St. Mary's Journal on Legal Malpractice & Ethics

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St. Mary's University School of Law

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This Article argues that the American Rule should be changed for legal malpractice suits because the attorney–client relationship is the quintessential fiduciary relationship and because of the added concern of unequal information available to each party as a result of the large disparity in power. Attorneys must abide by ethical rules and owe fiduciary duties to their clients, which include the duties of competence, diligence, and loyalty. Because it is this very relationship that distinguishes legal malpractice suits from an ordinary lawsuit, awarding attorney’s fees to the damaged plaintiff client helps maintain fiduciary relationships and furthers the interests of justice.

This Article first explains the law of legal malpractice and fiduciary duty. Then, the Article examines the American Rule on attorney’s fees and the current exceptions, including contractual agreements, the common fund doctrine, the private attorney general doctrine, federal and statutory exceptions, and the bad faith doctrine. Finally, the Article looks at the treatment of legal malpractice cases and awards of attorney’s fees in the fifty states and sets forth the argument that legal malpractice cases should be an additional exception to the American Rule. Lawyers should accept responsibility for their mistakes and do what is required to make their clients whole.