"Verdict For Plaintiff": What We Can Learn From Plaintiffs' Verdicts In Legal Malpractice Cases

Although the first legal malpractice verdict against a lawyer practicing in this Commonwealth occurred more than a century ago, there were very few verdicts until the early 1980s. Over the past decade there have been numerous verdicts against Pennsylvania lawyers in legal malpractice cases reported in judicial opinions, jury verdict reports and legal newspapers.

The most common cause for a legal malpractice verdict against a Pennsylvania lawyer is the failure to file suit timely. These verdicts, entered in locations diverse as Allegheny, Lawrence, Lehigh and Philadelphia Counties, include one case in which the claim was being prosecuted in another state. When compounded by an lawyer's unwillingness to acknowledge the "dropped ball," or accompanied by deception to encourage the client to believe that suit has been filed or settled, these verdicts have sometimes included an award of punitive damages. In one, in Lehigh County, $5 million in punitive damages was awarded, although it would appear that the lawyer sued there made little effort to defend himself.

Litigation lawyers have been subject to a variety of claims relating to failures to perfect clients' rights, such as failure to obtain consent to settle from a UM carrier, wrongfully pursuing claims against the assigned claims plan, and failing to pursue a life insurance claim properly. Another verdict, from Philadelphia, involved a failure to disclose settlement positions to a client. In addition, Pennsylvania lawyers have been subject to verdicts resulting from a failure to inform a client of rights, such as a waiver of rights in a joint tortfeasor release.

Although one might anticipate that claims arising from the conduct of trials might be successful, in fact, there have been only two such verdicts reported, one from Allegheny County, dealing with the failure to secure the admission of a release during trial, and the other from Philadelphia County, dealing with a failure to secure pretrial release of a criminal defendant, and that verdict was later overturned on appeal. One litigation lawyer was found liable for withdrawing from a civil action without sufficient cause.

An estates lawyer was found liable in Philadelphia for failing to advise a client of her right to make an election against a will under Florida law.

There have also been several verdicts entered against transactional lawyers. The most common type arises from an alleged conflict of interest. In one, a federal case in the Western District, the lawyer was found liable for failing to tell a client about the conflicting relationship and, in another, a Philadelphia verdict, the lawyer was found liable from failing to protect one client from the consequences of a default by the other client. Juries who find conflicts are also inclined to award punitive damages.

Transactional lawyers have also been found liable for failing to confirm that the transaction was concluded in accord with the client's engagement letter, failing to satisfy a judgment from monies received, failing to satisfy liens against a property and failing to assure that a proper escrow agreement was signed to protect the client's interests.

This brief summary of Pennsylvania jury verdicts in legal malpractice cases should not obscure the many other cases in which settlement has occurred before a verdict was entered or that, in several cases in which verdicts were obtained, those verdicts were overturned or substantially modified by the trial court or on appeal.

To avoid these exposures, lawyers and their law firms should design procedures to avoid the causes of potential liability. As we have often stated, most of these claims could be avoided. In fact, virtually every one of the cases resulting in verdicts against an lawyer could have been avoided by implementing simple administrative management procedures and then making sure that they are enforced rigorously.