She Said, He Said.

An Ohio attorney claimed that he told his client about all settlement proposals but that his client rejected them. The client claimed that she did not know about the proposals and might have accepted one. Nothing was in writing. The Ohio Court of Appeals held that her testimony would be enough for a reasonable jury to find legal malpractice. Now, email was first sent in 1971, although the technology existed in 1965. In the late 1980s, the government started using an email system called Government Open Systems Interconnection Profile (GOSIP) (no joke). Given their importance to clients and lawyers both, settlement discussions usually appear in email. Roush v. Blazek, 2023 Ohio 3917 (Ohio Court of Appeals, October 27, 2023).

Talk To An Attorney.

A Colorado attorney found himself disbarred for a host of reasons, such as entering into a business deal with his client without advising his client to talk to independent counsel. Unsatisfied with just being disbarred, he then sued his now former client to enforce the business deal, despite the unlikelihood of getting an unethical contract enforced. Possibly to avoid being disbarred, the attorney previously testified that the deal was a gift to the client, raising an uncomfortable question about why he was suing to enforce a gift. The trial court ordered the attorney to pay his former client’s attorney fees. Calvert v. Mayberry, 440 P.3d 424 (Colo. 2019).

Cruelty

The rules of professional conduct (ethics) require a lawyer to be “fit” to practice law. The fitness requirement can be a catch-all rule covering conduct abhorrent to but not neatly within the typical roles of advocate and counselor. One lawyer was convicted of 28 felony counts of animal cruelty. The lawyer failed to report his conviction and prison sentence. His license was suspended for two years. People v. Goode, 423 P.3d 407 (Colo. 2018).

Abandonment

Technically, abandonment is not a separate basis for suing a lawyer. Rather, the word “abandonment” lumps together multiple failures to do things that a client needs done. One lawyer failed to show up for multiple hearings and ignored court orders. He also faked a client’s signature and then refused to return $1,500 in unearned fees. He then ignored the Supreme Court’s inquiry and was disbarred. People v. Braham, 409 P.3d 655 (Colo. 2017).

Arising Under What?

Federal courts do not have the power (jurisdiction) to decide just any lawsuit. Generally, they can decide all claims brought under Federal law (federal question jurisdiction) and some claims between a citizen of one State and a citizen of another State or another country (diversity jurisdiction). What happens when a legal malpractice claim (State law) is based on the mishandling of a federal question? The Supreme Court has carved out a third class of jurisdiction called arising-under jurisdiction, which applies to State law claims concerning important federal questions. However, the Supreme Court appears never to have asserted arising-under jurisdiction over a legal malpractice claim. Take that, Jackson Pollock. Gunn v. Minton, 568 U.S. 251 (2013).

A Harsh Result.

A Colorado attorney failed to put his carrier on notice of a legal malpractice claim against him and, therefore, had no breach of contract claim against his carrier. What’s so harsh about that? The attorney did not know about the claim. His negligent former partner knew, but his negligent former partner was long gone. No coverage for the attorney meant no insurance proceeds to pay the former client. A harsh result, indeed. Berry & Murphy, P.C. v. Carolina Cas., 586 F.3d 803 (10^th Cir. 2009).

I’ll Counter That!

One of the dumbest things lawyers do – at least one of the most avoidable dumb things – is sue their client for unpaid fees. Why is it so dumb? If the client is not paying, she’s probably not happy. She is likely to counterclaim for legal malpractice. In fact, if she has a claim, she must pursue it. Failure to counterclaim will probably preclude the client from bringing the legal malpractice claim in the future. Allen v. Martin, 203 P.3d 546 (Colo. App. 2008).

Oh, You Mean THAT Affair.

Judges are lawyers, in most jurisdictions. They are people, too. So, when a judge had an affair with a deputy district attorney, it wasn’t necessarily shocking. Lying about it: Bad. Continuing the affair while the prosecutor was handling cases in front of the judge: Bad. Bad. While married to the person who reported the affair, and then urging the deputy district attorney to destroy emails and to lie to judicial officials to dispel rumors about the affair: Worthy of a three-year suspension. People v. Biddle, 180 P.3d 461 (Colo. 2007).

Strong Arm of the Law.

Does your lawyer “think like a criminal”? Would he rather “go to jail than lose a case”? Is your lawyer “greedy,” and is that a good thing? Mark these words from lawyers around the country: You need “The Hammer,” “The Gorilla,” or “The Strong Arm” or a reasonably capable attorney with a boring website. You, too, can turn your “pain into rain.” However, no matter how outrageous and protected by the First Amendment, lawyer advertising must comply with the same consumer protection laws as every other business. Maybe it should be enough that your lawyer “has a dog.” Crowe v. Tull, 126 P.3d 196 (Colo. 2006).

Good Faith Breach of Fiduciary Duty?

Fiduciary duties are duties to act in the best interests of someone else, even to the detriment of the fiduciary. Anyone can breach ordinary duties of care, but only fiduciaries can breach fiduciary duties. A fiduciary duty can be breached by a failure to act with ordinary care, in which case it’s an ordinary negligent breach of fiduciary duty, which, interestingly, a lawyer can do in good faith. What’s the point? A client cannot recover damages for emotional distress caused by a lawyer’s breach of fiduciary duty if it was a good faith ordinary negligent breach of fiduciary duty. Aller v. Law Offices of Carole C. Schriefer, P.C., 140 P.3d 23 (Colo. App. 2005).

Well, Duh.

Some say lawyers have a heightened duty of care. A duty of care is like a fiduciary duty but different and nobody is clear on the difference. For example, some say a fiduciary duty is a duty of conduct but apparently not careful conduct, while others say a duty of care includes being careful to do nothing, unless something ought to be done. Others say that lawyers do not have a heightened duty of care, but a complex duty of care, which makes sense, since a jury needs to hear expert testimony on what lawyers should do, or not do, unless of course lawyers just blow a deadline, in which case, well, duh. Giron v. Koktavy, 124 P.3d 821 (Colo. App. 2005).

When the Stopwatch Starts.

In Colorado, the time limit to sue a lawyer is two years from when the client knew or should have known about potential legal malpractice. In 1996, a client was convicted of serious felonies and given a long prison sentence. The client grieved the lawyer and at the same time initiated an appeal. The appeal was successful, and the lawyer was suspended for failing to prepare the client’s defense. In 1999, the client started a legal malpractice case. The court held that the stopwatch started no later than the moment the client filed the grievance, which was proof that the client knew about a potential legal malpractice claim. Thus, despite the disciplinary suspension, the statute of limitations barred the legal malpractice claim. Morrison v. Goff, 91 P.3d 1050 (Colo. 2004).

Duty to Mitigate.

A car crash victim can’t sleep in a hospital bed until a jury awards money, at least not to inflate the award. How about the client who wears a neck brace to trial? Unless the neck is still broken years after the accident (in which case the client probably shouldn’t attend trial), the brace might prove the client’s failure to mitigate damages. Victims must take reasonable steps to lessen the harm caused by a defendant. However, the steps need only be reasonable. After legal malpractice, a client does not need to keep pursuing a doomed claim. Stone v. Satriana, 41 P.3d 705 (Colo. 2002).

Legal Malpractice Attorney’s Attorney Fees.

It seems fair to say that all rules in America are American rules, but only one gets the honor of being “The” American Rule. It gets its name from not being the English Rule. The English Rule is that the party who loses a lawsuit must pay the winner’s attorney fees. The American Rule is that the two sides pay their own fees, regardless of who wins, unless an exception applies. One exception is that, when a fiduciary loses, the fiduciary must pay the winner’s fees. Lawyers are fiduciaries. However, the lawyer must breach a fiduciary duty, not just an ordinary duty, for the lawyer to be obligated to pay the legal malpractice attorney’s attorney fees. Smith v. Mehaffy, 30 P.3d 727 (Colo. App. 2000).

Duplicate Claims.

Not many legal problems are happy. Usually, adoption is an exception. However, in 1994, an attorney represented both the relinquishing parents and the adopting couple in the same adoption. In addition to having a conflict of interest – a breach of the fiduciary duty of loyalty – the attorney failed to tell the parents that they could receive relinquishment counseling – a breach of the duty of care. The parents sued for emotional distress caused by enduring the relinquishment decision without counseling. The Court held that the negligence claim was not a duplicate of the fiduciary duty claim and that both claims should be given to the jury to decide. Boyd v. Garvert, 9 P.3d 1161 (Colo. App. 2000).

Just Can’t Wait.

In nearly all legal malpractice cases, a client must present expert testimony to the jury. The expert must opine that the lawyer was negligent and that the lawyer’s negligence was a cause of the client’s damages. So, why wait for the jury? By Colorado statute, a client must first (that is, no later than 60 days after serving the lawyer with a copy of the summons and complaint) obtain an expert opinion that the allegations in the complaint do not lack substantial justification. In other words, a client can’t wait to get an expert! Kelton v. Ramsey, 961 P.2d 569 (Colo. App. 1998).

Just Don’t Wait.

A common mistake by clients is waiting until the representation ends to talk to a legal malpractice attorney. In other words: A lawyer makes a mistake. The client sticks with the lawyer until the bitter end. The client then calls a legal malpractice attorney. “So, what caused you to think that you might have a legal malpractice claim?” It’s a common question for a malpractice attorney to ask. “My lawyer told me that he made a mistake.” A far more common answer than clients might think. “Why didn’t you call me sooner?” “I really like my lawyer, so I waited until the case was over.” Dang. “When did your lawyer tell you?” “More than two years ago.” Dang. Broker House Int’l v. Bendelow, 952 P.2d 860 (Colo. App. 1998).

Bankruptcy and Legal Malpractice.

One of the insidious consequences of legal malpractice is that the client may be forced into bankruptcy. Ordinarily, legal malpractice claims cannot be assigned to someone else. So, what happens to the claim after the client files for bankruptcy relief? It gets assigned to the bankruptcy estate. The client loses control over whether to bring or settle the claim unless the bankruptcy trustee decides to assign the claim back to the client. Peltz v. Shidler, 952 P.2d 793 (Colo. App. 1997).

Breach of Fiduciary Duty.

Lawyers are fiduciaries and capable of breaching fiduciary duties to a client, but not all duties are fiduciary duties. A client does not have a breach of fiduciary duty claim against a lawyer merely because lawyers are fiduciaries. Sometimes courts describe negligence claims and fiduciary duty claims as “duplicative,” but it is usually more precise to say that a client failed to state a claim for breach of fiduciary duty. Merely pooching legal advice is not a breach of fiduciary duty. Moguls of Aspen, Inc. v. Faegre & Benson, 956 P.2d 618 (Colo. App. 1997).

Emotional Distress Damages.

During a divorce, which was stressful enough, the wife’s attorney allegedly overbilled and incurred unauthorized costs. The wife sued for legal malpractice and included a demand for emotional distress damages. The court held that clients are not entitled to recover for emotional distress solely from pecuniary loss. Gavend v. Malman, 946 P.2d 558 (Colo. App. 1997).

The Legal Malpractice Claim.

Lawyers can breach contractual duties, duties of care, and fiduciary duties. They can also breach a pile of other duties, like statutory and ethical duties and whatnot, but when a lawyer makes a mistake, the mistake tends to breach a bunch of duties all at once. In Colorado, the claims get thrown together into the same goulash-gumbo called legal malpractice claims. For example, unless the breach of contract claim is based on something other than what lawyers ordinarily ought to do, it’s just whatnot. McLister v. Epstein & Lawrence, P.C., 934 P.2d 844 (Colo. App. 1996).

Case-Within-A-Case Causation in Legal Malpractice Cases.

You will never hire a perfect lawyer, but you might find the next best thing: a lawyer who only makes mistakes on other people’s cases. However, nearly all those mistakes make no difference. The legal system is replete with gobs of redundancy to prevent human imperfection from getting in the way of justice. Winning a legal malpractice case requires proving that a mistake caused damage. Typically, proving causation requires proving that, but for the mistake, the client would have won the original case. It requires presenting a minitrial over the first case while at the same time presenting the rest of the legal malpractice case. It’s the case-within-a-legal-malpractice-case. Actually, it’s just the case-within-a-case. Miller v. Byrne, 916 P.2d 566 (Colo. App. 1995).

Negligent Misrepresentations by Lawyers.

If a “client” agrees to pay a lawyer to represent Bozo the Clown, the actual client is Bozo, not the person paying the lawyer. Merely writing checks does not give the benefactor the right to sue the lawyer for mistakes. Bozo can sue but the benefactor can’t. So, what if the benefactor hires the lawyer to say things to induce Bozo to do things like, say, give money to benefactor. Who’s the client, now? It’s a trick question. Regardless of the answer, Bozo can sue the lawyer for “negligent misrepresentation” if the lawyer says negligent things. Mehaffy, Rider, Windholz & Wilson v. Central Bank Denver, N.A., 892 P.2d 230 (Colo. 1995).

Intended Beneficiaries.

A lawyer is a champion prize fighter for the client who motivated the lawyer to get into the boxing ring (usually motivating with the prizes). The lawyer must throw punches, sometimes with near reckless abandon, or at least a little abandon. If Bozo the Clown jumps in the ring, who would blame the lawyer for accidentally punching the clown in the noise maker? Bozo and every kid who likes Bozo. So, the law protects lawyers from liability for Bozo’s damages, even if the client intended to give his winnings to Bozo. The lawyer’s duty is to the client, not to Bozo. Glover v. Southard, 894 P.2d 21 (Colo. App. 1994).

The Doomed Case.

Legal malpractice cases are designed to help a client recover losses. As a result, clients must prove losses and causation of losses. Causation has two parts: 1) cause in fact; and 2) cause in stomach. The latter is about the inclination of courts not to stomach cases based on some sort of butterfly effect. Cause in fact is based on awarding damages to a client who, like everyone else in the world, has all kinds of problems unrelated to malpractice. If a client was never going to win the original case, no amount of legal malpractice was a but-for of losing the doomed case. Fleming v. Lentz, Evans, and King, P.C., 873 P.2d 38 (Colo. App. 1994).

Legal Experts to Help Legal Experts.

In a rare legal malpractice trial to a judge instead of a jury, the judge excluded expert testimony that was offered to, ahem, educate the judge about the law. The judge said thanks but no thanks. “Because the proffered testimony concerned matters of legal practice, the trial court was in a particularly appropriate position to assess whether such testimony would be helpful in its deliberations.” Zick v. Krob, 872 P.2d 1290 (Colo. App. 1993).

Mitigating Damages.

For the purposes of Colorado’s two-year statute of limitations, a cause of action for legal malpractice does not accrue until a client knew or should have known of evidence supporting all four elements of the cause of action: duty, breach, causation, damages. Without damages, no cause of action exists, and the two-year time limit does not begin to run. In addition, clients have a duty to try to minimize their damages. They can’t just sit on their hands and watch the dollar signs roll by them. However, as soon as they start spending time and money to mitigate their damages, the mitigation becomes its own category of damages, and the two-year time limit begins to run. Jacobson v. Shine, 859 P.2d 911 (Colo. App. 1993).

Assigning Legal Malpractice Claims.

A claim is sometimes called a “chose in action” or “chose.” The word “chose” comes from the French word, uh, “chose,” which sounds something like “shoes.” It means “thing.” The idea is that, though a claim is not something that can be touched, it can be treated like a thing. For example, a chose, uh, claim, can be handed or assigned to someone else. Alas, a legal malpractice claim is no ordinary shoe. Lawyers have duties of confidentiality and loyalty, making the attorney-client relationship more like a Tecnica Mach 1 (fancy ski boot) and less like an Australian plugger (flip flop). Only the client can sue for malpractice. Roberts v. Holland & Hart, 857 P.2d 492 (Colo. App. 1993).

Lawyer as Seer.

In one of the more controversial cases of legal malpractice, a lawyer was right on the money and still held liable. The case involved real estate law’s infamous Rule Against Perpetuities. When studying for the bar exam, lawyers are often taught not to waste time trying to understand the Rule and, instead, to guess at an answer if it shows up on the exam. In this case, the lawyer cleaned up the archaic language setting forth the Rule in a real estate “option.” The Colorado court held that the lawyer’s revision accurately set out the Rule, but that using the old language would have prevented years of litigation over what the new language meant. Temple Hoyne Buell Found. v. Holland & Hart, 851 P.2d 192 (Colo. App. 1992).

Start by Getting a Legal Malpractice Lawyer.

A lot of lawyers hate suing other lawyers. The industry is not as cannibalistic as the public perceives it to be. Call it the thin-No.-2-pencil-line. However, lawyers have an ethical duty not to recoil from prosecuting legal malpractice claims. Usually, they can discharge the duty by referring clients to malpractice attorneys. If the client sues without the help of a malpractice attorney (pro se), the client must live with all the bumps and bruises of not knowing the law. Rosenberg v. Grady, 843 P.2d 25 (Colo. App. 1992).

Do I have to Pay Attorney Fees?

A lawyer doesn’t lose her fee just because she was negligent. At a minimum, she is entitled to get paid for her good work. However, she is not entitled to get paid for negligent work. Neither is she entitled to be reimbursed for costs she incurred because she was busy being negligent. However, her malpractice insurance covers her liability for damages, not her obligation to refund fees. However, the legal malpractice attorney does get paid. McCafferty v. Musat, 817 P.2d 1039 (Colo. App. 1990).

Incalculable Damages.

During dissolution of a marriage, a judge granted the parents joint custody of the only child, rather than giving Mom sole custody. In the legal malpractice case, Mom argued that her damages were the difference between sole custody and joint custody. The Court did not consider whether the partial loss of custody would cause emotional distress. Rather, the Court addressed only whether the loss itself was independently compensable. The Court held that such a loss was incalculable and therefore not recoverable in a legal malpractice case. McGee v. Hyatt Legal Servs., 813 P.2d 754 (Colo. App. 1990).

Calculable Damages Caused by Legal Malpractice.

In any lawsuit, the amount of alleged damage might be a function of simple mathematics. So, why bother asking a jury to perform math when most lawyers muse that they went to law school to avoid doing math? (Spoiler alert: Lawyers are good at math.) Even if only part of a client’s damages is subject to calculation, the judge can instruct the jury to assume the calculation is correct. For example, if malpractice caused an award of punitive damages against the client, the client may argue that the award is compensable in the legal malpractice case. Scognamillo v. Olsen, 795 P.2d 1357 (Colo. App. 1990).

Scope of Expert Opinion.

Except in the rarest of cases, winning a legal malpractice case requires presenting expert opinions. But just how far can the expert go? In a case involving a client losing an opportunity to settle relatively well (only to get walloped later), an expert was permitted to testify that the case would have settled but for legal malpractice. In other words, an expert lawyer was permitted to testify that a litigant probably would have settled. Scognamillo v. Olsen, 795 P.2d 1357 (Colo. App. 1990).

Prove It.

When a lawyer drives down her driveway and over the neighbor’s rhododendrons, she might owe her neighbor some new rhododendrons. A jury probably won’t need the help of expert testimony to understand how the lawyer should have driven the car more carefully. Now, if the lawyer represents the neighbor in a complex property line dispute and the lawyer pooches the case, the neighbor must present expert testimony on how the lawyer should have driven the representation more carefully. Boigegrain v. Gilbert, 784 P.2d 849 (Colo. App. 1989).

But the Lawyer Confessed Legal Malpractice.

Surely, if a lawyer admits to screwing up, the legal malpractice claim is surely a thing. Apparently not. After missing a statute of limitations, a lawyer said that he “screwed up” and “made a mistake.” However, the Court held that the law at the time was unclear on when the time limit started to run. “An attorney owes his client a duty to employ that degree of knowledge, skill, and judgment ordinarily possessed by members of the legal profession. There is no requirement that he be infallible.” Myers v. Beem, 712 P.2d 1092 (Colo. App. 1985).