Emotional Distress in Legal Malpractice Claims?

Emotional distress is not uncommon in malpractice cases. We have blogged before about jurisdictions that have expressly permitted the recovery of such damages, while other jurisdictions don’t have any law addressing this potential area of recovery.  In the past year a few states have addressed this issue and the decisions are worth noting.

Last year, the Washington Supreme Court issued a decision that opened the door for potential emotional distress damages in a legal malpractice action.  In Schmidt v. Coogan, the malpractice claim was …

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Dangers of Providing Advice Outside of Your Expertise

Today’s lesson: stick with what you know. Clients may ask their commercial litigator for an assist with their cousin’s DUI.  An estate attorney may feel inclined to advise a longstanding client about a trademark application. It is not uncommon for clients to seek input from their attorneys irrespective of whether the advice falls well outside of the attorney’s area of expertise.  As a recent New Jersey case illustrates, the attorney’s best bet may be to refer the client elsewhere.

In the subject case, a …

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Use of Ethics Investigation in Legal Malpractice Suit

Ethics violations and legal malpractice are two distinct realms that often intersect.  There are often unsettled lines between professional responsibility and professional liability and, accordingly, between attorney disciplinary systems and the civil justice system.  Clients expect and deserve accountability, not only for professional negligence but also for their attorneys’ conduct.  So what happens when a client initiates an ethics investigation, but also initiates a legal malpractice action?  Can information from the former come into play in the latter?

A current New Jersey case is exploring …

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Malpractice Suit Dismissed due to Speculative Damages

A threshold requirement for any legal malpractice claim is proof of actual harm. A party bringing a legal malpractice action has the burden of proving that but for the alleged negligence, he would have been successful in the underlying matter. Plaintiff’s failure to prove actual harm is often a defense in malpractice cases and in some situations can result in a complete dismissal. Take for example, the following case in which a Pennsylvania federal judge granted defendant attorneys’ motion for judgment on the pleadings where …

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Court Clarifies Anti-SLAPP Defense in Malpractice Claims

Strategic Lawsuits Against Public Participation, or SLAPPs, are designed to chill free speech by targeting individuals who speak out on issues of public interest. SLAPP plaintiffs generally do not intend to win on the merits of the lawsuit, but instead seek to harass critics by forcing them to incur legal fees in defending frivolous claims.  Consequently, many states have enacted anti-SLAPP statutes to protect petition and free speech rights.  These statutes protect statements made before a government body or in a public forum in …

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Malpractice Claim Barred due to Mediation Confidentiality

Many litigants want their day in court; however, the vast majority of cases never make it to trial.  Facing heavy dockets, courts are increasingly encouraging parties to resolve claims through ADR methods, like mediation.  In order to foster successful mediation, several states have enacted mediation confidentiality statutes, which prevent mediation discussions from being admitted into court if the mediation is unsuccessful.  While the purpose of these statutes is to encourage parties to speak openly with the mediator, confidentiality may have unforeseen consequences on the …

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Read It & Weep: Missed Deadline Leads to Significant Consequences

Your friends at PL Matters aim to keep you updated regarding best practices, especially when it comes to professional obligations.  However, sometimes best practices just boil down to the basics, including careful reading of court directives.  AT&T recently learned this lesson the hard way. Last week, an appeals court ruled that the telecom giant will have to pay $40 million in connection with a case because its attorneys failed to read a court document.

This disaster arose when AT&T missed a deadline to appeal a …

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Does Privity Matter? Yup, According to a Recent Dismissal

Attorneys may be prepared for, or at the very least are aware of the risk of, claims raised by current or former clients. Generally, the first element in any malpractice claim is the existence of an attorney-client relationship.   The Restatement (Third) of the Law Governing Lawyers provides that an attorney-client relationship arises when, “a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; or …

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Unintended Waiver: the “At-Issue” Exception to the AC Privilege

The attorney-client privilege, the oldest of the common law evidentiary privileges, seeks to encourage thorough and truthful communication between attorney and client.  Attorneys know, however, that the privilege is not absolute.  One such exception is known as the “at issue” exception, a form of implied waiver of the attorney-client and work product privileges.  This form of waiver is unique because it is one which the parties, by commencing litigation that may implicate legal advice, bring on themselves. Let’s take a closer look at this often …

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Play the Hand You’re Dealt

Professionals must play the hand they’re dealt. We can’t pull an ace from our sleeve. We can’t change the facts or the witnesses or the evidence. Many attorneys welcome the challenge of overcoming obstacles within the confines of the ethical code, which can make for a more satisfying result. (Moreover, there is a certain pressure in handling the slam-dunk case because a win is expected and a loss could be unforgivable). Unfortunately, however, some attorneys opt to break the rules when confronted with difficulty. Consider …

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