Insurers paid three times more for closed Missouri legal malpractice claims last year than a decade ago, and rising defense costs are a likely culprit. The average cost for a claim that closed with a payment of a settlement, judgment or verdict rose from $38,322 in 2001 to $120,014 in 2010, according to a June report on legal malpractice claims from the Missouri Department of Insurance.
Being hit with a legal malpractice suit can be any lawyer's worst nightmare. But staying out of trouble with your clients may be easier than you think. Contrary to the expectations of most lawyers and clients, the bulk of claims do not come from a failure to know or apply substantive law," says Dan Pinnington. Pinnington is the director of practicePRO, the claims prevention initiative of the Lawyers Professional Indemnity Co. in Ontario, Canada.
A plaintiff in a legal malpractice action, apparently believing pleading alternative theories of liability will advance his or her claim, often attempts to assert additional causes of action. It is not unusual in a legal malpractice action for the plaintiff to attempt to expand on his or her claims by also asserting a claim for breach of fiduciary duty. Even if the allegation that an attorney violated an ethical rule can be proven, a plaintiff attempting to establish a viable claim based on breach of fiduciary duty faces an uphill battle.
Springfield law firm Neale & Newman has settled a legal malpractice suit that alleged an attorney at the firm mishandled a bank's dispute with a farming couple. The Bank of Houston claimed it had the chance to mutually dismiss the dispute and take a loss of about $35,000 in attorneys' fees. Instead, the bank claims Neale & Newman attorney Brian Asberry advised it to go to trial, where a Pulaski County jury hit the bank with $10,000 in actual damages and $1 million in punitive damages. The bank settled with the farmers, John and Patricia Hinkle, for $442,500 after trial.
Four practice niches - personal injury law; family law; real estate; and trusts and estates - generate the highest percentage of legal malpractice claims each year. Many of these claims stem from the emotionally charged nature of cases in these practice areas, from messy divorces and family feuds over inheritances to collapsed real estate deals and crippling auto accidents.
Maloy analyzes proximate cause as the last line of defense in civil malpractice cases. He seeks not to show lawyers how to be negligent and get away with it, but how to analyze a proper defense to a client's pique about some injury that had not one whit to do with his lawyer's conduct.
The estate of a client could not proceed with a legal malpractice lawsuit commenced by the client before her death, the Idaho Supreme Court has ruled in reversing judgment. The client received workers' compensation benefits for catastrophic injuries suffered in an automobile accident. She later retained the defendant to represent her in a malpractice suit against her healthcare providers. After the medical malpractice claim was settled for $1.1 million, the state workers' compensation fund asserted a $665,000 subrogation claim against the settlement proceeds.
An accident victim settled a legal malpractice action for $425,000 against the attorney who represented her on a personal injury claim, said her malpractice attorney, Randall Cain of Lees' Summit. Rachel Dulaney of Lee's Summit was a passenger in a motor vehicle in Lawrence, Kan., in 2007 when her neck was badly broken in an accident.
The discovery rule may have tolled the statute of limitations on a legal malpractice claim challenging an attorney's failure to call corroborating witnesses at a key divorce hearing, the 3rd Circuit has ruled in reversing a summary judgment. The plaintiff retained the defendant to represent him in his divorce case. According to the plaintiff, the attorney breached a duty of care by failing to call corroborating witnesses at a hearing over the validity of the property settlement in his divorce.
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