AccounTrust (post until Sept. 30/19)
Civil Litigation, Personal Injury

Suing your lawyer not a do-it-yourself affair

By Michael Lesage

In 2006, a woman was injured in a car accident. Subsequently, she retained a lawyer to pursue damages against the driver of the vehicle. The lawyer handled her car accident case through the pre-trial conference, at which time he elicited a settlement offer from the defendant for $125,000, all-inclusive. The plaintiff accepted the offer and signed a release. Close to two years later and representing herself, she sued the lawyer, alleging that he had breached the applicable standard of care, and improperly advised and coerced her to accept an improvident settlement, in this case.

In prosecuting her case against the lawyer, the plaintiff was apparently unable or unwilling to secure expert evidence as to how the lawyer had allegedly breached the standard of care (which is typically one of the first things I do after taking on a solicitor’s negligence claim, and typically requires the whole of the lawyer’s file to be reviewed by an expert witness). As a result, the lawyer’s lawyer (really the Law Pro lawyer) brought a motion for summary judgment, which was supported by affidavit evidence from an expert witness (as to whether the lawyer had met the applicable standard of care).

Conversely, the lawyer offered evidence that he had advised the plaintiff as to the strengths and weaknesses of her case, including the facts that:

  • she did not present as a good witness (a very important factor in personal injury claims;
  • she had a complicated pre-accident medical history
  • she had a poor employment history;
  • there was a real risk that her injuries would not meet the statutory threshold;
  • the risk of cost consequences were she unsuccessful at trial.

In assessing her claim, Justice Broad ruled that:

“... based upon the evidence, that plaintiff has failed to prove, on a balance of probabilities, that [the lawyer] “coerced” her into accepting the tort defendant’s offer to settle. Indeed, the evidence is to the contrary. Not only did the lawyer explain the weaknesses of the plaintiff’s tort claim and the risks of proceeding to trial to her, but he also explained the meaning and effect of the settlement and his reasons for recommending it to her before she executed the Full and Final Release on February 8, 2012.…..[the lawyer] may have been blunt and honest in providing her with his assessment of the plaintiff’s case at trial, but in doing so he was discharging his professional responsibility to her. [the lawyer’s] conduct did not represent coercive impropriety.”

In so finding, Justice Broad cited this case, which stated:

“... that caution should be exercised in reviewing whether there is negligence in connection with a settlement recommendation by a solicitor…. it would only be in a clear and exceptional case that the decision of counsel to recommend settlement could be successfully assailed."

As a result, the plaintiff’s claim was dismissed, and she is likely to be subject to tens of thousands of dollars of adverse cost awards, at the discretion of the lawyer’s insurer (LawPro).

The case represents a cautionary tale for those clients considering suing their lawyers, namely, that not every disagreement with counsel should or can be addressed via a malpractice claim. Before launching a solicitor’s negligence action, unhappy clients are well advised to speak to a lawyer experienced in handling professional negligence claims, such as the lawyers at Michael’s Firm (who have experience recovering in actions alleging improvident settlement).

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