Source: American Bar Association
A Christmas Eve case review for lawyer malpractice
“Lawyers are often called on to perform legal miracles,” Healey says. “When a client’s expectations, reasonable or otherwise, are frustrated, malpractice litigation often results.”
Errors made by attorneys that cause financial, emotional and reputational harm increase exposure for themselves and/or their firms. In The State of New York vs. Kris Kringle, Healey flags these risks:
- “Dabbling” – Providing representation or advice in areas of law with which one is unfamiliar. This is an increasingly common source of claims among law firms’ insureds.
- Conflict of interest – Underwriters agree that even the faintest suggestion of an attorney putting his or her own interests, or the interests of a third party, ahead of the interests of the client, strengthens the case of lawyer malpractice.
- Self-incrimination – Rather than have Kringle decline to waive his Fifth Amendment right, Gailey ushers his client to the stand and opens the door for the prosecutor to elicit the only testimony upon which he would rely to establish a prima facie case of lunacy.
- Unnecessary strategy – First, Gailey fails to bring a dispositive motion at the conclusion of the State’s lunacy case. Second, he asserts a proposition that is unnecessary to defeat the State’s burden of proof on the issue of commitment. Both of these mistakes call into question the counsel’s basic competency.
- Unreliable testimony – The defense calls witnesses who can’t provide the evidence he needs to make his case. Lack of preparation and a clear vision of how a case will be defended will be apparent.
“To win a case, and to avoid malpractice exposure, attorneys have to plan for what they know they can prove, not what they hope they can prove,” Healey says.
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