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Legal Malpractice

Just like doctors, accountants, engineers, or other professionals, attorneys have a duty to exercise reasonable care in representing their clients. Legal malpractice is the negligent practice of law, breach of fiduciary duty, or breach of contract by an attorney that causes damage to his or her client. In order to prove legal malpractice, the injured party (client) must first prove that the attorney made critical errors that no reasonable attorney would make under the circumstances and that, due to those errors, the client suffered damages. Poor strategy or losing a case after a trial by judge or jury would generally not be considered legal malpractice. The most common legal malpractice claims arise when an attorney misses a statute of limitations or other deadline causing the claim to be dismissed or making the claim ineligible for filing with the Court. Malpractice claims can also arise when attorneys fail to disclose a conflict of interest or otherwise act in their own interest instead of in the interest of their clients. For more information, call or email the attorneys at Wagner Reese & Crossen.

Indiana Legal Malpractice Case Addresses The Issue of Equitable Subrogation
Posted by: Jason Reese
March 14, 2008

Yesterday, the New York Legal Malpractice Blog had an interesting post about a decision from the Court of Appeals of Indiana called Querrey & Harrow Ltd., et al. v. Transcontinental Insurance Co.which addresses the question, "can an excess insurer bring a legal malpractice action against an insureds attorneys?" The decision addresses issues of equitable subrogation and attorney-client privilege (to name a few), looking at the law in Indiana and other jurisdictions (including Illinois). It is definitely a case legal malpractice lawyers should take the few minutes to read.

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Legal Malpractice
Posted by: Jason Reese
March 10, 2008

Illinois Appellate Court Holds Client's Settlement of Underlying Case Does Not Preclude Malpractice Claim

An Illinois appellate court recently held that under the doctrine of judicial estoppel, a client's statement in court that she understood and agreed to the terms of her divorce settlement did not bar the client from bringing a legal malpractice claim alleging her attorney failed to conduct adequate discovery and gave her negligent advice.

The doctrine of judicial estoppel is designed to protect the integrity of the judicial process by precluding a party from asserting a position in a judicial proceeding that is totally inconsistent with a position the party asserted in a prior judicial proceeding. In the instant case, the defendant attorney argued that the client's testimony at the divorce settlement prove up hearing that she understood and agreed to the terms of the divorce settlement precluded the malpractice action. The Court rejected this argument finding that because the client's testimony in the dissolution proceeding was predicated on her attorney's negligent failure to conduct adequate discovery and the attorney's negligent advice, the testimony in the prove up was not inconsistent with the allegations of malpractice.

The case probably would have been decided differently if the plaintiff client had alleged in her malpractice action that she did not understand the terms of the divorce settlement; instead it was alleged that the attorney's malpractice prevented the client from making an informed decision as to whether to accept the divorce settlement. See, Wolfe v. Wolfe, 2007 WL 2350187 (Ill.App., Aug. 2007).

*Source: Professional Liability Reporter, Volume 32, Number 10, October 2007.

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