Last week’s Legal-Ease column mistakenly identified which riders of motorcycles are required to wear helmets. Also, several months ago, in this column, I skipped the words “Supplemental Income” when describing the Social Security benefits that do and do not count in determining veterans’ pension eligibility.
I hate making mistakes. The general principles explained in this column are based upon several hours of research each week and are usually pretty accurate. This is especially the case because of the necessary imprecision involved in explaining complex things in simple terms.
Mistakes in this column are not malpractice because this column is not legal advice. However, when attorneys make mistakes in the practice of law, attorneys may commit malpractice.
Some malpractice by attorneys hurt clients in such a way that clients may be entitled to monetary compensation for the mistake. In contrast, some mistakes that hurt clients do not entitle clients to monetary compensation for the mistake.
In determining whether malpractice was committed by a lawyer and if it might give a client a right to money, five items should be considered.
First, attorneys are not judged on what an average attorney would have done. If so, half of all attorneys would commit malpractice because “half” is necessarily below average. Instead, each attorney is evaluated based upon the attorney’s exercise of the care, skill and diligence that a lawyer of ordinary skill and knowledge commonly has and uses in a particular legal field.
Upon failure to exercise the appropriate level of care, skill and diligence, the attorney might have committed malpractice that could entitle a client to money compensation.
Second, the chance to get money compensation is usually limited to one year from the date that the mistake is made. If the mistake is made by an attorney provided by a labor union to a union member, the statute of limitations is often six months from the date that the mistake was made.
Third, the practice of law is very individualized. As this column recites every week, each bit of legal advice should be based upon the unique facts and circumstances that each client faces. Therefore, many subjective errors in judgment are not considered mistakes for which a client can recover money from the attorney. Attorneys are asked to exercise care, skill and diligence. Attorneys are not asked not to avoid all mistakes.
Fourth, attorneys may use various entities such as partnerships and LLCs as business operating structures. However, unlike almost everyone else, attorneys cannot avoid personal liability for many mistakes. Therefore, unlike most of my clients who can secure some liability protection for mistakes made by themselves or their employees through LLCs, I cannot minimize my liability in that fashion.
Finally, almost all attorneys are almost always required to have malpractice insurance. But the insurance does not pay unless the mistake made by the attorney would entitle the client to money anyway. In other words, the existence of malpractice insurance does not lower the standard necessary to recover money for an attorney’s malpractice.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.