CA Legal Malpractice CLS flashcards
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32 cards. Read the term and the definition here. The deck at the top of this page is optional.
- Elements of legal malpractice
- In California, the plaintiff must prove: (1) an attorney-client relationship or duty; (2) breach of the standard of care; (3) causation; and (4) actual loss or damage.
- Standard of care
- A reasonably competent attorney practicing in the same or a similar community, exercising ordinary skill, prudence, and diligence under the circumstances.
- Case within a case
- The method of proving causation in legal malpractice: the plaintiff must show that but for the attorney's negligence, the plaintiff would have obtained a better result in the underlying matter.
- Actual injury accrual
- In California, the limitations period begins when the plaintiff sustains actual, non-speculative injury, not merely when the negligent act occurs.
- Statute of limitations
- California Code of Civil Procedure section 340.6 sets the earlier of one year after discovery or four years after the wrongful act, subject to tolling exceptions.
- Tolling: continued representation
- The limitations period is tolled while the attorney continues to represent the client on the same specific subject matter that is the basis of the malpractice claim.
- Tolling: no actual injury
- If the plaintiff has not yet sustained actual injury, the limitations period does not begin to run; the claim is not ripe until a present loss occurs.
- Tolling: willful concealment
- If the attorney willfully conceals the facts constituting the wrongful act, the limitations period is tolled until the client discovers or should discover those facts.
- Expert testimony requirement
- Expert testimony is generally required to establish the standard of care, breach, and causation, unless the negligence is apparent to a layperson, such as a missed deadline.
- Recoverable damages
- Damages may include lost judgment or settlement value, additional costs and fees incurred, and consequential damages proximately caused by the attorney's negligence.
- Nominal damages insufficiency
- Nominal damages alone are generally insufficient to support a legal malpractice claim; the plaintiff must show actual, ascertainable loss.
- Comparative fault defense
- The client's own negligence or failure to mitigate may reduce or bar recovery in a legal malpractice action under comparative fault principles.
- No attorney-client relationship
- Absent a relationship or a recognized duty to a non-client, an attorney generally owes no malpractice duty to the plaintiff.
- Non-client duty exception
- A duty may run to intended beneficiaries, joint clients, or persons the attorney undertakes to serve, which is an exception to the privity requirement.
- Good-faith tactical choice
- A strategic or tactical decision made with informed client consent is generally not a breach of the standard of care.
- Ethical rule violation
- A violation of the California Rules of Professional Conduct does not by itself establish malpractice, though it may be evidence of breach.
- Conflict of interest
- Concurrent representation of clients with adverse interests can give rise to malpractice liability and disqualification; informed written consent may cure some conflicts.
- At-issue waiver
- By placing the attorney's advice at issue in a malpractice action, the client may waive the attorney-client privilege as to that advice.
- Punitive damages standard
- Punitive damages require clear and convincing evidence of oppression, fraud, or malice; ordinary or gross negligence alone is generally insufficient.
- Settlement of underlying case
- Settlement does not automatically bar malpractice, but the client must show the settlement was caused by the attorney's negligence and was reasonable.
- Underlying fees as damages
- Attorney fees incurred in the underlying case are generally not recoverable unless the malpractice forced the client to relitigate or defend against the error.
- Breach of fiduciary duty
- An attorney's breach of fiduciary duty, such as self-dealing or misuse of client funds, may support a separate claim from legal malpractice.
- Written fee agreement
- Certain fee arrangements, including contingency fees, must be in writing; an unconscionable or illegal fee agreement may be unenforceable.
- Legal disability tolling
- If the plaintiff is under a legal disability, such as minority or incapacity, the limitations period under section 340.6 may be tolled.
- Constructive discovery
- The limitations period may begin when the plaintiff should have discovered the wrongful act through reasonable diligence, even without actual knowledge.
- Work-product doctrine
- The work-product doctrine can limit evidence available in a malpractice action, protecting materials prepared in anticipation of litigation.
- Attorney-client privilege
- The privilege protects confidential communications between attorney and client; it can restrict evidence in a malpractice action unless waived.
- Consequential damages
- Damages that flow proximately from the attorney's negligence, beyond the direct loss of the underlying case, may be recoverable if proven with reasonable certainty.
- Meritless underlying claim
- If the underlying claim had no merit, the malpractice claim fails even if the attorney erred, because the client cannot prove causation.
- Duty to non-clients
- An attorney may owe a duty to non-clients who are intended beneficiaries of the attorney's services or whom the attorney undertakes to serve.
- Informed consent
- A client's informed consent to a conflict or tactical choice, given after disclosure of material facts, may bar later malpractice claims based on that choice.
- Mitigation of damages
- The client has a duty to mitigate damages; failure to do so may reduce the recoverable amount in a legal malpractice action.