Legal Malpractice Claims on the Rise in Tennessee and Across the Country

At the beginning of the summer, a professional liability insurance and risk assessment firm released a report that the filing of legal malpractice claims was on the rise.  Ames & Gough tracks records as part of its business of providing assistance to law firms.  Previously, there had been a leveling off relating to the filing of new legal malpractice claims.

Ames & Gough conducted its third annual survey in 2013 of the seven largest Professional Liability insurance providers and discovered that six of the seven had experienced an uptick in legal malpractice filings of at least an eleven percent (11%) increase for claims in excess of $50 million, with the largest change in filing being a 50% increase in these types of claims.  Claims for damages of any size rose as well.  The reason for the upswing can be traced to a variety of factors.

Many experts attribute the rise in legal malpractice claims as being the result of the recent recession, officially lasting from 2007 through 2009.  There were many transactional and real estate deals that failed during this time period.  There also were many types of litigation cases where the recovery was less than anticipated or there was no recovery at all.  Prior to the recession, lawyers may have represented to their clients that the expected recovery would be in the range of a specific dollar amount.  Although the outcome of a case is never a certainty, attorneys who practice a specific type of law often can look at a case and make a fairly accurate estimate.  When the total value of businesses and transactions decreases dramatically, the award for a breach of contract or other cause of action also suffers.

Real estate claims remained the number one type of legal malpractice claim being filed.  Trusts and estate matters, which were listed as the second most common type of claim along with mergers and acquisitions and other transactional matters, showed the largest increase in the filing of new cases.  As for the asserted cause of the legal malpractice action, the most often listed reason was conflict of interest.  Another common issue involved procedural errors.

It is not easy to prove a legal malpractice case.  In order to do so, a client must prove:

• The attorney owed the client a duty to act the way a reasonable attorney under similar circumstances would act;
• The attorney breached that duty through negligence, failure to meet fiduciary obligations, or failing to satisfy the terms of the contract;
• The actions of the attorney resulted in real financial harm to the client; and
• The client sustained actual damages due to the attorney’s actions or failure to act.

In order to succeed in a lawsuit for legal malpractice, it is critical to hire an attorney who understands how to prove that the client would have succeeded in the underlying case while also demonstrating that the errors the attorney committed led to the harm suffered by the client.  Regardless of the fact that there are more legal malpractice cases being filed, if the client does not retain an attorney who understands the nuances of this type of law it will be very difficult to recover for the harm that was done.

Unfortunately, legal malpractice does happen. In order to prove that the client was harmed as a result of the actions of a lawyer in a prior case, the legal malpractice counsel needs to have the skill and expertise to present compelling evidence on both the underlying case and the malpractice action.  The experienced legal malpractice attorneys at Bailey & Greer have a proven record of obtianing justice for clients harmed by other lawyers.  Our attorneys are eager to sit down and discuss your case during a free and confidential consultation. To schedule your appointment, please call us at 901-680-9777.  At Bailey & Greer, we are small enough to care, big enough to fight, and experienced enough to win.