In Connecticut, legal malpractice claims are claims that your lawyer did or failed to do something which did not meet the standard of care for lawyers while serving as YOUR lawyer. Generally, the lawsuit is brought against your own lawyer, not someone else’s lawyer. There are occasions under the law, however, where other individuals besides the actual client can sue a lawyer for legal malpractice, for example a beneficiary in a will or trust may have a right to sue a lawyer who was hired by someone else to create the will or trust and did it wrong. While there are legal claims that may be brought against an opposing party and/or his/her lawyer (for example, a claim for vexatious litigation), those are not legal malpractice claims. If you have questions about your rights, contact an attorney who handles legal malpractice claims.
A client hires Lawyer 1, who gives incorrect legal advice. The client then hires Lawyer 2 who gives the same incorrect advice. Lawyer 2 files suit for the client, but the client’s case is thrown out because of the incorrect legal advice. Who is to blame? Lawyer 1, Lawyer 2, or both lawyers? While you would think it’s both lawyers, according to a June 2020 decision by the United States Court of Appeals for the District of Columbia, the answer may be just Lawyer 2. In the recent federal appeals court decision, Lawyer 1 was held not liable for legal malpractice for advising his client incorrectly on the statute of limitations to bring his case, because the client subsequently hired Lawyer 2, who also misconstrued the statute of limitations, and then did not file the client’s suit on time. According to the Court, under those circumstances, the client’s loss case was the responsibility of Lawyer 2 only, because regardless of the Lawyer 1’s mistake, Lawyer 2 was responsible for, and had the opportunity to, independently and correctly file the client’s case before the statute of limitations ran out.
The Connecticut Appellate Court released today a decision highlighting the prohibitions of the Rule 1.8 of the Connecticut Rules of Professional Conduct for Attorneys. The attorney who represented his client in various legal matters including the purchase of real estate. The lawyer then introduced the client to one of his law partners, who arranged for the client to loan money from the real estate transaction to the law firm. The statewide grievance committee found the lawyer violated Rule 1.8 of the ethics code. Rule 1.8 provides protection to clients by limiting the circumstances when lawyers may engage in business transactions with clients. In this instance, the lawyer was found to have violated Rule 1.8 by his “failure to advice [his client] in writing that [the client] should consider independent counsel in connection with the loan of money to the law firm.” On appeal, the Appellate Court upheld the decision to impose a sanction against the attorney.
In Connecticut, like most jurisdictions, the time in which to bring a legal malpractice action is often unfairly short. Connecticut’s 3 year statute of limitations means that ordinarily, the victim of legal malpractice has only three years from their lawyer’s negligent act or omission in which to file a legal malpractice action. The unfairness comes from the fact that unlike other legal torts, victims of legal malpractice often do not realize a mistake has been made by their lawyer until years, and sometimes decades, later. Your time to file a legal malpractice lawsuit might very well expire before you even know your lawyer did something wrong. Unlike a car accident, where you know immediately that you were injured due to someone else’s legal wrong, victims of legal malpractice rely upon the professional expertise of their lawyers, and only figure out that they have a problem when they either hire another attorney, or later suffer the tragic economic results of the legal malpractice. Under certain circumstances, statute of limitations can be tolled or suspended in legal malpractice cases in Connecticut, but only so long as the lawyer who committed the legal malpractice is still representing you, and never longer than it took you to realize that the malpractice occurred. If you suspect that your lawyer has committed legal malpractice, you need to act fast to protect your rights.
Legal Industry predictions are that a dramatic rise is coming in legal malpractice insurance premiums for lawyers. Why now? Historically, high volumes of legal malpractice claims are associated with public crisis. With the public health crisis caused by COVID-19, laws and regulations are changing at an extremely fast pace. While many attorneys have handled the changes well, these changes mean more opportunities for lawyers to make professional errors, especially among those less diligent in keeping up with developments in the law and with the standard of practice during the pandemic. As a result, insurance companies are getting ready to gear up with increased premiums to help pay for the wave of legal malpractice claims that are coming.
In May, the Insurance Commissioner of California made the following observation:
“Some insurers and other persons engaged in the business of insurance in this state are unfairly taking advantage of the COVD-19 crisis and providing unjustifiably low settlement offers knowing financial need is high and recourse to the civil court system is the state is currently severely limited.”
The Insurance Commissioner went on to warn that anyone who engaged in such practices was violating the law, and would be subject to penalties.
It’s not just California that is experiencing such unfair settlement practices. Insurers in every state, including Connecticut, who lower or refuse to make settlement offers with full knowledge that it citizens are unable to access the court system during a pandemic are committing unfair insurance practices.
At the moment, only strong leadership from state government can stop these immoral practices, at least until such time as our courts return to allowing its citizens to avail themselves of the civil justice system to protect them from such abuses. One insurance commissioner has demonstrated such leadership. Who will be next?
With our courts coming back on line to hear motions and conduct certain other business virtually, there is hope that our vital civil justice system is slowly on the road to COVID-19 recovery. However, the Constitutional Right to a Jury Trial presently remains in suspension. Understandably, in these times of Social Distancing, there is concern about bringing citizens together to serve on juries. But, with courts planning no jury trials for at least the remainder of 2020, for the first time in our history the constitutional right to a jury trial is on hold. Can you imagine rights guaranteed under the Bill of Rights suspended for a period of 9 months to a year? In some places, where the parties are in agreement, litigants are attempting to try their cases to “Virtual Juries.” While novel ideas to afford citizens a way to resolve their cases should be applauded, such alternative resolution mechanisms require agreement by all parties, and are not a substitute for the loss of a constitutional right. In most instances, the delay in the right to have your legal case tried to a jury equates to a denial of justice. In some jurisdiction, such as Massachusetts, the legislature had the foresight to build in a protection against such delay, as victims of civil wrongs are entitled to recover prejudgment interest on their damages. However, in most jurisdictions, such as Connecticut, there is no automatic prejudgment interest on civil damages. Prejudgment interest statutes protect citizens from the ill effects of court delay. In the wake of the unprecedented COVID-19 related suspension of the right to trial by jury, it may be time to for every jurisdiction to enact prejudgment interest laws to help protect citizens from delays in civil justice.
With court closures and the cancellation or postponement of jury trials for the indefinite future, some insurance companies appear to be ready and willing to still resolve personal injury cases. In difficult economic times, this may sound like welcome news to injured plaintiffs who want their case to continue towards resolution. But beware! There is a danger that defendants/insurance companies are attempting to bottom feed. That is, they are looking to see if injured persons will settle their cases for less than their reasonable settlement value during these difficult times. Decisions to settle your case are based upon many factors, but the one constant is that the decision to settle is the client’s to make, and your lawyer’s job is to see that you are reasonably informed on the important factors that go into your decision. Be an informed consumer when it comes to your personal injury case. Make sure your attorney has taken steps to properly value your case, and explained this to you. If your lawyer has advised you to resolve your case for less than its reasonable settlement value during the COVID-19 Pandemic, make sure you get answers to why. Remember, lawyers have an ethical obligation to explain matters to you so you can make informed decisions.
A victim of legal malpractice recently lost her case in Hartford Superior Court because she did not prove that her lawyer’s professional negligence caused her harm. The plaintiff was injured when she tripped and fell and brought suit against a local municipality alleging that her accident was caused by a defect in the road which caused her to trip. Her case against the municipality was thrown out of court, however, because her personal injury lawyer made a procedural mistake, and failed to provide the required written notice of the claim to the municipality. As a result, the plaintiff hired another attorney and filed a legal malpractice law suit against her first lawyer. On February 21, 2020, the plaintiff lost her legal malpractice case when the Hartford Superior Court ruled that, although the plaintiff shown that her prior lawyer had committed malpractice, the plaintiff did not prove that she would have won her case against the municipality. The plaintiff’s legal malpractice lawyer argued that he did not need to show that the plaintiff would have won her case against the municipality, but merely that the plaintiff lost the opportunity to pursue her case against the municipality because of her first lawyer’s malpractice. However, as the court said in dismissing the legal malpractice case, “that is not the law.” Victims of legal malpractice are reminded that when they get to trial, they and their new counsel must be ready to prove not only legal malpractice, but also to prove that they would have prevailed in the underlying case if not for the legal malpractice.
