Legal malpractice theory of liability
Legal malpractice is a broad term that covers various types of liability claims against lawyers for breach of obligations owed to lawyers to customers and sometimes to other persons cause damage. In particular, the conduct of a lawyer can break the professional quality of care, disciplinary rules, civil law and even criminal law. Such behavior can lead to money damages, loss of remuneration, disqualification and loss of license.
Lawyers indirectly represent clients they have the required skills, learning, and capacity necessary to practice law and will exercise reasonable and ordinary care and diligence in the application of skills and knowledge in representation of clients. Claims of negligence are by far the most common claims brought against lawyers. The traditional elements of the negligence claim are:
1. The defendant owes the plaintiff a duty to take care of
2. The defendant is in breach of the duty of care
3. violation of duty proximately caused the plaintiff’s injury; and
4. compensation for injuries.
Lawyers owe a general obligation to take care only to customers and not to third parties. The Texas Pattern Jury Charges defines professional negligence alleged “failure to use ordinary care, that is, not to do so, the attorney of ordinary prudence would have done under the same or similar circumstances, or to which a lawyer of ordinary prudence would not have done the same or similar conditions. “Proof of traditional treatment and violation where usually requires expert testimony lawyer.
Breach of fiduciary duty
Lawyers are fiduciaries, and as such owed to creditors should very loyal and are obliged to provide full and fair disclosure facts material to a Customer. Lawyers should require good faith and fair dealing with clients and all communications between lawyers and their clients will be entrusted with full integrity and loyalty of lawyers. Lawyers must put clients’ interests before the interests of lawyers or other persons, including other customers. Failure of the obligation of full disclosure is tantamount to concealment. Customers rightly rely on the integrity and fidelity to their lawyers.
The fiduciary duties of lawyers include avoiding impermissible conflict of interest, confidentiality and protection of customer assets, gives perfectly all the important information, following the instructions of the client, and not engage in negative activities to customers. When a client alleges that the lawyer has failed to fulfill, presumption of unfairness arises lawyer is proof of fiduciary duty was gone with perfect fairness, equity and equity.
Fraud consists of false representation of a material, which is known to be false or made recklessly without knowledge of its truth, made with the intent that the other party would respond to the presentation, the whatever the other party reasonably relies so suffer injury. Lawyers are responsible for any damage due to defrauding their own customers; lawyers may also be responsible for committing fraud with third parties. Fraud may also arise where the lawyer is required to disclose certain information and fails to do so, at the expense of the client.
Lawyers involved in a civil conspiracy may relate to customers and to third parties. A civil conspiracy consists of a mixture of two or more persons with a specific purpose to achieve the object or course of action that is unlawful purpose or a lawful purpose by unlawful means there has been one or more illegal, overt acts in furtherance of the object proximately resulting in damages. Thus, the lawyer may be liable for conspiracy to knowingly agree to rob a third person. Each co-Conspirator is legally responsible for all activities done by any co-conspirators in furtherance of the conspiracy
The Texas Deceptive Trade Practices -. Consumer Protection Act (DTPA) applies only to lawyers for liability claims not based on rendition of legal essence of which is to provide advice, judgment or opinion. The DTPA does to comment misleading or unconscionable action that can not be characterized as advice, judgment or opinion. Benefits of pursuing DTPa cause of action are somewhat lower standard for proving causation of damages and the possibility to achieve multiplicative damages and attorney fees.
Legal malpractice Remedies
A plaintiff negligence or breach of fiduciary duty legal malpractice action must prove a breach of duty on the part of the lawyer proximately caused the injury the plaintiff, resulting in damages. Not all acts of negligence or breach of fiduciary duty lawyers actually cause injury. For the second cause involves foreseeability and cause effectively. Foreseeability considering lawyer had anticipated risks for customers with negligent act. Cause in fact claiming that negligent act or omission to be a significant factor in causing injury without harm would not have occurred. Proof of causation in legal malpractice cases usually requires expert testimony counsel connect violation of obligation to damage caused thereby.
The Texas Jury pattern Fees defines proximate cause like this’ cause, in a natural and continuous sequence, produces an event, and without causing such an event had not taken place. In order to be a proximate cause , act or omission complained of must be such that the lawyer with ordinary care would have foreseen that the event or some similar event, might reasonably result. It may be more than one proximate cause of an event. “
The most common remedy sought by the customers from former lawyers recovery of damages caused by negligence or other violation of the duty of a lawyer. The traditional method of establishing damages when a lawyer represents a client negligence is proving “a matter within the clothes.” The plaintiff must prove that but for the negligence of the plaintiff’s attorney had reached a verdict in the original case, the amount of the judgment, and that such a case had been collected. In the case where the lawyer malpracticed case the defendant, the client must prove that the negligence attorney, the client would have prevailed in the meritorious defense. The “case within a case” of proof, however, may not require a violation of fiduciary duty and DTPA cases.
In other legal malpractice cases where the underlying litigation, the traditional rules on compensation provide that customer can recover All foreseeable damage caused by wrongful acts or omissions of the lawyer. And exemplary damages may be recoverable for lawyer fraud or other wrongful acts committed with malice.
lawyer take a clear and serious violation of duty to the client may have to lose some or all compensation lawyer in the case, even if the customer suffered no real damage to the power of such violations. Typically, the charge loss cases premised on allegations that the lawyer committed a serious breach of fiduciary duty or fraud. The examination fee loss case, the jury will consider whether a lawyer has committed a violation is required, and the trial judge will determine whether such a breach is a clear and serious, and if so, the amount of the fee to expire.