Unit 8

Competence & Negligence

The American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules) provide that an attorney must possess and demonstrate a certain requisite level of legal knowledge in order to be considered competent to handle a given matter.

The standards are intended to protect the public as well as the image of the profession.

Failure to adhere to them can result in sanctions and even disbarment.

However, once an attorney is licensed we have little to limit the attorney from accepting legal cases.

The current economy may be linked to competence issues as it may cause attorneys to take cases that they may not otherwise have accepted.

The legal profession has only recently progressed from having no professional standard concerning attorney competence to having comprehensive codes of increasing specificity and complexity.

Competence was not always express as part of an attorney's professional responsibility, and competence was enforced solely through legal malpractice actions.

The mere ignorance of the law in conducting the affairs of his client in good faith may not be found to be a cause of discipline.

The absence of a professional rule of competence could be traced to the view that a lawyer who had successfully completed a bar examination and met other basic entrance criteria was, by definition, competent to practice law.

The profession did not explicitly require lawyer competence until 1970, when jurisdictions began adopting versions of the Model Code of Professional Responsibility (Model Code).

Legal malpractice occurs when a lawyer fails to render competent professional service to a client and the client is damaged as a result of the failure.

The three major theories of liability are negligence, breach of fiduciary duty, and breach of contract.

To prove malpractice, i.e., to establish your lawyer's liability, you must prove that your lawyer owed you a duty to represent you competently, that he or she made a mistake or otherwise breached the duty owed to you, and that your lawyer's mistake harmed you, causing you damages.

Additionally, you must file your lawsuit within the statutory time period or "statute of limitations" established by state law for legal malpractice claims.

Today all lawyers are subject to strict standards of professional responsibility.

These standards are set forth in codes of conduct and Privileges, ethics, rules of professional conduct that are established by state bar associations.

Although the rules will vary from state to state, here are some basic ethical and professional rules your lawyer must follow:

• The lawyer must represent you ethically, zealously and within the bounds of the law

• The lawyer must competently analyze legal issues and exercise knowledge of the law applicable to your case

• The lawyer must communicate with you in a timely and effective manner

• The lawyer attorney owes the client, a duty of loyalty.

• The lawyer can't simultaneously represent a client and another client with legal interests that conflict with the client. An example of an obvious conflict would be representation of both the landlord and the tenant in an eviction action.

• For so long as the lawyer continues to represent the client, the lawyer is required to follow the client’s directions in handling the case unless those directions are illegal

• The lawyer must keep the client’s personal property separate from his or her own property, and must keep the client’s money in an escrow account. Any time demanded, the lawyer must return the client’s money or property.

• Except in rare circumstances, the lawyer is required to keep client confidences confidential

• The lawyer may be prohibited from having personal relationships with their clients

• Unless he or she first obtains your informed written consent, your lawyer is prohibited from taking on representation that is adverse to your interests.

The attorney may have other responsibilities to the client, depending on the case and the ethical rules that apply in the jurisdiction.

If a lawyer fails to abide by these rules, he or she can be disciplined by any bar association of which he or she is a member.

It's possible the lawyer may even be disbarred for serious violations.

Criminal prosecution is also a possibility.

And a failure to comply with the rules may be the basis for a malpractice action.

Competence issues can also come in other ways.

First of all, look at the retainer agreement that may have signed when the lawyer was hired.

Typically, these agreements will set out certain duties and responsibilities of the client.

This may add additional contractual requirements.

Such duties and responsibilities including representations of competence may be set forth in the agreement.

Types of Legal Malpractice Claims Every case is different, but legal malpractice claims usually fall under three categories:

A. Negligence happens when your attorney's processing of your case isn't up to the standard of skill and care that would be expected of a competent attorney handling that particular kind of case. Examples of negligence include:

• Failing to file a lawsuit within the statute of limitations time required under law

• Missing other important deadlines in the case • Not properly preparing for trial • Not following court orders • Most legal malpractice claims that end up in court are a result of

lawyer negligence.

B. Breach of fiduciary duty usually occurs when your lawyer has a conflict of interest that harms you in some way. Examples of breach of fiduciary duty include:

• Representing another client to your disadvantage (such as representing another defendant in the same lawsuit) • Having financial or social ties or troubles that prevent your lawyer from representing you to your best advantage • Improper sexual advances toward you • Lying to you about important case information • Not communicating settlement offers • Settling your case for less than it was worth without your approval • Inappropriately using money belonging to you

C. Breach of contract cases are occasionally brought against lawyers who violate the terms of their specific agreement with their client.

Proving A Legal Malpractice Case

To win a negligence case against a lawyer, you must prove: • Your lawyer owed you a duty to competently represent you • He or she made a mistake or otherwise breached the duty owed to you • Your lawyer's mistake injured or harmed you in a way that can be measured financially • Duty, Breach, Causation and Damage • You would have won your underlying case if your lawyer had not been incompetent or otherwise made a mistake • You would have been able to collect on a judgment on your

underlying case after winning the case

As these things are difficult to prove, most legal malpractice cases are tried in court rather than settled, requiring a lot more preparation from your legal malpractice lawyer.

Any legal malpractice lawyer considering taking your case will want to know whether your original lawyer had malpractice insurance to cover your losses, and will balance whether your provable losses are high enough to risk investing the time and energy to take the matter to trial.

The time limit for filing a legal malpractice case - called a statute of limitations - can be as short as one year, so it's best to contact a legal malpractice lawyer right away if you think you might have a legal malpractice case.

If you believe your lawyer hasn't properly represented you, and has harmed you in the process, you'll want to first try alternatives to litigation, such as:

• Discussing fee disputes with your attorney or engaging in fee arbitration

• Reporting potential ethics violations to your state bar association • Hiring another lawyer to repair the damage to an ongoing case

If none of these alternatives brings you satisfaction, you may want to consider a legal malpractice claim.

This type of case is difficult to prove, so you'll want to thoroughly investigate your chances of success before proceeding.

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, it 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.

If you are having difficulty finding a lawyer, try using a lawyer referral service offered by the state or county bar association.

Few attorneys would argue with the statement — Law schools do not graduate competent practicing lawyers. Instead, law schools graduate persons with “technical competency,” i.e., graduates who have mastered substantive legal principles and know “how to think like a lawyer.”

These skills, however, are only half of the “competency equation,” which is equal parts technical substantive skills (“technical competency”) and the ability to bring those skills to bear for the benefit of and to the satisfaction of a client (“performance competency”).

It is this performance competency, the ability to communicate adequately with a client and then timely perform services so that reasonable client expectations are met, which is missing from too many lawyers’ erudition as demonstrated by Florida Bar disciplinary statistics.

Every lawyer needs to develop “performance competency.”

Only when a lawyer can bring together technical and performance skills to achieve a satisfactory work product or service which meets reasonably established client or employer expectations can that lawyer truly be considered “competent.”

Bare knowledge of the law is not enough to brand a lawyer “competent.”

The fact that an attorney possesses skills of technical competency to know the law which applies to a client’s problem is of little value if that knowledge cannot be applied to bring about a tolerable, if not satisfactory, resolution for the client.

Clearly, knowledge of the law alone is not enough to brand an attorney truly competent.

If, on the other hand, one has the ability to use and apply the law leading to a client’s solutions, but is unable to produce a work product that reasonably and economically meets the client’s expectations, one has failed to perform competently and the client has not been well served.

Current Bar rules and ethics opinions only minimally acknowledge that the practice of law includes a substantial business component.

Professional competence requires the ability to function administratively, not only in the client’s best interests, but also in the attorney’s own business interest as well.

If a lawyer cannot organize work to meet deadlines, manage a system to monitor the running of statutes of limitations, or keep track of client costs and expectations, then the lawyer’s ability to perform competently, including adherence to ethical rules, may be substantially impaired.

Many disciplinary cases stem from this reality.

A total of 9,491 Bar disciplinary case files were opened between July 1, 1999 and June 30, 2000 in Florida.

A breakdown by category reveals 55 percent involved issues of “performance competency,” including such things as neglect (22 percent), excessive fees (11 percent), inadequate communication (11 percent), trust account violations (7 percent), and conflict (3 percent).

The other 45 percent involve issues of “technical competency.”

Many of the 5,220 “performance competency”-based disciplinary cases opened by The Florida Bar’s prosecutors were necessary because the lawyer(s) involved were never trained or exposed to the “performance” part of the competency equation.

Consequently, literally thousands of lawyers unintentionally violate generally expected business practices, and otherwise engage in activities contrary to standards which judge and govern their performance conduct.

If a lawyer cannot competently manage his or her practice, that lawyer is far less likely to produce competent work or service for a client.

Many incompetencies stem from the failure of the lawyer to act with competence rather than from lack of technical legal competence.

As pointed out in the American Law Institute-American Bar Association Committee on Continuing Professional Education A Model Peer Review System of April 15, 1980, Section 7, Part a, of the Criteria of Attorney Competence, at page 21, “An attorney should be efficient in producing work.

Legal efficiency is enhanced by (1)organizing tasks and practice specialization, (2)delegating to those competent to perform and under appropriate controls, (3)effective management of the organization, (4)adequate help, equipment, and facilities,

(5) quality control of the legal and office processes and documents, (6) appropriate arrangements with the client on strategy, fees, and costs,(7) time, money, docket, and billing control,

(8) internal work review, and

(9) avoiding excessive work commitments.”

(Also noting that performance competency enhancing skills are not normally part of law school training and are rarely even mentioned in any of the Bar’s current continuing legal education programs.)

It is also instructive to look at the issue of client expectations.

Two thousand adults were surveyed by the ABA’s Special Committee to Survey Legal Needs and the American Bar Foundation.

The survey studied, among other issues, public experience with lawyers and public opinions and perceptions about lawyers and their work.

The results ran counter to some widely held lawyer expectations and indicated that the four most frequently mentioned qualities in selecting a lawyer are:

empathy and commitment; integrity; competence; and fairness of fee.

More than 50 percent wanted a lawyer to be concerned and interested in their particular problem;

46 percent wanted a lawyer with a reputation for integrity,

followed by 42 percent who indicated that the most important factor was the lawyer’s competence.

Only 30 percent of participants indicated that their choice of lawyer was based primarily on fairness of the fee.

For those who have utilized an attorney’s services, the survey indicates the following characteristics were important:

• Promptness in taking care of matters;• Interest and concern about client problem;• Honesty in dealing with client;• Explaining fully to client;• Keeping client informed of progress;• Paying attention to what the client has to say; and,• Fair and reasonable fee.

Equal emphasis should be placed on educating lawyers about both parts of the competency equation.

Proven law firm management skills should be taught to everyone who would proclaim to be a competent lawyer so they can truly function professionally and competently with their clients’ interests foremost in mind.

The existing infrastructure of the Bar’s continuing legal education (technical competence) efforts can be easily and economically combined with training in the equally-as-important area of practice management (performance competence) to serve as a sound corollary to the Bar’s current professionalism efforts.

In this way, the competency equation can be leveraged to its full potential