other states in the coming months.

I will also address other fee dispute issues in the future such as what a court may consider a reasonable or unreasonable fee, the impact of unethical behavior on legal fees, options if an attorney has stolen money from you, what options you have if an attorney threatens to stop work until you pay fees, and much more.

Author: Howard Altschuler

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2013

Posted in Issues Related to FEE DISPUTES with Attorneys

You Do WHAT For a Living?

When I am asked what I do for a living when meeting people who do not know me, I respond that I am an attorney and I do “legal malpractice.”

I usually see a quizzical look on the face of the person who asked (because most non-lawyers are not familiar with legal malpractice). So I add: “That means I sue lawyers for a living.” There is usually a slight hesitation and then laughter when the person realizes that I sue lawyers and law firms, and not doctors, corporations, or anyone else. The typical delayed response is “You are probably not very popular with attorneys.”

That is something of an understatement. In the course of my more than 17 years of focusing my practice on legal malpractice, I have been pushed, cursed and yelled at and worse, by attorneys on the receiving end of a legal malpractice or fee dispute action. Though my work can be hazardous at times, if you review my background, you may understand why I seek justice for clients whose attorneys who have harmed them by negligent or unethical conduct.

Lawyers, like everyone else, make mistakes. However, because law is generally very complicated, sometimes it is difficult to determine whether a lawyer’s mistake  actually damaged you. A legal malpractice action usually  has to prove that the lawyer not only made a mistake, but that the mistake contributed to your damage.

This is sometimes referred to as the “case with any case.”  If you bring a legal malpractice action, you really have to prove two different cases at the same time, one concerning the lawyer’s mistake, and the second case proving that the outcome would have been different if the mistake had not been made. Because a legal malpractice case is really two cases in one, legal malpractice is  often considered  to be one of the most difficult areas of law.

I am one of a small number of attorneys in America whose practice is solely dedicated to representing plaintiffs in legal malpractice cases. Most attorneys who handle legal malpractice cases usually also practice in other areas of law. I have been representing clients in legal malpractice cases almost exclusively since 1997.

In an upcoming blog, I will give specific examples of some of the many different ways an attorney can commit legal malpractice.

Author: Howard Altschuler

(Click here for a brief summary of my other blog posts)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2012 By Howard Altschuler, All Rights Reserved

Posted in General Information Tagged with:

Unhappy with Your Lawyer Blog

Welcome to what  will be a regularly updated blog about all aspects of legal malpractice.

I look forward to sharing with you information and insights that I have gained  in more than 17 years of  litigating legal malpractice cases, fee disputes between attorneys and clients,  and cases involving unethical  attorney conduct.

As far as I know, I am one of the few attorneys in the United States whose entire practice is devoted solely to  representing former clients suing their former attorneys. Most attorneys who  handle legal malpractice cases usually practice in other  areas of law as well.  I can safely say that I am  probably the only legal malpractice attorney  in America who also sued his law school  (in my case, the University of Pennsylvania)… but that’s a long  and very interesting story  that I will let you know about in some future blog post.

While most attorneys are competent, even the most competent attorney on occasion  makes a mistake.  Clients rely on attorneys for many crucial aspects of life, from the simple to the complex.   I believe what I do is important because attorneys who did not represent clients competently should be held accountable.

I represent  plaintiffs who believe they have been damaged by their attorneys. I handle a wide range of  legal malpractice cases involving all kinds of underlying issues such as divorce,  contract law, conservatorships, inheritance, business claims, consumer protection, and much more. I have been fortunate in having the opportunity to handle some highly complex cases involving tens of thousands of pages of documents, multiple witnesses,and very interesting facts.

But the one thing that is common to all the cases  that I have handled is that my clients are unhappy with the representation they received, and attorneys  universally hate to be sued.  I have been pushed, threatened, and more,  by at least some of the attorneys I have sued on behalf of clients.  Perhaps that is because these  attorneys know how difficult the litigation process can be, but it is one of the hazards of the job. I have some interesting stories about that as well to post at some future date.

Legal malpractice is that area of law dealing with attorneys who are  not only negligent, but whose  mistakes, incompetence, or worse may have financially damaged a client. This blog will also be addressing issues related to  attorney ethics, and how and attorney’s unethical conduct can also  potentially damage a client who is a victim of that unethical conduct.

While nothing in this blog  is legal advice (please see my disclaimer page), I hope that I will provide useful information for clients and attorneys in this very complicated area of law.  By understanding legal malpractice, clients or attorneys have a better chance of avoiding being on either the receiving or giving end of it.

I welcome your comments and questions ( which can also be sent to me via email via the Contact page).

Thanks  for stopping by…. and I hope you visit again.

Click here for a brief summary of my other blog posts.

Author: Howard  Altschuler

Copyright (c) 2012 by Howard Altschuler, All Rights Reserved

Posted in General Information