If you were damaged as a result of your lawyer’s failure to provide competent professional service, you may have a claim against the lawyer for legal malpractice or breach of fiduciary duty. Legal malpractice can take many forms, although most legal malpractice occurs through:
- Conflict of interest between a client or others (including conflicts between the client and the lawyer’s own interests)
- Administrative errors (among them: failure to calendar, clerical errors)
- Substantive errors (such as failure to know the law)
- Client relations (not following client instructions)
- Intentional wrong doing such as libel, civil rights, fraud, theft, malicious prosecution.
What You Should Do
If you believe you were damaged as a result of your lawyer, contact our Tennessee legal malpractice attorneys to discusss your case. Let our experienced Tennessee legal malpractice lawyers research your case to advise you how best to proceed. If you would like more information, or would just like to talk with a lawyer experienced in this type of litigation, please call us at 800.394.2119 for a free consultation or CLICK HERE to send an email.
Every year, billions of dollars are gained and lost in the litigation of business disputes throughout the country. The cost of litigation in today’s modern business world is an expense that must be anticipated in any long-term business strategy.
Commercial litigation attorneys come into the picture when the stakes are high. From private business professionals to large national and international corporations, our firm has been retained to handle litigation matters that affect the core of a company’s business or financial life. We provide our legal services to business owners and business professionals as Tennessee commercial litigation attorneys, especially in Nashville and the Mid-South.
What Is Legal Malpractice?
Legal malpractice may occur where a lawyer acts in a negligent manner when providing legal advice or representation. The following represents an overview of legal malpractice law and common defenses. If you have questions about a specific incident of possible legal malpractice, you should check with a lawyer licensed to practice in your state about the specific elements of a legal malpractice action under the laws of your state, and for an analysis of whether the incident might constitute legal malpractice under the laws of your state. Our firm evaluates cases of alleged legal malpractice in Tennessee (especially Nashville, Memphis, Knoxville, Chattanooga).
Lawyers who sue or defend lawyers and law firms need to have the experience and judgment to assess the strengths and weaknesses of these claims and efficiently manage their litigation. Because legal malpractice plaintiffs are obligated to prove that a lawyerâ€™s conduct fell below the standard of care, which is often the subject of expert testimony, lawyers prosecuting and defending legal malpractice claims must understand the applicable law and make effective use of expert testimony. They must also understand, and critically analyze, the plaintiffâ€™s burden of proving that the lawyerâ€™s or firmâ€™s conduct resulted in actual harm, which in many jurisdictions requires a plaintiff to prove â€œthe case within a case.â€ Some available defenses are unique to legal malpractice cases. Lawyers handling legal malpractice and breach of fiduciary duty claims should also have a firm grounding in the ethical rules governing lawyersâ€™ conduct, since such claims often arise from alleged violations of those rules and their assertion may implicate a lawyerâ€™s ethical obligations.
The Elements of Legal Malpractice
Typically, to prevail in a legal malpractice case, a plaintiff must prove all of the following: The existence of an attorney-client relationship; Negligence in the legal representation of the plaintiff; That the negligence was a proximate cause of an injury; The fact and extent of the injury alleged. As malpractice laws vary by state, your state may not adhere to the elements listed above.
Proving Legal Malpractice
As the elements outlined above suggest, the first thing a plaintiff must do in order to prove legal malpractice is to establish that an attorney-client relationship existed. Absent an attorney-client relationship, the lawyer doesn’t have any duty to the client, and there is no basis for a malpractice action. Next, a plaintiff must establish the “standard of care” which governed the legal representation, and show that the attorney violated that standard of care. Sometimes this is easy, and may not even require any expert testimony. For example, if a lawyer steals money that the lawyer holds in trust for a client, the fact that the attorney violated a duty to the client is a “no brainer”. However, as legal representation is often complex, it is often necessary to use an expert witness to establish the governing standard of care, and to describe how the lawyer violated that standard of care. Once those elements are satisfied, is is necessary to demonstrate that the plaintiff suffered an injury as a proximate result of the lawyer’s negligence. That is, that the injury followed from the lawyer’s misconduct. For example, where a lawyer fails to make an evidentiary objection which would have kept a murder weapon out of evidence, a criminal defendant may have a case for legal malpractice – but if the defendant confessed to the murder, left fingerprints all over the victim’s house, and was caught while trying to use the victim’s credit cards, the defendant won’t be able to demonstrate that the lawyer’s mistake affected the outcome of his case, and thus won’t be able to show that the injury resulted from the negligence. Similarly, if the connection between the alleged act of negligence and the harm suffered is speculative or extremely attenuated, it may not support a malpractice claim – the injury suffered must ordinarily be a reasonably foreseeable consequence of the attorney’s negligence. Finally, the plaintiff must ordinarily establish that damages actually were suffered as a result of the legal malpractice, and the nature and amount of those damages. Even if all other elements of a malpractice case are established, if the plaintiff cannot show that any damages resulted from the legal malpractice the lawyer will typically be entitled to a dismissal of the case.
The “Attorney Judgment Rule”
Under the attorney judgment rule, an attorney is not liable for what, in hindsight, were errors in judgment where the attorney made those judgments in good faith and in the honest belief that the decisions were well founded in the law and made in the best interest of the client. In other words, while a gross error in judgment may be actionable as legal malpractice, a mere error in judgment made in good faith is not. This rule protects the attorney who acts in good faith and keeps the client informed and involved in the case, but makes what turn out in hindsight to be strategic or tactical errors in handling a case. Changes In The Law Attorneys are not ordinarily charged with anticipating changes in the law. This means that it is not ordinarily possible to secure a malpractice verdict against a lawyer where the lawyer’s advice or representation turns out to be faulty based upon a court decision or new legislation passed after the lawyer acted or provided the advice. Sometimes there are a lot of indications that a change in the law may be coming – some legislation is under debate for years prior to passage – and a good lawyer will advise a client about possible changes. However, lawyers are not charged with being able to predict the future.
The “Case Within A Case”
In many legal malpractice actions, there may be discussion of whether the plaintiff could win the “case within a case”. This discussion occurs in malpractice cases involving prior litigation, where a plaintiff claims to have either lost or to have recovered a smaller amount of damages than warranted by the facts and law, as a result of the original lawyer’s malpractice. In order for the plaintiff to establish that damages were suffered as a result of the alleged malpractice, depending upon state law, it is often necessary for the plaintiff to prove that, but for the malpractice, a favorable verdict would have been won or greater damages recovered. In essence, this is a retrial of the original litigation within the context of the malpractice action – a case within a case. Attorney-Client Privilege It is important to note that within the context of a legal malpractice action, a lawyer may utilize what were formerly privileged communications from the client in order to respond to allegations of negligence.
Is It Hard To Find A Lawyer?
It can sometimes be difficult to find a lawyer who is willing to handle a legal malpractice action, but there are now lawyers in every state who accept legal malpractice cases. Our firm accepts cases in Tennessee involving substantial monetary losses.