Legal Malpractice: Regrets The Morning After Settlement
By Bruce H. Stanger
The most common legal malpractice case is not dissatisfaction with the result after a trial. Rather, having agreed to a settlement the client now has second thoughts and wishes they had never listened to their lawyer’s recommendation. Not surprisingly the most common type of case is divorce. The second most common type of case is personal injury. The refrains are:
- I should have been paid more!
- In divorce cases we often hear regrets regarding the agreed to visitation as being unfair!
- Why didn’t my lawyer consider a particular issue?
- Why didn’t my lawyer or accountant tell me about the taxes that I was going to have to pay?
Each time the caller says they would not have agreed to the settlement if their lawyer had only explained the ramifications or given them the time to think it through. The callers, especially in the tort cases, often suggest the lawyer was just looking for the quick fee, was clearly tired of the case or was somehow distracted and simply not interested in going ahead with the trial.
The Standard of Care
Legal malpractice has been defined as the failure to “exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession … result(ing in) injury, loss, or damage to the (client)” (internal quotation marks omitted) Davis v. Margolis, 215 Conn. 408, 415, 576 A.2d 489 (1990).
Despite the fact that negligent advice may have induced the settlement, there is common law support for not holding an attorney liable for negligence in connection with a settlement. The argument is that such a rule is important as a matter of public policy to promote settlements. However, our Supreme Court has adopted the majority view that “a client who has agreed to the settlement of an action is not barred from recovering against his or her attorney for malpractice if the client can establish that the settlement agreement was the product of the attorneys negligence”. Grayson v. Wofsey, Rosen, Kweskin & Kuriansky et al., 231 Conn. 168, 177, 646 A.2d. 195.
The Grayson case arose out of a divorce. The Plaintiff was able to show at trial that her counsel was negligent in not fully discovering and/or analyzing data about the assets of the spouse. Further the Plaintiff proved that the advice to settle from counsel was below the standard because of the lack of appropriate data. She further proved that she was damaged.
The court further found in Grayson that negligent counsel could not hide behind the fact that in this case, as required in divorce and certain other proceedings, the court had examined the terms of the settlement and given the court’s approval.
Malpractice in Handling of the Case
Consider what the result might have been if the facts in Grayson were different. What if the only negligence was the failure to determine the nature and value of the assets of the spouse and counsel had offered no advice regarding settlement. If only the inadequate information regarding assets was provided to the client and the client decided to settle using that information, there would still be a good malpractice case. The reliance upon information provided even without advice would be sufficient to support a claim of malpractice if the information was not of sufficient scope and quality to satisfy the requirement of adequate representation. Therefore, it is not only the quality of the advice that is called into question after a settlement but also the quality of the representation up to the point of settlement.
Even in a case where the representation and the preparation until the time of settlement was all within appropriate standards, counsel may face a malpractice claim. It is the analysis of the facts and the ultimate recommendation of the lawyer that the client does and should expect to be within the appropriate standard of care. The circumstances of the situation may well dictate a quick decision. Litigants are often faced with the need to act quickly such as during settlement discussions during a preliminary hearing or concerns that a delay in settlement will result in the loss of an opportunity to settle. In such situations the standard applied in a malpractice claim will vary, however the potential remains for a claim.
The Rules of Professional Conduct provide some guidance on what is expected of members of the bar. We are expected to have and apply the requisite knowledge, skill, thoroughness and preparation for the matter. Reasonable diligence is required, which would include in preparing for and providing advice regarding a settlement. Great emphasis is placed on keeping the client reasonably informed the progress and status of those matters we work on.
To avoid such claims reasonable efforts should be made to advise the client of the advantages and disadvantages of the settlement as well as likely and possible results if the case is not settled. Keep in mind as you discuss settlement with the client that there is a good chance your clients will doubt you and possibly themselves during the morning after. Where appropriate these discussions should be memorialized.
Published Connecticut Law Tribune
Author Bruce Stanger of StangerLaw LLC.
Bruce can be reached at 860-561-0651