The District of Columbia is a generally favorable jurisdiction when it comes to defending legal malpractice claims at the motions stage. According to a significant D.C. Court of Appeals opinion from March 20, 2009, when lawyers make tactical mistakes, they should not be held liable if they acted in good faith. Where an attorney makes an error in judgment but acts with a proper degree of skill and reasonable care, he or she will not be held responsible. Here, the experienced legal malpractice attorneys at Eccleston & Wolf provide an overview of legal malpractice claims in the District of Columbia and defense options for those who have had a suit filed against them.
A Claim for Legal Malpractice
Elements of the cause of action
An action for legal malpractice sounds in negligence. Thus, the elements are the same as those of an ordinary negligence claim. The plaintiff must establish: an attorney-client relationship; the applicable standard of care; a breach of that standard; and, a causal relationship between the violation (i.e. breach) and the harm complained of (i.e. damages). Proving the existence of the attorney-client relationship is the first step, and is what gives rise to a duty of care owed to the plaintiff. Expert testimony by the Plaintiff is generally required to establish the standard of care and skill expected of lawyers acting under similar circumstances.
The Causal Connection
This is where the oft-heard phrase “case within a case” comes into play. Once the plaintiff proves a breach of the applicable standard of care, the plaintiff must still prove a causal connection between the attorney’s breach and the harm alleged. This gives rise to what many commentators refer to as the “case within the case.” The plaintiff must demonstrate that the attorney performed negligently and that the plaintiff would have fared better in the outcome of the underlying case, i.e., the predicate case, if for the attorney acted competently.
In essence, the plaintiff must prove that he or she had a meritorious claim in the predicate case, but lost due to the attorney’s breach of the standard of care. Only by establishing the causal relationship or proximate cause between the breach and the harm asserted, can the plaintiff succeed. In many cases, this means proving they would have succeeded in the underlying case.
In such a case the resulting damages are the value of the plaintiff’s lost claim i.e., the amount he or she would have recovered had the attorney not performed negligently in the original case. Thus, by way of example, if an attorney is retained to represent an individual injured in a motor tort case, but through negligence fails to file the lawsuit within the applicable statute of limitations, the first two elements of the cause of action will be easily proven against the attorney. To establish proximate cause and damage in the legal malpractice action, however, the Plaintiff must establish that he or she would have won the motor tort case and recovered damages. Thus, the Plaintiff must “try” the original auto tort case within the context of the legal malpractice case in order to secure victory. If the Plaintiff cannot establish that the original action, even if timely filed, would have succeeded, the legal malpractice action fails in spite of the breach of the standard of care by the attorney.
Where the predicate “case” does not involve litigation, the case within a case concept is still valid. For example, if an attorney breaches the standard of care in preparing a business agreement, the Plaintiff must still demonstrate that but for the attorney’s breach of the standard of care, the Plaintiff would have been in a better financial position in the predicate matter. The underlying “case” therefore is the handling of the business matter in this context.
Not only is proving that the plaintiff would have been successful in the outcome of the underlying case often quite difficult, an attorney has many defenses available in the face of such claims. In this article, we will only mention a few.
One defense that often proves successful is contributory negligence. The plaintiff’s contributory negligence can be a complete defense to the defendant’s liability for standard negligence cases, and the Courts have allowed this defense in actions for legal malpractice. Another potential defense involves “collectability.” Even if the plaintiff is able to establish proximate cause, the attorney may be able to establish that a favorable judgment would not have led to a recovery. Thus, the defense of a legal malpractice action often turns on whether the defendant in the underlying case was judgment proof.
A legal malpractice action accrues when the plaintiff sustains an actual injury, but not all of the potential damages need to accrue in order to trigger the commencement of the statute of limitations. The key issue is the client’s knowledge that some injury occurred, its cause, and related wrongdoing. In cases where it is difficult to ascertain when the injury occurred, or to determine the exact date damage was suffered, the District of Columbia applies the discovery rule and has held that the right of action in a legal malpractice case accrues when the plaintiff has knowledge of, or by the exercise of reasonable diligence, should have knowledge of the existence of the injury; its cause in fact; and some evidence of wrongdoing. Thus, if the malpractice action is not filed within three years of the accrual date the statute of limitations is a complete bar. One caveat is where the “continuous representation rule” comes into play. In the District of Columbia the statute of limitations is tolled so long as the attorney’s representation of the client continues.
Biomet and the Judgmental Immunity Doctrine
It has long been recognized that an attorney is not liable for every mistake made in the honest exercise of professional judgment. The Supreme Court has opined that an attorney must not be held responsible to his client for every error of judgment in the conduct of his client’s cause.
In 2009, the D.C. Court of Appeals handed down a significant opinion marking great news for the District of Columbia legal profession. The Court, in Biomet Inc. v. Finnegan Henderson LLP, 967 A.2d 662 (D.C. 2009)., adopted a “judgmental immunity doctrine” for lawyers that protects them from malpractice suits if they can show they acted with “reasonable care” in making a tactical decision for a client.
The Biomet Court raised the question of whether the professional judgment was reasonable at the time it was made, not whether a different strategy may have resulted in a more favorable judgment.
This “judgmental immunity” standard requires a lawyer to show that the alleged error is one of professional judgment, and that the lawyer exercised reasonable care in making his or her judgment, thus there was no negligence involved. Essentially, it protects the informed exercise of an attorney’s judgment, so long as that judgment was reasonable under the circumstances.
Central to the doctrine is the understanding that an attorney’s judgmental immunity and an attorney’s obligation to exercise reasonable care coexist such that an attorney’s non-liability for strategic decision is conditioned upon the attorney acting in good faith and upon an informed judgment after undertaking reasonable research of the relevant legal principals and facts of the given case. It recognizes that if an attorney’s actions could under no circumstances be held to be negligent, then a court may rule as a matter of law that there is no liability.
This case marked a historic precedent in District of Columbia Courts and has been utilized in defending malpractice actions since then.
Accordingly, it is significant that there are protections available in District of Columbia where a lawyer can be immunized against lawsuits for virtually anything after the harm has been done, as long as they can show they used a reasonable judgment.
Eccleston & Wolf is the established, preeminent, attorney malpractice defense firm with regard to lawyer’s professional claims, including disciplinary matters. The firm has represented thousands of attorneys in the Mid-Atlantic Region in both jury and non-jury cases, covering every area of practice, and including breach of fiduciary duty, fraud, RICO, as well as securities and anti-trust violations. Additionally, the firm represents lawyers before the attorney grievance boards and commissions.
Eccleston & Wolf’s members also regularly lecture and provide seminars to insurance companies and their insureds, as well as local bar associations, on the topic of avoiding and defending legal malpractice claims. In addition to defending lawsuits filed against attorneys, Eccleston & Wolf is routinely retained to defend and advise clients on a risk management and claims avoidance basis, as well as on ethical and disciplinary matters.
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