Legal Malpractice Defense Practice Pointer: A Plaintiff Cannot Recover Attorney Fees Spent Mitigating the Alleged Damage Caused by the Defendant Attorney’s Alleged Malpractice By: John T. Sheets
10/27/2015Legal Malpractice Defense Practice Pointer: A Plaintiff Cannot Recover Attorney Fees Spent Mitigating the Alleged Damage Caused by the Defendant Attorney’s Alleged Malpractice
By: John T. Sheets
When a client fires its attorney because it perceives that the attorney did something wrong, that client will often hire a different attorney at another law firm to fix or mitigate the alleged damage caused by the first attorney.
Not surprisingly, the client may later assert a legal malpractice claim against the first attorney to recover, among other items, the attorney fees spent fixing or mitigating the alleged mistake of the first attorney. To support such a claim, the client may cite the rule that “tort damages generally include damages for all the legal and natural consequences of the injury (i.e., the damages that naturally flow from the injury).” Hannay v Dept of Transportation, 497 Mich 45, 65, 860 NW2d 67 (2014).
The client may argue that attorney fees spent fixing or mitigating the alleged mistake of the first attorney fit within this general rule. But this argument is not valid.
The rule in Michigan is that a plaintiff cannot recover attorney fees spent mitigating the alleged damage caused by an attorney’s alleged mistake, unless that attorney is “guilty of malicious, fraudulent or similar wrongful misconduct, rather than negligence.” Mieras v DeBona, 204 Mich App 703, 709-10, 516 NW2d 154 (1994), rev’d on other grounds by 452 Mich 578, 550 NW2d 202 (1996); Trierweiler v Varnum, Riddering, Schmidt & Howlett, LLP, No 256511, 2006 WL 1161546, at *7 (Mich Ct App, May 2, 2006); JMS & Associates, Inc v Schwartz, No 214765, 2000 WL 33406802, at *1-2 (Mich Ct App, Oct 3, 2000). Because a legal malpractice claim is based on professional negligence, attorney fees spent mitigating the alleged damage caused by that alleged negligence are not recoverable as a matter of law. Id.
Barris, Sott, Denn & Driker has a concentrated practice in the defense of legal malpractice claims made against law firms, as well as other areas of commercial litigation. For more information, please visit here or contact me at (313) 596-9316.CATEGORY: Business Counsel