Our society is based upon certain rules we have to obey and live by. One of these rules is that, in going about the things we do in our daily lives, we must take care not to injure other people and their property. Thus, the law imposes as duty upon us to act reasonably in certain defined situations. There are many forms of these duties. Examples of these duties are: (1) when driving an automobile, we have a duty to operate it in a reasonable and careful manner so as not to injure other people and property; (2) we need to keep our homes and business premises free from dangerous conditions so that other people are not injured. The failure to fulfill these duties to others is called "negligence." The law provides a remedy for people who are injured by the negligence of others - the civil lawsuit. Generally speaking, in order to prove a case of negligence in a civil court, the plaintiff must prove four elements: (1) duty; (2) breach of duty; (3) proximate cause; (4) damages
A lawyer is considered to have a fiduciary relationship to his or her client, which is a duty greater than the ordinary duty of reasonable care. This fiduciary duty to the client is formed upon the formation of the attorney-relationship. The only practical way for a lawyer to demonstrate he or she did not owe a duty to a person claiming to be a client is to establish that the other person was never a client or that the lawyer's actions which are claimed to have been negligent occurred before or after the existence of the attorney-client relationship. Many cases of attorney negligence have been won or lost on factual disputes of this nature.
BREACH OF DUTY
In professional negligence cases, including attorney negligence, the law uses a concept known as "the standard of practice" to determine whether there was a breach of duty. The concept creates an imaginary line along the spectrum of professional practice within the profession under examination. If the professional's conduct falls above this standard of practice imaginary line, it is deemed to have not been negligent. If the professional's conduct falls below this imaginary standard of practice line, the professional is deemed to have been negligent and may be liable to any person injured by his or her negligence. A great deal of the disputes between the experts on both sides of a professional negligence case involve whether or not the professional's actions and conduct fell above or below this standard of practice concept.
BREACH OF DUTY - Standard of Practice
The standard of practice concept is not a rigid one and can be affected by many factors. For example, if a professional is a certified expert or specialist in his or her field, the professional will be held to a higher standard that another person in the same profession who has a more general practice. In the context of an attorney negligence case, a lawyer who is certified as a specialist by the state bar of his or her particular state will be held to a higher duty and standard of practice than will a lawyer with a general practice. The lawyer's age, experience, education and whether he or she works in a large firm, small firm or as a solo practitioner will also be considered. Finally, the lawyer's geographic location is taken into account because the standard of practice to be applied is the one for the "community" in which the lawyer practices. So a lawyer practicing in San Francisco will likely be held to a higher standard than a lawyer practicing in a rural area.
To prove a case of professional negligence against an attorney, the plaintiff must not only prove the existence of a duty and the breach of that duty (i.e., the lawyer's conduct fell below the standard of practice), the plaintiff must also show that the lawyer's conduct was the proximate (or direct) cause of the plaintiff's damages. Proximate cause is a difficult concept for non-lawyers to grasp. Not every act which falls below the standard of practice is necessarily the proximate cause of the plaintiff's damage. For example, if a client hires a lawyer to file a lawsuit, then stops communicating with the lawyer and hires another lawyer to file the same lawsuit, the fact that the first lawyer fails to file the lawsuit on time may not be the proximate cause of the plaintiff's damage because the other - more recent lawyer - also failed to file the same case. Proximate cause issues do not often arise in legal negligence cases, but they do appear in some of them.
The last element a plaintiff must prove is that he or she was damaged as the result of the lawyer's negligence. This is another area of frequent conflict in lawyer negligence cases. It is ironic that, in defending some attorney negligence cases, the accused lawyer takes up the position of his client's former adverse party. For example, a lawyer defending a negligence case accusing him of failing to file a lawsuit within the time allowed by the applicable statute of limitations will likely argue that, even admitting the late filing of the complaint, the client suffered no damages because the underlying lawsuit was without merit and would have been lost anyway, producing zero damages. This is the "case within a case" scenario, where the plaintiff must prove he or she would have won the first case in order to win the second one. In those situations, the lawyer must explain why he or she thought the case had enough merit to take it in the first instance and now has changed their mind.
ETHICS AND NEGLIGENCE
It is important to note that a lawyer's violation of ethical rules may not necessarily be evidence of negligence and vice versa. Ethical violations are enforced by the state bar of the state in which the lawyer practices, not by a court. Conversely, a state bar does not usually have the power to award damages to a client who has accused his lawyer of negligence; that belongs to the courts in the jurisdiction in which the negligence or damages occurred.
Negligence claims against lawyers are one form of negligence cases. Because of their complexity and expense (the cost of expert witnesses) negligence claims against lawyers are often difficult prove. However, in the case of obvious errors (missed statute of limitations or failure to appear for trial), such cases can be justified and won.