An Overview of Legal Malpractice in Pennsylvania
The law of legal malpractice allows recovery where an attorney fails to use the reasonable level of skill, knowledge and diligence normally expected from a lawyer under similar circumstances. This means that if your lawyer fails to use the same level of skill in rendering legal advice or represents you in a matter in which he is incompetent, or makes strategic decisions that a reasonable lawyer would not have made (and thereby causes your case to fail), you may have a legal malpractice claim.
Failure to meet reasonable standards of care is legal malpractice and subject to a legal malpractice claim. Examples of typical attorney errors that have led to legal malpractice allegations include:
As you can see , legal malpractice can occur in almost every area of the law. Failure to timely file an appeal, error in pleading, or a miscalculation in calculating interest, to name just a few, are all potential causes of legal malpractice. Most lawyers are competent and have made mistakes that can be corrected. However, in the case where your particular problem cannot be traced back to a mistake or failure on your part, legal malpractice may be the only explanation. Such an explanation may not be sufficient as evidence of legal malpractice to prove your case to a jury in Pennsylvania.
Why You Need a Specialized Legal Malpractice Attorney
The legal malpractice field is a "specialty" area on many levels. It is truly unfortunate that a lawyer is a client’s last opportunity, but a specialized attorney is your next best opportunity. One must consider experience in these matters, both before the attorney takes your case and during the representation. A specialized attorney will be able to prepare quickly the underlying case upon which the legal malpractice case is based. If it is a criminal matter that was mishandled, there are often no second chances. The Court Rules require such a lawyer to be experienced in handling criminal matters, or in criminal appellate work. It is necessary for a specialized attorney to meet with the criminally accused and to explain that they cannot comment on their prior attorney’s conduct and let their client know that they may or may not be able to take the case. It may involve post-conviction work. A specialized lawyer will also be able to assess chances of success and whether the underlying case has continuing merit, such that it should be pursued. If the work done by the prior attorney has irreparably harmed the case, it may be better to cut one’s losses and move on from the matter.
What You Should Look for in the Best Legal Malpractice Attorney
As you navigate the process of selecting the right legal malpractice attorney in Pennsylvania for your case, there are several qualities to keep in mind. First and foremost, this professional should have leveraged their expertise to obtain a solid reputation among their peers. In many cases, it’s best to consult with someone who has been recommended to you by a trusted friend or family member. In addition, the best legal malpractice attorneys will have developed specific credentials. This might include membership in an organization such as the American Association of Justice, the Pennsylvania Bar Association, and the Philadelphia Bar Association. Moreover, make sure to ask about experience in the field of legal malpractice law. In fact, this is among the most important qualities to consider. Generally speaking, you should steer clear of representatives with less than five years of active practice in the field of legal malpractice. Ideally, you would like to find an individual or firm with 10 years or more of experience.
What to Do If You Suspect a Legal Malpractice Case
If you suspect your lawyer has committed malpractice, you should take the following steps:
- Gather Evidence: Make copies of all relevant documents and correspondence related to your case. This includes contracts, communications with your attorney, and legal documents filed on your behalf. It may also be helpful to gather documents that establish the harm caused by the legal error.
- Reconnect with Your Lawyer: Before taking any further action, consider reaching out to your lawyer to discuss your concerns. There may be a reasonable explanation for the perceived error, or your attorney may offer to rectify the situation. If you feel your lawyer is unable to help, it may time to consult an outside professional.
- Consult Another Attorney: If those previous conversations prove to be unfruitful, it’s critical that you seek guidance from another attorney who specializes in legal malpractice. They can review your case thoroughly and advise you on the possible success or failure of bringing a legal malpractice claim against your former lawyer.
- File a Complaint: If you prefer, your lawyer is obligated to cooperate with an investigation by the Pennsylvania Disciplinary Board. The process can be lengthy, but they will work on your behalf to provide the board with necessary documentation.
- Seek Legal Malpractice: If your original attorney fails to handle your case properly, you may have suffered potential damages. You should identify the damage done by the original attorney and ensure you act promptly to mitigate said damages.
Despite having a viable claim, there are strict provisions on how you can pursue a claim for legal malpractice in Pennsylvania. Please visit an experienced legal malpractice attorney as soon as possible.
Frequently Asked Questions Regarding Legal Malpractice
The following is a list of questions we often hear from clients:
1. How do I know if I have a case against my attorney?
The short answer is you can only know for certain if you meet with and discuss your case with a qualified legal malpractice attorney. No attorney will tell you that you have a claim. A qualified legal malpractice attorney will evaluate the case, and if he or she believes that the case has merit, prepare the case to litigate: discovery, depositions, experts. The qualified attorney will explain the risks and benefits of doing so, and you’ll have to weigh the pros and cons of litigating.
2. Do I have to file a legal malpractice claim against my attorney?
The short answer to that is no. If your attorney committed malpractice, you have two basic ways to redress the harms you suffered. You may sue your attorney for malpractice or you may file a claim with the Pennsylvania Disciplinary Board. The best solution is to pursue both. When you sue your attorney, you may be awarded compensatory damages for your attorney’s negligence and damages for malpractice. Compensatory damages recoup your losses based on the value of the legal representation you would have received had your attorney acted properly. For example, if your attorney mishandled your case and you lost a good defense, you may be able to recover the value of the defense your attorney failed to pursue. If you are harmed by your attorney’s acts or omissions, you may also be able to receive damages for malpractice .
3. Do I need more than one legal malpractice lawyer in Pennsylvania?
While it is usually a good idea to have more than one attorney to help you on your case, you only need one legal malpractice lawyer to redress harms you experienced due to a legal malpractice claim. The key benefit to having more than one attorney is that your team will have a variety of perspectives and approaches to your case. You will have someone to share the work with you, and you will increase your chances of success in your legal malpractice claim.
4. Is my attorney allowed to refuse to report legal malpractice claims to his or her malpractice insurance provider?
Most often, yes, your attorney is permitted to refuse to report legal malpractice claims. The Pennsylvania Bar Association requires attorneys to report any legal malpractice claims to his or her malpractice carrier. However, not all carriers require this type of reporting. Some legal malpractice carriers prevent attorneys from reporting legal malpractice claims unless action is brought by the claimant. The important thing to remember is that you do not have to report the claim yourself. When you sue your attorney for legal malpractice, most often your legal malpractice attorney will notify your attorney’s malpractice carrier. This is also a good incentive to hire an attorney with your best interests in mind. When your attorney refuses to report legal malpractice to his or her carrier, you often have no choice but to sue your former attorney.
How Legal Malpractice Attorneys Operate in Pennsylvania
When a client in Pennsylvania consults a legal malpractice attorney, the first step is to provide the client with a clear understanding of the process. The attorney should explain that the legal malpractice attorney will represent the client throughout the case, and will be responsible for conducting a thorough investigation.
The process begins at the initial meeting, where the attorney will gather as much information as possible about the case. The attorney will then order a transcript of the original proceedings, and thoroughly review the file to identify any potential legal malpractice issues.
Once a complaint is filed in court, the legal malpractice attorney will be responsible for preparing for depositions, motions, and other court proceedings. In the interest of transparency, the attorney should keep their clients updated on any developments in the case and provide them with copies of all relevant documents.
Throughout the case, the legal malpractice attorney will work to gather evidence and develop a strategy for settlement or trial. If the case reaches settlement negotiations or trial, the attorney will represent the client in any settlement conferences or at court, advocating for the best possible outcome.
At all times, the legal malpractice attorney will be available to answer questions and provide guidance as needed, keeping the client informed throughout the entire process.
Understanding Legal Malpractice Law in Pennsylvania
When a client alleges that a lawyer has committed malpractice in the course of a case, the lawyer’s initial reaction is often "But I didn’t do anything wrong". That answer elides the point, because in addition to the substantive claims that are raised, the lawyer is still on the hook for the cost of having to respond to the claim. A lawyer who has suffered a loss in a case due to litigation mishandling may be able to avoid the traumatic loss of an entire case by convincing a court that the case did not have merit, but such argument is sometimes a two-edged sword when the same lawyer has to defend himself against liability for the same bad conduct. In addition to figuring out how to win the next case, the attorney must figure out how to avoid exposure to a claim for malpractice.
In Pennsylvania, the law surrounding legal malpractice claims is relatively well established. To prove a claim of legal malpractice in Pennsylvania, a plaintiff must prove that the defendant (the assumed tortfeasor) owed a duty of care, that the defendant breached its duty, and that the plaintiff suffered damages as a direct result of that breach. See Nicholas v. Harrison, 895 A.2d 1125, 1128 (Pa. Super. 2006) (quoting Reardon v. Allegheny General Hospital, 624 A.2d 763 (Pa. 1993)). In order to sustain a cause of action in legal malpractice, a plaintiff must prove that more likely than not the damage sustained would not have resulted but for the alleged breaches of duty. See Rizzo v. Pennsylvania National Mutual Casualty Insurance Co., 690 A.2d 705, 713 (Pa. 1997). Furthermore, although an expert report can be virtually dispositive in a medical malpractice action, an expert report is not required to sustain a legal malpractice claim. See Karas v. County of Allegheny, 108 A.3d 127 (Pa. Commw. Ct. 2015). Thus, whereas an expert report is necessary in medical malpractice cases , it is not necessary to sustain a claim of legal malpractice against a lawyer.
Litigation of legal malpractice cases can take years. For example, in the case of Burke v. Franklin Ctr. Corp. et al., 2012 Pa. Super. 207 (Jun 05, 2012). There, the Pennsylvania Superior Court "finally affirmed the summary judgment entered in favor of the defendants", which had been briefed and argued in April, 2009 with the Superior Court issuing its decision in June, 2012 on a case which had started in 2000. Affording deference to decisions of the trial court, the Superior Court found it upheld the summary judgment against Burke because Franklin did not owe a duty to Burke to defend. The Superior Court stated that there was no reason that the defendants owed a duty to Burke to defend him from Burke’s allegations because Franklin was Burke’s adversary. See also Congini v. Domus, Inc., 95 Pa. Commw. Ct. 48, 504 A.2d 377 (Pa. Commw. Ct 1986). In Congini, Burke "went so far as to retain a new counsel during the pendency of this initial action to pursue a new action against his original counsel, an attorney for whom Burke claimed he had only the utmost respect, even if his representation was not what Burke had anticipated." Burke v. Franklin Ctr. Corp., quoting Congini v. Domus, Inc., 504 A.2d at 378. Burke took "his second chance against his attorney in this legal malpractice action," and the newer action was still subject to hundreds of pages of argument before the trial court and appellate courts were dragged into ruling on the case. The Superior Court echoed the trial court’s finding that "[n]o matter how long it takes, a clear line of demarcation must be drawn `between [the] duty and exercise of ordinary care owed to all’ and `the special duties established by our law’" as discussed in Kite v. Harrisburg Area Community College, 710 A.2d 1162 (Pa. Commw. Ct. 1998). Kite, 710 A.2d at 1167.
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