BUILDING A SOLID FOUNDATION LEGAL MALPRACTICE LAW IN ALABAMA Lay of the Land Purpose Focus on jurisdictional rule and procedural changes within last three years and recent legal malpractice

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BUILDING A SOLID FOUNDATION LEGAL MALPRACTICE LAW IN ALABAMA Lay of the Land Purpose Focus on jurisdictional rule and procedural changes within last three years and recent legal malpractice Powered By Docstoc
					BUILDING A SOLID FOUNDATION: LEGAL MALPRACTICE LAW IN
ALABAMA

Lay of the Land:

Purpose: Focus on jurisdictional rule and procedural changes within last three years and
recent legal malpractice case law.

1.     References/citations for definition of lawyer standard of care in the
jurisdiction, including:

Statute
Ala.Code § 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.

Alabama Pattern Jury Instructions, 25A, Malpractice, Attorneys, General Charge

        The standard of care applicable to legal professionals 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. A breach of the standard of care is the failure by the legal service provider
to comply with the applicable standard of care, which failure proximately causes the
injury or damages.
Case Law
        Although a lawyer owes his client a duty to exercise “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."
Herring v. Parkman, 631 So.2d 996, 1002 (Ala. 1994).


        Expert testimony is generally required in a legal-malpractice case because a jury
that is unfamiliar with the principles of law governing the underlying case might be
incapable of discerning whether a lawyer's professional conduct falls outside an
acceptable standard of care. Valentine v. Watters, 896 So.2d 385, 393 (Ala. 2004).

2.       Definition/case law regarding definition of competence

        A plaintiff may not maintain a legal malpractice case in the absence of evidence
that that attorney failed to exercise the required degree of skill in his representation of the
client. Herring v. Parkman, 631 So.2d 996, 1002 (Ala.1994).

       "In a legal malpractice case, the plaintiff must show that but for the defendant's
negligence he would have recovered on the underlying cause of action ." Dennis v.
Northcutt, 923 So.2d 275, 280 (Ala. 2005). Thus, Alabama courts apply the "case within
a case" doctrine."
         Alabama Rule of Professional Conduct 1.1 states that:

         A lawyer shall provide competent representation to a client. Competent
         representation requires the legal knowledge, skill, thoroughness and
         preparation reasonably necessary for the representation.

3.       Recent Developments In Alabama Legal Malpractice Jurisprudence

         Manci v. Ball, Koons & Watson, 995 So.2d 161 (Ala. 2008).

       Former client's answer failed to meet meritorious-defense requirement for setting
aside default judgment entered against him in law firm's action to recover payment for
legal services it had rendered to him in underlying estate litigation; answer made bare,
insufficient allegation that firm failed to state claim upon which relief could be granted,
and former client, in asserting that firm forfeited right to compensation by engaging in
abusive and overreaching misconduct in attempt to collect legal fees, did not offer any
legal basis for this assertion.

         Bonner and C.O.W., Inc. v. Lyons, Pipes & Cook, P.C., 2009 WL 886513 (Ala.
2009).
       A franchisee entered into a franchise agreement with a franchisor to purchase the
right to operate a restaurant. The agreement provided for renewal on the condition that
the franchisee's attorney provided written notice of renewal by a set date and paid 50% of
the current initial franchise fee. The franchisee intended to renew, but its attorney failed
to adequately comply with either the notice provision. The franchisee also did not
provide the 50% payment stipulated in the franchise agreement. The franchisor then filed
a successful declaratory action with a court finding the franchisee had failed to renew
under the agreement as a matter of law.

       In response, the franchisee filed a legal malpractice action against its former
counsel based on the failure to timely renew the franchise agreement. After the suit was
tried before a jury, the attorney defendants moved for judgment as a matter of law. The
attorney defendants argued that the franchisee had not presented evidence that, but for the
fact the renewal was untimely, the franchisee would have successfully renewed under the
agreement. Specifically, they argued the franchisee had never caused the 50% fee to be
paid to the franchisor, and therefore the untimely notice was not the "but for" cause of
termination. The trial court agreed and granted the motion in favor of the attorney
defendants.

       On appeal, the Supreme Court of Alabama affirmed the judgment of trial court.
The Supreme Court explained that the franchisee's burden on causation required it to
prove that, absent the untimely renewal, it would have a legal right to a renewal of the
franchise. Because the evidence presented was insufficient to show the franchisee paid
the 50% of the initial franchise fee, its legal malpractice case failed on causation. The
franchisee could not show it had a legal right to renew even if the attorney defendants had
properly provided notice of renewal.

4.     Citation to prevailing rules of professional conduct

       Alabama Rules of Professional Conduct

       http://www.alabar.org

5.     Citation to references for finding published opinions in Alabama regarding
ethics and professionalism

       http://www.alabar.org/ogc/fopList.cfm


6.      Citation to the prevailing statutes of limitation for lawyer professional
liability cases.
       Ala. Code § 6-5-574:

       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.




7.     Citation to prevailing case law regarding application of the statute of
limitation.

       The statute of limitations under Ala. Code § 6-5-574(b) begins to run when the
"act or omission or failure giving rise to the claim occurs." Ex parte Panell, 756 So. 2d
862, 867 (Ala. 1999). There is, however, an exception "if the cause of action is not
discovered and could not reasonably have been discovered." Id.


        Alabama courts have acknowledged a split of authority in caselaw concerning
when the statute of limitations for a legal-malpractice action will begin to run,
referring both to the “occurrence” approach (at the time of the act or omission) and
the “damage” approach (when the act or omission is accompanied by some damage).
Denbo v. DeBray, 968 So.2d 983, 989 (Ala. 2006).

8.     Citation to any rules, regulations, or laws in the jurisdiction establishing
any minimum requirements regarding document retention for law practice, and
citation to any case law interpreting such rules, regs, or laws.

      The rules governing the retention of client records by an attorney are found in
Rules 1.6 (Confidentiality of Information), 1.15(1) (Safekeeping Property) and 7.2(a)(1)
(Advertising) of the Alabama Rules of Professional Conduct.
       Rule 1.6 is the general rule requiring an attorney to maintain confidential
       client communications and information subject to certain enumerated
       exceptions.

       Rule 1.15(a) requires that all records of trust accounts or other property
       held in trust is kept for a period of six years after the end of the
       representation.

       Rule 7.2(a)(1) requires retention of a copy or recording of the
       advertisement or written communication and a record of when and where it
       was used for a period of six years after its last dissemination.

       Upon termination of the representation, the lawyer is required to return all papers
and property received from the client (Rules 1.15(2) and 1.16(d)). For other records, the
lawyer should exercise prudent judgment in determining how long to retain the client file,
taking into consideration such things as when the statute of limitations for legal
malpractice has expired, any particular difficulties in the relationship with the client or
the representation, if the client was a minor or incompetent that might extend the period
of limitations, whether the file contains any original documents that the client might want
back, and whether any documents if destroyed would be difficult to reconstruct from
other sources


9.    Citation to any rules, regs or laws in the jurisdiction regarding sale of a law
practice.

N/A

10.    List CNA risk management hotline and any available ethics helpline, bar
association helpline, etc.

Risk Management Hotline: 1-866-262-0034

11.   Reference to any recent or pending rule changes in any way affecting the
practice of law.

       Former client's common law fraud and negligence claims against lawyer and law
firm, as well as claim for declaratory judgment regarding attorney fees, should have been
recast by trial court as a cause of action under the Legal Services Liability Act (LSLA),
and considered for whether client sufficiently established that lawyer breached the
standard of care for a legal service provider as defined by the LSLA; the claims stemmed
from lawyer's acts in representing client in workers' compensation case, and the claim for
declaratory judgment was based on whether, in taking attorney fee based on judgment
rather than on postjudgment settlement award, lawyer's conduct fell below reasonable
standard. Free v. Lasseter, 2009 WL 2573914 (Ala. 2009).

				
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