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Regarding legal malpractice. I retained a lawyer (well call…

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Regarding legal malpractice. I retained a...
Regarding legal malpractice.
I retained a lawyer (we'll call him lawyer #2) involving legal malpractice of lawyer # XXXXX Lawyer # XXXXX brought in lawyer #3, who was described by lawyer #2, as a "legal malpractice" specialist.
The complaint against the lawyer #1 was filed by lawyer # XXXXX "and" lawyer # XXXXX after the statute of one year had expired, so I lost my case (summary judgement) against the 1st lawyer due to the statute expiration
Question - I signed a retainer agreement and sent a check to lawyer #2, per his agreement two days before the statute expired. Lawyer #2 now states he did not sign his own agreement until after the statute expired so he did not legally represent me until after the statute expiration had already occurred and is therefore not liable for anything.
He (lawyer #3) admits he had been discussing the statute expiration with lawyer #2 a month or so before the statute actually did expire, and that he prepared a retainer agreement well before the statute expired. Lawyer #3s position was and is that he thought the statute expired two months later than the findings of the judge who ruled on the summary judgment, and that the judge was wrong. No appeal was filed.
At what point is a lawyer responsible for his advise ? The time of the advise or the date of the retainer agreement ?

Len Nordeman [email protected] cellXXX-XXX-XXXX
Submitted: 6 years ago.Category: Personal Injury Law
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2/25/2012
Personal Injury Lawyer: Law Pro, Attorney replied 6 years ago
Law Pro
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Category: Personal Injury Law
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The attorney is liable at the time of giving their advice - potentially even earlier depending upon what they knew and when they knew it.

It would appear obvious that #2 and #3 committed malpractice - they missed the filing deadline for case.

Legal malpractice may occur where a lawyer acts in a negligent manner when providing legal advice or representation. The following represents an overview of legal malpractice law and common defenses.

 

The Elements of Legal Malpractice:

 

Typically, to prevail in a legal malpractice case, a plaintiff must prove all of the following:

  • The existence of an attorney-client relationship;

  • Negligence in the legal representation of the plaintiff;

  • That the negligence was a proximate cause of an injury;

  • The fact and extent of the injury alleged.


The first thing a plaintiff must do in order to prove legal malpractice is to establish that an attorney-client relationship existed. Absent an attorney-client relationship, the lawyer doesn't have any duty to the client, and there is no basis for a malpractice action.

Clearly you had an attorney-client relationship and the attorney owed you a duty of care and should have informed you of the dire need to pursue the action given the minimal time within which to file suit.

 

Next, 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, is 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.


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.



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Customer reply replied 6 years ago

I need the california statutes that apply/support your conclusions with specific reference to when representation starts if earlier than the date of the retainer agreement. What statute language triggers representation. (copy and paste is ok) or a reference by code section.

Thanks

Len Nordeman
Personal Injury Lawyer: Law Pro, Attorney replied 6 years ago

An attorney-client relationship starts when the client actually retains an attorney to represent the client in a legal matter. Whether it's a family law, civil, or criminal matter, the relationship starts once a client retains an attorney for the service of representing the client in a legal matter or legal case.

Once this happens, the attorney has the obligation of not revealing information that is protected from disclosure legally without the informed consent of the client. Client-attorney confidentiality encompasses the attorney-client privilege, the work-product doctrine and the ethical standards of confidentiality pursuant to the ethical standards and laws of the state of California.

This does not preclude the client from authorizing the attorney to speak to family members about the case so long as the client consents to such disclosure in writing and specifically identifying which family members to discuss the case with and the extent of the information to be disclosed.

 

Pursuant to the Professional Rules of Conduct for California and Model Rules - here is the law:

 

 

1.2:200 Creating the Client-Lawyer Relationship

� Primary California References: CRPC 3-310, 3-700, 4-210, 3-300, 3-500, 3-510, 4-100, B&PC � 6068
� Background References: ABA Model Rule 1.2, Other Jurisdictions
� Commentary: ABA/BNA � 31:101, ALI-LGL �� 26-29A, Wolfram � 9.2

An attorney-client relationship is created either by an express or implied contract. [See 1.2:210 Formation of Client-Lawyer Relationship, infra]. The existence of an attorney-client relationship creates mutual duties on the part of the attorney and the client. An attorney also owes a duty to prospective clients who consult with the attorney concerning legal representation regardless of actual retention. [See 1.2:220 Lawyer's Duties to Prospective Client, infra]. With respect to actual clients, an attorney-client relationship is a fiduciary relationship of the very highest character and when rendering legal advice an attorney must use such skill, prudence, and diligence as lawyers of ordinary skill and capacity. [See 1.2:250 Lawyer's Duties to Client in General, infra]. An attorney must also represent his or her client zealously within the bounds of the law and owes a duty of undivided loyalty and fidelity to his or her clients. [See 1.2:250 Lawyer's Duties to Client in General, infra]. The client has a duty to compensate the attorney for services and expenses rendered during the course of the representation and in some instances indemnify the attorney for liability to which the client exposed the lawyer. [See 1.2:260 Client Duties to Lawyer, infra]. An attorney, however, is prohibited from representing a client if the client�s purpose in conducting litigation is to harass or maliciously injure another or such representation would violate any rules or laws. [See 1.2:230 When Representation Must Be Declined, infra].

1.2:210 Formation of Client-Lawyer Relationship

Except where an attorney has been appointed by the court, the attorney-client relationship is created by either an express or implied contract. See Responsible Citizens v. Superior Court (5th Dist. 1993) 16 Cal.App.4th 1717, 20 Cal.Rptr.2d 756 (existence and nature of an implied contract for an attorney-client relationship is determined by the totality of the circumstances, including the parties� conduct). �When a party seeking legal advice consults an attorney at law and secures that advice, the relation of attorney and client is established prima facie.� Perkins v. West Coast Lumber Co. (1900) 129 Cal. 427, 429, 62 P. 57. An important distinction, however, is whether the purpose of the consultation was to advise regarding the client�s rights or liabilities, or for the lawyer to decide whether to undertake the representation. In the latter situation, investigative activities by attorneys do not necessarily constitute undertaking a representation. See Setzer v. Robinson (1962) 57 Cal.2d 213, 18 Cal.Rptr. 524, 368 P.2d 124 (fact that attorney had to conduct preliminary investigation to decide whether to undertake representation after the initial consultation with prospective client did not create an attorney-client relationship).

The general requirement for an implied attorney-client relationship is that the attorney�s conduct must create a reasonable belief that the attorney will accept representation. See Fox v. Pollack (1st Dist. 1986) 181 Cal.App.3d 954, 226 Cal.Rptr. 532 (client�s belief in attorney-client relationship must be reasonably induced by attorney�s representation or conduct). See generally Moss v. Stockdale, Peckham & Werner (2nd. Dist. 1996) 47 Cal.App.4th 494, 54 Cal.Rptr.2d 805 (law firm that allowed attorney to consult individual at law firm�s offices may have formed attorney-client relationship with individual); Miller v. Metzinger (2nd Dist. 1979) 91 Cal.App.3d 31, 154 Cal.Rptr. 22 (attorney may have formed professional relationship by undertaking to obtain records and provide advice for plaintiff).

The factors the court considers in determining the existence of an implied attorney-client relationship may vary depending upon the context of the parties� interaction. In Responsible Citizens v. Superior Court (5th Dist. 1993) 16 Cal.App.4th 1717, 20 Cal.Rptr.2d 756 the court listed the pertinent factors in determining whether an attorney whose client is a partnership had established an implied attorney-client relationship with an individual partner: (1) the type and size of the partnership; (2) the nature and scope of the attorney�s engagement; (3) the nature of contacts between the attorneys and the individual partner; (4) the attorney�s access to information relating to the individual partner�s interests; and (5) whether there is an implied agreement not to take on other representations adverse to the individual partner�s personal interests. See also Johnson v. Superior Court (4th Dist. 1995) 38 Cal.App.4th 463, 45 Cal.Rptr.2d 312 (since attorney undertook general representation of partnership, he owed duty of loyalty to all partners; thus, whether implied attorney-client relationship existed between attorney and individual limited partners is �of no great moment.�).


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