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    Kevin Gibson's Legal Malpractice Avoidance Guide
    Kevin Gibson's Legal Malpractice Avoidance Guide
    Kevin Gibson's Legal Malpractice Avoidance Guide
    Ebook165 pages1 hour

    Kevin Gibson's Legal Malpractice Avoidance Guide

    By Kevin Gibson

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    About this ebook

    Attorney Kevin William Gibson (Pennsylvania, Delaware) has been suing lawyers for over thirty years because of one very simple fact: lawyers make mistakes, too. His Legal Malpractice Avoidance Guide provides fellow counsel with an in-depth look at how the unfortunate situation of being sued for legal malpractice might best be avoided. With a uniquely-qualified eye for potential pitfalls, Mr. Gibson discusses the various parts of a legal malpractice claim and offers insight into determining a case's merit.
    LanguageEnglish
    PublisherLulu.com
    Release dateJun 4, 2014
    ISBN9781312250567
    Kevin Gibson's Legal Malpractice Avoidance Guide
    Author

    Kevin Gibson

    Having worked in the service industry for over 40 years, Kevin has now decided to put pen to paper to write the stories he used to tell his young son out on walks in the countryside. From a working-class background where hard work was a must and family came first, average exam results lead to working at the local colliery but only to find a more enjoyable career in pubs and restaurants. Writing the book brought back memories of his son and soon to be told to his first grandchild, he looks forward to the next few instalments.

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      Book preview

      Kevin Gibson's Legal Malpractice Avoidance Guide - Kevin Gibson

      Kevin Gibson's Legal Malpractice Avoidance Guide

      Kevin Gibson's LEGAL MALPRACTICE AVOIDANCE GUIDE

      By

      Kevin William Gibson, Esq.

      Attorney at Law - BS, JD

      GIBSON&PERKINS, PC

      Pennsylvania Office: Suite 204

      100 W Sixth Street

      Media, Pennsylvania

      Delaware:

      144 Quigley Boulevard

      New Castle, DE 19720

      610-565-1708 | www.gibperk.com

      Copyright © 2014 by Kevin William Gibson

      ISBN 978-1-312-25056-7

      Digital Edition

      All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means without permission in writing from the publisher, with the sole exception of brief passages being excerpted for critical review.

      ABOUT THE AUTHOR

      Mr. Gibson received the decree of

      Juris Doctor on May 29, 1979.

      While in law school, he was the Chief Judicial Clerk to The Honorable Helen S. Balick, U.S. Bankruptcy Judge, District Delaware.

      Mr. Gibson restricts his practice to plaintiff’s legal malpractice. He is a member and former Co-Vice Chair of the Professional Liability Subcommittee of the Pennsylvania Bar Association.  In connection with his position in the Professional Liability Committee, Mr. Gibson has frequently lectured to various county bar associations on the subject of legal malpractice avoidance.

      Mr. Gibson has also written a number of articles that have appeared in the Legal Intelligencer, Delaware Law Weekly, and the Pennsylvania Bar News on the subject of legal malpractice avoidance.

      FOREWORD

      When I have given my malpractice avoidance seminars to various bar associations, I have usually started out with the following observation:

      On any given week during the course of your practice, how many decisions do you make that will greatly impact the financial or personal well being of a client? Give me five decisions...

      This adds up to twenty decisions a month that will greatly impact your clients' lives! It means you will make two hundred and forty decisions a year that will greatly impact the financial or personal well-being of your clients.

      For those of us who have been in practice for over thirty years, that would be more than 7,200 important decisions that have been made during a single career. Let me ask you a question: do you truly think that out of those 7,200 decisions that perhaps just one of the decisions may have been a mistake? We are not perfect, ladies and gentlemen. Contrary to what some in the defense bar believe, legal malpractice does happen.

      Hopefully this book will improve your odds on getting as close to the 7,200 mark as possible.

      Kevin William Gibson

      Chapter 1 - Overview

      How to Make Sure

      You Get Sued for Malpractice

      If you want to make sure that you are sued for legal malpractice at some point in your career, all you need to do is one or more of the following:

      Take cases you can’t handle because:

      You lack the proper expertise

      You have too much work

      You lack the proper resources;

      Take the difficult clients;

      Create unrealistic client expectations;

      Fail to communicate with your clients;

      Miss deadlines; or

      Sue your clients for unpaid fees.

      My name is Kevin Gibson, and I’ve been suing lawyers for a living for over 35 years. If you want to avoid meeting me on a professional basis then please read my Guide.

      The Elements

      The Elements of a

      Legal Malpractice Case

      Any malpractice case involves the following essential elements:

      A legal duty of care;

      Negligence; and

      Damages.

      The Legal Duty of Care

      Overview

      The first element of a legal malpractice case is the existence of a legal duty of care between the plaintiff and the defendant-lawyer. In most cases this will require the existence of a lawyer-client relationship, either

      express or implied – but the duty of care may also extend to those who are the intended beneficiaries of your anticipated work product.

      The Attorney-Client Relationship

      An attorney-client relationship may be formed either expressly or implicitly.

      Express Relationships

      Express relationships are created when a person manifests to a lawyer their intent that the lawyer provide legal services to (or on behalf of) that person; and the lawyer manifests an intent to provide those services.¹

      Generally, this requires that there be a contract between the parties.

      A malpractice claim based upon a contract theory requires that the plaintiff first establish the existence of a valid contract and then demonstrate actual loss that flowed from the breach of that contract.²

      Under basic contract law, a binding contract is formed by an offer, an acceptance, and consideration.³

      The actual payment of a fee is not a prerequisite to the formation of a

      valid   contract—the  client’s  failure  to   pay  a  fee,  if  that  is  the consideration, would merely constitute breach of the contract. When a valid contract is found between an attorney and his or her client, courts have held that the attorney has implicitly agreed to provide the client with services in a manner consistent with those expected of the legal profession at large.⁴ Therefore, an attorney may be required to meet standards above and beyond what is actually required in the agreement.

      An Implied Relationship

      In the absence of an express contract, an attorney-client relationship may nonetheless exist because of an implied relationship. An implied relationship may be found when:

      An individual seeks legal advice from an attorney;

      The advice sought was within the attorney’s professional

      competence;

      The attorney expressly or implicitly agreed to render that advice;

      and

      It is reasonable for the individual to believe that the attorney was representing him or her⁵.

      Under this so-called reasonable belief standard, an attorney-client relationship could be found in this hypothetical situation – a lawyer has an initial consultation with a prospective client, answers the prospective client’s legal questions – but    is never actually retained by the prospective client. Just to be safe - never give free advice at cocktail parties.

      Implied Relationships and the Internet

      If an attorney-client relationship can be created simply by answering legal inquires - the question arises: What if an individual derives legal information or advice from your firm's website?⁶  The majority of states hold that no lawyer client relationship is created absent personalized contact between the attorney and the non-lawyer.⁷

      While interactive web pages and legal software are not per se offering legal advice, any sort of personalized legal advice derived or offered in that way could be construed as such.⁸ You should avoid using questionnaires on your website that provide boilerplate responses, such as, You may be entitled to a legal recovery, or You have a claim in contract.  This sort of answer and response might actually be construed as constituting personalized legal advice.

      If you offer information via the internet (e.g., topical pamphlets which may include general advice) you should make it as clear as possible that such information is not to be substituted for the advice of an attorney who has knowledge of an individual’s specific circumstances. Further, it is irresponsible for an attorney to provide legal information on his or her website without periodically updating that information. Your website should  also  expressly   indicate  in  which   jurisdictions  any   such information is relevant, and also explain the possibility that the information may not be pertinent in other jurisdictions.⁹

      Third-Party Beneficiaries

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