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Defenses to Malpractice Claims (part 1)

When a plaintiff claims a lawyer’s actions constitute malpractice, the defendant attorney has the right to assert certain legally-recognized defenses. If proven, these defenses may provide partial or complete justification for the attorney’s actions and/or reduce the amount of damages available to the plaintiff if the malpractice claim prevails. This week, we’ll take a look at some of these defenses and their potential impact on a legal malpractice claim.

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1. Reasonable Exercise of Judgment. The attorney may claim that the allegedly wrongful conduct was actually a reasonable exercise of professional judgment, rather than a wrongful or negligent act or omission giving rise to a malpractice claim. If proven, this may rebut the plaintiff’s case in chief and result in a ruling in the attorney’s favor.

2. Reasonable Mistake of Law. Under certain circumstances, particularly when the law in an area is unsettled or where reasonable interpretations of the ruling law exist, a “reasonable mistake” in interpretation of the law may reduce or otherwise impact an attorney’s liability for malpractice. However, not all mistakes are reasonable. The determination must be made based on the facts and circumstances of the case at issue.

3. Perjury by the Client. A client who relies on a lawyer’s advice to commit perjury, and does in fact commit perjury on the advice of counsel, cannot generally recover malpractice damages against the lawyer for damages arising from the perjury. This is because clients should know that perjury is illegal, and a client cannot generally recover damages from a lawyer as a result of engaging in conduct which the client knew (or should have known) was illegal.

4. Client Negligence. In California, a plaintiff’s “contributory negligence” may offset, reduce, or even bar recovery against a negligent attorney. Contributory negligence is not a complete defense to legal malpractice, but may reduce the client’s damages in proportion to the plaintiff’s own negligence. Examples of negligent client actions may include acting against the advice of counsel, not reading documents before signing them, withholding relevant information from the attorney, and failing to perform important tasks which the client must perform in order to reasonably assist in prosecution of the client’s case or issue.  However, clients who rely on the lawyer’s advice, or act as instructed by an attorney, cannot generally be held negligent for doing so.

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Disclaimer: Legal malpractice is a complicated topic, and articles like this touch only on basic issues. The details of a legal malpractice claim, and the applicable defenses, are individualized, fact-specific, and complicated.  THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE. Your rights and experiences may vary.  Never use an article (or any online source) to evaluate your legal claims. Always speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. 




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