Provides relative to collections in legal malpractice
Impact
The implications of HB 290 are significant for both attorneys and clients. By allowing the collectability of damages to be brought up as a defense, it changes the burden of proof in malpractice cases. Clients looking to recover losses from attorneys may find their potential recoveries significantly impacted if defendable circumstances regarding the collectability of damages can be established. This bill is perceived as aiming to provide legal clarity following a pertinent Supreme Court decision, Ewing vs. Westport Ins. Corp., which previously ruled that such collectability could not serve as a defense.
Summary
House Bill 290, presented by Representative Gregory Miller, seeks to amend the existing legal framework concerning the collectability rule in legal malpractice cases. The bill clarifies that attorneys may assert the collectability of damages as an affirmative defense in malpractice suits, meaning that an attorney can argue that their client would not have been able to recover damages from the original defendant (tortfeasor) due to the latter's financial inability. This adjustment is intended to specify that situations where a client could not recoup costs due to the fault's inability to pay can now be considered during legal malpractice claims.
Sentiment
The sentiment surrounding HB 290 appears to be mixed. Supporters advocate for the bill as a necessary clarification strengthening the defense attorneys can utilize while also protecting them from unreasonable malpractice claims based on uncollectible judgments. However, opponents may view this as providing attorneys an easy escape from liability in cases where they may have dropped the ball, thus leaving clients vulnerable.
Contention
There are concerns surrounding HB 290 primarily revolving around the potential for misuse. Critics argue this change could make it difficult for clients to argue their also justified claims in a malpractice suit, leading to a situation where attorneys could evade culpability if they can effectively demonstrate that the original case would not have yielded monetary recovery. The discussions anticipate that if enacted, the bill would redefine the landscape of legal malpractice within Louisiana significantly, favoring attorneys and possibly limiting recourse for clients.
Statute of limitations for medical malpractice decreased, collection of judgment against personal income or assets limited, and damages for medical malpractice claims limited.