Tag Archives: legal malpractice
Do Lawyers Have to Obey the Law?
LAWYERS HAVE A LEGAL AND ETHICAL DUTY TO OBEY THE LAW As a general rule, everyone has a duty to obey the law (with the caveat that civil disobedience is a lengthy topic for a different day) – including lawyers. Despite the old joke that asks “How can you tell when lawyers are lying?”… Read More »
When Does a Lawyer Have a Conflict of Interest?
As we discussed in a previous post, a conflict of interest exists when a lawyer’s duty to a client would require the lawyer to take action that is contrary to or would prejudice to the interests of the lawyer, another client, or someone else to whom the lawyer owes a specific type of legal duty…. Read More »
What is a Legal Conflict of Interest?
WHAT IS A CONFLICT OF INTEREST? In the context of lawyers and legal relationships, a conflict of interest exists when a lawyer’s duty to a client would require the lawyer to take action that is contrary to or would prejudice to the interests of the lawyer, another client, or someone else to whom the… Read More »
Can You Hire A Lawyer Without a Written Agreement?
In some cases, Yes – but the answer isn’t quite that simple: ATTORNEY CLIENT RELATIONSHIPS CAN BE CREATED BY IMPLIED AGREEMENT An implied agreement is a legally-recognized contract that arises even when no written agreement exists, if the parties’ actions demonstrate that they intended (or, in some cases, believed) they had an agreement. Sometimes… Read More »
When You Hire a Lawyer, You Hire the Firm
WHO IS MY LAWYER? When a client retains (hires) a lawyer, the attorney-client relationship covers not only that lawyer, but every member of that lawyer’s firm. This means every lawyer at a firm has a separate ethical duty to protect the client’s interests. In fact, the ethics code requires every lawyer in a firm… Read More »
Is My Lawyer My Employee?
WHAT IS THE LEGAL RELATIONSHIP BETWEEN A LAWYER AND A CLIENT? The attorney-client relationship is a contractual, fiduciary relationship, but the lawyer is not the client’s “employee.” Instead, the lawyer generally is an independent contractor who provides services to the client on the basis of either an express or (rarely) implied contract. Although a lawyer agrees… Read More »
The Importance of Causation in Legal Malpractice
CAUSATION IS ONE OF THE ELEMENTS OF A LEGAL MALPRACTICE CLAIM The elements of a prima facie claim for legal malpractice are: — the existence of a duty; — the breach of that duty; — damages (suffered by the claimant); and — causation (specifically, the breach of the relevant duty must be the cause of… Read More »
When Has a Lawyer Breached His or Her Legal Duty of Care?
HOW DOES BREACH OF DUTY RELATE TO LEGAL MALPRACTICE? Legal malpractice (also called professional negligence) involves a lawyer’s breach (violation) of a legally mandated duty of care. Specifically, a breach of the professional standard of care that is applicable to the relevant situation. When evaluating a lawyer’s potential breach of duty, the issue is whether the… Read More »
Who Can Sue a Lawyer for Malpractice?
GENERALLY, ONLY CLIENTS CAN SUE A LAWYER FOR MALPRACTICE In California, the general rule is that privity of contract (i.e., a contractual relationship) is a required element of standing to bring a malpractice claim. Put another way, only clients (generally, former clients) can usually bring malpractice claims against lawyers in California. The necessary privity of… Read More »
Understanding the Scope of Representation
WHAT IS THE “SCOPE OF REPRESENTATION”? The phrase “scope of representation” refers to the boundaries of the attorney-client relationship. More specifically, the “scope of representation” is the set of matters for which the attorney has agreed to represent the client. In most cases, an attorney’s representation of a client is limited in scope, and… Read More »
