SBFs: Can Their Blame-the-Lawyers Strategy Succeed?

SBFs (small business owners) are facing an uphill battle as they struggle to recover from the economic downturn caused by the COVID-19 pandemic. Business closures, limited operations, and decreased consumer spending have pushed many SBFs to the brink of collapse. In their fight for survival, some business owners have adopted a blame-the-lawyers strategy, arguing that their legal representation was inadequate or misled them. But the question remains, will this strategy work?

To understand the viability of the blame-the-lawyers strategy, it’s essential to recognize the challenges SBFs face when pursuing legal claims. Small businesses often lack the financial resources needed for protracted legal battles. Attorneys’ fees, court costs, and expert witnesses can quickly accumulate, proving insurmountable for already-strained businesses. Consequently, even if the blame can be successfully shifted to lawyers, the question remains: can they afford to pursue these claims?

Winning a legal malpractice case against an attorney is a complex and challenging endeavor. Business owners must prove not only that their lawyer made mistakes, but that these errors directly caused negative financial consequences. This burden of proof can be difficult to meet, especially when other factors like market conditions or government restrictions contributed to a business’s decline.

The blame-the-lawyers strategy may backfire in some cases. Attorneys, like any professionals, have limitations and rely on clients providing necessary information for accurate legal advice. If small business owners did not fulfill their responsibilities in providing relevant facts or failed to follow legal advice provided, their claims for legal malpractice might be weakened or defeated entirely.

Lawyers themselves have legal protections that make it challenging for business owners to successfully sue them. They are often shielded by attorney-client privilege, making it difficult to prove the existence of any legal malpractice. Most jurisdictions require expert witnesses to establish that a lawyer’s actions fell below the standard of care. Finding and affording these experts can pose significant challenges for SBFs.

Despite these hurdles, some small business owners feel they have no other option but to pursue a blame-the-lawyers strategy. They argue that legal professionals have a fiduciary duty to act in the best interests of their clients. When lawyers fail to meet this obligation, SBFs may have legitimate grievances that deserve redress.

A more constructive approach for SBFs may be to focus on finding support within their local communities or seeking government assistance in the form of grants, loans, or tax relief. Many governments around the world have implemented policies specifically designed to help struggling small businesses during the pandemic. Collaborating with business organizations, chambers of commerce, and other entrepreneurs can also provide much-needed resources, advice, and advocacy for SBFs.

The success of the blame-the-lawyers strategy is uncertain. The legal landscape is complex and varies from jurisdiction to jurisdiction. While there may be cases where lawyers’ negligence contributed significantly to the plight of SBFs, these cases will likely be the exception rather than the rule. Exploring alternative avenues for support and recovery may be a more practical approach to ensure the survival and revival of small businesses.