• July 23, 2014

Double Edged SwordSuing lawyers for professional malpractice is a double-edged sword. It cuts both ways. I know. I do it.

On the one hand, lawyers who sue lawyers probably face less malpractice risk in those cases than almost any other lawyers in other kinds of cases.  In light of the fact that successful legal malpractice cases can be very difficult to bring (requiring the malpractice plaintiff to prove “the case within the case” and often presenting substantial challenges on the element of causation), the malpractice plaintiff’s counsel is quite insulated from a charge of malpractice himself because bringing that additional malpractice malpractice case places yet another hurdle before recovery. Undertaking a double-layer malpractice case is past the risk tolerance of almost all lawyers in almost all cases (but it does happen). (And how about suing one’s expert witness (a lawyer) for malpractice in a case where the lawyer is hired to testify on your behalf as an expert opining on malpractice? Sound like a winner to you? Me neither.)

On the other hand, where there might be relative immunity from malpractice claims, maybe there are other forces at work to regulate the regulators, so to speak (because, in a sense, plaintiff’s legal malpractice lawyers serve a function of regulating civil litigators)?

Informally or reputationally, a legal community might apply a higher standard to plaintiff’s counsel in a legal malpractice cases than for your average trial lawyer. It takes no effort to imagine a comment like: “You are claiming that Lawyer X committed malpractice and you do not even know how to ________ properly?”.

U.S. District Court Judge John R. Tunheim (D. Minn.) has issued an order recently in Cesmat v. Mueller, a legal malpractice case in which the plaintiff’s counsel failed to plead subject matter jurisdiction properly. (Here is the original complaint and an earlier post about the case.) (And here is one of a large number of ML posts imploring Minnesota civil litigators to heed the federal court’s call to plead diversity jurisdiction properly.)

Plaintiff’s counsel’s misstep would almost certainly not amount to actionable professional malpractice in any sense. But, nevertheless, one might lose a bit of face when charging someone else with falling beneath professional standards in the community and then, arguably, practicing beneath them oneself at the same time.

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