Legal Malpractice

Legal malpractice is a serious issue that results when lawyer behave negligently, harming their clients. If you believe your lawyer has been negligent, you may need to talk to another lawyer for advice and to resolve the situation.

What is Legal Malpractice?

Legal malpractice is a type of professional malpractice committed by a lawyer or attorney. Malpractice occurs when a lawyer breaches the accepted standards of practice for the profession, resulting in harm and damages to a client.[1]

Like other professionals, lawyers are held to a high standard of professional care. As a profession, lawyers agree on certain standards and rules when working with clients. When a lawyer breaches those standards and harms a client, they may be proven negligent. They may also be found liable for monetary damages.

What Are the Ethical Duties of a Lawyer?

Malpractice often occurs when a lawyer violates professional ethics. When you hire a bar-licensed lawyer, you expect a certain level of professionalism:[2]

  • Lawyers should be competent in legal matters generally and in the area of specialty they advertise.
  • They must follow their client’s instructions and wishes, even when it runs counter to their advice.
  • Lawyers are expected to act diligently on behalf of clients, handling issues promptly.
  • They must be communicative with clients, providing regular updates and answering questions clearly.
  • Lawyers are bound to strict confidentiality with just a few exceptions. This is known as attorney-client privilege.
  • A lawyer cannot take on a case or client with a conflict of interest.
  • If a lawyer is handling a client’s money or property, they must keep it safe and return it immediately upon request.

Examples of Legal Malpractice

Legal malpractice encompasses many examples of actions or inactions considered negligent. These are just some examples:

  • A lawyer neglects your case for so long that you miss the statute of limitations or the court dismisses it.
  • Your lawyer settles a case without your authorization.
  • The lawyer misuses retainer fees provided by a client.
  • Your lawyer doesn’t apply the right laws to your case.
  • A lawyer takes on your case without adequate experience or expertise in the applicable area of the law.
  • A senior lawyer fails to properly supervise a junior lawyer working on your case.
  • A lawyer commits an intentional wrong, such as fraud.

When a mistake or breach of professional duty does not constitute malpractice, it’s usually because of the outcome. For instance, your lawyer may have been irresponsible in the advice they gave you, but if it had no bearing on a case’s outcome, it isn’t legal malpractice.

How Do You Prove Legal Malpractice?

In a malpractice case, you must prove negligence. Negligence is a failure to act reasonably responsible and careful with the result that someone suffers harm. Failing to follow traffic rules, for example, and causing an accident that hurts another person is negligence.

When it comes to professions, the standard of proving negligence is a little different. Professionals have special skills, training, and education. They are expected to provide services that live up to a higher standard of reasonable care.

To prove professional negligence, you must show four things:[3]

  1. Legal duty
    You must prove that you had a professional relationship with the lawyer, that they agreed to provide you with legal services.
  2. Breach of duty
    You also must show that the lawyer breached a duty to provide you with professional-standard care. Not every mistake a lawyer makes constitutes a breach of duty. The distinction depends significantly on the outcome.
  3. Injury
    You must have suffered some type of legal injury. For instance, you lost a case you should have been able to win, and it cost you money.
  4. The breach caused injury
    Finally, you must prove that your lawyer’s breach of duty caused the injury you suffered.

When providing professional legal services, a lawyer must use the same skill, care, and diligence that another lawyer would use in the same situation. If they do not, and the client suffers injury and damages, it can be considered legal malpractice.

What Should I Do If My Lawyer Has Been Negligent?

It can be confusing to know what to do in this situation. You trusted your lawyer with legal issues, and now you have a problem with them. You may not be happy with the outcome or with the services they provided, but does that mean they have committed malpractice?

Unless you are certain your lawyer has done something wrong or has been grossly negligent or fraudulent, a good first step is to talk to them. They may be able to explain why things didn’t go your way. If your lawyer won’t communicate with you, mediation is an option. If you are still not satisfied, take more serious steps to resolve the situation:

  • Talk to another lawyer. Some lawyers specialize in legal malpractice. Provide them with all the information about your case and your first lawyer. You have a right to the documents your lawyer may be holding regarding your case. Get these and pass them on to your new representation.
  • File a complaint. You can also file a complaint with your state’s disciplinary board or bar association. They will investigate or give you additional resources to help resolve the issue. Filing a complaint is a disciplinary measure, but it will not recover damages for you.
  • File a lawsuit. With another lawyer representing you, a legal malpractice suit may be an option. Your new lawyer can advise you on the matter and start the lawsuit if you choose to go ahead with it.

If you believe your lawyer has been negligent, a legal malpractice lawyer can give you good advice. Even if you never follow through with any other action, talking to another professional will help you understand the situation and your options.

  1. Cornell Law School. Legal Information Institute. (n.d.). Legal Malpractice.
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  2. Cornell Law School. Legal Information Institute. (n.d.). Negligence.
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  3. American Bar Association. (2018, June 7). What if I Am Unhappy with My Lawyer?
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