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Tag Archives: malpractice

When Has a Lawyer Breached His or Her Legal Duty of Care?

By Robert Ross |

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?

By Robert Ross |

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 »

What is Legal Malpractice?

By Robert Ross |

WHAT IS “LEGAL MALPRACTICE”? The term “legal malpractice” refers to the professional negligence of an attorney within an attorney-client relationship. Less formally, “legal malpractice” occurs when an attorney acts negligently in the course of representing a client. It is a form of negligence, which is a tort (a “civil wrong”). Strictly speaking, legal malpractice is… Read More »

Legal Malpractice FAQ

By Robert Ross |

Here are some commonly-asked questions (and answers) about legal malpractice:*   Q: WHAT IS LEGAL MALPRACTICE? A: “legal malpractice” is the term for professional negligence committed by an lawyer. Less formally, “legal malpractice” occurs when a lawyer commits negligence in the course of representing a client.   Q: IS LEGAL MALPRACTICE A CRIME? A:… Read More »

The Special Duties Owed by Professionals

By Robert Ross |

CALIFORNIA LAW IMPOSES A SPECIAL DUTY OF CARE ON MANY PROFESSIONALS Generally speaking, people engaged in professional occupations in California must behave not only with the standard duty of care (that of acting like a reasonable person under the circumstances) but are held to the higher standard of a reasonable professional with the learning,… Read More »

Emotional Distress in Legal Malpractice Actions

By Robert Ross |

DAMAGES FOR EMOTIONAL DISTRESS ARE NOT TYPICALLY RECOVERABLE IN LEGAL MALPRACTICE ACTIONS. Generally speaking, plaintiffs in legal malpractice actions cannot recover damages for emotional distress resulting from the lawyer’s negligence (malpractice). However, damages for emotional distress may be available in legal malpractice actions where the client can prove: 1. The emotional distress was severe, and… Read More »

Why Are Lost Punitive Damages Not Awarded in Legal Malpractice Actions?

By Robert Ross |

PLAINTIFFS IN MALPRACTICE ACTIONS CANNOT GENERALLY RECOVER “LOST PUNITIVE DAMAGES” FROM NEGLIGENT COUNSEL. A client who fails to recover punitive damages in a legal action–even as a result of attorney negligence–generally cannot claim the “lost” punitive damages as part of the compensatory damages claimed in a legal malpractice action. While plaintiffs may consider these lost punitive damages… Read More »

Recoverable Damages in Legal Malpractice Actions

By Robert Ross |

WHAT DAMAGES CAN A CLIENT RECOVER AGAINST A NEGLIGENT LAWYER? Plaintiffs who successfully bring a legal malpractice action against a lawyer may recover damages sufficient to “make the client whole,” or — in the words of California Civil Code Section 3333: “The amount which will compensate for all the detriment proximately caused [by the wrongful… Read More »

When Has a Lawyer’s Negligence Damaged a Client?

By Robert Ross |

WITHOUT DAMAGES, A LEGAL MALPRACTICE ACTION CANNOT PREVAIL. Damages–meaning a legally recognizable harm or injury–is a mandatory element of a legal malpractice (professional negligence) action. This means that a plaintiff must be able to prove that the attorney’s breach of a legally recognized duty caused the plaintiff to suffer some harm or injury. Moreover,… Read More »

When Does a Lawyer’s Negligence Cause Clients Harm?

By Robert Ross |

The elements of attorney malpractice (professional negligence) include a breach of duty that causes legally recognized damages to a client (or, in some cases, an eligible non-client). In order to prevail on a claim for legal malpractice, and recover damages from a negligent lawyer, the plaintiff must prove all elements of the malpractice claim … including “causation.”… Read More »

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