Legal Malpractice: a Brief History in Time
| Publication year | 1997 |
| Pages | 157 |
1997, June, Pg. 157. Legal Malpractice: A Brief History in Time
Vol. 26, No. 6, Pg. 157
The Colorado Lawyer
June 1997
Vol. 26, No. 6 [Page 157]
June 1997
Vol. 26, No. 6 [Page 157]
Specialty Law Columns
Legal Malpractice Forum
Legal Malpractice: A Brief History in Time
by A. Craig Fleishman
Legal Malpractice Forum
Legal Malpractice: A Brief History in Time
by A. Craig Fleishman
Column Ed.: A. Craig Fleishman of Gelt, Fleishman &
Sterling, P.C., Denver - (303) 861-1000
This month's article was written by column editor A
Craig Fleishman
Column Editor's Note:
This article is the final contribution to the Legal
Malpractice Forum column.1 The first article appeared in
September 1979. After almost eighteen years as a column
editor, it seemed to be time to graciously receive the
"gold" plaque and ride off into the sunset. Being a
column editor for such a dynamic, challenging, and important
area of the law has been an incredibly stimulating and
rewarding experience. I would like to thank The Colorado
Lawyer's Board of Editors, and especially its managing
editor, Arlene Abady, for their support and friendship over
the years. The Colorado Lawyer has consistently been one of
the finest bar publications in America and serves its
readership well from an informational and educational
standpoint.
The Colorado Bar Association has seen its insurance coverage
evolve over the years in response to various imagined or
actual legal malpractice insurance availability and premium
crises. Beginning in the mid-1970s and continuing through the
1980s, the CBA switched its bar-sponsored carriers several
times in an effort to expand coverage and keep premiums low
for its members. Currently, the bar-endorsed carrier is
Coregis.
The number and severity of legal malpractice claims have
continued to increase linearly since the 1970s, as has the
cost of insurance. Policies have generally become more
restrictive as exclusions have multiplied. Coverage on an
occurrence basis has become nonexistent as carriers have
adopted a claims made approach to coverage determination.
Many policies now have "wasting" features wherein
the coverage amounts are reduced by defense costs, placing
some insureds in peril of ultimately having little or no
coverage by the conclusion of a litigation matter involving
substantial legal fees and expense.
Plaintiffs' personal injury attorneys still account for
approximately 25 percent of legal malpractice cases as far as
frequency of losses is concerned, and comprise 35 percent of
the most severe payouts. Another significant area of
frequency of losses and severity of losses is the field of
domestic relations, which accounts for 17.7 percent of loss
frequency and 9.7 percent of severity of loss.
As creative attorneys assert more imaginative claims against
other attorneys, as the appellate courts expand the duties of
attorneys to clients and nonclients, and as jurors continue
to pass judgment on lawyers who collectively have a terrible
public image, it is reasonable to presume that legal
malpractice insurance premiums will continue to escalate,
grievances filed against attorneys will continue to
proliferate, and the number of claims and the magnitude of
the settlements and judgments related to those claims will
most assuredly continue to increase in intensity and scope.
Basic Concepts
Before reviewing evolutionary and current law concerning
legal malpractice claims, readers must first understand the
basic precepts under which an attorney's negligence or
breach of contract or of fiduciary duty may lead to his or
her culpability to an individual or entity. Colorado common
law has required that there be an attorney-client
relationship before an individual could successfully sue his
or her attorney for legal malpractice.2 To prevail in a legal
malpractice claim against an attorney or law firm, it is
incumbent on the plaintiff to demonstrate that (1) a duty of
care was breached by the attorney to his or her client, and
(2) as a direct and proximate result of such breach, the
plaintiff suffered damages.3 The plaintiff cannot recover
from the lawyer what was not recoverable from the defendant
in the underlying action.4
The duty owed by an attorney to his or her client is to
employ that degree of knowledge, skill, and judgment
ordinarily possessed by a member of the legal profession at
the time the task is undertaken.5 The existence of an
attorney-client relationship is one founded on contract,
which contractual relationship may be implied from the
conduct of the parties.6
Business Transactions With Clients
The seminal cases defining the nature of an attorney's
duties involving business transactions with clients date from
the last century: Rogers v. Marshall7 and Rogers v. R.E. Lee
Mining Co.8 It is axiomatic that before an attorney gets
involved in a business transaction with a client, the
attorney should make full disclosure concerning potential
conflicts, as well as all information available to him or her
bearing on the potential transaction. Further, the attorney
should adhere to the following guidelines:
1) -the attorney must show that he or she has done as much to
protect the client's interest as the attorney would have
done in the case of a client dealing with a stranger;
2) -the names of all copurchasers must be disclosed to the
client if a purchase is involved in the...
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