There are many reasons why an attorney may be facing a legal malpractice claim. Because legal malpractice claims may seem like any other type of litigation, attorneys may be tempted to respond themselves. However, attorneys inexperienced in legal malpractice can make things worse. In this blog post, we will discuss common defenses to a legal malpractice claim to help strategize. Nevertheless, we strongly recommend consulting with a Chicago professional malpractice lawyer.
For a legal malpractice claim to be successful, the attorney must have owed the plaintiff a duty of care. Absent a duty of care, there can be no claims of negligence. Your legal malpractice lawyer may argue that you did not represent the plaintiff, but you represented the business or other officers. Lawyers who represent a business do not necessarily represent all its employees. However, the plaintiff’s attorney may argue they were a third-party beneficiary and were supposed to benefit from your representation.
This is where a retainer agreement is very important. The retainer agreement should clearly state who the client is. However, a lawyer may owe a client a duty of care even without a retainer agreement or payment. In this case, a court may look at the attorney’s actions and communications with the plaintiff, as well as the plaintiff’s belief, to establish duty of care. You should avoid advising someone you do not have a formal attorney-client relationship with.
Scope of Representation
A plaintiff may bring a claim against you for a specific service they did not hire you to perform. The retainer agreement should clearly spell out what you are to do for the client. A specific engagement agreement can help avoid the argument that you were their general counsel.
Causation is one of the most common defenses to legal malpractice claims. The plaintiff has the heavy burden of proving that if it were not for the attorney’s mistakes, he/she would have prevailed in the underlying suit. For example, if an attorney fails to timely file something, this mistake itself does not constitute legal malpractice. The plaintiff will have to prove that if the attorney had not made a mistake, they would have won. (Read more about a case-within-a-case here). Defending against causation can put an attorney in an uncomfortable position of attacking the value of a case they agreed to take on. Therefore, it is important to consult with experienced legal malpractice counsel.
Judgmental Immunity Doctrine
Not all attorney mistakes constitute legal malpractice. The judgmental immunity doctrine provides that “an attorney will generally be immune from liability, as a matter of law, for acts or omissions during the conduct of litigation, which are the result of an honest exercise of professional judgment.” This doctrine is meant to protect lawyers from frivolous lawsuits arising from unhappy clients; it does not offer blanket protection. It is a difficult, fact-intensive defense, as the defendant must establish that their actions were reasonably taken and have not grossly violated the duty of care.
When clients seek alternative counsel, the successor attorney doctrine may provide another defense. For example, if the first attorney makes a mistake and you switch attorneys, the first attorney may prove that the second attorney could have protected the client’s interests and remedied the situation. Therefore, the first attorney no longer caused the damages.
Each of the above potential defenses are just that- potential defenses. You must carefully apply them given the factual and legal circumstances surrounding the claim. While you may be tempted to defend yourself in a legal malpractice claim, we strongly recommend consulting an experienced Chicago professional malpractice lawyer. We can help you determine the best defense for your case. Contact us today for a free consultation.