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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:

1. a person seeks the advice or assistance of an attorney;
2. such advice or assistance pertains to matters within the attorney's professional competence; and
3. 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:

1. 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;
2. That the Defendant was negligent in fulfilling, or breached, this duty;
3. That the Defendant's breach of his duty caused some damage to the Plaintiff;
4. 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:

1. 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;
2. That the Defendant was negligent in fulfilling, or breached, this duty to disclose relevant facts;
3. That the Defendant's breach of his duty caused some damage to the Plaintiff;
4. 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.

Normally in a civil case, each party bears the burden of proving each of their claims by a preponderance of the evidence. However, many states have established that a lawyer always bears the burden of proof in any proceeding to resolve a legal billing dispute, whether the lawyer appears as a plaintiff seeking to recover a fee or as a defendant in a suit for a refund. For example, in Massachusetts the law is that a lawyer may only enter into an agreement for, charge, or collect a reasonable fee from a client. Thus, an attorney who has the burden of proof is entitled to only such fees as can be shown are reasonable for the services actually performed regardless of the amount of work actually done or agreed upon by the legal fee contract. The trier of fact, judge or jury, decides what fee is reasonable for the services performed for a client.

The factors for the trier of fact to consider in determining whether a legal fee is reasonable include the following:

1. the time and labor required;
2. the novelty and difficulty of the questions involved in the representation of the client with regard to the services performed;
3. the skill required to perform properly the legal services rendered;
4. the fee customarily charged in the locality for similar legal services;
5. whether the fee was fixed or contingent;
6. the amount involved and the results obtained;
7. the time limitations, if any, imposed on the attorney by the client or by the circumstances;
8. the nature and length of the attorney’s professional relationship with the clients; and
9. the experience, reputation, and ability of the attorney.

Furthermore, in addition to the obligation to collect only a reasonable fee, an attorney may breach a professional ethical duty established by his respective Bar if the fees are so unreasonable that they reach the point of being illegal or clearly excessive. For example in Massachusetts, Supreme Judicial Court Rule 3:07, Mass. Rules of Professional Conduct Rule 1.5(a) requires that "a lawyer should not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.” The factors to be considered in determining whether a fee is clearly excessive are essentially the same as stated above for the determination of reasonableness and include the following:

1. the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
2. the likelihood, if apparent to the client, that the acceptance of the particular employment would preclude other employment by the lawyer;
3. the fee customarily charged in the locality for similar services;
4. the amount involved and the results obtained;
5. the time limitations imposed by the client or by the circumstances;
6. the nature and length of the professional relationship with the client;
7. the experience, reputation, and ability of the lawyer or lawyers performing the services;
8. whether the fee is fixed or contingent.

For policy reasons, most states make the following type of fee agreements illegal and uncollectible regardless of how reasonable the actual fee itself may be: a contingent fee agreement based on a criminal trial or divorce result.

When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. 

A fee is clearly excessive when, after review of the facts, a lawyer of ordinary prudence, experienced in the area of the law involved, would be left with a definite and firm conviction that the fee is substantially in excess of a reasonable fee. Whether or not an attorney actually did the work or spent the amount of time alleged to be the basis of a fee is not dispositive of the issue of whether the fee is reasonable. A client should not be expected to pay for the education of a lawyer when the lawyer spends excessive amounts of time on tasks which, with reasonable experience, would have become matters of routine. While the licensing of a lawyer is evidence that the lawyer has met the standards then prevailing for admission to the bar, a lawyer generally should not accept employment in any area of the law in which he or she is not qualified and in which preparation would result in unreasonable delay or expense to the client. For example, an attorney's inexperience in a particular case does not justify an extraordinarily high fee. It cannot be that an inexperienced lawyer is entitled to charge three or four times as much as an experienced lawyer for the same service. The disciplinary rule is intended to create explicitly an objective standard by which attorney's fees are to be judged; it is not intended to be a purely subjective comparison of what different attorneys may be charging for the same type of case or work.

The plaintiff is not required to show that the attorney's fee either directly or by reasonable inference involved dishonesty, bad faith, or overreaching by the client and does not require an inquiry into whether or not the clearly excessive fee was charged to the client under fraudulent circumstances. The issue of whether there was fraud or a breach of fiduciary duty is an issue separate and distinct from the issue of whether excessive legal fees were charged. A plaintiff can prove that there were charged excessive legal fees even though there was no fraud, overreaching, or improper acts by the defendant attorneys.

The test stated by the disciplinary rule is whether or not the fee "charged" is clearly excessive and not whether the fee is accepted as valid or acquiesced by the client. Whether or not the plaintiff accepted or acquiesced in a clearly excessive fee is irrelevant to the issue of whether or not the attorney charged an excessive fee.