What is Legal Malpractice in Oregon?
Oregon legal malpractice is the legal malpractice of lawyers practicing in Oregon. Legal malpractice generally requires an attorney client relationship that leads to negligence (or an intentional tort) that causes economic loss. In Oregon, there is considerable variation in the standard by which a plaintiff must prove its claims of legal malpractice. The Supreme Court of the State of Oregon has held that to prevail on a claim of legal malpractice, a plaintiff must show that (1) the attorney had a duty to conform to the standards of professional care , (2) that the attorney failed (breached) that duty, and (3) the breach was the proximate cause of damages. Fisher v. Hemenway & McCluskey, 988 P.2d 392 (Or. 1999). Other courts in Oregon have held that a claim of legal malpractice must be based upon a breach of contract claim, as opposed to a tort claim. The Oregon Tort Claims Act, or OTCA, largely precludes tort claims against government entities unless they result from an "unlawful" (traditionally defined) act or omission. Lichlyter v. State Highway Commission, 327 P.2d 746 (Or. 1958).
Legal Malpractice Cases in Oregon
In Oregon, as in many other states, legal malpractice claims arise from a variety of scenarios. Here are some common examples of how a legal malpractice case might play out:
Example 1: Failing to Meet the Statute of Limitations
Imagine a personal injury case with a three-year statute of limitations. John Smith is injured in an auto accident on January 1, 2020. He hires a law firm that handles personal injury cases to pursue his claim. His case file sits on the shelf for two years due to a variety of reasons, and it is not until 2022 that suit is filed. Unfortunately, the defendant’s insurance company is able to have the case dismissed as time-barred, and John Smith has no case against the law firm.
Example 2: Offering Bad Tax Advice
John Doe has been presented with a once-in-a-lifetime opportunity: the chance to purchase a remote hunting lodge in the Oregon wilderness at a bargain price. The owner, who is desperate to sell, offers Doe a great deal—$100,000 for the whole property—instead of the full $1 million he could get on the open market. The catch is that the owner wants the payment in full and in cash. Doe consults with a law firm that has a specialty in real estate and is well-known for helping people with deals like this one. He’s particularly concerned about the taxes that he anticipates he will owe on the purchase of the property, especially because he does not want to take out a loan to pay for the property, and he doesn’t have that kind of money lying around. Just as the owner is ready to sign the contract, Doe’s attorney "remembers" that present IRS regulations regarding Section 1031 exchanges (real estate swap) require that he simply roll over the capital gain into a like-kind property. With this in mind and without even consulting with an accountant, the lawyer informs Doe that he can sign the deal as-is and reap the tax benefits of a 1031 exchange. Doe signs the deal, but then finds out later that he’s made a major financial blunder—and it’s not just on the purchase price itself, as the attorney had advised him. It turns out the court has ruled that situations like Doe’s are not covered by current interpretation of the Internal Revenue Code ("IRC") 1031 and so there is no tax advantage. A federal tax court sides with the IRS and Doe is shelling out for taxes he could have avoided. In this scenario, the attorney is liable due to their bad tax advice.
Example 3: Failing to Negotiate a Plea Deal
Let’s say Jane Roe has found herself in a world of trouble. She has just been arrested, charged with armed robbery, and she is facing up to 20 years in prison if convicted. Fearing for her freedom and knowing that she can’t afford a private attorney, she is appointed a public defender, Jack Black. All she can afford to do for the time being is meet with Jack and spill every detail of her case. At their initial meeting, Jack spends more time looking at his phone and not listening to Jane than actually talking with her. Jack then announces that Jane has a good chance of winning the case at trial and suggests that she head straight to a jury trial and save everyone time and money. Jane, feeling like Jack is the expert here and she is simply his client, agrees. The case goes to trial, and Jane is convicted and sent to prison for 10 years. Three years into her sentence, Jane gets a call from a private attorney. The attorney explains that he has reviewed her case and believes that she was the victim of her accomplice and that the police grievously mishandled evidence in their zeal to get a conviction. Jane is shocked and upset, but she simply can’t afford the retainer that Mr. Private Attorney seeks. If only Jack Black had negotiated a good plea deal for Jane in the beginning, she could still be free.
Proving Legal Malpractice
To prove a legal malpractice case in Oregon the Plaintiff has the burden of proving each and every element. In this state it is usually broken down into four essential element, duty, breach, causation and harm. It is also understood in legal malpractice how important timely expert testimony is. Any opinion of the standard of care must be provided by an expert in Oregon law. Duty to the client is considered a legally recognized right. The question then becomes did the Defendant lawyer have a duty and under what circumstances? Breach or violation of the standard of care which is measured by the actions or inactions of a client to carry out the tasks required of them in a timely and competent manner. Harm is obvious, if you were not harmed by the lawyer’s negligence in representing you, what difference does it make? The causation element would be met by showing that "but for" the attorney’s negligence in the underlying representation you would have obtained a better result, been paid money or suffered less loss. Oregon Evidence Code OEC 702 states: Testimony by Experts. If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.
Oregon’s Statute of Limitations for Legal Malpractice
As with any legal claim, there are time limits for filing a legal malpractice case. Under the Oregon legal malpractice statute, a legal malpractice claim must be brought against the attorney within two years of the alleged wrongful act. The claims of negligent and intentional acts, however, may have different limitations.
Contracts with the clients often waive the statute of limitations, and plaintiffs are barred from bringing a claim after the agreed upon period. Mistakes or errors made by the client within their control, such as delaying to provide the attorney with necessary information or materials, may extend the timeline. A vendor or third party that works with the plaintiff may be held equally responsible for damages that arise . In this situation, the client may not be entitled to remitter from the attorney, and the claimant must proceed against each party separately.
If there is an ostensible partnership between attorneys, then the attorney may be liable for the actions of that partner. This rule only applies if the partner was acting within the scope of their authority. If the errors are not professional, such as personal attacks on the plaintiff, then the statute of limitations may extend for as long as 10 years.
If the attorney’s actions were willful or intentional, then the statute of limitations may be extended up to six years. There is no statute of limitations for punitive damages, but the plaintiff must prove actual harm in order to pursue those claims.
Choosing a Lawyer to Handle a Malpractice Case
Having decided you want to pursue a legal malpractice case, how do you choose between the many lawyers that you could go to? Many lawyers these days will claim expertise in the legal malpractice area, or in legal errors in specialized practice areas. How do you separate the wheat from the chaff?
A good starting point is to call the Oregon State Bar and ask for a list of lawyers who will take your case. This is not a complete list, and is not guaranteed to get you to the right lawyer for your case, but it is an excellent start. Avvo.com is another source of names, as well as a source of ratings of lawyers (having your star lawyer display a copy of his or her five star image in the law office is a sign that they have a bit of an ego that they want to satisfy, but not a disqualification). Check the disciplinary history at the Oregon State Bar (another source of names) at www.osbar.org. Ask the lawyer if he or she ever has been the subject of a grievance, what it was for, and how it was resolved.
Another area of inquiry involves issues of fit, and personal chemistry. Who will be your lawyer, and who will be the paralegal? Make sure you understand exactly who will be responsible for your case if there are staff members. If your matter is turned over to a junior lawyer, find out their qualifications and backgrounds. You should know how often you will be billed, when you will be billed, and how often you will receive reports on the case.
Possible Outcomes from Legal Malpractice
Potential Outcomes of Legal Malpractice Cases in Oregon
The outcome of any legal malpractice case is highly contingent on the circumstances at hand. In most malpractice cases, the parties will be interested in reaching a settlement rather than proceeding to trial. Settlements prevent unknowns and possible loss and make it easier for both sides to budget expenses. In a settlement, there gives up all rights to make claims against the attorney once the amount has been tendered. Settlements typically involve the client receiving compensation from the attorney’s insurance carrier. If a settlement has not been reached, and the case proceeds to trial either side may prevail. The outcomes might include a monetary award to the client or a finding that the attorney acted properly. A prevailing plaintiff will receive an award that compensates them for the damages they incurred as a result of the attorney’s negligence. It is important to note that the client may not recover the gross amount of the award after the case is decided. Fees and other costs associated with the legal services will be deducted from the award first. If the plaintiff loses the case, they may be responsible for paying the attorney’s fees that the defendant incurred in connection with the trial. If the case is decided by a judge , an appellate court may reverse the decision or remand the case to another court if a procedural error occurred that affected the result. It is also possible that a contrary decision will be reached on appeal by an appellate court. Apellate court decisions on legal malpractice claims are based on what it feels should have happened with the previous matter that is the source of the malpractice claim. Decisions on such claims are made based on the law that applied to the prior case. Whether or not a legal malpractice claim is successful can have implications for attorneys who are defendants in these actions. A decision that the defendant attorney was not negligent will mean that no damages will be paid. However, a finding that the attorney committed legal malpractice means that they can expect to pay damages to the plaintiff. In some situations, defendants have been ordered to pay their clients’ attorney fees that were required to defend the original case that resulted in the claim. Because of the risks in proceeding to trial, cases may be settled after the amount of the compensation to the plaintiff has been determined, but the precise nature and amount of compensation to which the plaintiff is entitled is not known. In these circumstances, the attorney may also agree to contribute additional funds to the settlement if it is determined that the plaintiff has a significant claim for compensation. Defendants may also wish to settle a case if the plaintiffs have a strong case.