A few years ago, I commented on a few cases on whether a plaintiff should have a cause of action for legal malpractice based on the allegation that his or her attorney was negligent in advising the client to settle a case. Some jurisdictions have recognized such an action - and I don't see a problem with it - as long as the plaintiff can meet the elements of the prima facie case. Most importantly, the plaintiff will have to argue and prove that the attorney was, in fact, negligent. See here and here for some cases on this.
I have not done a survey of all jurisdictions so I don't know what is the, if there even is a, "majority view" on this, and now comes a new decision from Pennsylvania that shows yet another approach to the issue. The case is Silvagni v. Shorr.
As reported in the Chicago Legal Malpractice Lawyer blog, Pennsylvania has taken the general dislike of this type of case even
further, with a legal doctrine that bars such lawsuits unless the
plaintiff can show that he was fraudulently induced to sign the
agreement.
This seems unwarranted to me. I don't understand why a plaintiff would have to meet more elements (and one as high as proving fraud) to support a claim. Arguing, and proving, a legal malpractice claim is not easy to begin with. If the plaintiff can meet the elements of the cause of action, why not allow the cause of action?
The concern is that the cause of action could be abused by clients who change their minds after accepting a settlement. This is true but I don't think that there is a need to increase the burden on plaintiffs to prevent the possible problem. The plaintiff will still have to argue and prove negligence on the part of the attorney (now defendant) and that won't be easy.
By making it more difficult for a plaintiff to have a cause of action to prevent the rare case of an undeserving plaintiff to go through, the Pennsylvania approach hurts a deserving plaintiff from having a negligence claim. This is a bad policy.
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