Attorneys = Liability
By law, an attorney acts as a fiduciary on the behalf of his clients. A fiduciary is a trusted person who is empowered to act on the behalf of another. An attorney is empowered and trusted to handle the legal matters of their clients. Given the power entrusted to an attorney, an attorney owes fiduciary duties to her clients. Such fiduciary duties are: (1) duty of care; (2) duty of utmost loyalty; (3) duty of good faith; and (4) duty of full disclosure.
A. Duty of Care.
Given an attorney=s duty of care owed to her clients, an attorney must use reasonable care when she does legal work for her clients. An attorney uses reasonable care when his legal services are equal to what a reasonable attorney would have done in the legal community that he practices law.
Where an attorney has not used reasonable care in doing legal work for a client causing harm to her client, then the client has the right to recover damages from the attorney. Clear examples where an attorney has not used reasonable care is when an attorney misses a deadline causing the client to lose a legal right or to lose a portion of the value of a legal right such as when an attorney does not file a lawsuit on time, does not answer a lawsuit on time or does not diligently prepare a case for trial. More complicated examples are when an attorney does not exercise reasonable judgment and skill such as when an attorney does not draft a contract accurately, gives legal advice without having enough knowledge of the law or bills a client attorneys fees for mistakes.
B. Duty of Utmost Loyalty
The duty of utmost loyal requires an attorney to protect and advance his client=s legal rights. An attorney cannot protect and advance the legal rights of another person (who is not her client) causing harm to her client=s rights. A potential problem involving a breach of an attorney=s duty of utmost loyalty owed to his client is commonly called a conflict of interest.
Where an attorney has protected and advanced the legal rights of another person causing harm to his client, the client can recover damages from the attorney. Examples of conflicts of interest are when an attorney represents two parties in a lawsuit, two parties negotiating a contract or representing a client in a business deal with the attorney. Certain conflicts of interest can be waived by the clients. Any waiver of a conflict of interest should be fully discussed between the attorney and the client.
C. Duty of Good Faith
An attorney is required do legal work for his client with the intent to protect and advance his client=s legal rights. Where an attorney is doing legal work without such intent, then the attorney is not acting in good faith.
Where an attorney did not possess the required intent to protect and advance his client=s legal rights causing harm to his client, then the client can recover damages against the attorney. Examples of lack of good faith are when an attorney bills his client for work he did not do or the attorney chooses to add unnecessary work to increase the fees paid by the client to the attorney.
D. Duty of Full Disclosure
An attorney is required to fully disclose to her client all of the facts, the law and her analysis of the client=s legal rights so that the client can make informed decisions about the client=s legal matters.
Where an attorney has not fully disclosed all of the facts, the law and her analysis causing harm to the client, the client can recover damages from the attorney. Examples of lack of full disclosure are when an attorney does not disclose conflicts of interest, risks involved in partnership, contract or other course of action, the cost of proceeding with a lawsuit or risks of either settling a lawsuit or not settling a lawsuit.
What I have set forth above is just a very simple outline of the law concerning liability of attorneys. A word of caution, disappointed clients should not automatically accuse their attorneys of legal malpractice. Attorneys do not have crystal balls and are not gods, thus, they cannot tell you how a jury will decide or what will happen with a contract or partnership (they can only advise of the risks). Any legal malpractice case has to be examined in detail by an attorney before any accusations of legal malpractice are ever made much less a claim for legal malpractice against an attorney.
By: Glenn K. Sato 8/6/97
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