What Is And Isn’t Lawyer Malpractice In South Carolina?
In order to be able to prove a case of lawyer malpractice, the complaining person or business entity must provide:
- admissible evidence;
- admissible evidence considered believable by a judge and/or jury.
In South Carolina, in order for a plaintiff to accomplish proving a legal malpractice case, the plaintiff (complaining party) must prove, with admissible evidence, the following:
- that the lawyer complained of owed a duty of care to the plaintiff/complaining party;
- that the lawyer complained of breached/failed to meet that duty of care owed to the complaining party and the particular circumstances. The mistake or failure can be by a negligent act, omission or intentional act on the part of the attorney.
- that the lawyers breach or failure to adhere to the standard of care was an actual and proximate cause of the complaining parties’ injury.
- that the complaining party suffered or incurred an injury or loss of some kind either in money damages and/or non-economic damages (i.e. – as a result of the lawyers wrongful conduct a complaining party, unjustifiably, was jailed or otherwise law certain rights).
Moore v. Weinberg, 373 S.C. 209, 644 S. E.2d (Ct. App. 1988)
An example I often use in helping people to understand what lawyer malpractice is and isn’t, is analogy to driving a car. In order to legally be allowed to drive a car, a person must have a drivers license. In order to retain a valid drivers license, there are certain driving laws that any driver must adhere to and not violate as well as common sense reasonable conduct for any driver on the road and driving a vehicle.
If the driver of a vehicle drove while drunk under the influence of alcohol and through a red light, obviously, they would violate traffic and other laws and negligence would be a commonsense conclusion. There would be no valid civil lawsuit unless that driver actually damaged another person (pedestrian or other driver) physically and/or financially, by running into them as a result of driving while drunk and being negligent violating the laws of South Carolina required to adhere to in driving a vehicle on South Carolina roads. If a drunk driver did not impact into another driver or person, that driver may well have jeopardize their right to have a drivers license and might even have it taken away by the state of South Carolina because of their conduct, but there would be no justification for lawsuit to recover money damages.
Similarly, attorneys in South Carolina are required to be licensed to be allowed to practice law. For the attorney to be able to retain a valid license, the attorney must adhere to the South Carolina Rules of Professional Conduct governing the day-to-day actions of a practicing attorney licensed in South Carolina. Just as a driver must also reasonably drive their vehicle so as not to be common sense negligent, a lawyer must do the same, as to their conduct in practicing law, reasonably, with a lawyer may well risk having their license suspended or even disbarment. Nevertheless, unless the violations of the lawyer’s conduct or proven to have caused in part or whole losses or damages suffered by an individual, there would be no valid case to consider bringing as a lawsuit against the attorney.
This point is extremely important to consider because so many people contact me thinking they have a very valid wonderful and strong case because 4 or 5 lawyers may have told them how the conduct of their lawyer was wrongful. Unfortunately, from valid case, that isn’t enough. Proof the damages were caused by that wrongful conduct or essential in this point is commonly and frequently overlooked, that is until the person finally gets to a lawyer handling these types of cases and properly reviews the damages……. or lack of such. Just because a lawyer is poor communication with the client, is not diligent about processing a case or claim on a personal level the lawyers just, very simply, a jerk, that is not enough to support the valid lawsuit to recover damages(despite that many people want that).
What Do The Legal Terms “Duty ”And “Standard Of Care “ Mean In Plain English And What Does That Require in Proving to a Judge or Jury?
In most case circumstances, the complaining party is required to provide evidence indicating what the duties and obligations of the attorney in question were owed to the complaining party and that the attorney failed to meet the duty/obligation or standard of care in the course of handling legal matter. Expert testimony is usually required to prove what duties and obligations were owed under the circumstances in question that the complaining party is maintaining were not handled properly by the attorney causing the complaining party damage or losses.
Expert testimony is utilized, typically, by both sides. The “expert” is a lawyer hired by one side or the other to review the circumstances in question, then give an opinion as to what the lawyer in question had an obligation to do (duty and standard of care) and whether or not, in the opinion of the expert, that lawyer violated a duty or standard of care or failed to meet such. Some experts will go further and testify about what the losses were that were caused by the wrongful conduct of the lawyer.
Usually, the expert will look to and consider what the lawyer complained of did a compare it to what should have been done considering the following:
- the South Carolina Rules of Professional Conduct;
- state and/or federal laws and regulations indicating that the duties and standard of care should be under the circumstances (i.e. – SC statute of limitations law requiring a lawsuit to be filed within a certain time and served on the opposing party within a certain time).
- What a “reasonable” attorney should have done under the given circumstances in question. “Reasonable” conduct by the attorney, as to what should have been done and whether it was complied with, is typically explained by the expert attorney based on the attorney’s experience and knowledge of law regarding the circumstances. Lawyers who are expert witnesses are usually hired by both sides and may very well have differing opinions about the conduct of the lawyer in question as to whether it was appropriate or not under the circumstances. In most cases, a jury decides which expert is credible when the jury is try and determine if the lawyer’s conduct was wrongful in some way. In some cases, both sides may agreed to have only a judge decide the matter, rather than a jury. The cost of expert testimony and review is usually one of the largest expenses for both sides in dealing with the case. In most cases, failure of the complaining party to provide expert testimony about what should have occurred in terms of conduct of the lawyer in question, will cause the case to be dismissed because there was no proof offered by the complaining party of what the standard of care or wrongful conduct was. See case opinions of:
- Smith v. Haynesworth, Marion, McKay & Geurard, 322 S.C. 433, 472 S.E.2d 612 (1996);
- Doe v. American Red Cross Blood Services, S.C. Region, 297 S.C. 430, 377 S.C. 430
S.E.2d 323 (1989); Jernigan v. King, 312 S.C. 331, 440 S.E.2d 379 (Ct. App. 1993);
- See also Smith v. Hastie, 367 S.C. 410, 62 S.E.2d 13 (Ct. App. 2005) defining “standard of care” and what is required to prove professional negligence.
What Time Limit Is There, Under Law, Requiring The Filing And Service Of A Lawsuit Against An Attorney?
The South Carolina legislature passed a law regarding this. Under South Carolina code section 15-3-530, a legal malpractice lawsuit must be filed and served, on the attorney complained of, within three years.
The next question to determine, very quickly, is: “THREE YEARS OF WHAT?”. Determining this time period, under the guidelines of South Carolina law, is not always clear-cut were certain. South Carolina law holds for the rule that the three-year time period begins to run from the date that the injured party either knows or should know, by the exercise of reasonable diligence, that a cause of action exist for wrongful conduct on the part of the attorney complained of. (See Mitchell v. Holler)
What does “reasonable diligence” mean?
This means that an injured party, person or business entity, is required to act with promptness in the circumstances and fax that would leave an average person of common knowledge and experience to be on notice that some right of his has been damaged or some claim against the lawyer complained of might exist. In plain English, if a party has reason to think that the lawyer complained of is done something wrong causing them damage even though that party is certain of it and does not know whether or not they have a full-blown case, it is at that point in time of the knowledge, though minimal as it might be, that the three-year time period begins to run to have to file and serve a lawsuit or risk losing all rights to do so.
For some stupid reason, South Carolina takes the minority viewpoint in determining this and even when there is continuous representation by the attorney complained of, the three-year statute limitations will be found to have begun to run from the time is determined that the complaining party knew something was wrong or had reason to know “something” was wrong with the conduct of the lawyer in the course of the attorney representation. In other words, if an attorney representing a party made a mistake in the course of a trial and the client knew or should have known something appeared wrong about that conduct the might’ve caused damage to the client, even if the lawyer continuously represents the client through an appeal, the three years begins to run when the client was aware something was wrong during the trial and all through the pending appeal process if the attorney complained of takes it up through that. The appeal process takes often up to three or four years depending on the issues and the complexity involved as well as how far in the process he goes before the appeal ends.
The majority of states do not follow this line of law. In my opinion, the law on this in S.C. regarding issues of continuous representation, is rational and unfair, but my opinion doesn’t change the fact that it is a law established in South Carolina. Think about it. If the lawyer made a mistake at trial that caused damage to a client, the lawyer appealed it and it took three or four years, though asserting to the client all through that process, that the lawyer expected the appeal to succeed, though never admitting or acknowledging any error on the attorney’s part, the client would, nevertheless, be precluded from filing any lawsuit against the attorney.
Unfortunately and unfairly, that’s the law in South Carolina and any person or business entity considering whether or not a lawyer made a mistake causing losses, should early on seek out advice and counsel to determine the validity of the client concerns or risk not being able to ever bring a lawsuit for damages recovery against the lawyer complained of.
This determination is one of the first things I try to make during the first contact with a potential client. It is not always easy to determine what evidence would indicate to a court that the person complaining about a lawyer’s conduct, new any specific time, or should have known, that there was something wrong about the lawyer’s conduct that might cause the loss. This is a point is extremely important to deal with early on in a consultation and thoroughly so. Rest assured that any defense counsel for the lawyer complained of, will look closely at the circumstances to determine if they can successfully get the case dismissed for not having been filed and served within the three years of the time that the person should have known something was wrong with the lawyer’s conduct.