An attorney may be liable for malpractice if he or she breaches the legal duty to use such skill, prudence, and diligence as other members of the legal profession possess and exercise, and such breach is the proximate cause of plaintiff’s loss or damage.
People seek the advice and representation of attorneys when they face many of life’s greatest challenges. They seek legal help so they can obtain the resources they need to move forward and obtain the justice they deserve. The high stakes make it all the more disappointing and devastating when legal professionals fail to provide the quality of care that should reasonably be expected.
At the Law Office of Eric J. Rechsteiner, we pursue legal malpractice claims on behalf of those who were let down by their lawyer. Guided by oath, duty, and obligation, the profession of law possesses extraordinary power. We believe we must be prepared to hold our profession to the highest ideals of integrity and competency.
The plaintiff must show the existence of an agreement giving rise to an attorney-client relationship and thus sufficient to create a duty of care owed by the attorney to the plaintiff.
The plaintiff must allege an error or omission by the attorney constituting a breach of the duty owed to the plaintiff.
Plaintiff must show actual cause (“cause in fact”) between the attorney’s error or omission and plaintiff’s damages.
The plaintiff must have sustained actual damages as opposed to nominal damage, speculative harm, or the threat of future harm.
One of the most frequently cited lawyer errors is the failure to know or apply the law. While lawyers are not expected to know every law, they are expected to have a better understanding of the law and to be competent in their area of practice. Additionally, they should know how to research a legal issue so that they can learn the finer points of the law, and effectively advocate for their client’s position.
The misuse of client funds is a breach of fiduciary duty. The California Rules of Professional Conduct require lawyers to deposit client funds in a trust account and safeguard these funds. They must also keep meticulous records of the funds and any disbursements.
Attorneys are expected to pursue all relevant information regarding a case. They have various tools at their disposal to help accomplish this task. If they fail to properly investigate the claim or conduct discovery and their client is adversely affected, they may face a legal malpractice claim.
The California Rules of Professional Conduct prohibit a lawyer from taking on a case if a conflict of interest would result.. In some situations, the lawyer may be permitted to take on a matter if they first obtain the informed, written, consent of all affected clients. A conflict of interest can also exist if a lawyer has a personal stake in a matter that could influence their professional advice or representation.
Clients expect their lawyers to stay in touch with them, notify them of developments in their case, and reasonably advise about the legal merits of the client’s position. The California Rules of Professional Conduct require lawyers to: (1) Promptly inform clients of any decision that requires their informed consent; (2) Reasonably consult with the client about how to accomplish their objectives in the legal representation; and (3) Reasonably keep the client informed about developments in their case.
One of the most basic types of legal malpractice is missing a deadline: the client may be barred from seeking redress in the court for the underlying legal matter. For example, if a lawyer lets the statute of limitations on a claim expire without timely protecting the client’s claim, then the client will lose the ability to pursue the matter at all. Similarly, “failure to calendar” can result in missed hearings, documents, or other important matters that can lead to adverse consequences for the client’s matter.
Lawyers are expected to maintain the integrity of the legal profession. If they intentionally deceive their clients or others involved in the legal process to obtain unlawful gain, they may be liable for fraud and legal malpractice.
The practice of law requires a careful analysis of the facts and the development of an effective legal strategy. If a lawyer does not adequately plan, they can make serious errors that harm their clients, such as failing to interview witnesses, failing to recognize a valid legal argument or defense, losing important documents, failing to be aware of important recent case law developments, or failing to file potentially important motions with the court.
Lawyers are required to obtain consent from their client before taking certain actions on their case, such as accepting a plea bargain on behalf of a criminal defendant or accepting a settlement on behalf of a personal injury client. Failing to obtain consent can sometimes provide the basis of a legal malpractice and breach of fiduciary duty claim.
Clerical errors are considered one of the leading causes of legal malpractice claims.
Under California Code of Civil Procedure section 340.6, subdivision (a), the statute of limitations for legal malpractice claims in California is one year “after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or occurrence, whichever occurs first.”
This provision also states that the limitations period is tolled during the pendency of the attorney’s continued representation of the plaintiff, or until the plaintiff sustains “actual injury.” The statute also provides that the limitations period is tolled when the attorney willfully conceals facts related to the malpractice, or if the plaintiff has a legal or physical disability which restricts him or her from commencing the action.
If you believe you are the victim of legal malpractice, contact the Law Office of Eric J. Rechsteiner immediately for a free evaluation of your potential case.