Author Archives: Robert Ross
When Are Lawyers Responsible for Other Lawyers’ Malpractice?
As a general rule, lawyers are responsible for their own professional negligence (malpractice) but not for the acts of others. From a policy standpoint, this makes sense: a lawyer should be liable only for his or her own conduct, or for the conduct of those (s)he supervises. However, there are some circumstances in which… Read More »
Attorney Liability for Misrepresentations and “Lies” (Part 2)
ATTORNEYS CAN BE HELD LIABLE FOR KNOWINGLY TELLING LIES. If a lawyer makes an intentional and material misrepresentation of facts in the course of negotiations, parties who relied upon the attorney’s “lies” may be able to bring a claim against the lawyer for legal malpractice. The elements of a claim against an attorney for material… Read More »
The Attorney’s Liability for Misrepresentations and “Lies” (Part 1)
An old joke about attorneys asks, “How can you tell when a lawyer is lying?” The answer: His lips are moving. Obviously, lawyers don’t always lie. In fact, most of the time they tell the truth–the code of ethics and the professional requirements of holding a Bar license require both honesty and zealous representation of a… Read More »
When Does a Lawyer Owe a Duty of Care to Non-Clients?
GENERALLY, ATTORNEYS OWE NO PROFESSIONAL DUTY TO NON-CLIENTS. The general rule in California (and elsewhere) is that while attorneys owe a professional duty to their clients, and may be held legally liable for a breach of that duty, attorneys owe no such duty to people and entities they do not represent. Since duty is a mandatory… Read More »
Defenses to Malicious Prosecution: Advice of Counsel
Reliance on the Advice of Legal Counsel is an Affirmative Defense to Malicious Prosecution Claims. “Reliance on the advice of counsel” is one of several affirmative defenses available to the defendant in a malicious prosecution action. While substantive defenses attempt to prove the defendant’s innocence of the charges,affirmativedefenses invoke the existence of other facts which excuse a… Read More »
“Judgmental Immunity” in Legal Malpractice
WHAT IS THE JUDGMENTAL IMMUNITY DEFENSE ? The “judgmental immunity doctrine” protects attorneys from liability for legal malpractice in many cases involving unsettled points of law. Courts do not expect, or require, lawyers to predict how a court will settle or resolve an unsettled issue or point of law. As a result, if a lawyer makes… Read More »
The High Cost of Legal Malpractice Lawsuits
How Much Does a Legal Malpractice Lawsuit Cost? It’s impossible to answer this question precisely, because the cost of pursuing a claim for legal malpractice (professional negligence) varies on a case by case basis. If the plaintiff/claimant has clear, documented evidence of an attorney’s professional negligence, the costs of a lawsuit are generally lower–or may… Read More »
Evaluating the Existence of an Attorney-Client Relationship
When evaluating a lawyer’s potential liability for professional misconduct (or malpractice) one of the threshold questions involves the existence of an attorney-client relationship. While attorneys may occasionally incur malpractice liability in cases where no attorney-client relationship existed, these are exceptions. As a rule, the attorney owes a duty of professional competence to clients, and almost all… Read More »
“Unclean Hands” as a Defense to Malicious Prosecution
What is the “Unclean Hands” Defense? “Unclean hands” belongs to the group of legal defenses known as “affirmative defenses.” Affirmative defenses are, as the name suggests, a type of defense in which the defendant claims that some other fact (or set of facts)–normally different from the facts at issue in the case itself–defeat or mitigate the… Read More »
Statutes of Limitations on Malicious Prosecution Actions
What is a Statute of Limitations? A “statute of limitations” is a law (a “statute”) describing the length of time a plaintiff has to bring a lawsuit or claim. After the end of the period named in the statute, the plaintiff’s claim is “barred” and normally the plaintiff loses the right to sue and recover… Read More »
