Legal Malpractice Lawyers - Maryland & Washington, D.C.
At Henderson Law, we are always surprised by the number of potential new clients that do not know that they have the ability to sue their lawyer or bring a claim against their lawyer. While there might be certain procedural or legal impediments to filing a lawsuit against your former lawyer, the general answer is “yes” you can sue your former lawyer.
What are the Elements of a Legal Malpractice Claim?
In Maryland and the District of Columbia, a legal malpractice action typically requires that an aggrieved client prove duty, breach, causation, and damages. The specific elements that an aggrieved client must prove are: (1) the lawyer’s employment, (2) the lawyer’s neglect of a reasonable duty/breach of the standard of care, and (3) loss to the client proximately caused by that neglect of duty.
Legal Malpractice - Employment of an Attorney
With respect to the elements of a legal malpractice claim, the employment of the lawyer is usually the easiest of the elements to prove. Although there are times when a lawyer might disclaim that he or she represented the aggrieved client, that is not the norm. It is also important to note that payment of a fee to an attorney is not always determinative as to whether an attorney-client relationship has been established. So, in short, a court/jury could find that an attorney-client relationship and the attendant duties owed by the lawyer existed in situations where a client owed the lawyer money and/or retained the attorney on a pro bono basis. Henderson Law is here to assist you and respond to your questions as to whether your lawyer will likely be deemed to have represented you with respect to the matter for which you have concerns.
Legal Malpractice - Breach of the Standard of Care
The duties owed by a lawyer to his or her client are collectively referred to as the “standard of care.” Typically, the standard of care requires that a lawyer exercise the degree of care and skill that a reasonably competent lawyer acting in similar circumstances would use. A lawyer breaches the standard of care when he or she does not use the degree of care and skill that a reasonably competent lawyer acting in similar circumstances would use. While the case or matter being handled by the lawyer may drive the duties owed to a Client, common duties owed by a lawyer to his or her client include the following:
- A duty to communicate;
- A duty to timely and adequately respond to a client’s inquiry;
- A duty to file a client’s lawsuit within the applicable statute of limitations;
- A duty to ensure that a client is informed of and takes reasonable measures to meet deadlines;
- A duty to explain the legal import of documents to clients before they sign them, such as business contracts and marital settlement agreement;
- A duty to advise a client as to the need to timely answer discovery requests and the potential sanctions associated with serving untimely discovery responses;
- A duty to timely act in order to ensure the preservation of key evidence; and
- A duty to competently draft qualified domestic relation orders (QDROs) and other retirement-related documents.
- A duty to provide competent advice.
Legal Malpractice - Proximate Clause
In terms of proximate cause, one is looking at how the lawyer’s breach of his or her duty/the standard of care caused harm to the client. For example, if the Client was going to lose his or her case irrespective of the quality of lawyering that he or she received from her lawyer, then one likely cannot blame his or her lawyer for causing the ultimate loss of the case. However, if the lawyer was the cause of the client not receiving a more favorable outcome at trial or otherwise, then one can assert that the lawyer’s neglect of his or her duty caused harm to the client.
Oftentimes, there is a dispute in legal malpractice cases as to whether the lawyer’s negligence caused harm to the Client. When there is a dispute over proximate cause in a legal malpractice action, it acts as the triggering mechanism for the “trial-within-a-trial doctrine.” Suder v. Whiteford, Taylor & Preston, LLP, 413 Md. 230, 243 (2010).
In a lawyer-negligence or fiduciary-breach action brought by one who was the plaintiff in a former and unsuccessful civil action, the plaintiff usually seeks to recover as damages the damages that would have been recovered in the previous action or the additional amount that would have been recovered but for the defendant's misconduct. To do so, the plaintiff must prove by a preponderance of the evidence that, but for the defendant lawyer's misconduct, the plaintiff would have obtained a more favorable judgment in the previous action. The plaintiff must thus prevail in a “trial within a trial.” All the issues that would have been litigated in the previous action are litigated between the plaintiff and the plaintiff's former lawyer, with the latter taking the place and bearing the burdens that properly would have fallen on the defendant in the original action. Similarly, the plaintiff bears the burden the plaintiff would have borne in the original trial....Restatement (Third) of Law Governing Lawyers § 53 cmt. b (2000).
The trial-within-a-trial doctrine exposes “what the result ‘should have been’ or what the result ‘would have been’ ” had the lawyer's negligence not occurred. Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 35:12 (2010).
Suder, 413 Md. at 241-42.
In Suder the client alleged that their prior attorney committed legal malpractice when they allowed the client’s deadline to seek her statutory share of her husband’s estate to expire. Id. One day before the expiration of Ms. Suder’s deadline to seek the statutory share of her deceased husband’s estate, she filed a pro se petition for an extension of her deadline, which the court granted and thereafter she requested and received a second extension. Id. at 234. Suder hired an attorney who then filed and received a third and fourth extension. Id. at 235. For some reason, the attorney allowed the new deadline to expire, and the court refused to allow a fifth extension after the fact. Id. Suder filed suit against her attorney alleging that the attorney’s negligent failure to timely file a fifth petition for an extension caused her to lose her right to elect a statutory share. Id. Whiteford filed a motion for summary judgment arguing that there was no of proximate cause, because Suder’s first request for an extension was technically defective, and if the first extension were challenged by the decedent’s son Mr. Downes, then the Orphan’s Court would have revoked her extension irrespective of whether Whiteford was negligent in not requesting a fifth extension timely. Id. at 240. However, Mr. Downes never challenged the first extension, and only challenged the untimely 5th extension. Id.
On appeal the central question was whether an attorney Defendant was permitted to raise an argument in the legal malpractice case that had not actually been raised in the underlying case. The Court of Appeals held as follows:
Whiteford is not precluded from challenging the first extension simply because Downes chose to challenge the fifth extension rather than the first. In other words, Whiteford is not limited by the manner in which Downes actually handled his own defense. This, however, does not mean that Whiteford is necessarily entitled to raise all possible defenses that were available to Downes. As we stated above, in a malpractice action, a court should attempt to ascertain what would have happened had the attorney not breached his or her duty. See Legal Malpractice, supra, at § 35:12. Therefore, Whiteford is limited to those defenses that Downes would have raised in the underlying action if he could not attack the fifth petition, rather than those he actually raised. As we discuss in the next section, this is a question for the finder of fact.
Id. at 244-245. (Emphasis in original).
Whether Downes would have actually challenged the first extension if the defense of the improperly granted fifth extension was not available to him, is a question of fact. As Comment b to Section 53 of the Restatement (Third) of the Law Governing Lawyers explains, “What would have been the result of a previous trial presenting issues of fact normally is an issue for the factfinder in the negligence or fiduciary-breach action.” To ascertain what would have happened, the trier of fact should examine the record of the underlying controversy and hear testimony from the parties and counsel…
We will not venture as far as the [Court of Special Appeals] did in concluding that there is “no rational reason Gregory Downes would not have challenged the original extension if he did not have available the easier target presented by the late request for a fifth extension.” Perhaps Downes would have proceeded against Suder in a different manner if he believed that he could not attack the fifth extension. Or maybe he was simply oblivious to the invalidity of the first extension, a possibility indicated by a passage in his CSA brief: “The legal effect of [the first] petition was to preserve the surviving widow's option to take under the will of the decedent or to elect a statutory share....” He may have made this statement because he was actually unaware of the invalidity of the first extension. This is evidence for the trier of fact to consider in deciding what likely would have occurred had Whiteford not breached its duty. Accordingly, we reverse the judgment of the CSA...
Id. at 246-47 (emphasis supplied).
Like Whiteford, Defendants in legal malpractice cases often try to raise arguments that were never raised in the underlying matter. When that occurs, the issue should be submitted to the jury or finder of fact as to whether the adverse party in the underlying action would have raised such an issue. In short, causation issues can be difficult to navigate in a legal malpractice claim and make these sorts of claims very difficult to prove.
Legal Malpractice - Damages
The damages in a legal malpractice case are usually equal to the damages that would have been presented in the underlying case handled by the negligent lawyer. So, for example, if you hired a lawyer to pursue a lawsuit on your behalf arising from a motor vehicle crash, then the damages recoverable in the legal malpractice claim would likely be those that you could have recovered in the underlying motor vehicle crash. And, in most cases, an aggrieved client does not secure a separate award for the pain and suffering/emotional distress associated with being represented by a negligent lawyer. In short, an aggrieved client likely will not receive an award of non-economic damages arising from his or her lawyer’s negligence.
How Do I Make a Complaint/Claim Against a Lawyer
The two common methods of making a complaint/claim against a lawyer are either filing a Complaint with the Attorney Grievance Commission in Maryland/the Office of Disciplinary Counsel in the District of Columbia or filing a civil claim with a court of competent jurisdiction. The lawyers at Henderson Law can help guide you through the process so that you can assess whether to file a grievance, a civil complaint, or both.
Can a Lawyer Drop My Case?
Typically, if a lawyer is representing you in a matter before a Court, the lawyer will be obligated to give you appropriate notice before seeking withdrawal from your case. The Court will have the discretion as to whether to permit the lawyer to withdraw from the case. If your case is not in litigation, then the lawyer typically has a greater ability to discontinue working on your case. Please note, though, that there are times when a lawyer’s discontinuation of work on a client’s case harms the client’s case, such that the client may have recourse against the lawyer (i.e., when the lawyer drops a client right before the expiration of the statute of limitations and the client is not left with sufficient time to retain other counsel).
Can I Sue My Lawyer for Misconduct
Yes, if the lawyer’s misconduct results in damages to you. If the lawyer has engaged in misconduct that has not caused economic harm to you, then the appropriate remedy is likely filing an ethics complaint with the Attorney Grievance Commission or the Office of Disciplinary Counsel.
Can I Sue a Lawyer for Not Communicating With Me?
Yes, if the lawyer’s lack of communication causes damage to you. If the lawyer has failed to communicate with you, but that failure has not caused you economic harm, then the appropriate remedy is likely filing an ethics complaint with the Attorney Grievance Commission or the Office of Disciplinary Counsel.
Call Now to Learn About Your Potential Legal Malpractice Claim
If you believe that you have suffered damages due to your lawyer’s negligence, Henderson Law has attorneys that are admitted in Maryland and/or Washington, D.C. that are here to help you. The attorneys at Henderson Law have handled many legal malpractice cases. We have the skills needed to protect your rights during this difficult process. We will review the facts of your case, explain your rights, and advise you about how to proceed. If you feel that you have been wronged by a lawyer, it is important that you call our team as soon as possible, as a failure to act timely could result in a Court finding that your claim is time-barred.
Henderson Law is accepting new cases in the District of Columbia and Maryland. Henderson Law is willing to take new clients across the State of Maryland, including, but not limited to, new cases arising in the following cities: Annapolis, Crofton, Bowie, Upper Marlboro, Crownsville, Davidsonville, Edgewater, Millersville, Odenton, Severna Park, and Pasadena. Please call Henderson Law for an initial consultation.