When does legal advice translate to counsel for malpractice purposes?

Are you my attorney? A recent case raises questions that almost sound akin to Dr. Seuss’ famous book Are You My Mother? The case involves an attorney that advised his client’s ex-wife to accept a guilty plea for traffic citations. The plaintiff argues that the attorney was serving as her legal counsel at the time he provided the advice and is suing for legal malpractice as this led to her demotion and suspension.

But was he her attorney? That is the question currently asked by legal scholars throughout the country.

Background on the case: Was the ex-wife even responsible for the citations?

This case has many layers that make it an interesting example. One of the first layers that presents itself for consideration is the fact that the ex-wife in this case was not even responsible for the traffic citations. The ex-husband had used the family car and was responsible for the parking violations that led to the citations. However, the plaintiff had the vehicle titled in her name, so the government issued the citations to her.

The plaintiff further states that she was not even aware of the tickets because her ex-husband would pull them out of the mail before she saw them.

An extra step: Why take responsibility if it was not her fault?

The plaintiff was summoned to court to resolve the tickets, and the attorney recommended she take responsibility for the tickets because there was a greater risk of her ex-husband having his license suspended if he confessed that he was responsible for the citations due to his poor driving record.

Interestingly, the courts do not address the fact that the plaintiff claimed the citations even though she was not the one responsible. Something legal professionals find very curious, and more than a little disconcerting.

Circling back: Did the lawyer commit malpractice?

Initially, the lower courts held in favor of the attorney pointing out that the attorney’s advice did not directly result in her harm. This was supported by the employer stating the demotion was a result of the ex-wife’s failure to proactively report the charge, not that she pled guilty.

As a result, the lower courts granted summary judgement on behalf of the attorney — essentially throwing the case out.

Supreme Court sends the case back: Was the counsel proper?

The Supreme Court disagreed. In its reasoning, the court stated that the substantial causation test was proper. This is of note, because it is common for the court to use a “but for” causation standard in these types of cases. This basically means that the plaintiff must show that she would not have suffered her injury, her demotion, “but for” the attorney’s actions.

However, in this case the court used a substantial causation test. This is a less difficult standard for the plaintiff to meet. Instead of showing the attorney’s actions directly led to the demotion, as required in the “but for” test, the plaintiff only needed to show that the attorney’s actions played a substantial part in the reasoning for her demotion. Using this standard the court reasoned that had the plaintiff received proper legal counsel including the potential impact on her job, she would not have pled guilty to the traffic citations.

Case presents another important question: When is an attorney providing legal counsel?

The case also serves as a reminder for clients to make sure their relationship with legal counsel is clear. An attorney in this situation could attempt to argue that he cannot be responsible for legal malpractice because he was not acting as the woman’s attorney. The ex-wife in this case could counter that the fact the attorney “entered an appearance” for both the woman and her ex-husband at the subsequent hearing establishes that he was acting as her legal counsel. However, the fact that she had not provided a retainer muddies the waters for her argument.

The main takeaway: legal malpractice claims can snowball very quickly. As such, it is important to seek counsel to represent your interests that is experienced in this niche area of the law.

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