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 here. 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 or ordinarily negligence cases; it may, however, investigate the attorney when there is evidence of unethical behavior, multiple serious violations, or where there is a serious ongoing pattern of malpractice in multiple cases. As a matter of internal practice, the State Bar will NOT get involved in potential or 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. As a matter of policy, the State Bar will not take sides in private malpractice disputes.
It is Mr. Kapp's view that the State Bar should rarely, if ever, be dragged into ordinary cases of legal malpractice: it won't help you, it won't protect the public and you will make any legitimate litigation more difficult, longer and unnecessarily contentious.
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 legitimate complaints 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 generally NOT 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 is NOT interested in taking action against lawyers who may or may not have committed malpractice in a single case (except if there is evidence that either (a) this is a pattern extending over multiple cases or (b) the attorney is significantly impaired by illegal drugs or other mental or physical condition), (2) the State Bar operates under its own technical rules, (2) very few lay people (or lawyers) understand the ethical rules or objectively evaluate their applicability, (4) the State Bar rarely has the resources or interest in the details of your case, and (5) the State Bar has to be very, very selective in the case it prosecutes, since those are very expensive to process. Even when the State Bar decides to get involved, that is rarely to the benefit of the complaining ex-client.
Moreover, State Bar complaints are very rarely successful, and will make the potentially adverse lawyer angry, complicate and prolong your case and make settlement less likely. In fact, Mr. Kapp may, in his sole discretion, decide to reject your case if you unwisely filed a State Bar complaint. That may be interpreted by him as a sign that you have acted using poor judgment and/or may be unwilling to accept advise and counsel.
The best general advice is to discuss filing a State Bar complaint with Mr. Kapp or another competent legal malpractice attorney before you file a State Bar 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 with the State Bar of California, click here.
What is a "breach of fiduciary duty"?
Who can sue a lawyer for legal malpractice?
This is a surprisingly complex question which is quite dependent on the individual facts. This issue is typically complex because the courts are sensitive to the special nature of the attorney-client relationship and thus generally does not allow a voluntary assignment of the right to sue for legal malpractice. It is assumed, always, that the client has conveyed some private information to the attorney and that the attorney has a corresponding responsibility to maintain the clients' confidentiality.
This is also an evolving process as the courts are continually deciding new cases that are on the margins of existing California law. Some examples:
The question of a client's right to sue it another lawyer is always complex and requires the knowledge and skill of an attorney experienced in medical malpractice law, including will rules of ethics which may require a different-than-expected outcome.
The "standard of practice" is the legal 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 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 experts are 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 extensive published article The Wacky World of Legal Malpractice.
What is the “standard of practice” (also known as the “standard of care”)?
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 for Mr. Kapp's precedent-setting case on a lawyer's responsibility to his or her client's spouse or here for a list of case precedents or publications to the legal community.
Click here for his major article on the "standard of practice" published by the Los Angeles County Bar Association.
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 should count is the merits of your claim.
What is Mr. Kapp's background in legal malpractice cases?
The law of legal malpractice requires a special set of legal skills and legal knowledge. Unlike many other claims for injury for "negligence" (and legal malpractice is very much a negligence case), the legal malpractice specialist must be aware of a special, additional set of rules of ethics and case precedents which apply only to lawyer malpractice cases and may confuse attorneys who do not focus on this area of legal specialty..
These legal-malpractice-only rules are frequently unexpected and surprising to non-specialist attorneys, perhaps causing them to make poor decisions about the merits of cases. These rules can be a trap for the unwary; moreover, ignorance of those rules may lead to poor decisions, even the decision whether or not to pursue a legal malpractice claim. Nobody -- except maybe the lawyer's insurance company's paid-by-the-hour lawyers -- is served by pursuing a lawsuit that is futile under the law.
It is impossible to provide a complete list of all of these differences; however, Mr. Kapp has published a lengthy article highlighting some of the unusual features of legal malpractice law. Still, no single article can anticipate all of the mistaken beliefs about legal malpractice law and practice!
Are there special rules that apply only to legal malpractice cases?
The word "malpractice" simply means professional negligence, or negligence done by any professional such as a doctor, lawyer, accountant, architect or whatever. The only difference between that form of negligence and negligence by a layperson (such as driving a car) is that the parties will require expert witnesses to tell the jury what is reasonable or not.
Still, there are many other distinctions between malpractice cases and non--malpractice cases, including, for example, the statute of limitations (legal deadlines).
What is "malpractice"?
The Law Offices of Howard A. Kapp are located in the Mid-Wilshire area of Los Angeles,
on Wilshire Blvd., just east of Western Avenue.
We handle cases throughout the major regions of California.
Where are you located?
What special rules apply to California lawyers?
Should I file a complaint against the attorney with the State Bar of California?
The Rules of Professional Conduct, applicable to all California lawyers, is found here. These rules are similar, but not identical, to the national standards established by the American Bar Association. As always in reading legal materials, these rules should be read with a practiced and objective understanding of the legal system and the actualities of legal practice.
A fiduciary relationship is a special relationship recognized by law that imposes the highest duty of good faith on the party with "superior" power; much of this area of law tracks to the special rules governing attorneys.. For example, an attorney, doctor, parent, or trustee has such a special duty to his or her clients, patients, children or beneficiaries. Attorneys are the textbook example of a fiduciary to their clients. In fact, since a fiduciary duty cannot be "divided" among people with conflicting rights, attorneys have no such relationship to other parties, opposing lawyers, or even the court. Attorneys, as fiduciaries, are required by law to try to avoid all known conflicts of interest, potential or otherwise. (In certain cases, conflicts of interest may be waived by the client.)
A fiduciary is required 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 defendant lawyer simply made a mistake and may be only legally 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 the two claims, or is merely dabbling in a one-in-a-career legal malpractice case. Moreover, adding such claims, if meritless or dubious, will invariably make the case unnecessarily complex, distract from the damages from core legal malpractice case, and make settlement more difficult and less likely. The only people that might benefit from adding meritless breach of fiduciary duty claim are the insurance company lawyers, who are paid on an hourly basis and encouraged to sidetrack the case into legal minutiae about a claim that may add no real value to your case.
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.
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