An Analysis of Professional Malpractice
| Publication year | 1983 |
| Pages | 917 |
| Citation | Vol. 12 No. 6 Pg. 917 |
1983, June, Pg. 917. An Analysis of Professional Malpractice
Our society has become quite litigation-conscious. Although civil actions are not necessarily filed for every professional error or for every negligent act, almost all legal commentators agree that the frequency of legal malpractice suits has been increasing with great alarm in the past decade. One estimate suggests that there are seven claims for every 100 lawyers and a major insurer indicates that there has been a 10 percent increase in the number of claims each year since 1970.
While good rapport which is developed between attorneys and clients will not prevent malpractice, it certainly can assist in preventing malpractice claims. As one court observed: "We do not suggest that either side is without sin in the matter; if there had been a greater degree of communication between lawyer and client, or clients, this matter may never have resulted in litigation."(fn1)
Reasons for increased malpractice litigation may include the following:
1. Consumer awareness---malpractice among attorneys exists and attorneys may well have a "deep pocket" of malpractice insurance which could be a potential source of conflict in damages.
2. There may be publicity about malpractice suits which makes the public "malpractice conscious."
3. The legal profession is changing in that attorneys may become less reluctant to testify for a plaintiff in a malpractice action, as well as to represent a plaintiff in such an action.
4. There has been increasing judicial acknowledgment of incompetence and misconduct, such as new theories of recovery, expanded statutes of limitation and the requirement of privity for third-party actions.
5. Trial attorneys are faced with one party winning and the other losing, with the losing party attributing the loss to the attorney.
6. The current influx of attorneys into private practice from new and non-accredited law schools.
7. Probably most important is the lack of attention to good interpersonal relations between attorney and client with less warm, human contact.
A frequent cause of professional negligence is thus often created out of carelessness in handling attorney-client relationships. For example, one-third of the public surveyed by the American Bar Association ("ABA") in 1973-1974 believed lawyers failed to discover and respond to clients' true concerns. Therefore, if a case had been competently and expeditiously handled, inadequate communication frequently created the opposite impression.
Most clients will form their expectations regarding the results of a legal transaction based upon the advice given to them by their attorney. If a client's hopes are raised high enough, the best the attorney can do is to meet the expectations. Adjusting the client's expectations requires not only proper evaluation of the matter, but also the exercise of care in the manner in which the client is apprised of possible results.
Promises and representations made to a client may lay the foundation for a cause of breach of contract or warranty. In no event should a client be left with an understanding that he will be guaranteed success in his endeavor. If the client is left with this impression and success is not forthcoming, the resulting frustration may well form the basis of a complaint. Just as the surgeon does not guarantee the outcome of an operation, an attorney should not guarantee the outcome of a particular lawsuit. Often, the seeds of professional negligence, whether medical or legal, are sown through lack of communication or un-attained expectations.
Good attorney-client relations extend to such routine matters as returning telephone calls, answering letters promptly and forwarding copies of pleadings, briefs and pertinent memoranda to the client. Any prejudicial action should not be undertaken without the client's knowledge and consent. Fee disputes may be averted by timely and accurate billings which reflect the attorney's good bookkeeping methods. A "tickler file" by calendar date will avoid missed deadlines and court appearances. A well-kept appointment book will likewise prevent a busy attorney from overlooking any of his clients' many needs.
The elements of a cause of professional negligence have been cited in Budd v. Nixen:(fn2)
1. The duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise;
2. a breach of that duty;
3. a proximate causal connection between the negligent conduct and the resulting injury; and
An analysis of each of these points can aid in the understanding of professional negligence, whether of a medical or legal nature.4. actual loss or damage resulting from a professional's negligence.
The Duty
The duty of a professional to use the skill, prudence, and diligence as measured by members of the profession commonly possess and exercise has been set out in Lucas v. Hamm,(fn3) wherein the court states:
The general rule with respect to liability of an attorney for failure to properly perform his duties to his client is that the attorney, by accepting employment to give legal advice or to render other legal services, impliedly agrees to use such skill, prudence and diligence as lawyers of ordinary skill...
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