Should We Depend on the Bar to Prevent and Punish Attorney Misconduct?
The California State Bar’s stated mission is to “protect the public.” The California Bar is unusual among state bars for having divested itself in 2018 of the role of providing services and educational opportunities or promoting the professional advancement of its attorney members. Instead, the California State Bar’s primary focus is on regulating and disciplining its attorney “licensees” (other State’s Bars have “members”).
Recently, the State Bar has stated it is renewing its focus on discipline and investigating reports of attorney misconduct. These announcements came on the heels of revelations that recently disbarred and disgraced former attorney, Tom Girardi, gave one million dollars to a former California State Bar investigator and successfully avoided discipline by the Bar, apparently for decades. Those payments, along with the “extensive network of connections,” Girardi built at the Bar “more likely than not” affected the Bar’s investigation and discipline of Girardi, according to the law firm hired to investigate the Bar’s handling of the matter. The conflicts of interests created by Girardi’s largesse appear to have influenced the Bar’s decisions not to discipline Girardi, despite his being sanctioned by the Ninth Circuit Court of Appeals, as well as numerous complaints from clients and former clients made over years that Girardi had wrongly taken their money.
Unfortunately, the inability of the California State Bar to handle these serious allegations of wrongdoing is not shocking. Despite its stated mission, the Bar failed to investigate and mete out discipline against Girardi despite having numerous opportunities to do so. The Bar has since issued a mea culpa in the Girardi matter and the firm investigating the handling of the Girardi case determined that no current or former employees or board members of the Bar are affected by the conflicts of interest Girardi created. But clients who believe they have been wronged by their attorneys should not rely solely on the Bar to address their grievances, and, indeed, they do not have to.
Legal Malpractice Claims
Clients who feel they were wronged by their attorneys might dread having to return to the legal system to try to vindicate their rights. Many have been left exhausted by a legal engagement that ended badly and had serious financial, professional, or reputational consequences. But in the event of significant attorney misconduct or unreasonable errors, a client’s best avenue for redress may be a malpractice suit.
All attorneys are responsible for exercising reasonable, independent judgment to advance their client’s interests. They are also required to follow their state’s rules of professional responsibility. These include duties of loyalty (acting zealously to represent their client’s interests, remaining free from any conflicts), confidentiality (keeping their client’s secrets), and competence (not taking cases the attorney is not prepared to handle, and always performing competent work on any engagements the attorney undertakes).
It is important to note that not every bad outcome is the result of malpractice. Law is often more art than science, and lawyers operate in a world of probable outcomes. If lawyers could easily predict the results of their arguments and decisions, most matters would be resolved quickly with few meaningful disputes. Laws often have exceptions (and exceptions to the exceptions), and contracts can be subject to multiple interpretations. Juries are unpredictable. Novel legal theories are never a sure thing.
Despite these uncertainties, lawyers are required to adhere to the ethical rules governing the practice of law and advise and assist their clients based on what a reasonable attorney practicing in that field of law would do. When they fall short of that standard, causing harm to their clients, they can be held liable for malpractice.
Malpractice can take many forms. It can include giving advice that is not supported by the law. It can also include failing to file key motions, or allowing an important deadline (or worse, the statute of limitations) to expire. Because clients depend on their attorneys to give advice in an area where the attorney is an expert and the client is not, clients have to rely on their attorney’s judgment. If the attorney’s mistakes or bad advice result in damages to the client (not being able to bring a suit you would otherwise have been likely to prevail on, losing the ability to raise a defense that could have won you the case, ending up with a contract you can’t enforce, or having to pay new counsel to fix what the first lawyer mishandled), the client can seek to recover for those harms.
Unique Challenges of Malpractice Law
Malpractice can be a daunting area of law. Many lawyers are reluctant to bring malpractice claims against other lawyers. This may be out of a sense of professional courtesy, but bad actors in the practice of law hurt the entire profession. As Mr. Girardi’s decades-long history of misconduct shows, it’s unwise to leave the job of seeking redress for attorney misconduct only to state regulators.
Malpractice claims are also difficult for clients to bring given the difficulty in determining whether the attorney actually did something wrong, or if the case just wasn’t as strong as the client had hoped. It is difficult for non-lawyers to determine if a poor outcome was due to attorney error or misconduct, given they are not experts in the laws governing lawyers or whether a lawyer’s conduct was unreasonable.
Finally, statutes of limitations for malpractice are typically shorter than for other types of claims. In California, for example, you have only a year from the time you were harmed by the alleged malpractice to bring a claim. Other tort claims in California have a two and three-year statutes of limitation, and breach of written contract claims can be brought up to four years after the wrongful conduct. This means someone harmed by their lawyer has far less time to decide whether to bring a claim and then hire counsel to do so.
To succeed in an attorney malpractice claim, you need highly capable, aggressive counsel with deep expertise in this area of law. Keller/Anderle has successfully brought (and defended) some of the largest and most significant legal malpractice claims in the United States. We are not afraid to take on even the biggest and most storied firms on behalf of our clients.