Over 20 years experience in legal malpractice litigation in Orange County , California.

Legal Malpractice Frequently Asked Questions

The following list contains some basic information that you should be aware of regarding attorney malpractice cases. This is not intended to be an exhaustive list covering every issue or question that may come up, but instead intended to be a guideline to alert you to some of the key issues that repeatedly arise in legal malpractice cases. The information below is furnished strictly for informational purposes, and does not constitute legal advice.

1. Is your case timely? - Statute of Limitations

The statute of limitations for bringing a malpractice claim against an attorney is found at California Code of Civil Procedure section 340.6. In order to be viable, any legal malpractice action must be commenced within the time limits set forth in the code section. If you do not file a legal malpractice lawsuit before the expiration of the statue of limitations, your lawsuit will be forever time-barred. California Code of Civil Procedures section 340.6 provides that:

A. An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission whichever occurs first. In no event shall the time for the commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist:

1. The plaintiff has not sustained an actual injury;
2. The attorney continues to represent the plaintiff regarding the specified subject matter in which the alleged wrongful act or omission occurred;
3. The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation; and
4. The plaintiff is under a legal or physical disability which restricts the plaintiff’s ability to commence legal action.

B. In an action based upon an instrument in writing, the effective date of which depends upon some act or event of the future, the period of limitations provided for by this section shall commence to run upon the occurrence of such act or event.

Application of the statute of limitations to a particular set of facts can be complicated. If you have any questions regarding the timeliness of your case, or if you do not understand how the above-quoted statute may apply to your case, you should consult an attorney immediately.

2. Do you have a written agreement with an attorney or law firm that you want to sue?

With certain narrow exceptions, California law requires attorney fee contracts to be in writing if the attorney is being paid on a contingent basis, or if the total expense to the client, including attorney fees and costs, is expected to exceed $1,000. The attorney is also required to give you a duplicate copy of the fully executed fee agreement at the time the agreement is entered into. There are additional requirements regarding what the agreement must contain depending on whether the attorney is to be paid on a contingent bases or on some other basis, such as an hourly or flat fee basis. Requirements for contingency fee contracts are found at California Business & Professional Code section 6147. Requirements for non-contingency fee contracts are found at California Business & Professions Code section 6147. Medical Malpractice contingency fee agreements are subject to additional limitations that are set forth in California Business & Professions Code section 6146. That section limits the amount of fees an attorney can charge in a medical malpractice case.

3. Does the attorney or law firm that you want to sue have insurance?

Not all California attorneys carry liability insurance. In most cases, whether or not an attorney has insurance is an important factor in determining whether a malpractice claim against the attorney is viable. Malpractice claims can be expensive to pursue, and the client is generally liable for the costs the attorney incurs in prosecuting the case. Without insurance to cover the damages, pursuing a malpractice claim may mean you are taking on a big financial risk without much chance of ultimately recovering any money. Previous versions of California Business & Professions Code section 6147 and 6148 required an attorney to disclose the fact that they did not maintain malpractice insurance in their fee agreements. The current versions of those code sections do not require an attorney to disclose this information in the fee agreement. For your own protection, you should ask an attorney if he or she has malpractice insurance before you sign a fee agreement.

4. How to prove your malpractice case against the attorney or law firm you want to sue?

California attorneys are not required to be perfect, and the mere fact that you did not obtain favorable results in your case does not automatically mean that you have a malpractice claim against your attorney. Judicial Council of California Civil Jury Instruction (CACI) number 600 sets forth the standard to determine if an attorney has committed malpractice. That instruction provides that:

“An attorney is negligent if he/she fails to use the skill and care that a reasonable careful attorney would have used in similar circumstances.”

In most cases, the standard for the “skill and care that a reasonable careful attorney would have used in similar circumstances” must be established through the presentation of expert testimony. This means that in almost every case your malpractice attorney will have to hire another attorney to serve as an expert and explain to the jury specifically what your former attorney did wrong.

5. What damages have you suffered as a result of the attorney or law firm’s alleged malpractice?

Even if your attorney’s actions fall below the standard of care mentioned in item number 4, if the attorney’s mistake does not result in any damage to you then you do not have a viable malpractice case. CACI number 601 is the basic jury instruction regarding damages in a legal malpractice case. That instruction provides:

“To recover damages from [the attorney], [the plaintiff] must prove that he/she would have obtained a better result if [the attorney] had acted as a reasonably careful attorney.”

For example, if you hired the attorney to represent you in a personal injury case and lost the case, you have to be able to show that you would have won the case if the attorney had not made whatever error you claim he made. This is commonly referred to as the “trial within a trial” method of proving damages because it requires you to prove both the underlying case and the malpractice against the attorney. If you can prove that you would have obtained a better result but for the attorney’s negligence, you are entitled to recover whatever compensatory damages you would have received in the underlying case. In a malpractice case based on an attorney’s negligence, you are not entitled to recover any more damages from the attorney than you would have received in the underlying case.
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