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Brief Synopsis of Legal Malpractice Law

A.  Malpractice by a criminal defense attorney

If you believe your criminal defense attorney has malpracticed which resulted in an unjust conviction it is virtually impossible to pursue a claim against that attorney.  The Supreme Court essentially stated that you have to prove that you did not commit any of the unlawful acts for which you were charged or any lesser acts. In other words you have to prove that you are innocent. Of course if a jury already convicted you that may  virtually be impossible.

Moreover, even if you could overcome this first hurdle the damages would then be limited to the amount spent on attorney’s fees for the attorney who malpracticed.  In other words if it was court appointed counsel or the public defender’s office that represented a criminal defendant those damages would obviously be zero.  Hence even if the criminal defense attorney malpracticed and you could prove your innocence, unless the defense attorney was privately retained and paid with your own money, you would not have suffered any damages and therefore have no claim.

B.  Malpractice in civil cases

In order to pursue a claim of legal malpractice involving a civil case one must prove three essential elements:

1. The appointment of an attorney;

2.  The failure of that attorney to exercise ordinary skill and knowledge; and

3. That such negligence was the proximate cause of damages to the plaintiff.

An attorney will be deemed “negligent” if he or she fails to possess and exercise that degree of knowledge, skill and care which would normally be exercised by members of a profession under the same or similar circumstances.  Fiorentino v. Rapoport, 693 A.2d 208, 212 to 213 (Pa. Super. 1997).

However, once a case is settled it is extremely difficult to sue the attorney for malpractice. The Supreme Court has stated, in Muhammed v. Strassburger, McKenna, Messer, Shilobod & Gutnick, 552 Pa. 541, 587 A.2d 1346 (1991), that the only way an attorney can be sued for malpractice after a settlement has been agreed to, is by showing the attorney committed fraud or deceit. Obviously, that makes it very difficult and as such one has to be very careful when entering into a settlement and should only do so with a thorough and complete understanding of its implications.

One area of legal malpractice law that has seen a significant rise in recent years is when conducting title searches on behalf of clients attorneys fail to disclose a preexisting reservation of oil, gas & mineral rights.  Many times that reservation is not discovered until a lease is entered into with the gas company conducting a thorough title search which reveals the prior reservation.  The loss of “bonus money” as well as future royalties to that landowner can be very significant. In that situation there may well be a claim for malpractice along with a claim against the title insurance company.

If you believe that your attorney was negligent in representing your interest call us at (570) 323-8711.