Vicarious Liability: What Do You Do When An Employee’s Mistake Affects Your Case?

Even when liability comes from the conduct of another person, an attorney’s liability also can include negligence for the hiring or supervision of that person. This is where the concept of vicarious liability comes into play. The most common instance where vicarious liability is used is in matters of employment.

 

Vicarious Liability

 

Employers are vicariously liable for any injuries and/or harm their employees commit while in the course and scope of their employment duties. This means that attorneys are responsible for not only the work that they provide to clients but also for any wrongs their employees commit.

 

To hold an attorney or any employer vicariously liable, the courts must determine that the injury occurred while the employee was in the “course and scope” of his employment duties. The Louisiana Supreme Court has considered the following factors in determining whether an employer is liable:

 

1. Whether the tortious act was primarily employment rooted;
2. Whether the act was reasonably incidental to the performance of the employment duties;
3. Whether the act occurred on the employer’s premises; and
4. Whether the act occurred during the hours of employment.

 

It is important to note that not all factors must be met to find an employer vicariously liable.

 

Negligent Hiring, Training, or Supervision of Employees

 

While vicarious liability can be alleged cases involving slip and fall, bullying, defamation, sexual harassment, and breach of contract, among others, we want to put a spotlight on situations where your attorney has been negligent in their hiring, training, or supervision of an employee.

 

In terms of how vicarious liability relates to legal malpractice, attorneys may be liable for their failure to supervise. This could be a failure to supervise their secretarial staff or even a subordinate attorney. For example, a secretary’s failure to transmit important information may lead to liability if it was done within the course and scope of their employment. The course and scope of employment can generally be evidenced by their job description.

 

Further, the court will likely look into the training of employees in cases involving vicarious liability. If an attorney failed to provide adequate training for the employee, then they also may be liable for their employee’s conduct. Finally, its possible your attorney was negligent in their hiring of an employee, and this led to financial injury in your case. For example, your attorney has hired a disbarred attorney to handle certain paralegal duties. Who should truly be held responsible for these types of harms? These are all important considerations for the court when you have been wronged in the course of your legal matter.

 

When you have suffered harm through your previous attorney’s negligent hiring, training, or supervision of an employee, Whaley Law Firm has the experience to provide appropriate representation.

 

 

Sources:

 

Bourgeois v. Allstate Ins. Co., 820 So.2d 1132, 1136 (La. App. 5 Cir. 2002).

 

Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice §5 (1st ed. 2006).

 

Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice §30 (1st ed. 2006).