The Attorney-Client Relationship:
The attorney-client relationship is one based in contract. Fletcher v Bd. of Education, 323 Mich 343, 348-349 (1948). A person’s subjective belief is not sufficient to find an attorney-client relationship. Id. The attorney must take some action to signify that he or she is the client’s attorney. Scott v Green, 140 Mich App 384, 401 (1985). An attorney-client relationship will likely be found when there is a written contract for legal services, or if no written contract exists, when the attorney corroborates the relationship, such as by entering an appearance or negotiating on behalf of a client. If an attorney agreed to review certain documents, but did not agree to take any action beyond that, the existence of an attorney-client relationship is much less clear.
Importantly, the attorney’s mistake must have occurred during the attorney-client relationship – not after representation terminated. There are multiple ways that an attorney-client relationship can end including: (i) retention of an alternate attorney, Maddox v Burlingame, 205 Mich App 446 (1994); (ii) termination by client acts such as sending a letter to the attorney indicating he did not have authority to act on the client’s behalf, Hooper v Hill Lewis, 191 Mich App 312 (1991), (iii) instruction by the client not to take any further action, Basic Food Industries, Inc v Travis, Warren, Nayer & Burgoyne, 60 Mich App 492 (1975) and (iv) when the task for which the attorney was hired is completed, Seebacher v Fitzgerald, Hodgman, Cawthorne & King, P.C., 181 Mich App 642 (1989).
Establishing the existence of an attorney-client relationship and that the mistake occurred during this relationship is the first step in determining whether you have a valid claim of legal malpractice against your attorney. The next step is proving negligence.
Negligence in the Representation:
An attorney can neither control, nor anticipate, every issue that may arise during litigation. Many things are just outside an attorney's control, including a judge's ruling on a critical motion or a jury's verdict. A client cannot sue just because the outcome was undesirable.
There are many aspects of litigation that an attorney can control, such as what witnesses to call at trial, what questions to ask during deposition, case theories to pursue and what motions should be filed. When making decisions and taking action, an attorney must “use and exercise reasonable skill, care, discretion and judgment”. Simko, supra. "An attorney is never bound to exercise extraordinary diligence, or act beyond the knowledge, skill, and ability ordinarily possessed by members of the legal profession.” Id. Rather, an attorney need only “fashion a strategy so that it is consistent with prevailing Michigan law.” Id.
These decisions made by your attorney, fall within the realm of "attorney judgment." A client generally cannot sue his or her attorney for a decision that falls within attorney judgment, even if the desired outcome is not reached. “Mere errors in judgment by a lawyer are generally not grounds for malpractice where the attorney acts in good faith and exercises reasonable care, skill, and diligence.” Simko, supra. But the key is that the attorney must act “in good faith and in honest belief that his acts and omissions are well founded in law and are in the best interest of his client”. Id.
There are some situations that fall squarely within an attorney's control, and are decisions, or omissions, that fall outside the realm of attorney judgment. This is where a legal malpractice action lies. Here are some examples of attorney negligence that almost always are deemed to be negligence in the representation:
- Failure to file within the statute of limitations
- Failure to meet other filing deadlines
- Failure to timely respond to requests for admission
- Failure to properly identify expert witnesses
- Settling the claim without client consent
If your attorney committed one of these failures, resulting in a devastating blow to your case, such as dismissal or diminished value, you may have a viable legal malpractice case. Other acts or omissions could constitute negligence, but these are the most clear-cut scenarios.
Causation:
To prevail in a legal malpractice case, you must prove that your attorney's critical error caused your injury. In other words, you must show that but for your attorney’s negligence, your injury and damages would not have occurred. Sometimes this requires proving the “case within a case” – i.e., that but for your attorney’s negligence, you would have won the underlying claim. Charles Reinhart Co. v Winiemko, 444 Mich 579 (1993). In some situations, you can prevail, not by proving you would have won your claim, but by showing that your attorney’s negligence substantially compromised your settlement position. See generally, Basic Food, supra.
The Fact and Extent of Injury:
You will also bear the burden of proving an injury. For example, if you suffered $500,000 in economic damages due to hospital error, and then your medical malpractice case was dismissed as a discovery sanction because your attorney failed to provide deposition dates, your "injury" in a legal malpractice claim may include those damages. However, if you did not suffer an actual injury, no matter how egregious the conduct, you will not have a valid legal malpractice claim. Once an injury is established, your attorney is responsible for “all damages directly and proximately caused by the attorney’s negligence.” Basic Foods, supra. Under appropriate circumstances, this can include mental anguish damages. Gore v Rains & Block, 189 Mich App 729 (1991).
Keep in mind, though, that there are a variety of factors that ultimately determine the value of the case.
