Andrew Rubin, Esq.

"What is legal malpractice?" Can be a definitional question

On those occasions when a client does not see the results that he or she was hoping for in a legal matter, or in some cases when the  client believes that the attorney has acted unethically or otherwise improperly (or in other situations failed to act), the recourse can be to initiate an action against the attorney for legal malpractice. Sometimes, though, the question of what actually constitutes legal malpractice can have a strong impact on whether the claim against the attorney is successful.

Consider, for example, a lawsuit against a New Jersey law firm that alleged legal malpractice in connection with a bankruptcy petition that ultimately led to a legal malpractice action against the attorney by the petitioners, who apparently had engaged with the attorney in a fraudulent attempt to file for Chapter 13 bankruptcy instead of Chapter 11. Although that case eventually settled, it was not before the legal malpractice insurer for the attorney had at least indirectly accused him of fraud in connection with the bankruptcy petitioners’ case.

The attorney sued the malpractice insurer for legal malpractice, claiming among other things that it failed to protect his interests and had deliberately made a statement against his interests and breached its contractual duties to him. Two attempts at a lawsuit followed, including two appellate opinions by the New Jersey Appellate Division, before the attorney’s lawsuit against the malpractice insurer was ultimately denied.

The takeaway from this case is that legal malpractice accusations can often involve complex fact patterns that do not lend themselves to quick and easy determination. In the first of the two lawsuits in this case, the trial court judge himself made an error when it came to applying a legal defense against malpractice. Anyone who believes that he has been the victim of legal malpractice should carefully consider the selection of an attorney experienced with representing plaintiffs in such actions, to minimize the risk of misunderstanding the applicable laws and ethical rules.

Source: New Jersey Law Journal, "Court Says Fraud Accusation Wasn't Legal Malpractice," David Gialanella, July 16, 2015

 

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