AuthorLevine, David

    Imagine that you are on trial for criminal tax fraud. You did it, you know you did it, and the only thing that could keep you out of prison is an offer of absolute transactional immunity relayed to your attorney by the prosecutor. But your attorney never shares this offer with you, and as a result, you plead guilty. You then learn of the offer. What can you do?

    One thing you cannot do, in a majority of jurisdictions, is sue your attorney for legal malpractice. There is no liability for a mistake such as this one, even though your attorney's error is the only reason you pled guilty.' Most jurisdictions require that you be exonerated or actually innocent in order to then bring a legal malpractice suit against a criminal defense attorney. (2)

    Or perhaps you settled a dispute with the help of your attorney, only to learn that the settlement was not what you believed it to be. If you attempt to bring a legal malpractice suit against your attorney, you likely will have to show not only that your attorney was mistaken as to the terms of the settlement but also that you could have achieved the terms you wanted but for your attorney's negligence. (3)

    In a similar hypothetical, you may simply believe that you lost a civil trial because your attorney did an extremely poor job. But upon suing your attorney for legal malpractice, you are faced with the dilemma of proving that you would have won the underlying suit. (4) Instead, the best you can do is prove that you could have won the underlying suit, and you lose your legal malpractice claim.

    These are but a few of the traps facing legal malpractice plaintiffs. These scenarios stem from the "case-within-a-case" requirement, where a legal malpractice plaintiff must show that, but for the attorney defendant's negligence, she would have won her underlying case or dispute. (5) This article will review the existing scholarship on the difficulties in bringing legal malpractice claims and examine how many of these traps are extensions of the "case-within-a-case" requirement. Next, this article will examine how these traps function in recent South Dakota cases, focusing specifically on South Dakota's three-year statute of repose for legal malpractice claims. (6) Then, this article will discuss reforms that can disarm those traps, seeking to better arm the legal profession with the ability to impose necessary changes. Because so many of the difficulties in bringing legal malpractice claims are caused by the "case-within-a-case" requirement, this article argues that application of a loss of chance analysis best allows plaintiffs to be compensated for their injuries by better acknowledging the partial, but substantial, extent to which negligent attorneys cause harm to their clients.



      Perceptions of legal malpractice have evolved over the past twenty-five years. (7) In the 1990s, Professor Manuel R. Ramos considered legal malpractice a "taboo subject" ignored by both legal practitioners and legal scholarship. (8) Professor John Leubsdorf echoed this assessment, arguing that "[s]cholars and courts have not given much attention to legal malpractice law. They should." (9) Professors Ramos and Leubsdorf both contended that legal malpractice was a significant and rapidly growing field despite the industry's unwillingness to acknowledge it. (10) Both called for significant changes to the regulation of lawyers and the academic study of legal malpractice. (11)

      Today, legal malpractice has emerged from the shadows, but only partially. (12) Professor Susan Saab Fortncy argues that while lawyers are now "keenly interested in learning about legal malpractice issues, and are directly impacted by jurisprudential developments related to professional liability claims, there is limited scholarship tackling legal malpractice topics, even when compared to the growing body of scholarship devoted to general legal ethics concerns." (13) The 2015 Hofstra Ethics Conference helped fdl that void, demonstrating that there exists an eager group of scholars studying legal malpractice. (14) Although Professor Fortney acknowledges that there is more work to be done, the existing body of work has proven the viability of legal malpractice as a field of academic study. (15)

      If the work of Professor Fortney is heeding the calls of Professors Ramos and Leubsdorf to better study legal malpractice, their calls for legal and regulatory reforms have not even begun to be heard. (16) At first glance, plaintiffs appear quite able to bring legal malpractice claims. Legal malpractice claims have grown since the 1970s, (17) resulting in increased settlements, judgments, and malpractice insurance premiums. (18) But difficulties in bringing successful suits abound in both commencing suit and proving the elements of a claim. (19)


      Legal malpractice suits are notoriously complicated, expensive, and difficult to win. (20) This difficulty stems from two ways in which legal malpractice differs from most negligence claims: the expert requirement and the "case-within-a-case" requirement.

      In all but the simplest cases, plaintiffs must rely on expert testimony to make their case. (21) The D.C. Court of Appeals described the "widely followed rule[,]" explaining that "the plaintiff must present expert testimony establishing the standard of care unless the attorney's lack of care and skill is so obvious that the trier of fact can find negligence as a matter of common knowledge." (22) Unless the cause of action is so simple that a layperson could understand it, an expert is required. (23) In extremely rare cases, courts have held that "the duty of care to a client is so basic that it may be determined by the court as a matter of law." (24) But these cases are rare enough to have largely escaped scholarly consideration. (25)

      Legal malpractice is a form of negligence, and plaintiffs must prove duty, breach, causation, and damages. (26) In a legal malpractice suit, the plaintiff must prove '"but for' causation, i.e. that she would have been successful in the underlying lawsuit except for the attorney's malpractice." (27) This "case-within-a-case" requirement imposes two burdens of proof on the plaintiff. (28) First, a plaintiff must prove that she would have won the underlying case. (29) Second, she must prove that her failure to win the underlying case was due to her attorney's malpractice. (30) Causation is "the central issue in malpractice cases" because it "requires the malpractice plaintiff to win two trials: the original litigation and the later malpractice suit." (31)


      Clients seek out attorneys to help them resolve difficult legal issues. (32) Generally, by the time clients consult attorneys, they are facing complicated situations which they cannot handle themselves. (33) Proper client counseling requires communication and trust; clients must trust that attorneys have their best interests at heart and that their advice will be worth following, while attorneys must trust that clients are communicating the full truth of the underlying circumstances. (34) This relationship often places clients at the mercy of their attorneys. (35) While attorneys may not be the sole decisionmakers, clients lack legal knowledge and, as a result, are often all but forced to listen to the advice of counsel. (36) Thus, clients are rarely equipped to disagree with counsel or notice their mistakes. (37)

      Clients' inability to identify problems with counsel hampers their ability to seek redress in several ways. (38) Clients may not have the legal knowledge to know that they have a legal malpractice claim. (39) They may not know that legal malpractice is an option at all, let alone an option for their specific circumstances. (40) A client could always consult with a second attorney, but even this action places a burden of knowledge on the client: he or she must know that there is cause to consult with a second attorney. (41)

      A related problem is the lack of legal malpractice self-disclosure. (42) Attorneys could go a long way to fill in the information gap presented by clients who are not aware of legal malpractice by disclosing their own mistakes, but attorneys are often unlikely to do so. (43) It may simply be that an attorney believes that no mistake was made; after all, "[t]he lawyer's natural (and human) inclination is to assume that his or his partner's work was competent and was not the cause of the dispute that has surfaced." (44) If, on the other hand, the attorney believes that he or she made a mistake, "[t]he natural, human reaction... is to hide that embarrassing fact, while trying to correct the problem." (45) Failure to disclose malpractice hurts clients, regardless of the motivation for the lack of disclosure.

      Professor Benjamin P. Cooper notes that the duty to disclose malpractice stems from both Model Rules of Professional Conduct 1.4 and 1.7 as well as a lawyer's fiduciary duty. (46) An attorney has an ethical duty to disclose potential malpractice, and failure to disclose could itself give rise to an independent claim against the attorney. (47) Despite this duty, attorneys often fail to self-disclose malpractice. (48) Furthermore, Professor Cooper argues that this duty has only been discussed in "a handful of ethics opinions, a couple of court decisions, and a few bar journals [and that] there has been no comprehensive academic treatment of this topic." (49) While the duty to self-disclose exists, and it even gives rise to the occasional claim, (50) it does little good for the average client. (51)

      Although full communication between clients and attorneys is crucial to proper representation and important to keep clients aware of causes of action, communication can also hurt clients who seek to bring legal malpractice claims. (52) Professor Fortney...

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