Malpractice

We represent clients who have suffered because of a professional’s negligence or breach of duty (otherwise known as malpractice).  This includes legal malpractice, investment adviser and financial adviser malpractice, accounting malpractice, etc.

Legal malpractice occurs when a lawyer fails to provide the quality of care that should reasonably be expected and the client is harmed.  We have successfully litigated cases involving claims of professional negligence, breach of fiduciary duty, breach of contract, and attorney-client fee disputes, among other things.

The three major theories of liability are negligence, breach of fiduciary duty, and breach of contract. For legal malpractice, we need to show that you were harmed by proving that your lawyer acted below the standard of care and that if the lawyer had handled the work properly, you would have had a better outcome.  To determine if you or someone you know has been a victim of legal malpractice, a client should ask himself/herself questions such as:

Did the lawyer miss the statute of limitations?
Was my case dismissed because my lawyer failed to diligently pursue the case?
Did my lawyer force me to settle my case for an inadequate amount?
Did my lawyer have a conflict of interest?
Did my lawyer use adequate “discovery”?
Did my lawyer abandon my case just before the trial?
Did my lawyer bill me a reasonable amount?

Accounting malpractice may not get as much attention as medical malpractice, but it is a serious and under-appreciated problem.  Like medicine, or any other profession that maintains professional standards, accountants are expected to perform their tasks with a certain level of care and competency. When an accountant fails in that duty – violating a reasonable standard of care in the profession – they can be held liable for the results.

The Merriam-Webster dictionary defines a certified public accountant (CPA) as “an accountant who has met the requirements of a state law and has been granted a certificate.” Specific professional bodies also have their own definition of the term. That definition, combined with industry standards for proper accounting practices, helps define what constitutes proper or improper conduct.

For example, accountants are expected to follow the Generally Accepted Auditing Standards (GAAS) and General Accepted Accounting Principles (GAAP). In the U.S., GAAS regulations are developed and maintained by the Auditing Standards Board- of the American Institute of Certified Public Accountants (AICPA). GAAP, on the other hand, has been adopted by the U.S. Securities and Exchange Commission (SEC).  GAAS demands that an auditor must maintain an independent outlook, maintain his or her professional proficiency and training, and report misleading financial information. GAAP focuses on how an accountant derives and delivers crucial information such as business income and expenses as well as liabilities and assets.  GAAP also focuses on presenting information consistently.

In California, a 15-member state Board of Accountancy oversees numerous specific practice regulations. The regulations note that, “Protection of the public shall be the highest priority for the California Board of Accountancy in exercising its licensing, regulatory, and disciplinary functions.”

Investment Adviser and Financial Adviser Negligence & Malpractice. As in the other professions, these advisers can harm their customers because they lack due care or competence. A person is negligent if he or she fails to behave according to a predetermined standard of care. Although negligence is often the basis for personal injury lawsuits, the concept is also useful to assess the actions of securities brokers and advisors. If a broker or advisor fails to abide by the duty he or she owes to clients, that person may be liable for negligence.

A basic negligence claim relies on proving four elements:  duty, breach of duty, causation, and damages. In the context of a securities broker negligence claim, the focus is on the duty the broker owed to clients, whether he or she breached that duty, whether the breach caused the client financial losses, and what damages the client actually suffered.

Investment advisers who counsel their clients on the wisdom of investing in certain securities owe their clients a fiduciary duty, which sets a high standard of care. Essentially, a fiduciary duty requires that the adviser place the clients’ interests before his or her own. Brokers owe their clients a duty of suitability, which is not as stringent as a fiduciary duty. Both brokers and investment advisers owe their clients a duty of reasonable care, which is not as stringent as a fiduciary duty but requires that brokers avoid unreasonable behavior that puts their clients at risk for financial injury.

This simple duty requires that brokers perform due diligence on potential investments to ensure that they are what they purport to be. Brokers who recommend an investment that turns out to be a scam or fraud may have acted with negligence. Another common example of broker negligence occurs when a broker fails to diversify a particular client’s portfolio. Many people believe that a diversified portfolio is inherently less risky than a concentrated one. If, for instance, a client cannot afford a large loss in the area of concentration, a broker who fails to adequately diversify a client’s account may be guilty of negligence.

Generally, a professional who has failed to take reasonable care has likely also breached the applicable fiduciary duty or duty of suitability, since failing to take reasonable care would violate his or her professional obligation to clients. However, some behavior that may not constitute simple negligence would still breach the fiduciary duty.

While other offenses, such as churning or misrepresentation, may constitute negligence, proving these claims requires that the plaintiff show scienter, or intent. One benefit to a negligence claim is that the plaintiff does not have to prove that the broker intended to defraud the client, only that the broker did not do something he or she was supposed to do.

After proving that the broker breached a prescribed duty, a plaintiff must also show an injury and that the broker’s behavior caused the injury. The money the plaintiff invested and lost is the most obvious injury in many broker negligence cases. In some circumstances, plaintiffs might also claim missed profits from market gains.

We will investigate your case without charge to determine if we are able to represent you.  We are highly skilled in investigating these matters and only take on cases that have merit.