Appellate malpractice.

• Author: Wisotsky, Steven

1. INTRODUCTION

   Legal malpractice is defined in terms of negligence, although a suit for breach of contract is recognized as an alternative action in some states. (1) Lawsuits against trial attorneys for negligence are "governed by the same principles" that apply in other actions for negligence. (2) Similarly, appellate malpractice is also based on negligence. It arises when a lawyer fails to exercise a reasonable degree of skill and care in the appeal of a client's case, causing injury to the client. Because the prospects for success on appeal may be damaged by both trial and appellate lawyers, both may be subject to malpractice claims pertaining to issues of appellate review.

   For the trial lawyer, an appellate-related malpractice claim may arise from such errors or omissions as failure to preserve the record for appeal; advising a client against taking an appeal when it is warranted; or failing to timely file or perfect an appeal when an appeal was the agreed upon course of action. For the appellate lawyer, a claim may arise from mistakes made in handling any aspect of the appeal itself.

   In considering an action against a trial attorney or appellate counsel, malpractice is not limited to litigation issues. Attorney malpractice can and often does arise in transactional work as well. "[R]edressable harm ... need not depend upon the outcome of any litigation because the negligent preparation of [a written instrument] could potentially be the cause of the financial loss that the [clients] incurred in reforming the [instrument]." (3) Malpractice may also arise from negligent acts or omissions in negotiations surrounding litigation. (4)

2. STANDARD OF CARE

   Legal malpractice claims may arise from a lawyer's failure to exercise a reasonable standard of care in representing a client. The standard of care that applies to appellate malpractice is the degree of care and skill that a reasonable appellate lawyer from the same community would exercise in handling the same type of appeal, under the same rules, laws, and set of facts. (5) Reasonableness should be measured at the time representation was rendered, especially with regard to liability for decisions of then novel or untested legal theories. (6) "The general rule is that an attorney may be held liable for ignorance of the rules of practice, failure to comply with conditions precedent to suit, or for his neglect to prosecute or defend an action." (7)

   "An attorney is never bound to exercise extraordinary diligence, or act beyond the knowledge, skill, and ability ordinarily possessed by members of the legal profession." (8) But as specialization increases in the legal field, an attorney who holds him or herself out to be a specialist must "exercise the degree of skill and knowledge possessed by those attorneys who practice in that specialty." (9)

3. ELEMENTS OF APPELLATE MALPRACTICE

   The elements of legal malpractice pertaining to appellate review are the same as for other claims of attorney negligence. To prevail in an appellate malpractice action, a plaintiff must show 1) that the lawyer had a duty to the client based on the existence of the attorney-client relationship; 2) that the lawyer breached the duty by negligent act or omission; 3) that the lawyer's breach of duty was the proximate cause of the plaintiff's injury; and 4) that the plaintiff suffered a legally cognizable injury. (10)

   1. Proof of Duty

      The existence of a bona fide lawyer-client relationship is generally accepted as confirmation that the lawyer has a duty to the client. (11) As a result, the first element of an appellate malpractice case is often the easiest one for a plaintiff to prove. Occasionally, courts have been willing to find a duty owed to a non-client when that party is an intended third party beneficiary of an attorney-client relationship. (12) However, the courts that have recognized such limited liability to a non-client have consistently held that legal malpractice claims are not assignable because of the personal and confidential nature of the attorney-client relationship. (13)

   2. Proof of Negligence

      Proving breach of duty, however, is often more difficult. The courts generally require the plaintiff to present expert testimony to prove breach of duty unless the reason for the breach is so obvious that it is within the average juror's competence to decide if the conduct was unreasonable. (14) For example, obvious errors, such as failing to file a suit within the time allowed by the statute of limitations, may not require an expert's evidence. (15)

      On the other hand, malpractice claims based on the lawyer's strategic decisions about a case will generally require another attorney with knowledge of that area of the law to opine that a particular act or omission fell below the standard of care to be expected of practitioners in that field. Thus, where a client brought an appellate malpractice claim against a lawyer who failed to raise certain requested federal constitutional issues in the appellate brief, the state appellate court ruled that the plaintiff failed to prove malpractice because no expert testimony was presented to show that the lawyer failed to use a reasonable degree of skill and care in the representation. On the contrary, a constitutional law expert testified on behalf of the lawyer, stating that the issues raised and argued on appeal by the lawyer were far more likely to succeed than the ones suggested by the client. (16)

   3. Proximate Cause and Injury: Loss of a Winning Cause or Loss of Access?

      Proving that the appellate lawyer's breach of duty was the proximate cause of the plaintiff's injury can also be difficult. Most courts require the plaintiff to prove that "but for" the lawyer's negligence, the case would have succeeded on appeal. (17) The degree of proof that courts require to prove "but for" causation varies from jurisdiction to jurisdiction. (18) A small minority of courts require a plaintiff to establish with "certainty" that but for the attorney's negligence a more favorable result would have been achieved. (19) Others demand a lesser showing of "probability" and apply a "substantial factor" standard to establish causation. (20) Regardless of the degree of proof required, the role in these jurisdictions requires some showing that the malpractice plaintiff would have succeeded in the underlying appeal.

      Other courts, however, hold that merely defaulting on a plaintiffs appellate claim is itself actionable. A prime example is Cincinnati Insurance Company v. Byers. (21) A lawyer was sued in state court for appellate malpractice after an appeal was dismissed for failure to file the trial transcript and record on appeal within the time frame permitted by the court. After removal to federal court, the trial judge granted the lawyer's motion for summary judgment because the former client failed to establish that the appeal would have been successful on the merits. The Sixth Circuit reversed, noting that the state supreme court "explicitly rejected the notion that a plaintiff asserting a claim for legal malpractice is required in all instances to prove that the plaintiff would have prevailed in the underlying proceeding giving rise to the action." (22) The court of appeals remanded in order to allow appellant to pursue a claim based on the "lost settlement opportunity" resulting from dismissal of the appeal in the state action. (23)

      Another plaintiff-friendly approach is to put the burden of proving whether or not the appeal would have prevailed on the appellate lawyer who defaulted. For example, an appellate malpractice claim was filed for a lawyer's failure to timely file an appellate brief, which resulted in dismissal of the appeal. (24) While the malpractice case was pending in federal district court, the state supreme court ruled that the "but for" requirement of a legal malpractice claim is too harsh on plaintiffs, and that it was more logical to "impose on the negligent attorney ... the burden of going forward with evidence ... proving that the client could not have succeeded on the original claim." (25)

   4. Accrual of a Cause of Action

      The jurisdictions are in conflict regarding when the legal injury to the plaintiff occurs and the cause of action arises. Generally, to sustain an action in negligence, the plaintiff is required to prove actual and redressable harm or injury. (26) This means that the injury cannot be merely speculative or conjectural. (27) The practical effect of the actual injury requirement is that the cause of action does not accrue for limitations purposes until the injured party knows or should know of it. (28) Thus, under Florida Statutes [section] 95.11, the cause of action accrues for statute of limitation purposes from the "time the cause of action is discovered or should have been discovered" with the exercise of due diligence.

      In the context of litigation based malpractice, the cause of action does not accrue until the final judgment is rendered because prior to final judgment, injury is merely speculative. (29) In cases that proceed to a final judgment, "[t]he ... statute of limitations for litigation-related malpractice ... begins to run when final judgment becomes final," not when the verdict was rendered or the negligent acts or omissions occurred. (30) Thus, where counsel was negligent in rejecting settlement offers without consulting the client, the statute of limitations did not run until conclusion of the underlying litigation. (31) Finality also requires conclusion of appellate review if the adverse judgment is appealed. (32)

      However, in a malpractice action based on transactional representation, "redressable harm is not established until the documents or legal items fail to achieve their designated purpose." (33) In transactional representation, it is possible for the client to suffer a concrete injury prior to a court holding that written instruments created during representation "fail to achieve their designated...