Legal Malpractice Attorney's Fees: Fee Shifting? or the Client's Right to be Made Whole?
The Editorial Board of the
Legal Malpractice Law Review
is pleased to invite you to an online discussion starting on
Monday morning November 2, 2009
led by:
Paul M. Koning of K & L Gates, LLP
on the Texas Supreme Court's new decision awarding Attorney's Fees as compensable damages in a legal malpractice action:
Akin, Gump, Strauss , Hauer & Feld, LLP vs. National Development and Research Corp. decided October 30, 2009:
"The Hidden Issue in Akin Gump v. NDR"
and
"Akin Gump v. NDR:
Practicial Consequences of Allowing Attorney's Fees as Damages"
With this new decision in Akin Gump, has Texas joined New Jersey, (with its Saffer v. Willoughby,) in recognizing the prevailing malpractice plaintiffs' right to be made whole again with an award of attorney's fees when they prove that they have been damaged by their lawyer's malpractice? What implications does this have for the practicing lawyer? Does this signal a trend that we might see in yet other states?
Paul is the Texas Law Contributor to the Legal Malpractice Law Review and is a renowned expert in the field. He has served as:
- Co-Chair of the American Bar Association's Professional Liability Litigation Committee (2006-2009)
- Designer and Project Coordinator of its "50 State Survey of Legal Malpractice Law"
- Co-Chair, Attorneys' Liability Subcommittee (2005).
We look forward to your joining us in what will prove to be a lively and timely discussion. Visitors are encouraged to post their Comments to both of Paul's blog posts.
Just scroll down to Paul's 2 blog posts immediately below.
I believe that the court made the right decision in holding that a "malpractice plaintiff may recover damages for attorney's fees paid in the underlying case to the extent the fees were proximately caused by the defendant attorney's negligence."
In essence, a client pays an attorney to competently represent them in their law suit. Attorney fees are costly. A lawyer should not be able to retain all that money for doing an inadequate job. It would be unjust for the attorney to benefit from the fees when they were the proximate cause for their client's damages.
I feel that the attorney, by retaining the lawyer's fees, further causes identifiable economic harm to the plaintiff when the attorney's negligence is the cause for the harm in the underlying matter. Thus, the client should be reimbursed to the extend that the lawyer's negligence was the proximate cause of the client's damages.
This law, which is prevalent Texas and Jersey, has many implications for the practicing lawyer. The lawyer will have to work even harder to ensure that they are not negligent in handling a client's case. However, this implication is not necessarily a bad one, because an attorney has a duty to put their client's interest ahead of theirs and proficiently represent them.