Attorney-Client Privilege (Encyclopedia of Everyday Law)
The ATTORNEY-CLIENT PRIVILEGE is an evidentiary rule that protects both attorneys and their clients from being compelled to disclose confidential communications between them made for the purpose of furnishing or obtaining legal advice or assistance. The privilege is designed to foster frank, open, and uninhibited discourse between attorney and client so that the client's legal needs are competently addressed by a fully prepared attorney who is cognizant of all the relevant information the client can provide. The attorney-client privilege may be raised during any type of legal proceeding, civil, criminal, or administrative, and at any time during those proceedings, pre-trial, during trial, or post-trial.
The privilege dates back to ancient Rome, where governors were forbidden from calling their advocates as witnesses out of concern that the governors would lose confidence in their own defenders. In 1577 the first evidentiary privilege recognized by the English COMMON LAW was the attorney-client privilege. The English common law protected the confidential nature of attorney-client communications, regardless of whether those communications took place in public or in private. The American colonies adopted this approach to the attorney-client privilege, and Delaware codified the privilege in its first constitution in 1776.
Elements of the Attorney-Client Privilege
Because the attorney-client privilege often prevents disclosure of information that would be relevant to a legal proceeding, courts are cautious when examining objections grounded in the privilege. Most courts generally require that certain elements be demonstrated before finding that the privilege applies. Although the elements vary from JURISDICTION
to jurisdiction, one often cited recitation of the elements was articulated in U.S. v. United Shoe Machinery Corp., 89 F.Supp. 357 (D.Mass. 1950), where the court enumerated the following five-part test: (1) the person asserting the privilege must be a client or someone attempting to establish a relationship as a client; (2) the person with whom the client communicated must be an attorney and acting in the capacity as an attorney at the time of the communication;
(3) the communication must be between the attorney and client exclusively; (4) the communication must be for the purpose of securing a legal opinion, legal services, or assistance in some legal proceeding, and not for the purpose of committing a crime or FRAUD; and (5) the privilege may be claimed or waived by the client only.
Scope and Application of the Attorney-Client Privilege
The five-part test is typically the starting point in a court's analysis of a claim for privilege. Each element appears straight-forward on its face but can be tricky to apply, especially when the client is a corporation and not a natural person. CORPORATE clients raise questions as to who may speak for the corporation and assert the attorney-client privilege on behalf of the entity as a whole. Some courts have ruled that the attorney-client privilege may only be asserted by the upper management of a corporation. A vast majority of courts, however, have ruled that the privilege may be asserted not only by a corporation's officers, directors, and board members, but also by any employee who has communicated with an attorney at the request of a corporate superior for the purpose of obtaining legal advice. Upjohn Co. v. U.S., 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584, (U.S. 1981).
Whether the client is a natural person or a corporation, the attorney-client privilege belongs only to the client and not to the attorney. As a result, clients can prevent attorneys from divulging their secrets, but attorneys have no power to prevent their clients from choosing to waive the privilege and testifying in court, talking to the police, or otherwise sharing confidential attorney-client information with third parties not privy to the confidential discussions. Clients may waive attorney-client privilege expressly by their words or implicitly by their conduct, but a court will only find that the privilege has been waived if there is a clear indication that the client did not take steps to keep the communications confidential. An attorney's or a client's inadvertent disclosure of confidential information to a third party will not normally suffice to constitute WAIVER. If a client decides against waiving the privilege, the attorney may then assert the privilege on behalf of the client to shield both the client and the attorney from having to divulge confidential information shared during their relationship.
In most situations, courts can easily determine whether the person with whom a given conversation took place was in fact an attorney. However, in a few cases courts are asked to decide whether the privilege should apply to a communication with an unlicensed or disbarred attorney. In such instances, courts will frequently find that the privilege applies if the client reasonably believes that he or she was communicating with a licensed attorney. State v. Berberich, 267 Kan. 215, 978 P.2d 902 (Kan. 1999). But courts in some jurisdictions have relaxed this standard, holding that the privilege applies to communications between clients and unlicensed lay persons who represent them in administrative proceedings. Woods on Behalf of T.W. v. New Jersey Dept. of Educ., 858 F.Supp. 51 (D.N.J. 1993).
Although many courts emphasize that the attorney-client privilege should be strictly applied to communications between attorney and client, the attorney-client privilege does extend beyond the immediate attorney-client relationship to include an attorney's partners, associates, and office staff members (e.g., secretaries, file clerks, telephone operators, messengers, law clerks) who work with the attorney in the ordinary course of their normal duties. However, the presence of a third party who is not a member of the attorney's firm will sometimes defeat a claim for privilege, even if that third person is a member of the client's family.
Thus, one court ruled that in the absence of any suggestion that a criminal defendant's father was a confidential agent of the DEFENDANT or that the father's presence was reasonably necessary to aid or protect the defendant's interests, the presence of the defendant's father at a PRETRIAL CONFERENCE between the defendant and his attorney invalidated the attorney-client privilege with respect to the conference. State v. Fingers, 564 S.W.2d 579 (Mo.App. 1978). In the corporate setting, the presence of a client's sister defeated a claim for attorney-client privilege that involved a conversation between a client-company's president and the company's attorney, since the sister was neither an officer nor director of the company and did not possess an ownership interest in the company. Cherryvale Grain Co. v. First State Bank of Edna, 25 Kan.App.2d 825, 971 P.2d 1204 (Kan.App. 1999).
Many courts have described attorney-client confidences as "inviolate." Wesp v. Everson, P.3d , 2001 WL 1218767 (Colo. 2001). However, this description is misleading. The attorney-client privilege is subject to several exceptions. Federal Rule of EVIDENCE 501 states that "the recognition of a privilege based on a confidential relationship... should be determined on a case-by-case basis." In examining claims for privilege against objections that an exception should be made in a particular case, courts will balance the benefits to be gained by protecting the sanctity of attorney-client confidences against the probable harms caused by denying the opposing party access to potentially valuable information.
The crime-fraud exception is one of the oldest exceptions to the attorney-client privilege. The attorney-client privilege does not extend to communications made in connection with a client seeking advice on how to commit a criminal or FRAUDULENT
act. Nor will a client's statement of intent to commit a crime be deemed privileged, even if the client was not seeking advice about how to commit it. The attorney-client privilege is ultimately designed to serve the interests of justice by insulating attorney-client communications made in furtherance of adversarial proceedings. But the interests of justice are not served by forcing attorneys to withhold information that might help prevent criminal or fraudulent acts. Consequently, in nearly all jurisdictions attorneys can be compelled to disclose such information to a court or other investigating authorities.
A party seeking DISCOVERY of privileged communications based upon the crime-fraud exception must make a threshold showing that the legal advice was obtained in furtherance of the fraudulent activity and was closely related to it. The party seeking disclosure does not satisfy this burden merely by alleging that a crime or fraud has occurred and then asserting that disclosure of privileged communications might help prove the crime or fraud. There must be a specific showing that a particular document or communication was made in furtherance of the client's alleged crime or fraud.
The fact that an attorney-client relationship exists between two persons is itself not typically privileged. U.S. v. Leventhal, 961 F.2d 936 (11th Cir. 1992). However, if disclosure of an attorney-client relationship could prove incriminating to the client, some courts will enforce the privilege. In re Michaelson, 511 F.2d 882 (9th Cir. 1975). Names of clients and the amounts paid in fees to their attorneys are not normally privileged. Nor will clients usually be successful in asserting the privilege against attorneys who are seeking to introduce confidential information in a lawsuit brought by a client accusing the attorney of wrongdoing. In such instances courts will not allow clients to use the attorney-client privilege as a weapon to silence the attorneys who have represented them. Courts will allow both parties to have their say in MALPRACTICE suits brought by clients against their former attorneys.
State Rules Governing Attorney-Client Privilege
The body of law governing the attorney-client privilege is comprised of federal and state legislation, court rules, and CASE LAW. Below is a sampling of state court decisions decided at least in part based on their own state's court rules, case law, or legislation.
ARKANSAS: Attempts by both an attorney and his secretary to communicate with the client regarding his pending criminal case were protected by the attorney-client privilege. Rules of Evid., Rule 502(b). Byrd v. State, 326 Ark. 10, 929 S.W.2d 151 (Ark. 1996).
ALABAMA: Where a defendant asserted that his guilty pleas to robbery charges were the product of his defense counsel's COERCION, the absence of the defense counsel's TESTIMONY to rebut the defendant's testimony could not be excused by any assertion of the attorney-client privilege. Walker v. State, 2001 WL 729190 (Ala.Crim.App., 2001).
ARIZONA: By asserting that its personnel understood the law on stacking coverage for under insured and uninsured motorist claims, the insurer affirmatively injected legal knowledge of its claims managers into the insureds' BAD FAITH action and thus effectively waived the attorney-client privilege as to any communications between the insurer and its COUNSEL regarding the propriety of the insurer's policy of denying coverage. State Farm Mut. Auto. Inc. Co. v. Lee, 199 Ariz. 52, 13 P.3d 1169 (Ariz. 2000).
CALIFORNIA: The attorney-client privilege is not limited to litigation-related communications, since the applicable provisions of the state Evidence Code do not use the terms "litigation" or "legal communications" in their description of privileged disclosures but instead specifically refer to "the accomplishment of the purpose" for which the lawyer was consulted. West's Ann.Cal.Evid.Code §§ 912, 952. STI Outdoor
v. Superior Court, 91 Cal.App.4th 334, 109 Cal.Rptr.2d 865 (Cal.App. 2 Dist. 2001).
ILLINOIS: To prevail on an attorney-client privilege claim in a corporate context, a claimant must first show that a statement was made by someone in the corporate control group, meaning that group of employees whose advisory role to top management in a particular area is such that a decision would not normally be made without their advice or opinion and whose opinion, in fact, forms the basis of any final decision by those with actual authority. Hayes v. Burlington Northern and Santa Fe Ry. Co., 323 Ill.App.3d 474, 752 N.E.2d 470, 256 Ill.Dec. 590 (Ill.App. 1 Dist. 2001).
MAINE: Counsel's inadvertent disclosure of a memorandum to opposing counsel, which summarized a telephone conference between counsel and his client, did not constitute a waiver of the attorney-client privilege, where the document was mistakenly placed in boxes of unprivileged documents that were available to opposing counsel to photocopy and the memorandum in question was labeled "confidential and legally privileged." Corey v. Norman, Hanson & DeTroy, 742 A.2d 933, 1999 ME 196 (Me. 1999).
MASSACHUSETTS: Hospital personnel were neither the defendant's nor his attorney's agents when they conducted a blood-alcohol test on the defendant at the attorney's request for sole purpose of gathering potentially exculpatory evidence, and thus the state's GRAND JURY SUBPOENA of the test results did not violate the attorney-client privilege. Commonwealth v. Senior, 433 Mass. 453, 744 N.E.2d 614 (Mass. 2001).
MICHIGAN: A Court of Appeals reviews de novo a decision regarding whether the attorney-client privilege may be asserted. Koster v. June's Trucking, Inc., 244 Mich.App. 162, 625 N.W.2d 82 (Mich.App. 2000).
MINNESOTA: The presence of the defendant's wife at a joint meeting in which the defendant, his attorney, and his wife discussed financial aspects of a possible DIVORCE prevented the attorney-client privilege from attaching. State v. Rhodes, 627 N.W.2d 74 (Minn. 2001).
NEW JERSEY: The person asserting the attorney-client privilege bears the burden to prove it applies to any given communication. Horon Holding Corp. v. McKenzie, 341 N.J.Super. 117, 775 A.2d 111 (N.J.Super.A.D. 2001)
NEW YORK: A client's intent to commit a crime is not a protected confidence or secret for the purposes of the attorney-client privilege. N.Y.Ct.Rules, § 1200.19. People v. DePallo, 96 N.Y.2d 437, 754 N.E.2d 751, 729 N.Y.S.2d 649 (N.Y. 2001).
NORTH DAKOTA: A communication is confidential, for the purposes of determining the applicability of attorney-client privilege, if it is not intended to be disclosed to persons other than those to whom the disclosure is made during the course of rendering professional legal services or to those reasonably necessary for transmission of the communication during the course of rendering professional legal services. Rules of Evid., Rule 502(a)(5). Farm Credit Bank of St. Paul v. Huether, 454 N.W.2d 710 (N.D. 1990).
OHIO: The attorney-client privilege is not absolute, and thus the mere fact that an attorney-client relationship exists does not raise a presumption of confidentiality of all communications made between the attorney and client. Radovanic v. Cossler, 140 Ohio App.3d 208, 746 N.E.2d 1184 (Ohio App. 8 Dist. 2000).
TEXAS: Physicians who were defending against a malpractice action were not entitled to discover, under fraud exception to attorney-client privilege, material relating to a SETTLEMENT between the plaintiffs and another defendant, although the physicians alleged that disparate distribution of the settlement proceeds was a sham intended to deprive the physicians of settlement credit, since there was no evidence that the plaintiffs made or intended to make hidden distributions. Vernon's Ann.Texas Rules Civ.Proc., Rule 192.5(a); Rules of Evid., Rule 503(d)(1). IN RE Lux, 52 S.W.3d 369 (Tex.App. 2001).
WASHINGTON: The federal constitutional foundation for the attorney-client privilege is found in the Fifth Amendment PRIVILEGE AGAINST SELF-INCRIMINATION, the Sixth Amendment right to counsel, and the Due Process Clause of the Fourteenth Amendment, as these rights can be protected only if there is candor and free and open discussion between client and counsel. U.S.C.A. Const.Amends. 5, 6, 14. In re Recall of Lakewood City Council Members, 144 Wash.2d 583, 30 P.3d 474 (Wash. 2001).
American Jurisprudence. West Group, 1998.
http://cyber.lp.findlaw.com/privacy/attorney_ client.htmlFindLaw: CyberSpace Law Center: Privacy: Attorney-Client Privilege.
West's Encyclopedia of American Law. West Group, 1998.
American Bar Association
740 15th Street, N.W.
Washington, DC 20005-1019 USA
Phone: (202) 662-1000
Fax: (816) 471-2995
Primary Contact: Robert J. Saltzman, President
National Lawyers Association
P.O. Box 26005 City Center Square
Kansas City, MO 64196 USA
Phone: (800) 471-2994
Fax: (202) 662-1777
Primary Contact: Mario Mandina, Chief Executive Officer
National Organization of Bar Counsel
515 Fifth Street, N.W.
Washington, DC 64196 USA
Phone: (202) 638-1501
Fax: (202) 662-1777
Primary Contact: Robert J. Saltzman, President
How To Find An Attorney (Encyclopedia of Everyday Law)
When the United States handed down its decision in Bates v. State Bar of Arizona which struck down state laws prohibiting lawyers from advertising as an unconstitutional interference with free speech, it was widely thought that it would then be easier to find an attorney. This belief was based on the premise that since lawyers were allowed to compete in the same way as other businesses do, it would be easier to meet one's needs for legal representation and that the costs would go down.
It is true that lawyer advertising has made it easier to find an attorney. However, there is still a problem in finding the right attorney for one's particular needs. If the selected lawyer is inexperienced, incompetent, or lacks the willingness or ability to communicate effectively with a client, the client will not be satisfied with the lawyer's service. Furthermore, the consequences for the client could be catastrophic, such as losing a business or being unable to recover for injuries the client sustained at the hands of a liable third party. In order to find the best attorney, one needs more than a list of names, even if these are specialists in the relevant legal area. Clients are best served by asking questions before they decide on an attorney to retain.
Consumer dissatisfaction with lawyers has become a major problem. A survey taken in 1995 by Consumer's Union revealed that out of 30,000 respondents, onehird were not well satisfied with the quality of their attorneys' services. The reasons for this dissatisfaction varied, ranging from attorneys failing to keep their clients informed on the progress of their cases, failing to protect clients' interests, failing to resolve cases in a timely manner, and continually charge unreasonable fees. The reason for this widespread dissatisfaction is linked to the lack of knowledge by consumers on how to find attorneys experienced with the kinds of problems they are facing as well as knowing what questions to ask a lawyer they are considering retaining. The results of a one thousand person survey reported in the Florida Bar Journal revealed that the average time spent in finding a lawyer was two hours or less. Nearly one half of those surveyed said it was hard to find a good lawyer, and over a quarter of them said they did not know how to find a lawyer. It is remarkable that 80 per cent of respondents said they wished there was a source for information on lawyers' credentials.
Why It Is Difficult to Find an Attorney?
One difficulty in finding the appropriate attorney is the ever expanding number of specialties practiced by lawyers. Specialization makes selection more complicated. Law has become more specialized because changes in technology have necessitated the development of new areas, such as Cyberlaw and Internet law. New areas of law have also been created by recently enacted laws and regulations from such federal administrative bodies as the Environmental Protection Agency. This could impact and complicate the problems of a person acquiring a business and trying to determine whether the seller or the buyer is liable for cleaning up a toxic waste site. The increasing number of laws and regulations have forced lawyers to become more specialized in order to keep up with new developments. Furthermore, many general areas of the law in which an attorney could become proficient, have now been split up into specialties. In business law, there are specialists for mergers and acquisitions because of the complexity involved in these transactions. Even criminal law is not immune to this trend since some lawyers now specialize in white collar crime.
When Do I Need A Lawyer?
Potential clients should retain a lawyer for any of the following reasons:
- If they have been charged with a felony
- If they have been served with papers naming them as defendants in a lawsuit
- If their insurance coverage is less than the amount a third party is claiming due to their negligence
- If they are making a will or changing it
- If they wish to adopt a child
- If someone with whom they are involved in a business setting breaches his or her contract with the client
- If they are resulting in substantial harm, or if the person suing them has a lawyer.
If a person is a DEFENDANT in a civil lawsuit and fails to appear in court, a DEFAULT JUDGMENT will be entered by the court against them, and for all practical purposes, they will be unable to overturn it.
Avoiding the Dishonest or Unethical Lawyers
This situation is easy to fall into because with the exception or Oregon, at least some part of the disciplinary process is kept private. This means that potential clients have no way of knowing whether a complaint has been made against a lawyer if no action has been taken. Although some complaints against lawyers are frivolous, the consumer has no way of knowing whether the decision by the state bar not to take any action was made in GOOD FAITH. Furthermore, the action taken may only amount to a private reprimand in the form of a letter sent to the attorney. According to a recent investigation by the Washington Times, lawyers guilty of serious ethical violations and felonies are at the most only suspended for a limited period of time and made to make RESTITUTION to the client. Even the most severe punishment, disbarment, is not permanent since in most states the attorney can apply for reinstatement in five years.
Not only are the actions taken against lawyers found guilty of ethical violations not published in many states, this information is unavailable even in publications and databases relied upon by consumers to avoid this problem. There are attorneys listed in the wellespected Martindaleubbell Lawyers Directory who may be under suspension, disbarred, or imprisoned. The database set up by the American BAR ASSOCIATION (ABA) to allow consumers to find out whether a lawyer has been sanctioned is a great deal less than helpful since no details are given as to the offense charged or the punishment given.
Out of all the complaints made against lawyers, only one half of one per cent result in disbarment, and a total of only one and one half percent result in any SANCTION at all including private reprimands.
In an advertisement, consumers cannot obtain the information you need in order to make a wise decision. There is nothing upon which to judge the legal skills of the attorney, whether his style would be conducive to achieving specific goals as to how to resolve specific problem, or whether there have been any complaints against the attorney resulting in a reprimand, suspension or disbarment. It also cannot determine from an advertisement whether the attorney will be accessible enough so that they can communicate effectively with their clients and willing to take the time necessary so that they understand the possible outcomes of handling the client's case in a given manner.
By Personal Referral
Friends and business acquaintances whose judgment is trusted is a good source in finding an attorney, if they have used the attorney for the same kind of problem that a consumer is facing or at least practices in a specialty pertaining to the consumer's situation. An even better source is a friend or acquaintance who actually is an active or recently retired lawyer or judge. Such persons can inform potential clients as to attorneys' reputation in the legal community.
By Published Directories
Martindale Hubbell Law Directory
This annually published directory is the oldest and best known of those available today. It includes lawyers practicing in the United States as well as 159 other countries. This coverage of foreign countries will continue to become more important as laws in the United States are affected by foreign and international law.
Each individual lawyer entry will contain the date of birth, the year first admitted to a state bar, numeric codes indicating where all listed educational degrees were earned Specialized areas of law in which they practice, and a listing of representative clients, the firm where the lawyer practices, and contact information. If the entry has the bar registry designation (BR), it means that they are also listed in the Martindale Hubbell Directory for Preminent Lawyers.
Despite its enormous size, not all practicing attorneys are listed. In order for an attorney or firm to be included in this directory, they must send the appropriate information to the publisher.
Many, but not all of the attorneys and firms listed, are rated according to their degree of legal skill and whether they follow the highest ethical standards. The rating "AV" is the highest rating given. A "BV" rating is still above average in terms of legal skills and an indication the attorney subscribes to the same high ethical standards as those given the "AV" rating. The "CV" rating denotes an average rating in terms of legal skills and an indication the lawyer also follows the highest ethical standards. No attorney is given a rating without their consent. The ratings are based on confidential written evaluations by practitioners and judges in the position to know the given lawyer. There is no rating to indicate that a lawyer is below average in legal ability or that he does not follow the highest ethical standards.
Martindale Hubbell Bar Register of PreEminent Lawyers
Listings are restricted to those individual attorneys and firms that have earned the "AV" rating and who practice in the United States and Canada. Instead of being grouped by state and within each state by the locality in which the lawyer practices, the lawyers are first grouped according to the specialty in which they practice. Sixty specialties are included.
The primary value of these directories in your search for an attorney is that they tell you how long that lawyer has been in practice, whether he specializes in an area relevant to the problem you are facing, and whether there may be a CONFLICT OF INTEREST if you retain that attorney based on the clients they represent.
The Best Lawyers in America 1999000
Now in its eighth edition, the information is based on the polling of 11,000 lawyers who were asked which attorneys in practice for a minimum of ten years they consider to be the best in their specialty. In the 1995996 edition only one and one half percent of all lawyers practicing in the United States were listed.
Lawyer's Register International by Specialties and Fields of Law. 16th ed. 1999
This directory gives a worldwide listing of attorneys who represent themselves as being certified or designated as practicing in one or more of 390 legal specialties. The designation as a specialist is given for one of three reasons. First, the attorney has successfully completed a certification program given for that specialty in the state in which they practice. Second, the state in which the lawyer practices has designated them on a defacto basis that they have sufficient experience to be qualified in a given specialty. Third, they have been certified by the National Board of Trial Advocacy. There is a separate designation given for each of these three reasons why a lawyer is designated as certified in a given specialty.
The directory is arranged alphabetically by specialty, and within each specialty alphabetically by where they practice. In order to assist the consumer, a separate table lists all states that have established certification programs in particular specialties. By using this table, you are able to more easily select attorneys that have been certified by a state program in a given specialty.
Chambers Global The World's Leading Lawyers
Published in London, England, by Chambers and Partners, this source is designed for those trying to find an attorney practicing in one of over sixty specialized areas of business and CORPORATE law.
Evaluations are from leading practitioners in each specialty obtained through telephone interviews averaging thirty minutes. During these interviews, the person interviewed is asked who they consider to be the best attorney in their specialty and why they hold such a high opinion of them. This procedure, unlike the written questionnaires upon which other lawyer directories rely, allows for a more thorough investigation of the legal abilities of a given attorney. This is because a interview by telephone avoids the BIAS
that is inherent in written questionnaires since the ones returned in such surveys are much more likely to be favorable. Conversely, attorneys who do not respect the abilities of another practitioner are less likely to send in their written responses.
By the Internet
- America Online (AOL) Anywhere Lawyer Directory URL: Besides acting as an online aid to finding an attorney, this site also contains a link to answer questions that need to be asked by those seeking legal representation.
- Martindale Hubbell Lawyer Locator URL: www.martindale.com This is the most frequently used lawyer directory on the internet.
- Lawyers.com URL: www.lawyers.com This site also belongs to Martindaleubbell, but it differs from the preceding web site because it targets individuals and small business people. This site allows searches to be narrowed to those attorneys practicing a particular specialty in a given locality. It also has links to help a consumer determine whether they need a lawyer, how attorneys bill their clients and how much they charge as well as a list of questions to ask an attorney before you decide to retain them.
- Chambers and Partners URL: http://www.chambersandpartners.com This organization's home page has links that enable you to find evaluations of lawyers and law firms as to their legal skill in various areas of business and corporate law.
By Lawyer Referral Services of State Bar Associations
These sources are useful only to the extent they can give consumers the names of lawyers in a given locality who practice law in a given specialty and who have agreed to have their name put on the list maintained by the Bar Association. For a small fee, usually $25 $30, each attorney on the list agrees to give a fifteen to thirty minute consultation. This can be helpful because consumers can get an opinion from a lawyer as to whether they have a case and whether it is worth pursuing. This can save consumers a great deal of time and effort as opposed to attempting to research the matter on their own. During the consultation, the lawyer should be able to inform the potential client whether the STATUTE OF LIMITATIONS for filing their particular claim has expired or not. Although consumers could do research on their own, just reading the STATUTE may be insufficient to determine whether the statute of limitations has run out; they may have to read the CASE LAW on this matter. Regardless of what the attorney tells the consumer regarding their case, they are under no obligation to retain the lawyer's services.
The following are a short list of directory services available:
- ABA Directory of Lawyer Referral Services This directory lists state wide and local bar association referral services. The local referral services specify which counties they serve. Each referral service will indicate whether they give referrals for all specialties or exclude certain ones. Information is also given as to whether low fee or PRO BONO (no fee) programs are provided for low income clients.
- Law and Legal Information Directory by Steven & Jacqueline O'Brien Wasserman This source has an alphabetical listing by state of referral services located in that JURISDICTION. Included are entries for services provided by the state bar as well as local bar associations. Street and web site addresses, regular and tollree telephone numbers Are provided. If you qualify by income, a listing of legal aid offices arranged alphabetically by state and cities within will include the same information the lawyer referral section provides.
- Web Services If you do not have access to either of the above titles, you may obtain information on the legal referral services offered by your state bar by logging on to www.findlaw.com. From this cite you will be led to links for each state which in turn will include links to that state's bar association and the lawyer referral service it provides.
Questions to Ask Before Retaining a Lawyer
There are four purposes to this process. First, it allows consumers to determine whether the attorney has sufficient experience not just in the specialty pertaining to their problem, but also whether the lawyer has had previously solved a similar problem for another client. Second, they can learn whether his style is suited to their goals in resolving the dispute they have with the other side. For example, if a potential client is hoping for a SETTLEMENT, a hardball Rambo like style may backfire. Third, they will discover how well they and the attorney communicate with one another. Fourth, they can ask the attorney if they are able to devote sufficient time and resources, such as a support staff, to their case.
Consumer Reports suggests that the following questions be asked during an interview with any attorney a consumer is considering retaining:
- How many years of experience do you have in this specialty and how have you handled similar disputes in the past?
- What are the possible results from pursuing this matter?
- How long will you expect it to take to resolve this matter?
- How will you keep me informed of what is happening as the case proceeds?
- Will anyone else, such as one of your associates or paralegals, be working on my case?
- Do you charge a flat or an hourly rate and how much?
- What other expenses will there be besides your fee and how are they calculated?
- What's a reasonable approximate figure for a total bill?
- Can you give me a written estimate?
- Can some of the work be handled by members of your staff at a lower rate?
- Will unforeseen events increase the amount you charge me?
- If you charge on a contingency basis, what proportion of the amount I recover will be paid to you as your fee and can this figure be calculated after the expenses are deducted?
- How often will I be billed, and how are billing disputes resolved? If we cannot settle this, will you agree to mandatory arbitration?
- Do you need any further information from me?
- Can I do some of the work in exchange for a lower bill?
- Do you recommend that this matter be submitted to an arbitrator or mediator, and do you know anyone qualified to do this?
Choosing a Matrimonial Lawyer: 10 Criteria for Finding the Right One for You. David M. Wildstein, Wilentz, Goldman, & Spitzer, 1996.
Consumer's Guide to Getting Legal Help. ABA, 2001.
Do I Really Need a Lawyer? Kahon, Stewart & Robert M. Cavello, Chilton Book Co., 1979.
Finding the Right Lawyer. Jay Foonberg, ABA Section of Law Practice and Management, 1995.
Guide to Consumer Services: Consumer Union's Advice on Credit, Income Tax, Choosing a Doctor or Dentist, Finding a Lawyer, Closing Costs, Auto Repair and Much More. Consumer's Union, 1979.
How to Find the Best Lawyers: And Save over 50% in Legal Fees. John Roesler, Message Co., 1996.
Lawyer Referral and Information Service Handbook. ABA, 1980 - Published biannually.
Let's Talk Law: Selecting a Lawyer. Crest Video Marketing.
Profile 2000: Characteristics of Lawyer Referral and Information Service. ABA Committee on Lawyer Referral and Information Service, 1999.
Using a Lawyer and What to Do if Things Go Wrong. HALT.
American Divorce Association of Men International
1519 S. Arlington Heights Rd.
Arlington Heights, IL 60005
USA Phone: (847) 364-1555
American Society for Divorced and Separated Men
575 Keep St.
Elgin, IL 60120 USA
Phone: (847) 665-2200
Atlanta Lawyers for the Arts
152 Nassau St.
Atlanta, GA 30303 USA
Phone: (404) 585-6110
Chicago Divorce Association
One Pierce Center
Itasca, IL 60143 USA
Phone: (630) 860-2100
Christian Legal Society
4208 Evergreen Lane, Suite 222
Annandale, VA 22003 USA
Phone: (703) 642-1070
Families for Private Adoption
P.O. Box 6375
Washington, DC 20015 USA
Phone: (202) 722-0338
Find the Children
3030 Nebraska Ave., Suite 207
Santa Monica, CA 90404-4111 USA
Phone: (310) 998-8444
Help Abolish Legal Tyranny (HALT)
1612 K St., N.W. Suite 510
Washington, DC 20006 USA
Phone: (202) 887-8255
Phone: (888) FOR-HALT
Military Law Task Force
1168 Union, #200
San Diego, CA 92101 USA
Phone: (619) 233-1701
National Counsel of Black Lawyers
116 W. 111th St., 3rd Floor
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National Health Law Program
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Malpractice (Encyclopedia of Everyday Law)
MALPRACTICE is professional NEGLIGENCE or (less frequently) professional misconduct. Attorney malpractice generally implies an unreasonable lack of skill, or failure to render professional services in a manner consistent with that degree of skill, care, and learning expected of a reasonably competent and prudent member of the legal profession. Claims against attorneys (lawyers) for legal malpractice are viable in all fifty states. There is no federal law governing attorney malpractice, and state statutes typically address only the appropriate STATUTE OF LIMITATIONS (limiting the time period) for filing claims or lawsuits against attorneys. However, state CASE LAW will define and set the parameters for actionable cases of malpractice within the state.
For legal malpractice to be "actionable" (having all the components necessary to constitute a viable cause of action), there must be a duty owed to someone, a breach of that duty, and resulting harm or damage that is proximately caused by that breach. The simplest way to apply the concept of proximate cause to legal malpractice is to ask whether, "but for" the alleged negligence, the harm or injury would have occurred?
Establishing the Attorney-Client Relationship
First and foremost, an attorney must owe a legal duty to a person before his or her competency in performing that duty can be judged. In American JURISPRUDENCE, a lawyer has no affirmative duty to assist someonen the absence of a special relationship with that person (such as doctor-patient, attorney-client, guardian-ward, etc.). That "special relationship" between an attorney and his/her client is generally established by mutual assent/consent. This is most often confirmed by a written "retainer" agreement in which the client expressly and exclusively retains a lawyer and his/her law firm to represent the client in a specific legal matter.
Under rare and limited circumstances, a court may infer that an attorney-client relationship existed as a matter of law, even without a contract or agreement between the parties, and even without the attorney's ASSENT. Such a legal conclusion may be drawn from the facts presented, such as reliance on the part of the client (who believed in GOOD FAITH that an attorney-client relationship existed) or by the fact that the attorney provided more than just informal or anecdotal opinion or answer to a question. The paying of a fee or RETAINER is not dispositive in determining whether an attorney-client relationship existed, and courts generally defer to the "client" and base their conclusions onr at least give substantial weight tohether the client believed such a relationship existed, confided in the attorney, and relied upon the professional relationship to his or her detriment.
In any event, once the requisite attorney-client relationship is established, the attorney owes to the client the duty to render legal service and COUNSEL or advice with that degree of skill, care, and diligence as possessed by or expected of a reasonably competent attorney under the same or similar circumstances. The "circumstances" may include the area of law in which the attorney practices (although all attorneys are deemed to have basic legal skill and knowledge in the general practice of law), the customary or accepted practices of other attorneys in the area, and the particular circumstances or facts surrounding the representation. The requisite degree of skill and expertise under the circumstances is established by "expert testimony" from other practicing attorneys who share the same or similar skill, training, certification, and experience as the allegedly negligent attorney.
Conduct vs. Performance
The practice of law requires state licensure. All fifty states have criteria governing admission to practice within their states. Although requirements may vary slightly, almost all states require graduation from an accredited law school, passing the "bar exam" (referring to the professional BAR ASSOCIATION of that state), and submitting to a review and investigation of one's personal background for ASSESSMENT of "character and fitness" to practice law. Accordingly, all new lawyers start their profession with an acceptable level of professional competency (as determined by graduation from law school and passage of a comprehensive bar exam which gauges their professional knowledge of the law), as well as an acceptable level of character and fitness to practice law (as determined by the state bar review board).
Each state also has adopted codes of conduct, disciplinary rules, and adjudicative boards to address issues of misconduct once attorneys are admitted to practice. The American Bar Association also promulgates and promotes its Model Rules of Professional Conduct (adopted by two-thirds of the states as of 2002).
Additionally, virtually all states now require periodic "updating" of technical and/or academic skills by the mandatory completion of a certain number of classroom or seminar hours each year. Attorneys may generally choose the topics in which these hours are completed, but there is usually a requirement that a minimum number of hours be completed in the area of "ethics." Attorneys who fail to complete these courses may not renew their license to practice for the upcoming year. Additional fines or penalties may apply.
That said, trained, licensed attorneys nonetheless may engage in questionable conduct, display a seeming lack of skill, or otherwise neglect or fail to properly render those duties owed to their clients, their adversaries, or to the judicial system as a whole, in their day-to-day practice of law. For those indiscretions and failures that have resulted in harm to a client, a lawsuit for legal malpractice may be an appropriate remedy.
What Constitutes Actionable Malpractice
State laws govern the viability of causes of action for legal malpractice. The laws vary in terms of time limits to bring suit, qualifications of "expert" witnesses, cognizable theories of liability, and proper party defendants/proper party plaintiffs. Notwithstanding these differences, there are common themes for all cases, and general agreement from state to state on particular instances of nonfeasance or malfeasance of professional duties that may constitute legal malpractice.
Not all instances of malpractice involve an attorney's handling of a case for trial (although persons generally think of attorneys within the context of matters involving LITIGATION). For example, an attorney may fail to file a request for variance in a county ZONING matter involving a parcel of real property or may fail to catch an error on closing documents submitted to him/her. An attorney may erroneously advise a client about an area of law, e.g. foreign ADOPTION. Or an attorney may otherwise act on behalf of a client, against that client's express authority or permission. Any of these may constitute examples of actionable legal malpractice.
Omission or Failure to Do Something (Nonfeasance)
At the top of the list of dreaded mistakes for any attorney is the failure to file a claim, notice, or lawsuit within the time prescribed by law. Inevitably, the client loses his or her right of action, and the entire cause is lost. Such a failure is "black and white" in the eyes of jurors, and disastrous for the client. Similarly, the failure to answer a claim, notice, or lawsuit on behalf of a client may result in FORFEITURE, loss of defense, or DEFAULT JUDGMENT entered against a client, often FATAL failures. A failure to appear in time to set aside a DEFAULT judgment is equally serious. Unfortunately, courts do not consider that the error was made by the attorney and not the client. The client must sue the attorney for malpractice to recoup his or her loss.
Probably second to the above, in terms of occurrence and viability, is the failure to provide required notice. Such failures may include the failure to notify potential heirs at law of a PROBATE matter, failure to provide notice to creditors of a pending action, failure to post public notice regarding a real property action, failure to appear in court, or failure to notify a client of an offer to settle the case, received from the opposing party. These matters generally constitute actionable malpractice if the client has suffered harm or damage as a result of the alleged failures.
Third in line is that group of failures which are serious but not always fatal to a client's interest(s). These include such things as failure to file a certain motion in court, failure to name the right parties in a lawsuit (very serious if the time period for filing expires), failure to take or obtain certain DISCOVERY (e.g., documents or EVIDENCE), failure to object to the admission of certain evidence at trial (more serious), failure to raise certain issues or questions at depositions, public hearings, trials, arbitrations and mediations, etc.
Sometimes overlooked but nonetheless considered malpractice is the failure to communicate with a client and/or keep the client apprized of the status of the legal matter. However, such instances of malpractice are seldom "actionable" (because of impalpable damages) and are better addressed through a grievance process or letter of complaint.
The above instances of failures are not comprehensive and are intended only as representative by way of example. Not all occurrences of the above "failures" will result in actionable malpractice in all jurisdictions and under all factual scenarios.
Failure to Perform or Do Something Competently (Malfeasance)
An attorney may be equally liable for malpractice if he or she performs the actions required by law, but does so in an incompetent or substandard manner. For example, an attorney may timely file a cause of action in court, but the complaint may fail to contain important details or averments (allegations), resulting in DISMISSAL of the suit. An attorney may take the DEPOSITION of a witness but ask irrelevant questions or fail to ask the necessary questions needed to elicit needed TESTIMONY. An attorney may prepare a last will and TESTAMENT for a client but accidentally leave out or miswrite a very important BEQUEST. An attorney may appear in time for a criminal sentencing HEARING but be wholly unprepared or unfamiliar with the case or the issues.
All of the above examples represent situations requiring levels of skill generally attributable to or expected of any competent attorney practicing law in any state. They do not require specialized knowledge in any particular area of law and do not require advanced levels of legal experience or expertise. They are considered examples of fundamental practice of law. Breaches or failures of this type are generally preventable, avoidable, and therefore, actionable in most cases.
Within the context of litigation, it should be mentioned that in most states, a client's retention of an attorney to represent an action at trial implies that the client has delegated to the attorney all decisionmaking regarding the manner in which the trial should be conducted or the case should be presented. Even if the attorney loses the case, and a judgment is entered against his or her client, it does not mean that any malpractice was committed; after all, in every trial, at least one competent attorney loses and one wins. Under a broad area of attorney discretion, commonly referred to as "trial tactics," errors in judgment at trial (e.g., whether or not to present a certain witness or introduce certain evidence) which are not patently substandard for the profession, do not generally give rise to a cause of action for malpractice.
Acting Outside the Scope of Authority, Duty, or Area of Competence
In addition, there are clear instances when attorneys should decline representation because they are not skilled enoughr do not possess the requisite subject matter knowledgeto provide competent representation for a client. By way of example, such legal matters as WRONGFUL DEATH by MEDICAL MALPRACTICE, complex CORPORATE mergers or buyouts, or complex financial transactions, should not be handled by new attorneys without supervision. Often, mistakes in taking on a new client are made when new attorneys want to "impress" their colleagues or superiors, or when sole practitioners need money or more cases.
An attorney retained to represent a client in one matter may unilaterally and without authority decide to represent a client, or act on the client's behalf, in another unrelated matter. The client may subsequently ratify the representation, or, if harmed, may sue for malpractice. Likewise, an attorney retained for a specific matter may unilaterally and without authority decide to accept an offer of SETTLEMENT for a certain amount of money, without the client's authority. This is a good example of malpractice but may not be "actionable" malpractice, if the client is unable to prove (by a preponderance) that he or she would have gotten more money had the matter gone to trial.
Filing a Malpractice Lawsuit
There are two important factors to remember about a cause of action for malpractice. First, a client should realize that a poor, unfair, or unexpected result does not mean that any malpractice occurred. Second, in the event that malpractice has occurred, the client must prove that he or she has suffered harm or loss due to the alleged wrongs on the part of an attorney. This is not as easy to prove as one might think. For example, if the alleged malpractice involved a matter in litigation, the client must prove that he or she would have won the case, i.e., a jury would have ruled in his or her favor, "but for" the alleged malpractice. This means that, in proving a case for malpractice, the client will have to actually "try" the "underlying case" before a real jury, and win it, in order to prove the point. Consequently, many lawsuits for malpractice are settled out of court to avoid the time, expense, and uncertainty of such a burden.
Alternatives for Addressing Malpractice
All states have attorney discipline boards or committees that accept informal or formal complaints from aggrieved clients. In matters that involve misconduct more than INCOMPETENCY, this may be the forum of choice. Generally, disciplinary boards have authority to impose fines, order RESTITUTION to a client, and suspend or revoke a lawyer's license to practice law in that state. Clients also may wish to consider alternative dispute resolution, such as ARBITRATIONor MEDIATION, to settle their claims of alleged malpractice.
Finally, it is worth noting that attorneys are generally required to advise their clients of known instances of actionable malpractice that have harmed the client or caused loss or damage. By far, the majority of attorneys are honest, competent, and committed to providing good service, and will so advise clients in the event of a known failure. However, what may appear to a layman as "malpractice" at first blush, may in reality constitute no more than a decision or tactic employed by the attorney that conflicts with a client's expectation of likely action or outcome. Persons who believe that their attorneys may have committed malpractice are encouraged to consult with legal counsel who specialize in the area of professional malpractice.
Select State Laws on Limitations Period For Filing Malpractice Lawsuits
CALIFORNIA: Actions for legal malpractice must be brought within one year of discovery of a claim, with a maximum four years' limitation from the date of the alleged wrong. Proc: Section 340.6.
CONNECTICUT: Actions for legal malpractice must be brought within two years of discovery, with a maximum three years' limitation from the date of the alleged wrong. Section 52-584.
ILLINOIS: Actions for legal malpractice must be brought within a maximum of six years from discovery of the alleged wrong 735 ILCS 5/13/214/3.
KANSAS: Actions for legal malpractice must be brought within two years of discovery, with a maximum four years' limitation from the date of the alleged wrong. Section 60-513(a)(7), 60-513(c).
KENTUCKY: Actions for professional service malpractice must be brought within one year from discovery. Section 413-245.
MAINE: Actions for legal malpractice must be brought within two years, Section 753-A.
MISSISSIPPI: Actions for professional malpractice must be brought within two years. Section 15-1-36.
MONTANA: Actions for legal malpractice must be brought within three years from discovery, with a maximum ten years' limitation from the date of the alleged wrong. Section 27-2-206.
NEVADA: Actions for legal malpractice must be brought within four years. Section 11.207.
RHODE ISLAND: Actions for legal malpractice must be brought within three years. Section 9-1-14.1 and 9-1-14.3.
SOUTH DAKOTA: Actions for legal malpractice must be brought within three years. Section 15-2-14.2.
TENNESSEE: Actions for legal malpractice must be brought within one year Section 28-3-104.
"American Bar Association Model Rules of Professional Conduct" 2001. Available at http://www.abanet.org/crp/mrpc/mrpc_toc.html.
"Attorney Malpractice" 2001. Halt Legal Information Clearinghouse. Available at .
"The Hierarchy of Attorney Malpractice" 2001. Available at http://attorneymal-practice.com/heirarchy.htm.
National Survey of State Laws 3rd Edition. Richard A. Leiter, Ed. Gale Group, 1999.