Mr. Kapp represents both former clients (plaintiffs) and attorneys who are being sued for legal malpractice (defendants) but are uninsured. Since there is no requirement in California that an attorney have legal malpractice insurance, many small or single-lawyer firms do not have legal malpractice insurance (which is very expensive) and thus personally assume the risks involved in practicing law without insurance.

Mr. Kapp brings his special knowledge -- after two decades in malpractice-related cases -- to the unique world of legal malpractice. Unlike some "legal malpractice lawyers" whose core experience is in representing lawyers accused of unethical conduct in administrative (non-court) proceedings before the State Bar of California, Mr.Kapp's background is in Superior Court litigation, appeals and trials, and malpractice law itself. He has tried legal malpractice cases and has a number of published articles and reported appeals cases (precedents) in the area of legal malpractice.

Mr. Kapp is acutely aware that legal malpractice cases are almost "two cases in one" since the law not only requires that the client prove the negligence of the lawyer, but also that the underlying matter was itself meritorious and should have resulted in a collectible judgment. This is known as the "case within the case" (or a "trial within the trial").

The Law Offices of Howard A. Kapp are well equipped to handle either side in legal malpractice cases and appropriate fee arrangements, including contingency fee arrangements (for dissatisfied former clients) and flexible payment schedules (for representing uninsured lawyers), can be negotiated on an individual basis.

Mr. Kapp is available to lawyers, on both sides, to provide consultative or expert witness services in this area of legal practice.

Legal Malpractice FAQ

1. What is legal malpractice?
2. What is Mr. Kapp's background in legal malpractice cases?
3. Are there are any California-only special rules regarding legal malpractice?
4. What is the “standard of practice” (also known as the “standard of care”)?
5. Who can sue a lawyer for legal malpractice?
6. What is a "breach of fiduciary duty"?
7. Should I file a complaint against the attorney with the State Bar of California?

1. What is legal malpractice?

Legal malpractice is negligence committed by a lawyer which results in injury to a client. It is essentially the same "reasonable person" standard applied in ordinary negligence cases (like case accident cases), except that the jury must be provided with expert opinions from lawyers that the other lawyer did not act as a "reasonable lawyer". While it is fairly easy to state the standard in the abstract, in practice this can be a highly controversial matter throughout the litigation.

2. What is Mr. Kapp's background in legal malpractice cases?

Mr. Kapp has a considerable background in specialized field of legal malpractice and he has handled a number of legal malpractice cases from inception through trial on appeal. For example, click here or here to read some of his legal malpractice cases, representing the "tip of the iceberg", reported in the California courts of appeal.

In addition to the Los Angeles County Bar Association article, Mr. Kapp is the author of a number of published legal malpractice articles, which can be located here.

It is extraordinarily rare to find a "legal malpractice" lawyer who has a sub-specialty in specific types of legal cases, for example, criminal, bankruptcy, probate or family law. A "legal malpractice" lawyer, such as Mr. Kapp, is first and foremost a trial lawyer with experience in tort law (like auto accidents, medical malpractice, and insurance claims) who elects to become an expert in legal malpractice law. It takes a certain type of person to do legal malpractice law, since many lawyers just don’t like to sue other lawyers.

Mr. Kapp believes that that lawyers, as a group, should be not treated any differently than other professionals who negligently damage their clients, patients, etc. Still, he or his staff will carefully pre-screen your case, from the initial contact, to make sure that he doesn’t have a "conflict of interest" (such as a personal friendship) with the other lawyer; if there is a problem, we will immediately refer you to another capable legal malpractice lawyer who doesn’t have such a problem. The fact that the other lawyer may be prominent or highly successful is not an impediment; Mr. Kapp has frequently sued very prominent or well connected lawyers. The only thing that counts is the merits of your claim.

3. Are there are any California-only special rules regarding legal malpractice?

Unlike medical malpractice law, where the doctors and their insurance companies in succeeded in getting the State Legislature in California (and elsewhere) to pass special laws protecting the interests of negligent doctors (such as artificial limits on damages and attorneys fees), no such rules apply to legal malpractice lawsuits. California does have its own set of peculiar legal malpractice rules, which require the special expertise and experience of a lawyer, like Mr. Kapp, who has regularly handled legal malpractice cases.

One such rule is that the client-victim (the plaintiff) must show that, if the negligent lawyer had acted appropriately, the claim would have been actually collectible. Mr. Kapp has published an article on this requirement.

4. What is the “standard of practice” (also known as the “standard of care”)?

This is the dividing line between negligent behavior and non-negligent behavior for any professional. It is essentially analogous to a speed limit: if you are exceeding the speed limit, you can receive a ticket; however, if you are below the speed limit, you are legally blameless. The standard of practice is that behavior that a competent practitioner, in the real world, would do under the same or similar circumstances.

The standard of care may be heavily contested and is “a fact” established by expert witness testimony; the jury ultimately decides which side’s side is more credible and then decides whether the lawyer complied with that legal standard. A lawyer who is “not negligent” is said to be “acting within the standard of care”; a negligent lawyer is said to “acting below the standard of care”.

In 2009, Mr. Kapp published a detailed article on the "standard of practice" in the Los Angeles Lawyer, the official publication of the Los Angeles County Bar Association. Click here for that article. This article was designated as the County Bar's MCLE (mandatory continuing legal education) article of the month, allowing lawyers to read it and take a related test, for credit.

The "standard of practice" concept and application are generally, but not always, the same in any form of malpractice (e.g., medical malpractice, legal malpractice, accountant malpractice, etc.), although there are some unique rules that govern lawyers because, mostly, of the very high ethical standards imposed on lawyers. These special lawyer-only rules are the subject of Mr. Kapp's ongoing series of articles (under the general title of The Wacky World of Legal Malpractice) which are currently being serialized in the Forum, the official publication of the Consumers Attorneys of California. Click here to see those articles.

5. Who can sue a lawyer for legal malpractice?

This is a complex question which is quite dependent on the individual facts. Some examples:

A client cannot sue the other side’s lawyer for malpractice: the only potential claim against that lawyer would be malicious prosecution, which is rarely successful.

A lawyer who negligently prepares a will may be sued by the heirs who are damaged.

A criminal client must prove “actual innocence” before suing a criminal lawyer for negligently causing the client to go to prison.

A client's spouse, who had a special spousal claim (a “loss of consortium”) due to an injury to his or her spouse, may sue the spouse’s lawyer if the lawyer fails to join the spouse. This is as a result of a major precedent (Meighan vs Shore) which Mr. Kapp personally won in 1995.

6. What is a "breach of fiduciary duty"?

A fiduciary relationship is a special relationship recognized by law that imposes the highest duty of good faith on the party with "superior" power. For example, an attorney, doctor, parent, or trustee has such a special duty to his or her clients, patients, children or beneficiaries. A fiduciary is supposed to put the rights of the beneficiary (client, patient, etc.) even beyond his or her own needs. Under certain circumstances, one's own insurance company may have a quasi-fiduciary duty to its insureds (such as in deciding whether or not to pay medical claims).

It is common for legal malpractice cases to contain allegations of both legal malpractice and a breach of fiduciary duty claims arising from the same set of facts. Although the claims may overlap, sometimes the lawyer simply made a simple mistake and is only responsible for legal malpractice. Unfortunately, many lawyers inexperienced in legal malpractice law don’t recognize this and treat the two claims as the same. Yet, adding unmeritorious breach of fiduciary duty claims can be a distraction; moreover, it suggests that your attorney isn’t careful, doesn’t know the difference or is merely dabbling in a one-in-a-career legal malpractice case. Moreover, such frivolous claims will invariably make a reasonable settlement more difficult.

Because a breach of fiduciary duty requires a detailed and practiced understanding of the lawyers' special rules of ethics, it can be difficult, even for a non-legal malpractice lawyer, to understand the difference. Mr. Kapp is fully able to draw those lines and decide whether pursuing a breach of fiduciary duty claim is a wise thing to do. Incidentally, Mr. Kapp does not change his fee structure based on the labels he applies to the claim; this is just part of his job to maximize your recovery.

7. Should I file a complaint against the attorney with the State Bar of California?

The State Bar of California is the agency that licenses lawyers in California and, among other things, is charged with the legal responsibility to monitor and discipline lawyers, especially when lawyers become a potential danger to the community.

You can check out any California attorney at the State Bar's website. This will give you detailed information if the lawyer has been previously disciplined and other useful information, such as the lawyer's college and law school, current address (lawyers are required by law to notify the State Bar of any changes of address) and, sometimes, a current E-mail address. For example, please feel free to verify Mr. Kapp's record here. You will see that Mr. Kapp, who has been licensed since 1979, has a clean record with the State Bar.

The State Bar does NOT get directly involved in legal malpractice cases; it may, however, investigate the attorney when there is evidence of unethical behavior or where there is a serious ongoing pattern of malpractice. As a matter of internal practice, the State Bar wants to stay out of ongoing legal malpractice cases except in those very rare cases where it believes that the attorney is likely to commit serious crimes, such as sexual misconduct with clients.

While the State Bar can be useful in very limited ways that are consistent with its legal mandate, no client should EVER or under ANY circumstances threaten a lawyer with a State Bar complaint in order to get the attorney to do something. This is a crime (extortion) even if your complaint is valid. There is nothing wrong with filing a legitimate complaint with the State Bar (that's their job!), but don’t threaten the lawyer!

Please note that it is Mr. Kapp's position that it is rarely a good idea to file a State Bar complaint if you are considering a legal malpractice case. First, the vast majority of such complaints are a waste of time because (1) the State Bar operates under its own technical rules, (2) very few lay people understand the ethical rules or objectively evaluate their applicability, and (3) the State Bar has to be very, very selective in the case it prosecutes, since those are very expensive to process. State Bar complaints are very rarely successful, and will make people angry, complicate and prolong your case and make settlement less likely.

The best general advice is to discuss filing a State Bar complaint with Mr. Kapp or your legal malpractice attorney before you file the complaint. Mr. Kapp will not hesitate to allow, or even encourage, the filing of a State Bar complaint, but only when that is really justified by the law, the facts and the probability of an outcome that will either serve the legitimate interests of the public and/or the client.

If you want to file a complaint, click here.