Legal Malpractice 101

“The leading rule for the lawyer, as for the man of every calling, is diligence.”  

                                                                                                                                            –  Abraham Lincoln. 

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Often, clients reach out to attorneys at times of upheaval and distress, be it divorce, a bad business deal, or a devastating physical injury caused by a physician.  The client, rightfully, trusts his attorney to right the wrong.

Usually, the attorney meets or even exceeds the client’s expectations. But attorneys are not superheros. Sometimes, even with Herculean efforts, the desired outcome does not happen.  After the dust settles, clients start to wonder if their attorney made a mistake and what they should do.

Honorable attorneys admit their mistakes and help the client try to save the case or minimize the damage (usually through a separate attorney that we call “mitigation counsel”).  They also advise you that you might have a potential legal malpractice claim against them and suggest you retain a legal malpractice attorney.  Other times, attorneys either refuse to be held accountable or do not think they did anything wrong.  And on very rare occasion, attorneys try to hide their mistakes.   In either scenario, you need to retain a legal malpractice lawyer quickly – you only have two years to file a legal malpractice claim. (When that two year period starts ticking varies depending on the circumstances.)

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When you retain Hoffer & Sheremet as your legal malpractice lawyers, we quickly evaluate your claim to see if we can stop further damage from happening or save your case.  We have an extensive network of mitigation counsel at the ready.  We then thoroughly review the underlying file to evaluate whether you have a viable legal malpractice claim.  A mistake by the attorney is not enough to prove legal malpractice.  Instead, there must be evidence of the following elements: “(1) the existence of an attorney-client relationship; (2) negligence in the legal representation of the plaintiff; (3) that the negligence was a proximate cause of an injury; and (4) the fact and extent of the injury alleged.”  Simko v Blake, 448 Mich 648, 656 (1995).  After we review the elements in more detail, we will explain the procedure of litigating a malpractice case.

The Elements Explained:

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.

Litigation Procedure:

If all of the elements of a legal malpractice case can be proven, we proceed with the lawsuit.  First, we advise the attorney that we intend to file a legal malpractice case.  Many legal malpractice cases settle before suit is filed.  Again, most honorable attorneys want to do the right thing and make their clients whole.  

If we are not able to settle pre-suit, we initiate a lawsuit by filing a Complaint.  (Unlike some torts, like medical malpractice, there is no notice-waiting period in Michigan for legal malpractice cases.)

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The Complaint details the facts and allegations of malpractice.  The attorney, who is now the “defendant,” must answer the Complaint, generally within about month of being served.  Next, the parties usually conduct written discovery such as interrogatories (written questions), document production requests, and requests for admissions.  Next, depositions (testimony given under oath but not in court) of fact and expert witnesses will occur.  

Throughout the discovery period, and after, motions might be filed.  A motion is a request for an order from the Court that either requires a party to take action or makes a ruling on a legal issue. If the parties have not been able to settle the case during the discovery period, they might attend mediation, which is where a third party, the mediator, helps the sides reach a compromise.  If the case still hasn’t settled, it goes to trial.   

But that isn’t the end of the road.  After trial, the losing party can appeal.  Appeals generally take at least 18 months to run through the system.  After the Court of Appeals issues an opinion, the party that lost the appeal could ask the Supreme Court to review the case.  The Supreme Court rarely accepts cases.   

If you think your former attorney made a mistake, contact Hoffer & Sheremet by calling us at 616.278.0888,  sending us an email, or completing our free consultation form.  Our legal malpractice lawyers will analyze the underlying litigation to determine whether your attorney breached the standard of practice and if so, whether that breach caused an injury and finally, determine the value of that injury.  We will explain the law to you and guide you through every step of the litigation process.