Legal Malpractice is a very serious claim. Usually a victim of legal malpractice visits with a second lawyer who sees that legal malpractice was commited by the first lawyer, but the second lawyer tells the person, "I regret this happened to you--but our law firm does not handle legal malpractice cases." The lawyer then recommends confidentially that the victim call our office.
First, you should understand that you should immediately call a legal malpractice lawyer if you believe that lawyer malpractice has occurred. This is true even if that lawyer is still representing you because it is possible under Alabama law that the statute of limitations is running on malpractice even though the lawyer is still representing you.
If you call our office, the first fact we must know is your telephone number and e-mail address so we may send you an e-mail or call you concerning your legal rights. Then second fact we must know is the name of the lawyer you believe committed legal malpractice. There are over 14,000 lawyers licensed to practice law in Alabama and hundreds of thousands across the United States, but there are 100 or so in Alabama that we would never sue because we have close working relationships with them. For those 100, we will simply tell you that we cannot even consider the matter. If you have a potential claim against one of the 100 or so lawyers we will not bring suit against, we will not tell that lawyer that you called. We will refer you to state bar assocation. Other than those 100 lawyers, we will take cases in Alabama and in other states. In other states, we will associate with "local counsel" and have an attorney in your community as our co-counsel.
The next critical inquiry is when did the lawyer malpractice happen? The Alabama Legal Services Liability Act has a very strict statute of limitations and there are many clear cases of legal malpractice that we turn down because the statute of limitations has run. For example, if a person in an automobile accident on January 1, 2006 is in a state such as Alabama where the statute of limitations for his case is 2 years for simple negligence, and the lawyer did not file the action until three years later on January 1, 2009. The client then waits three years until January 1, 2012 to call our law firm to complain about legal malpractice. We would turn that case down. There are usually exceptions to any legal rule, and for that reason you should not assume that a legal malpractice claim is barred by the statute of limitations. However, if you believe that legal malpractice has been committed, you should consult with legal malpractice counsel immediately. When a statute of limitations has run, even by one day, it has run, and the case has been lost.
The next important question is, what's at stake, or what was lost? This is an issue of "damages" or monetary loss to the victim. We turn down many cases of clear legal malpractice because of lack of damages. For example, if John Client had a $1 Million claim against the ABC Company and his lawyer filed the lawsuit late and missed the statute of limitations, it would appear to be legal malpractice. But if the ABC Company had filed for bankruptcy before the statute of limitations expired, and had no insurance to cover the claim of John Client, then there would be no reason to file the lawsuit for legal malpractice because the lawyer for John Client would not have recovered even a dollar for John Client if the lawsuit had been filed on time. A legal malpractice claim will not transform "nothing" of value (the ABC Company was worth nothing, therefore a claim for $1 Million against was worth nothing) into "something" of value.
Once it is clear that the statute of limitations is not a bar to the claim, and it is clear that the client has suffered substantial monetary damages or loss, then our next consideration is venue, which is the county and city where the case will be filed. On rare occasions, our firm declines to take a strong case simply because the venue is not good. For example, if an Alabama football coach stood accused of committing fraud and wrongfully taking someone's money, no lawyer would want to sue that coach in Tuscaloosa, the hometown of the team. The lawyer would want to file that case in the rival town of Auburn if the law allowed it, for the obvious reason that a jury in Auburn would be less inclined to favor an Alabama football coach. That simple example demonstrates how venue can make winning very likely or very unlikely even though the facts are exactly the same in both locations.
On occasion, a person will ask us, "Will it help if we report the lawyer to the Alabama State Bar" or to the bar association for that lawyer's state?" No. It will not help, and it could very well hurt any potential claim you have.
Alabama legal malpractice actions are governed by statute if there is an attorney-client relationship. If there is not a statute, then the "common law" of the state (law our state inherited from England, as further developed by the Alabama Supreme Court and Alabama Court of Civil Appeals ) which applies to all citizens will apply, in addition to any other general statutory law in the State of Alabama.
We have never taken a case for a person who was convicted of a crime or pleaded guilty to a crime, but who claimed that his or her attorney had performed poorly in the criminal defense process. The degree of proof in such cases is extremely high. In the case of Lightfoot v. McDonald, 587 So. 2d 936, 937-938 (Ala. 1991), the Supreme Court of Alabama held that "[i]n a legal malpractice case concerning a plaintiff's criminal conviction, the plaintiff must show that but for the defendant's negligence he would have been acquitted,[found not guilty] or must offer proof that at least the outcome of the case would have been different.
Statutory Law. Here are the statutes which govern legal malpractice cases if there is an attorney-client relationship.
§ 6-5-570. Legislative findings and intent.
It is hereby declared by the Legislature of the State of Alabama that a crisis threatens the delivery of legal service to the people of Alabama and that the quality of legal services which should be made available to the citizens of this state is in jeopardy. It is the declared intent of this legislature to insure that quality legal services continue to be available at reasonable costs to the citizens of the State of Alabama. This legislature finds and declares that the increasing threat of legal actions against legal service providers contributes to an increase in the cost of legal services and places a heavy burden upon those who can least afford such cost and that the threat of such legal actions contributes to the expense of providing legal services to be performed by legal service providers which otherwise would not be considered necessary, and that the spiraling costs and decreasing availability of essential legal services caused by the threat of such litigation constitutes a danger to the welfare of the citizens of this state, and that this article should be given effect immediately to help control the spiraling cost of legal services and to insure the continued availability of vital legal services. In addition, this legislature finds that legal service providers are experiencing great and increasing difficulties in obtaining professional liability insurance and that there is a great and rapid increase in the cost of professional liability insurance. This legislature finds that both the availability and the cost of professional liability insurance is in direct consequence to the threat of legal actions against Alabama legal service providers. It is the intent of the legislature to establish a comprehensive system governing all legal actions against legal service providers. The legislature finds that in order to protect the rights and welfare of all Alabama citizens and in order to provide for the fair, orderly and efficient administration of legal actions against legal service providers in the courts of this state, this article provides a complete and unified approach to legal actions against legal service providers and creates a new and single form of action and cause of action exclusively governing the liability of legal service providers known as a legal service liability action and provides for the time in which a legal service liability action may be brought and maintained is required.
§ 6-5-572. Definitions.
For the purposes of this article, the following terms shall have the meanings respectively ascribed to them by this section:
(1) Legal service liability action. Any action against a legal service provider in which it is alleged that some injury or damage was caused in whole or in part by the legal service provider's violation of the standard of care applicable to a legal service provider. A legal service liability action embraces all claims for injuries or damages or wrongful death whether in contract or in tort and whether based on an intentional or unintentional act or omission. A legal services liability action embraces any form of action in which a litigant may seek legal redress for a wrong or an injury and every legal theory of recovery, whether common law or statutory, available to a litigant in a court in the State of Alabama now or in the future.
(2) Legal service provider. Anyone licensed to practice law by the State of Alabama or engaged in the practice of law in the State of Alabama. The term legal service provider includes professional corporations, associations, and partnerships and the members of such professional corporations, associations, and partnerships and the persons, firms, or corporations either employed by or performing work or services for the benefit of such professional corporations, associations, and partnerships including, without limitation, law clerks, legal assistants, legal secretaries, investigators, paralegals, and couriers.
(3) Standard of care. a. The standard of care applicable to a legal service provider is that level of such reasonable care, skill, and diligence as other similarly situated legal service providers in the same general line of practice in the same general locality ordinarily have and exercise in a like case.
b. However, if the legal service provider publishes the fact that he or she is certified as a specialist in an area of the law or if the legal service provider solicits business by publicly advertising as a specialist in an area of the law, the standard of care applicable to such legal service provider shall be such reasonable care, skill and diligence as other legal service providers practicing as a specialist in the same area of the law ordinarily have and exercise in a like case.
(4) Breach of the standard of care. The failure by a legal service provider to comply with the applicable standard of care the breach of which proximately causes the injury or damages or wrongful death.
(5) Underlying action. The term underlying action refers to the legal matter concerning the handling of which it is alleged that the legal services provider breached the applicable standard of care. The term is applicable in legal service liability actions in which the legal service provider's liability is dependent in part upon or derived from the legal service provider's acts or omissions concerning the handling of the underlying action.
(6) Rules of professional conduct. Any rules governing the conduct of a legal services provider as defined herein.
§ 6-5-573. One form of action.
There shall be only one form and cause of action against legal service providers in courts in the State of Alabama and it shall be known as the legal service liability action and shall have the meaning as defined herein.
§ 6-5-574. Statute of limitations.
(a) All legal service liability actions against a legal service provider must be commenced within two years after the act or omission or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided, further, that in no event may the action be commenced more than four years after such act or omission or failure; except, that an act or omission or failure giving rise to a claim which occurred before August 1, 1987, shall not in any event be barred until the expiration of one year from such date.
(b) Subsection (a) of this section shall be subject to all existing provisions of law relating to the computation of statutory periods of limitations for the commencement of actions, namely, Sections 6-2-1, 6-2-2, 6-2-3, 6-2-5, 6-2-6, 6-2-8, 6-2-9, 6-2-10, 6-2-13, 6-2-15, 6-2-16, 6-2-17, 6-2-30, and 6-2-39 [repealed]; provided, that notwithstanding any provisions of such sections, no action shall be commenced more than four years after the act, omission, or failure complained of; except, that in the case of a minor under four years of age, such minor shall have until his or her eighth birthday to commence such action.
§ 6-5-577. Rules of evidence and procedure preserved.
All rules of evidence and procedures heretofore in effect in civil actions in the State of Alabama are hereby preserved, unless specifically changed in this article, in all civil actions covered by this article.
§ 6-5-579. Underlying actions.
(a) If the liability to damages of a legal services provider is dependent in whole or in part upon the resolution of a underlying action, the outcome of which is either in doubt or could have been affected by the alleged breach of the legal services provider standards of care, then, in that event, the court shall upon the motion of the legal services provider, order the severance of the underlying action for separate trial.
(b) In defense of the underlying action, the legal services provider may assert any and all substantive and procedural defense, restriction, limitation, or immunity which could have the effect of limiting, mitigating, reducing, or avoiding liability or damages.
§ 6-5-580. Standard of care.
In any action for injury or damages or wrongful death, whether in contract or in tort, against a legal service provider, the plaintiff shall have the burden of proving that the legal service provider breached the applicable standard of care. The applicable standard of care shall be as follows:
(1) The applicable standard of care against the defendant legal service provider shall be such reasonable care and skill and diligence as other similarly situated legal service providers in the same general line of practice in the same general area ordinarily have and exercise in a like case.
(2) However, if the defendant publishes the fact that he or she is certified as a specialist in an area of the law or if the defendant legal service provider solicits business by publicly advertising as a specialist in any area of the law, the standard of care applicable to such legal service provider in a claim for damages resulting from the practice of such a specialty shall be such reasonable care, skill, and diligence as other legal service providers practicing as specialist in the same area of the law ordinarily have and exercise in a like case.
(3) Nothing in this article shall be deemed to allow either the solicitation of business by or advertising by a legal services provider in violation of any rule of the Alabama Supreme Court.
§ 6-5-581. Applicability and construction with other law.
This article applies to all actions against legal service providers based on acts or omissions accruing after April 12, 1988 and, as to such causes of action, shall supersede any inconsistent provision of law.