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Legal Malpractice Defense

Legal malpractice claims are becoming increasingly common. We provide defense representation for legal malpractice claims in all areas of practice.

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The risk of facing civil liability, reputational harm, and loss of licensure due to legal malpractice claims is a growing concern for lawyers in all areas of practice. While these cases used to be relatively few and far between, both individual and corporate clients have shown far less hesitancy to sue their lawyers and law firms in recent years.

At Oberheiden P.C., we provide defense representation for legal malpractice claims. We work with lawyers, law firms, and their malpractice insurers. Our legal malpractice defense attorneys have extensive experience in litigation, and they bring a comprehensive, pragmatic, and strategic approach to helping lawyers, law firms, and insurers avoid legal malpractice liability.

Defense Strategies for Legal Malpractice Claims

There are several potential defenses to legal malpractice claims. As these claims are governed by state law, specific defenses (and the specific elements of each defense) can vary between jurisdictions. With that said, broadly speaking, some examples of potential defense strategies in legal malpractice litigation include:

No Attorney-Client Relationship

In some cases, lawyers and law firms can defend against legal malpractice claims by arguing the absence of an attorney-client relationship. If no such relationship exists, then a claim for legal malpractice is unwarranted.

A relatively common example of when this is a viable defense is in circumstances in which company owners and executives file claims in their individual capacities. When a lawyer or law firm represents the company, owners and executives may mistakenly believe that they can seek (and/or are receiving) personal legal advice. Since the company’s legal interests and its owners’ and executives’ legal interests won’t necessarily align, advice that benefits the company could potentially have adverse consequences for these individuals. But, in this situation, lawyers are fulfilling their professional obligations by protecting the company’s best interests, and the company’s owners and executives do not have grounds to pursue claims in their individual capacities for legal malpractice.

Beyond the Scope of Engagement

Even when an attorney-client relationship exists, a lawyer is only required to provide legal advice within the scope of the parties’ engagement. If a lawyer “fails” to provide advice on matters that are out of scope, this does not constitute legal malpractice, and the lawyer should be able to assert a strong defense.

Similar to cases involving lack of an attorney-client relationship, these cases often arise out of a fundamental misunderstanding. In this scenario, the client mistakenly believes that he, she, or it can expect to receive legal advice that isn’t being offered. If the terms of the engagement agreement are clear, the agreement can serve as crucial evidence. If they are not, then the lawyer or law firm will need to establish the scope of the engagement through other means.

Judgment Immunity

The doctrine of judgment immunity is among the most-effective and most-common defenses in legal malpractice litigation. Under this doctrine, lawyers and their firms are immune from malpractice liability when they make reasoned judgments that turn out to be incorrect. Lawyers are not required to be correct 100% of the time—if they were, there would be no room for disagreements in litigation. As long as an error in judgment is reasonable and concerns a debatable or doubtful point of law, it falls within the scope of acceptable practice and should not trigger legal malpractice liability.

Here too, documentation can be critical. In addition to an engagement agreement that clearly explains the scope of the lawyer’s or law firm’s duties, files that document the justification for a particular decision and that show clear communication with the client can serve as strong evidence. If a client is fully informed, experiences an adverse result, and subsequently sues for legal malpractice, these records (among others) can be used to establish that judgment immunity applies.

Lack of Causation (or Lack of Evidence of Causation)

Lack of causation is another common, and often effective, defense to allegations of legal malpractice. When asserting legal malpractice claims, clients must demonstrate that their lawyers’ alleged malpractice caused them harm. Even if a lawyer makes a mistake that rises to the level of malpractice (which, of course, not all mistakes do), if the mistake does not impact the outcome of the client’s matter it does not give rise to a claim for damages.

This defense is most common in legal malpractice cases involving litigation. In order to establish liability, the client must be able to prove that it would have prevailed in the litigation were it not for the lawyer’s or law firm’s mistake. If the client cannot prove this—which is difficult to do—then it cannot establish legal malpractice liability.

Factual Inaccuracies

In many cases, lawyers, law firms, and insurers can defend against legal malpractice claims by exposing factual inaccuracies in the client’s complaint. For example, while a client may claim to have received bad advice, the lawyer’s records may show that the actual discussion that took place was very different. Likewise, if a client claims not to have received necessary advice, the lawyer’s records may show that the advice was in fact given and the client is simply failing to recall the relevant communications.

This type of defense can also be asserted in circumstances in which a client fails to provide all necessary information to a lawyer. If a lawyer requests all necessary information and a client omits key facts, the lawyer may be justified in relying on the client’s representations. Subsequently, when the client alleges that the lawyer overlooked key issues, the lawyer can point to the client’s own failure as a defense to legal malpractice liability.

Statute of Limitations

Legal malpractice claims are subject to statutes of limitations. If the statute of limitations for a client’s claim has expired, then the merits of the client’s allegations are irrelevant. However, there will often be questions as to when exactly the statute of limitations started to run; and, again, having the files to prove when a particular exchange, communication, or transaction occurred can help to establish a strong defense.

Procedural Defenses in Civil Litigation

In legal malpractice litigation, lawyers, law firms, and insurers can assert all of the procedural defenses that are available in other types of civil litigation. They can leverage the discovery process, they can seek to exclude evidence, and they can file motions for summary judgment or dismissal on various grounds.

With our experience in complex civil litigation, we are well-versed in the procedural defenses that lawyers, law firms, and insurers can use to favorably resolve legal malpractice claims. By proactively targeting pre-trial results, we are able to help our clients avoid unnecessary risk, costs, and publicity in many cases.  

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden

Founder

Attorney-at-Law

John W. Sellers
John W. Sellers

Former Senior Trial Attorney
U.S. Department of Justice

Local Counsel

Joanne Fine DeLena
Joanne Fine DeLena

Former Assistant U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney & Former District Attorney

Local Trial & Defense Counsel

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Aaron L. Wiley
Aaron L. Wiley

Former Federal Prosecutor

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (OIG)

Michael Koslow
Michael Koslow

Former Supervisory Special Agent (FBI)

Chris Quick
Chris Quick

Former Special Agent (FBI & IRS-CI)

Kevin M. Sheridan
Kevin M. Sheridan

Former Special Agent (FBI)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

Dennis A. Wichern
Dennis A. Wichern

Former Special Agent-in-Charge (DEA)

Why Choose Oberheiden P.C. for Legal Malpractice Defense?

When facing legal malpractice litigation, lawyers, law firms, and their insurers need competent defense counsel. Here are just some of the reasons why our clients choose us to represent them:

  • Senior Attorneys – All of our attorneys have senior-level experience.
  • Curated Defense Teams – We select a team of attorneys for each case based upon our clients’ specific needs and our attorneys’ personal strengths.
  • Centuries of Experience – Our senior attorneys have centuries of combined experience in complex litigation.
  • Pre-Trial Results – We emphasize efficient and strategic representation, and we work toward securing favorable pre-trial results whenever possible.
  • 24/7 Accessibility – Our senior attorneys are available to our clients around the clock.

FAQs: Legal Malpractice Defense

Do I Need to Engage a Law Firm for Legal Malpractice Defense?

 

No matter how good of a lawyer you are, and no matter how unfounded you believe your client’s allegations to be, you need to engage an outside law firm for legal malpractice defense. At Oberheiden P.C., we represent lawyers from firms of all sizes and who practice in all different areas of the law.

Does Oberheiden P.C. Work with Legal Malpractice Insurance Carriers?

 

Yes, we represent lawyers, law firms, and legal malpractice insurance carriers. We serve as approved counsel (panel counsel) for insurance companies and as direct defense counsel for lawyers and law firms.

When is it Time to Engage Legal Malpractice Defense Counsel?

 

The ideal time to engage legal malpractice defense counsel is before a client files a formal claim. If you are aware that a client may be considering legal action (or if you have concerns about a possible claim for legal malpractice), engaging defense counsel proactively may allow you to avoid unnecessary costs, risks, and exposure. If a client has already filed a legal malpractice claim, you should engage defense counsel right away.

When Should a Lawyer or Law Firm Consider Settling a Legal Malpractice Claim?

 

As with all types of litigation, the decision of if (and when) to settle a legal malpractice claim requires a critical assessment of all pertinent factual and legal issues. At Oberheiden P.C., we work with our clients to help them explore all possible options and make strategic decisions about their defense.


Speak with a Senior Legal Malpractice Defense Lawyer at Oberheiden P.C.

If you would like to know more about our legal malpractice defense practice, we encourage you to get in touch. To speak with a senior defense attorney at Oberheiden P.C. in confidence, call 888-680-1745 or tell us how we can reach you online now.

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