Legal Malpractice in Kansas: Principles and Examples

Publication year2003
CitationVol. 72 No. 10 Pg. 14-29
Kansas Bar Journals
Volume 72.

72 J. Kan. Bar Assn. 10, 14-29 (2003). Legal Malpractice in Kansas: Principles and Examples

Kansas Bar Journal
72 J. Kan. Bar Assn. 10, 14-29 (2003)

Legal Malpractice in Kansas: Principles and Examples

By Monte Vines

I. Introduction

Among the reasons lawyers choose to engage in the practice of law as a profession, surely the desire to help people and their organizations is found at or near the top of our lists. We also practice law because it can be personally satisfying and can provide well for ourselves and our families. These reasons explain why becoming the subject of a malpractice claim can be a very difficult experience for a lawyer. Rather than having helped a client, a malpractice claim alleges that the lawyer has injured someone. Rather than the feeling of satisfaction that comes with the completion of a difficult job done well, the lawyer may feel inadequate, upset, frustrated, or angry. And concern over the potential costs of the claim, both in money and time, even if the lawyer is insured, can be a heavy burden.

The practice of law is difficult, both substantively and practically. It is inevitable that mistakes will be made, even by dedicated and accomplished lawyers. It is also inevitable that meritless claims of malpractice will be asserted against lawyers. In other words, malpractice claims are a fact of life in our legal profession. It has been estimated on a national basis that new lawyers face an average of three malpractice claims during the course of their legal careers.[1] That figure is probably less for Kansas lawyers, but the real potential for malpractice claims is inherent in the practice of law even in Kansas.

The more we know about what malpractice is, how claims have arisen in the past, and the legal principles governing the resolution of these claims, the better we can serve our clients and avoid malpractice claims. Kansas lawyers have a long history of collegiality and professionalism that has allowed us to learn from one another - both from our successes and our mistakes. Sometimes our mistakes teach us more than our successes.

This article will summarize some of the ways malpractice claims can arise and the legal principles governing a lawyer's duties to both clients and to third parties. It will also present several examples of situations in which malpractice claims arose. Some of these examples are taken from published cases, mostly in Kansas. Several are claims which were resolved without a trial or appellate opinion. Except for the examples from published opinions, the situations are presented without naming the lawyers involved. But, each of these "anonymous" examples is presented with the approval of the lawyer. These lawyers are continuing the Kansas tradition of sharing experiences for the benefit of our clients as well as our profession.

Different legal principles govern lawyers' duties to clients than our duties to third parties, so they will be discussed separately. Related matters, such as damages considerations, vicarious liability, and statute of limitations matters will also be discussed. Finally, this article uses the term "legal malpractice" in its broadest sense to include any mistake, wrongdoing, or violation of a duty or a statute by a lawyer, in that capacity, to either clients or third parties.

II. Liability to Clients

The essence of what lawyers are hired to do is to protect the rights of clients. It is therefore appropriate that lawyers are governed by high standards in representing clients.

A. Contract

Lawyers can be liable to clients for breach of contract. The lawyer-client relationship itself is usually based upon contract, whether written or oral, express or implied. Many contracts to provide legal services to clients are not specific enough to be the basis for a breach of contract claim when a mistake is made by the lawyer. If the lawyer agrees with the client to do a specific thing, such as file an appeal, but fails to do it, the lawyer has breached the contract and is liable for the breach.[2] In contrast, if the claim looks beyond the contractual obligations to legal duties imposed by law upon the relationship created by the contract, such as the duty to act with care, then the claim is one only in tort.[3]

B. Negligence

1. The standard of care

Negligence in the performance of legal services to a client is the classic malpractice situation. The law imposes upon lawyers a duty of care toward their clients. Lawyers are obligated to their clients to use reasonable and ordinary care and diligence in the handling of matters undertaken for clients; to use their best judgment; and to exercise that degree of learning, skill, and experience that is ordinarily possessed by other lawyers in the community.[4] Furthermore, lawyers are judged by the professional standards of the particular area of the law in which they practice.[5] These are challenging standards.

Almost by definition, a lawyer is considered to be involved in the area of practice that includes the matter undertaken, even if that is not the lawyer's usual area of practice. This should be a strong incentive for lawyers to stay within their areas of practice, unless they are willing to get themselves up to speed on issues outside their areas of expertise or they are willing to associate with a lawyer in that area.

Restricting a law practice to areas of existing expertise can be difficult to accomplish, for the law is "a seamless web" and issues outside a lawyer's usual areas of practice often arise unexpectedly in the middle of a representation. An example is a lawyer with many years of expertise in estate planning and probate and trust administration who was asked to advise trustees about their rights and obligations under a complicated trust agreement. The trust agreement included options to split the trust and give powers of appointment to minimize the possibility of a generation skipping tax in the future. This can be a technical and arcane matter, so although the lawyer thought he knew how the law would apply to this particular situation, he consulted with an estate tax specialist to ensure the clients were properly advised on that issue. But what if he had advised them to the best of his ability, on the basis of his own experience and legal research, and had advised them incorrectly? The issue is whether the relevant area of practice is the general field of estate planning and probate and trust administration or if it is the narrow field of estate tax.

In general, lawyers can be held to know the limit of their expertise.[6] When lawyers find themselves in uncertain territory they should either research the issue until comfortable with it, consult a specialist, or decline the representation. There are rare examples where a court found the lawyer's incorrect advice did not fall below the standard of care - as with the Rule Against Perpetuities.[7] That rule was found to be so difficult that even careful and competent lawyers occasionally fall prey to its traps. But we have become a more specialized and connected profession, and the expertise is available to get it right, even if it can be found only outside a lawyer's own city.

2. Matters of legal judgment

While there is much certainty in the practice of law, there is also much that is less than certain. It is both a science and an art. Where there is certainty, as with settled principles of law, lawyers are generally held to know or discover the correct answer and advise or act accordingly. Unsettled or debatable legal principles, however, are matters for the lawyer's reasonable informed judgment.[8] Where there is uncertainty, the law gives lawyers discretion in exercising their judgment and provides immunity for exercising that judgment incorrectly but reasonably.

a. A lawyer's "reasonable judgment"

An interesting example of this principle is found in Bergstrom v. Noah. The lawyer filed an antitrust case under the Kansas antitrust statutes rather than the federal statutes, which were not identical. No published opinion had construed the Kansas antitrust statutes at issue. The costly case was unsuccessful, and on appeal the Kansas Court of Appeals stated that the law was clear that this claim was not available under the Kansas statutes.

With that declaration by the Court of Appeals, the lawyer was sued by his client for malpractice. The case against the lawyer was dismissed on summary judgment, and on appeal the Kansas Supreme Court affirmed the dismissal on the basis of immunity for an exercise of judgment. The Supreme Court ruled that the law on this point had not been clear, despite the language used by the Court of Appeals, and that the lawyer had exercised reasonable judgment in pursuing the case based on these statutes.[9]

b. Immunity for "errors in judgment"

A lawyer's role as an advocate for a client is filled with uncertainty. As advocates for clients in litigation, before administrative agencies, or in private negotiations, lawyers must exercise their judgment on what is most likely to achieve their clients' goals. In these fluid situations involving matters of strategy, competent lawyers would often disagree on how best to handle many steps in the process. The law generally provides immunity for the lawyer's exercise of judgment in these matters.

An excellent example of how immunity for errors of judgment is applied is found in Hunt v. Dresie.10 After earlier litigation was concluded, the unsuccessful plaintiff was sued for malicious prosecution. He used the same lawyers in the defense of this case. In defending against the malicious prosecution action, the lawyers considered and rejected the idea of asserting the defense of advice of counsel. A judgment was entered against the client for $20,000 actual damages and $600,000 punitive damages.

The client then sued his lawyers for legal...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT