Claims of professional negligence are based upon a lawyer's failure to exercise that degree of care, skill and diligence as lawyers of ordinary skill and knowledge commonly possess and exercise.
The majority of legal malpractice cases will fall under the heading of professional negligence. However, depending on the nature of the action or inaction, and whether such action or inaction involves ethical or statutory violations, there may be independent causes of action available to the aggrieved client. At Nowak & Stauch, we have experience with the pursuit of a variety of legal malpractice theories, including but not limited to the following:
- Negligence: The most common underlying reason for a legal malpractice case is professional negligence. The traditional elements of a negligence suit apply to negligence claims against a lawyer such that the plaintiff must prove: 1) there was a duty owed to him by the lawyer, 2) the lawyer breached that duty, 3) the breach proximately caused the plaintiff injury and 4) damages occurred. Proving the breach will often require expert testimony. In order to establish the causation element, the plaintiff will have to prove his claim or defense would have been successful if not for the attorney's negligence. We often refer to this as proving "the case within the case."
- Breach of fiduciary duty: The relationship between lawyer and client is highly fiduciary in nature and requires proof of "perfect fairness" and "undivided loyalty" on the part of the lawyer. The essence of a claim for breach of fiduciary duty strikes at the integrity and fidelity of the attorney. The attorney-client relationship is one of good faith, requiring candor, openness and honesty, and the absence of concealment or deception. A breach of fiduciary duty arises when a lawyer improperly benefits from the representation of a client by, for example, subordinating the client's interests to the lawyer's interests, improperly retaining the client's funds, improperly using client confidences, failing to disclose conflicts of interest, taking advantage of the client's trust, engaging in self-dealing, or making misrepresentations to the client regarding any of these issues.
- Fraud: A fraud claim requires a misrepresentation or omission of material fact, and this is one of the few areas where the liability of a lawyer may extend beyond the client to non-clients. To be actionable, there must be evidence: 1) that a material misrepresentation was made; 2) the representation was false; 3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; 4) the speaker made the representation with the intent that the other party should act upon it; 5) the party acted in reliance on the representation; and 6) the party thereby suffered injury. A fraud claim may result from the attorney's nondisclosure of material information or from an affirmative misrepresentation. Additionally, a lawyer may be held liable for constructive fraud even in the absence of an intent to deceive. In certain cases, the lawyer's "breach of some legal or equitable duty, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others, to violate confidence, or to injure public interests."
- Violation of Texas Deceptive Trade Practices Act (DTPA): Certain misrepresentations made by an attorney to his client may be unconscionable and therefore violate the DTPA. A claim for damages based on the rendering of a professional service, the essence of which is the providing of advice, judgment, opinion, or similar professional skill is excluded from coverage under the DTPA. To be actionable under the DTPA, the attorney must have engaged in one of the following acts: 1) an express misrepresentation of a material fact that cannot be characterized as advice, judgment, or opinion; 2) a failure to disclose information; 3) an unconscionable action or course of action that cannot be characterized as advice, judgment, or opinion; or 4) a breach of an express warranty that cannot be characterized as advice, judgment, or opinion. Although rare, DTPA cases offer the advantage of a lower burden of proof as to causation (producing cause versus proximate cause). In other words, the DTPA does not require an injured client to prove "the case within the case." In addition, there are remedies (such as punitive damages, mental anguish, and attorneys' fees) available in DTPA cases that are not available in other malpractice causes of action.
There are many other potential claims against lawyers, and this website is not intended to provide an exhaustive review of those claims. If you believe you have been injured as a result of your lawyer's conduct, it is important to discuss the facts of your situation with a lawyer skilled at evaluating such claims. Because there are strict statutes of limitation that may apply, we recommend you do this sooner rather than later.
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At Nowak & Stauch, we have experience handling a wide range of legal malpractice claims. Our clients appreciate our honest and realistic approach to their case, as well as our attention to detail.
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If you have questions regarding a potential legal malpractice claim, we encourage you to schedule a free consultation by completing the contact form located on this website. We accept most cases on a contingent fee basis, and offer services in English and Spanish.