Theories of liability for legal negligence
Legal negligence is a broad term that encompasses various types of liability lawsuits filed against attorneys for breach of duties that attorneys owe to clients and occasionally to others who cause harm. An attorney’s particular conduct may violate standard of professional care, disciplinary rules, civil statutes, and even criminal statutes. Such conduct can result in monetary damages, loss of fees, disqualification, and loss of license.
Negligence
Attorneys implicitly represent to clients that they possess the degree of skill, learning and capacity necessary to practice law and that they will exercise reasonable and ordinary care and diligence in applying their skills and knowledge in representing clients. Negligence claims are by far the most common claims filed against attorneys. The traditional elements of any malpractice claim are:
1. the defendant owes the plaintiff a duty to exercise caution;
2. the accused breaches this duty of care;
3. the breach of duty caused immediate damage to the plaintiff; and
4. damages for such injury.
Lawyers generally have a duty to care only for clients and not third parties. The Texas Employer Jury Charges define professional negligence as “failure to use ordinary care, that is, failing to do what an ordinary prudence attorney would have done in the same or similar circumstances or doing what a prudence attorney would do. ordinary “. not having done so in the same or similar circumstances. ”Proof of standard of care and non-compliance generally requires the expert testimony of an attorney.
Breach of fiduciary duty
Attorneys are fiduciaries and as such owe clients a duty of utmost loyalty and are obligated to provide full and fair disclosure of all facts important to client representation. Therefore, lawyers have a duty of good faith and fair dealing with their clients and all dealings between lawyers and clients must involve the full integrity and fidelity of the lawyers. Lawyers must put the interests of clients before the interests of lawyers or others, including other clients. Failure to comply with the duty of full disclosure amounts to concealment. Clients justifiably trust the integrity and loyalty of their attorneys.
Fiduciary duties of attorneys include, but are not limited to, avoiding unacceptable conflicts of interest, safeguarding client confidentiality and property, fully disclosing all material information, following client instructions, and not engaging in adverse client activity. When a client alleges that an attorney has violated his fiduciary duties, a presumption of unfairness arises and the attorney bears the burden of proof that the fiduciary duty was fulfilled with perfect fairness, adequacy, and equity.
Fraud
Fraud consists of a false representation of a material fact, which is known to be false or made recklessly without any knowledge of its truth, with the intention that another party act on the representation, on which said other party relies reasonably and therefore suffers harm. Attorneys can be held liable for damages for defrauding their own clients; Lawyers can also be liable for committing fraud to third parties. Fraud can also arise when a lawyer has a duty to disclose certain information and does not do so, to the detriment of the client.
Conspiracy
Attorneys involved in a civil conspiracy may be liable to clients and third parties. A civil conspiracy consists of a combination of two or more persons with the specific intention of achieving an object or course of action that is an illegal purpose or a legal purpose by illegal means where there has been one or more unlawful and overt acts in support of it. object resulting roughly in damage. Therefore, an attorney may be liable for conspiracy by knowingly agreeing to defraud a third party. Each co-conspirator is legally responsible for all acts performed by any of the co-conspirators to further the conspiracy.
Deceptive business practices
The Texas Deceptive Business Practices Act – Consumer Protection Act (DTPA) only applies to attorneys for claims for damages that are not based on the provision of legal services whose essence is to provide advice, judgment or opinion. However, the DTPA is applied to express misrepresentations or excessive acts that cannot be characterized as advice, judgment or opinion. The advantages of pursuing a DTPA cause of action are a somewhat lower standard for proving causation of damages and the potential to recover multiplicative damages and attorneys’ fees.
Remedies for legal negligence
Causality
A plaintiff in a legal negligence or fiduciary breach of duty action must prove that the attorney’s breach of duty immediately caused the plaintiff’s injury, resulting in damages. Not all negligent acts or breach of fiduciary duty by attorneys actually cause injury. Proximate cause implies predictability and factual cause. Predictability contemplates that the attorney should have anticipated the risk to the client from the negligent act. In fact, the cause requires that the negligent act or omission be a substantial factor in causing the injury without which the harm would not have occurred. Proof of causation in malpractice cases generally requires the expert testimony of an attorney to link the breach of duty with the damage caused.
The Texas Patron Jury Charges define proximate cause as that “cause which, in a natural and continuous sequence, produces an event, and without which such an event would not have occurred. It must be such that an attorney using the care Ordinary would have foreseen that an event, or some similar event, could reasonably result from it. There may be more than one proximate cause of an event. “
Damages
The most common remedy sought by clients of their former attorneys is recovery for damages caused by the attorney’s negligence or other breach of duty. The traditional method of establishing damages when an attorney negligently represents a client is to prove “claim within a claim.” The plaintiff must prove that, had it not been for the negligence of the attorney, the plaintiff would have recovered the judgment in the original case, the amount of that judgment, and that the judgment would have been collectible. In the case where the lawyer practiced negligence in the case of a defendant, the client must prove that, had it not been for the lawyer’s negligence, the client would have prevailed over a meritorious defense. However, the “case within a case” standard of proof may not be required in cases of breach of fiduciary duty and DTPA cases.
In other cases of legal negligence that do not involve underlying litigation, the traditional rules on damages state that the client can recover all foreseeable damages caused by the wrongful acts or omissions of the lawyer. And, exemplary damages can be recovered for attorney fraud or other malicious acts committed.
Cancellation of fees
An attorney who incurs a clear and serious violation of duty to a client may be required to forfeit some or all of the attorney’s compensation in the matter, even if the client did not suffer any actual harm as a result of such violation. Typically, fee forfeiture cases are based on allegations that the attorney committed a serious breach of fiduciary duty or fraud. In the trial of a fee forfeiture case, a jury will consider whether the attorney committed the claimed violation, and the trial judge will determine whether the violation is clear and serious and, if so, the amount of the fee that will be lost.