lawyer-malpractice-north-carolina

Legal (lawyer) malpractice claims in North Carolina.

Some clients in North Carolina are harmed by the legal malpractice committed by their lawyers. When this occurs, they might have a claim for professional negligence (or legal malpractice) against the lawyer.

Evaluating these claims for legal malpractice in North Carolina can be very complex. This area of law is constantly evolving. For example, in a case decided on March 18, 2014, the Court of Appeals held that a client’s claim against his lawyer was barred by the statute of limitations. Some of the main issues we encounter in these claims in North Carolina are addressed below.

WHO CAN SUE

In order to pursue a claim for legal malpractice, the plaintiff typically must show that there was an attorney-client relationship between himself and the lawyer. Where a fee is paid for the service, such a relationship exists. Even in the absence of a fee, and in the absence of an express agreement, an attorney-client relationship can exist. The rules of the North Carolina State Bar shed some light on this, but there is not always a bright-line rule.

In addition, North Carolina recognizes that in some circumstances, persons other than the lawyer’s client can sue. In one case, the North Carolina court held that a non-client could sue an attorney for negligently certifying title to property.

WHAT ARE THE ELEMENTS OF THE CLAIM

The client has the burden of proving by the greater weight of the evidence: (1) that the attorney breached the duties owed to his client, and that this negligence (2) proximately caused (3) damage to the client.

Applying these elements in each case presents distinct issues.

WHAT CONSTITUTES MALPRACTICE

Determining whether the lawyer committed malpractice (negligence) is often difficult to determine. Our courts have stated:

Ordinarily when an attorney engages in the practice of the law and contracts to prosecute an action in behalf of his client, he impliedly represents that (1) he possesses the requisite degree of learning, skill, and ability necessary to the practice of his profession and which others similarly situated ordinarily possess; (2) he will exert his best judgment in the prosecution of the litigation entrusted to him; and (3) he will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to his client’s cause.

As a general rule, the lawyer cannot be held liable for errors of judgment. “An attorney who acts in good faith and in an honest belief that his advice and acts are well founded and in the best interest of his client is not answerable for a mere error of judgment or for a mistake in a point of law which has not been settled by the court of last resort in his State and on which reasonable doubt may be entertained by well-informed lawyers.”

In many instances, proof that the lawyer violated the standard of care will require expert testimony. This is typically the testimony of another lawyer with experience in the area of law at issue.

Some errors by lawyers in North Carolina are so obvious as to not require expert testimony. For example, a lawyer who misses a deadline, causing the client to lose his case, can be held liable without the use of expert testimony.

WHAT DAMAGES ARE RECOVERABLE

Determining the damages that the lawyer is liable for is one of the more complex aspects of legal malpractice claims in North Carolina.

As a general matter, “the proper measure of damages in such an action is the difference between (1) plaintiff’s actual pecuniary position and (2) what it should have been had the attorney not erred.” “An attorney is answerable in damages for any loss to his client which proximately results from a want of that degree of knowledge and skill ordinarily possessed by others of his profession similarly situated, or from the omission to use reasonable care and diligence, or from the failure to exercise in good faith his best judgment in attending to the litigation committed to his care.” “With respect to proximate cause in an action for legal malpractice, the plaintiff must establish that the loss would not have occurred but for the attorney’s conduct.”

It is therefore crucial to analyze what the the client’s pecuniary position would have been if the lawyer had not erred. Computing these figures can prove to be very difficult.

In the context of a lawyer who causes a client to lose a civil case for damages, the client must prove, that “(1) The original claim was valid; (2) It would have resulted in a judgment in plaintiff’s favor; and (2) The judgment would have been collectible.”

There is authority in North Carolina that a client harmed by the willful or wanton negligence of her attorney can recover punitive damages.

Note also that in some instances, the client has a duty to mitigate her damages.

WHAT IS THE STATUTE OF LIMITATIONS FOR A LEGAL MALPRACTICE CLAIM

Legal malpractice claims in North Carolina are governed by N.C. General Statute 1-15(c), which states:

A cause of action for malpractice arising out of the performance of or failure to perform professional services shall be deemed to accrue at the time of the occurrence of the last act of the defendant giving rise to the cause of action: Provided that whenever there is bodily injury to the person, economic or monetary loss, or a defect in or damage to property which originates under circumstances making the injury, loss, defect or damage not readily apparent to the claimant at the time of its origin, and the injury, loss, defect or damage is discovered or should reasonably be discovered by the claimant two or more years after the occurrence of the last act of the defendant giving rise to the cause of action, suit must be commenced within one year from the date discovery is made: Provided nothing herein shall be construed to reduce the statute of limitation in any such case below three years. Provided further, that in no event shall an action be commenced more than four years from the last act of the defendant giving rise to the cause of action.

Applying this statute can prove difficult. Many clients in North Carolina have lost claims for legal malpractice because they did not file the action within the statute of limitations. In general, once the client has notice of the lawyer’s error, the time period begins to run. Even if the client appeals from the original adverse ruling (that resulted from the lawyer’s negligence), the time period runs from the notice of the error, and not from the date that the appellate court rules in the case on appeal.

WHAT ABOUT CONTRIBUTORY NEGLIGENCE

North Carolina is one of a few states that still recognizes the doctrine of contributory negligence; i.e., negligence by the client that causes the harm will completely bar the claim. (In North Carolina, the client’s contributory negligence does not simply reduce the damages, but it completely bars the claim.)

Some clients in North Carolina have lost their claim for legal malpractice based on their own contributory negligence. For example, in the context of a lawyer who fails to advise a client as to the effect of legal papers, the client’s claim can be barred if the client does not read the papers to protect himself.

John Kirby has represented clients in pursuing claims for legal malpractice against lawyers, and has filed suit and taken claims to trial for legal malpractice. He has also assisted lawyers who have had legal malpractice claims made against them.