Underlying action: legal malpractice money damages
Facts: Attorney was found liable for malpractice. In a post trial brief, he asserted that the amount plaintiff would have recovered should be reduced in the malpractice action by the amount of what the attorney’s fee he would have collected.
Issue: Should an award of damages in a malpractice action be reduced by the amount of attorney’s fees the attorney would have collected?
Ruling: No. A deduction of a hypothetical contingent fee fails to compensate a plaintiff fully for a loss of settlement or jury verdict. Any fee which a plaintiff in a malpractice action might have had to pay had the attorney successfully prosecuted the underlying matter or transaction is cancelled out by the attorney’s fees the plaintiff incurred in retaining counsel to establish that the defendant committed malpractice.
Lesson: Courts will not deduct a hypothetical contingent fee from an award because the plaintiff has to incur those expenses and possibly more to prosecute the malpractice action. To take away that hypothetical fee from the award would not fully compensate a plaintiff to “make them whole” again.