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Frequently Asked Questions by Clients Regarding Legal Malpractice

faqWhat is legal malpractice?

Legal malpractice is the term used to describe wrongful or negligent acts by an attorney that cause harm to his client. It is also known as the failure of an attorney to provide legal services that meet the required standard of care, skill, and diligence the attorney owes the client, which results in damages to the client. In Georgia, to support a claim for legal malpractice, a client must show that (1) he or she employed the attorney; (2) the attorney failed to exercise ordinary care, skill, and diligence; and (3) such negligence proximately caused the client damages. The client must prove each of the three elements above to recover from the attorney on a legal malpractice claim.

How do I know if my attorney committed legal malpractice?

Identifying legal malpractice can be very difficult, especially for a client. The best way to determine if your attorney has committed legal malpractice is to consult with another attorney who handles legal malpractice cases. A legal malpractice attorney can review your case and provide an unbiased opinion as to whether you have a valid cause of action.

How is an attorney/client relationship created?

An attorney/client relationship is established when the advice or assistance of the attorney is sought and received by an individual or business in a legal matter. It is a contractual relationship that is expressly created by a written contract (such as an agreement for legal services, engagement letter, or even an email agreeing to the representation) or that is implied from the actions of the attorney and potential client. In Georgia, so long as the client has a reasonable belief, which is induced by the representations or conduct of the attorney, that he or she is being represented by the attorney, an attorney/client relationship exists. Occasionally, attorneys in legal malpractice cases contest the existence of an attorney/client relationship.

Must I prove that I have an attorney/client relationship with an attorney to recover for the attorney’s erroneous legal advice or negligent performance of legal services?

Most likely, yes. The first element of a legal malpractice claim requires the plaintiff to prove that he or she had an attorney/client relationship with the defendant attorney. However, Georgia courts allow non-clients to sue attorneys under certain limited circumstances. For example, a non-client may be able to assert a claim if an attorney owed a duty to the non-client under a voluntary or gratuitous agency. Even where no express attorney/client relationship exists, an attorney may be liable for negligence under the theory of voluntary agent when the attorney gratuitously undertakes to perform a legal service or give legal advice to another with the other’s approval. Another example is a claim for negligent misrepresentation against an attorney, which arises when an attorney negligently supplies false information to foreseeable persons, known or unknown; such persons reasonably rely upon that false information; and economic injury proximately results from such reliance. Under certain circumstances, non-clients may also assert other claims against attorneys. Since Georgia case law places many restrictions and requirements on claims against attorneys, it is best to consult with an experienced legal malpractice attorney regarding potential claims against another attorney.

What is the standard of care?

The standard of care is the requirement that an attorney exercise ordinary care, skill, and diligence in the performance of legal services for a client. The standard of care is determined by the degree of skill, care, and diligence ordinarily employed by other attorneys under similar conditions and like surrounding circumstances. Two important considerations in applying the standard of care in a given case are the number of options available to the attorney and the amount of time which he had to consider them. An attorney breaches the standard of care when he fails to meet this minimum requirement. It is important to note that an attorney is not bound to extraordinary diligence and is not an insurer of the results sought to be obtained. An attorney who does not choose the best of all options does not necessarily breach the standard of care.

What is the difference between a bad tactical decision and legal malpractice?

A bad tactical decision is one that does not work well for the client, but is implemented in good faith for the benefit of the client and is a reasonable decision at the time it is made. An attorney’s decisions should not be judged in hindsight. Georgia courts have also adopted the doctrine of judgmental immunity, which means that an attorney is given a great deal of discretion in the tactical decisions made during the course of litigation. Legal malpractice occurs when an attorney breaches the standard of care, meaning that a reasonably prudent attorney acting under the same circumstances and with the level of care, skill, and diligence necessary to provide the same legal services would not make the same decision and would conclude that such a decision is unreasonable.

Does a violation of a legal ethics rule constitute a breach of the standard of care?

Not necessarily. A violation of the Georgia Rules of Professional Conduct, standing alone, cannot serve as the legal basis for a legal malpractice action. However, pertinent ethics rules are relevant to show the standard of care in a legal malpractice action, so long as the ethics rules at issue are intended to protect a person in the client’s position or are addressed to the particular harm suffered by the client.

How do I prove that my attorney’s negligence caused my damages?

To successfully assert a claim for legal malpractice, a client must prove that the attorney’s negligence (i.e., breach of the standard of care) was the cause-in-fact and the proximate cause of the client’s damages. The client must show that, but for the attorney’s error, the outcome would have been different. Stated another way, no matter how negligent an attorney may be, an attorney does not cause an injury if the injury would have occurred regardless of the attorney’s error. The client must also show that his damages are not remote or speculative and are a foreseeable result of the attorney’s error. The element of causation tends to be one of the most difficult to prove in legal malpractice actions.

What is the “case within a case?”

In the circumstance in which an attorney committed malpractice during litigation, the client must typically prove the “case within a case,” meaning that the client must prove two cases in one. The client must show that his attorney committed malpractice and that, but for the attorney’s error, the client would have achieved a more favorable outcome in the litigation. If the favorable outcome would have been an award of money, the client must also show that the award would have been collectible from the original defendant.

Will my prior attorney know if I consult with another attorney about a possible legal malpractice case?

Not likely. The legal malpractice attorney with whom you consult should not disclose the consultation to others outside of his or her law firm without your permission. All attorneys must keep discussions and information about a client or potential client confidential.

Should I file a complaint with the attorney’s state bar association or licensing authority?

It depends. The commission of legal malpractice does not necessarily mean that an attorney has violated an ethics rule. If an attorney has violated one or more ethics rules, a complaint with the state bar may result in disciplinary action against the attorney, which may include the loss of his authorization to practice law in that jurisdiction. This is one way to deter or prevent the attorney and other attorneys from violating the same ethics rules in the future. However, filing a complaint with the state bar might impact a client’s legal malpractice action against the attorney, and such a decision should be made after consulting with an experienced legal malpractice attorney.

What can I recover as damages in a legal malpractice case?

The damages that can be recovered by a client from his attorney vary depending upon the facts of each case. A client is typically entitled to be compensated for the amount by which his outcome would have been different had the attorney not committed an error. In other words, if the client would have received money or something else of value had the attorney not committed an error, the client may recover from the attorney the amount of money or the value of what he would have received. If the client would not have been required to pay money or give something of value to another had the attorney not committed an error, the client may recover from the attorney the amount of his loss. An award for legal malpractice may also include the fees paid by the client to the attorney, the client’s attorney fees incurred in attempting to fix the attorney’s error or mitigate the damages, the client’s attorney fees and other litigation expenses incurred in the legal malpractice action, prejudgment interest, and post-judgment interest. A client may also recover punitive, deterrence, and exemplary damages from an attorney who has intentionally harmed the client or who has acted with a conscious indifference to the consequences to the client. A client may also recover additional damages from an attorney under certain circumstances.

What implications does malpractice insurance coverage have on my legal malpractice case?

The existence of malpractice insurance can impact a case in a number of ways. If an insurance company is involved, the insurance company will typically pay the attorney fees and other litigation expenses incurred by the former attorney. Depending upon the terms of the insurance policy, the attorney may be required to obtain the insurance company’s approval before entering into a settlement agreement with the client. Also, the existence of malpractice insurance increases the likelihood that a favorable judgment will be collectible. However, the insurance policy should be read closely to make sure that the insurance company will cover the particular wrongful acts of the attorney and the amount of the client’s damages.

Are Georgia attorneys required to have malpractice insurance coverage?

No. Although making legal malpractice insurance a requirement for attorneys in Georgia has been considered, at this point, attorneys are under no obligation to obtain insurance.

Can I require my Georgia attorney to maintain malpractice insurance coverage?

As a condition for retaining an attorney, a client can require that the attorney provide him with a copy of his malpractice insurance policy and maintain malpractice insurance coverage throughout the representation in an amount sufficient to compensate the client if the attorney commits malpractice. If the client chooses to make such a requirement part of the contract with the attorney, it should be inserted into the agreement for legal services, engagement letter, or other type of written agreement between the client and the attorney.

If you believe your attorney acted improperly, contact the Atlanta legal malpractice lawyers at Schklar & Heim, LLC at (404) 888-0100. We will evaluate whether you have a potential claim and take appropriate action if retained. All information is kept strictly confidential. We represent clients across the state of Georgia, including Alpharetta, Valdosta, Suwanee, Douglasville, and Tucker.