In a legal malpractice case in Maryland against a lawyer, a plaintiff needs to show these three elements:
(1) the attorney’s employment as your lawyer (usually, as we discuss below)
(2) the attorney’s neglect of a reasonable duty
(3) loss to the client proximately caused by that neglect of duty.
In other words, you have a legal malpractice claim in Maryland if your lawyer fails to do for the client what a reasonable prudent lawyer would have done in the same situation, and damage results as a result of the failure to do what a reasonable prudent lawyer would do.
Accordingly, to recover in a legal malpractice case, you must be able to prove that the legal malpractice occurred and that you would have received a favorable outcome if not for the lawyer’s legal malpractice.
The latter requirement is usually the most difficult to prove. Often legal malpractice is easy to establish. Demonstrating that some harm occurred as a result is often more problematic. Legal malpractice lawyers call this the “case within the case.” Accordingly, a lawyer bringing a legal malpractice claim on your behalf must demonstrate that you would have prevailed in the original case.
The great irony of legal malpractice cases is that the attorney defendant assumes the defenses available in the underlying case. So, understandably, but still ironically, the defendant attorney in the legal malpractice claim makes the same arguments his lawyer/client was bitterly fighting in the underlying lawsuit.
Types of Legal Malpractice
Legal malpractice can occur for a variety of reasons missing the statute of limitations, failure to offer expert testimony on a critical element of proof, missing a filing deadline during litigation, just to name a few. Obviously, if you go beyond the personal injury lawyer context there are scores of other types of legal malpractice, such as failure to perform due diligence in a business transaction, flawed title searches in real estate sales, and so forth.
Our law firm handles legal malpractice cases. In fact, one of our lawyers serves as an expert witness in legal malpractice cases (for plaintiffs and defendants) in and outside of Maryland. Recently, our lawyers obtained a seven figure settlement in a personal injury case that was predominantly a legal malpractice case. But our lawyers handle only legal malpractice cases that are derivative of personal injury cases. In other words, the underlying negligence must have been in a serious personal injury case.
Legal Malpractice Statute of Limitations
In Maryland, a three-year statute of limitations applies to most legal malpractice actions. But there are a number of exceptions to the statute of limitations that apply with increased frequency in legal malpractice cases. There are also real questions about when the statute of limitations begins to run. For example, under Maryland law, a legal malpractice claim begins to accrue at the time of the verdict, not when the court’s ruling is affirmed on appeal.
If you would have a legal malpractice case in the Baltimore Washington area that you want to discuss with one of our lawyers, call us for a free consultation at 800-553-8082 or get a free no obligation online consultation.
Common Types of Legal Malpractice Claims
Below are some of the most common types of mistakes that can lead to lawyer malpractice claims and lawsuits.
Missed Deadlines (Statute of Limitations)
The most common type of attorney malpractice is when a lawyer negligently fails to file something for a client before a deadline or statute of limitation expires and the client is significantly injured as a result. The most significant type of legal malpractice for a missed deadline occurs when a lawyer fails to file a client’s lawsuit before the statute of limitation expires. The statute of limitation is a legal deadline for filing a lawsuit. If the lawsuit is not filed before this deadline expires, the claim is lost forever.
This can be a pretty big deal when it happens. For example, let’s say Jane was injured in an auto accident that was clearly the fault of the other driver. She suffers very serious injuries so her claim against the other driver is very solid and worth at least $200,000. Jane hires attorney Sam to represent her, but Sam neglects to file a lawsuit for Jane before the statute of limitations expires. This mistake by attorney Sam has essentially cost Jane $200,000.
Misuse of Client Funds
When a client pays a retainer, the attorney is required to place the funds into a trust account. Also, when an attorney gets settlement funds on behalf of a client that money is also supposed to be deposited into the attorney trust account. If the attorney deposits the money into their personal account, it may be considered financial misuse. The most serious form of legal malpractice involving misuse of funds would be if an attorney were to steal money directly from their clients.
To plead a case for fraud, the plaintiff must allege specific facts showing that:
- The defendant made a false statement to the plaintiff.
- The defendant knew it was false or acted with reckless disregard for the truth.
- The statement was made to deceive the plaintiff.
- The plaintiff relied on the false statement and had a right to do so.
- The plaintiff suffered harm as a result.
Negligent Investigation or Discovery
A key responsibility every lawyer assumes when taking a case is dedicating sufficient time and effort to investigating their client’s legal claims. This process, known as “discovery,” involves using various legal tools to gather evidence that supports the client’s case. If an attorney fails to conduct a thorough investigation and misses critical facts—such as failing to identify an important witness—they may be liable for legal malpractice.
Lack of Client Consent
While clients hire attorneys to represent them in legal matters, this does not grant the attorney unlimited decision-making power. Lawyers must always obtain the client’s consent before taking any legal action.
In the client-attorney relationship, clients set their objectives, and attorneys develop strategies to achieve them. However, attorneys cannot proceed with these strategies without the client’s approval. If an attorney acts without the client’s explicit written or verbal consent, they risk facing a potential legal malpractice claim.
Conflicts of Interest
A “conflict of interest” occurs when an attorney prioritizes their own interests over those of their client. It also arises when an attorney favors one client’s interests over another’s, which can be considered legal malpractice.
Examples of conflicts of interest include failing to provide full disclosure, having a personal relationship with someone on the opposing side (whether a client or attorney), engaging in intentional professional misconduct, representing two clients on the same side of a dispute with conflicting interests, or working for a percentage of a client’s business transactions instead of charging a standard professional fee.
Legal Malpractice Verdicts and Settlements
Below are summaries of verdicts and settlements from recent legal malpractice cases.
$6,800,000 Verdict (California 2024): The plaintiff hire the defendants to represent him in a medical malpractice claim. The defendants allegedly designated an expert to testify about liability, causation and damages in the action. The expert, however, reportedly testified at deposition that he had not been asked to provide a damages opinion and had no damages opinions to offer at trial. The defendants allegedly failed to move to amend the plaintiff’s disclosure to include a damages expert. The plaintiff also asserted the defendants failed to take any depositions in the matter and failed to designate a psychiatric damages expert. The plaintiff alleged legal malpractice.
$29,984 Verdict (Iowa 2023): Minor plaintiff, through his parents, hired defendant attorney and his law firm to pursue a personal injury claim on behalf of the plaintiff following a motor vehicle accident. The plaintiff claimed the defendants timely settled with the other driver’s insurer but failed to file an underinsured motorist (UIM) lawsuit against the parents’ underinsured motorist carrier within the statute of limitations. The plaintiff was precluded from bringing a UIM claim. The plaintiff and his parents alleged legal malpractice.
$145,083 Verdict (Washington DC 2023): The plaintiffs hired the defendants to represent their interests regarding their father’s estate. The plaintiffs claimed the defendants advised them to settle their claims against the estate for an amount that failed to take into consideration a valuable commercial property belonging to the decedent. The plaintiffs contended the defendants failed to undertake an adequate investigation into whether this commercial property was in fact an estate asset. The plaintiffs alleged that as a result, the settlement, which the plaintiffs agreed to, upon the defendants’ recommendation, was approximately $200,000 less than they were entitled to. The plaintiffs claimed legal malpractice against the defendants.
$3,000,000 Verdict (Washington 2023): The plaintiffs hired the defendant law firm to represent them in a medical malpractice claim against a federally funded hospital. The defendants failed to file the case within the 2-year statute of limitations under the Federal Tort Claims Action (FTCA) resulting in the total loss of the plaintiffs’ claims. The plaintiffs sued for legal malpractice.
Recent Maryland Legal Malpractice Cases of Note
- Miller v. Joyce, unreported (2020). Case that underscores the perils of trying to bring your own legal malpractice case. Plaintiff, a retired high school math teacher, sued his lawyer who was retained in a dispute involving his school. He did not have an expert to testify and the court dismissed the claim.
- Prestia v. Kerpleman, unreported (2019). This is a case where the claim was dismissed because the plaintiff’s lawyer did not name experts against the lawyer who allegedly committed malpractice. The surreal thing is the plaintiff could sue that lawyer for the failure to properly name experts in the legal malpractice case. So he would be suing his last lawyer for not properly suing the lawyer he had before that. Insane, right?
- Pinner v. Pinner, 240 Md. App. 90 (2019). Can someone who the lawyer’s client recover for malpractice? The “third-party beneficiary exception” rule carves out the rare instance where a non-client can recover against an attorney in a legal malpractice claim if it can be shown that the client intended her to be a third-party beneficiary of the lawyer’s work and the victim’s interest are interests are identical to the client’s interests.
- Suder v. Whiteford, Taylor & Preston, LLP, 413 Md. 230 (2010). Plaintiff must prove that if the lawyer’s mistake had not occurred, the plaintiff would have obtained a more favorable result in the underlying case. Maryland legal malpractice lawyers call this the “trial within a trial.” So if lawyer makes a obvious mistake but there is no harm caused, you have negligence but not damages.
- Dashiell v. Meeks, 396 Md. 149 (2006). Again, when the statute of limitations begins to toll is a complicated question. This case looks at whether constructive notice begins the running of the statute of limitations and concludes that it does not.
- Berringer v. Steele, 133 Md. App. 442 (2000). This is a criminal case that looks at the “case within a case” from a different lens. The Maryland Court of Special Appeals found that to recovery in a legal malpractice action, the plaintiff must obtain postconviction relief overturning her criminal conviction.
- Edwards v. Demedis, 118 Md. App. 541, 557, 703 A.2d 240 (1997). The court ruled a cause of action against a tax lawyer is not tolled for the statute of limitation until after an appeal. The court also found that continuous representation similarly does not toll the state of limitation. See also Watson v. Dorsey, 265 Md. 509, 290 A.2d 530 (1972), (holding that a legal malpractice claim accrued when the plaintiffs lost their case at trial, and not at the point in time when the trial court’s decision was later affirmed on appeal);
More Maryland Legal Malpractice Information
- Average Settlements and Verdicts in Maryland Legal Malpractice Cases (data on average value)
- Interrogatories (legal malpractice sample interrogatories)