Attorney Malpractice/Damages
Though each state has their own "common law" on legal malpractice, in general, a Plaintiff must claim that he or she has suffered some damage as a result of the Defendant Attorney's breach of duty owed as an attorney to the Plaintiff.
The law provides that if a person owes someone else a duty to be reasonably careful, but does not fulfill that duty and thereby causes the other person damage, the person who breached the duty must compensate the victim of his negligence for that damage.
In these cases, the Defendant, if he acted as the Plaintiff's attorney, has a duty to carry out the legal services provided to Plaintiff with the standard of care expected from the average attorney in similar circumstances. This duty derives from either a direct attorney-client relationship between the Plaintiff and Defendant or from an implied attorney-client relationship. An implied attorney-client relationship is created when:
- a person seeks the advice or assistance of an attorney;
- such advice or assistance pertains to matters within the attorney's professional competence; and
- the attorney expressly or implicitly agrees to give or actually gives such desired advice or assistance. The third element of this implied relationship can be established by proof of detrimental reliance: that is, when the person seeking legal services reasonably relies on the attorney to provide such, the attorney is aware of the reliance, and does nothing to negate it.
In substance, a Plaintiff may recover in the claim if, and only if, there is proof that four things are more likely than not:
- That the Defendant had a duty to use reasonable care in determining and implementing a strategy to be followed to achieve the Plaintiff's goals;
- That the Defendant was negligent in fulfilling, or breached, this duty;
- That the Defendant's breach of his duty caused some damage to the Plaintiff;
- The Plaintiff must prove the extent or amount of that damage.
If there was no attorney-client relationship between a Plaintiff and the Defendant, the Defendant may still be liable for damages if he owed to the Plaintiff a duty to disclose relevant facts. In many states, an attorney owes such a duty to non-clients whom the attorney knows will rely on the services rendered.
An attorney's duty to disclose relevant information to nonclients is limited by the concept of foreseeability. An attorney will only be liable for breach of said duty if the nonclient's reliance on the attorney's services was foreseeable to the attorney. Whether or not such reliance is foreseeable depends on the totality of the circumstances.
In summary, in the absence of an attorney-client relationship, the Plaintiff may recover in a claim of legal malpractice if, and only if, he proves that four things are more likely than not:
- That the Defendant knew that the Plaintiff would rely on the services rendered or it was foreseeable by the Defendant that the Plaintiff would rely on the services rendered;
- That the Defendant was negligent in fulfilling, or breached, this duty to disclose relevant facts;
- That the Defendant's breach of his duty caused some damage to the Plaintiff;
- The Plaintiff must prove the extent or amount of that damage.
In calculating an award of damages, a jury is guided by its common sense. On the one hand, the law does not require the Plaintiff to prove the amount of his losses with mathematical exactness, but only with as much definitiveness and accuracy as circumstances permit. On the other hand, speculative damages are not admissible.
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Contact Information
Diviacchi Law Office,
111 Beach Street, #1A, Boston, MA 02111-2532.
Phone: (617) 542-3175, Fax: (617) 542-3110
e-mail : val@diviacchi.com