An attorney, just like any other professional, is held to a certain standard. Attorneys have a duty to represent their clients to the best of their ability. Failure to adhere to this duty could result in the attorney being liable for legal malpractice. However, an attorney has not committed malpractice just because their client lost their case. Specific elements of conduct must be present for the attorney’s actions to constitute legal malpractice.
Elements Of Legal Malpractice
Legal malpractice occurs when an attorney breaches their duty of care to their client and that client suffers some harm as a result. This means that the attorney’s negligent conduct resulted in the client suffering some type of damage or loss. In other words, malpractice occurs when the client would have won their case had it not been for the negligence of their attorney.
On the flip side, there is no malpractice — even if the attorney was negligent — if the client would have lost the case anyway. There are typically four elements that must be present in a legal malpractice action.
- The first element that must be present is a duty. Once you hire an attorney, they have a duty to competently represent you.
- Next, a breach of that duty must occur. Attorneys are held to a high standard, and a breach occurs when their actions fall below the standard expected of an attorney with similar experience and training.
- The third element is causation. The client must show that the attorney’s breach of duty was the direct cause of the harm they sustained.
- Finally, there must be damages. Typically, these damages come in the form of financial loss, but damages could also include other types of loss or injury.
Proving Legal Malpractice
Proving legal malpractice can sometimes be difficult. Remember that the four elements described above must be present for your attorney to be found liable of legal malpractice. Sometimes legal malpractice proceedings are referred to as a “trial within a trial.” The reason for this is because the client must prove that not only was their attorney negligent, but also that they would have won the underlying case absent the negligence. Consider a couple of examples below.
Imagine that you were injured in a car accident and suffered very serious injuries. You have extensive medical bills, and you have evidence that another driver was at fault. You hire an attorney to represent you in your personal injury case. The attorney you hire fails to file the lawsuit for your claim before the statute of limitations expires.
Now, you are barred from filing a claim and recovering any damages from the other driver. In this case, you will likely be able to recover for legal malpractice. The attorney breached their duty by failing to file your claim in a timely manner, and you suffered significant financial loss because of this breach. As long as you can prove that you would have recovered damages in the underlying injury case, you will be entitled to recover in the legal malpractice case.
Consider an example where the client is a defendant in a large lawsuit. Imagine that the client loses the case and is forced to pay the plaintiff a large sum of money. The reason for the judgment is because the defendant’s attorney did not file a response to a summary judgment motion.
For purposes of this example, imagine that the defendant had an ironclad defense to the case. If it were not for the attorney’s negligence in failing to file a response, the defendant would have won the case. In this example, the defendant’s attorney will likely be found liable for legal malpractice, and the defendant can recover financial damages from the attorney.
Conduct That Is Not Considered Malpractice
As previously mentioned, your attorney has not committed malpractice simply because you lost your case. There are a few other forms of conduct worth mentioning here because clients are often quick to believe their attorney has committed malpractice whenever they are unhappy.
First, your attorney has not committed malpractice by failing to return your call or respond to your email. Clients often expect their attorneys to be available 24/7 and to return phone calls immediately. However, attorneys are busy with other clients and their own lives. It might take them a day or two to return your call in some cases.
It should be noted, however, that this behavior could potentially give rise to a malpractice case in certain situations. If your calls go unanswered for weeks or months to the detriment of your case, then your attorney may have committed malpractice.
Next, your attorney has not committed malpractice by being rude to you. Some attorneys have strong personalities, and those personalities can sometimes clash with yours. If you get into an argument with your attorney and they yell at you, this is likely not a form of malpractice. If this happens repeatedly, you may consider filing a complaint with the state bar or finding a new lawyer.
What To Do If You Believe Your Attorney Committed Malpractice
If you believe your attorney has committed malpractice, there are some things you should do to protect yourself. Make sure you take notes and document everything. Speak to your attorney about the situation and keep detailed notes of every interaction you have with your attorney going forward.
Reach out to a legal malpractice attorney for help. An experienced legal malpractice attorney can help evaluate your claim and give you advice on the best way to move forward.
Legal Disclaimer: The information on this blog is for general informational purposes only and does not constitute legal advice. It is based on current legal standards but does not create an attorney-client relationship. For advice specific to your situation, consult a qualified attorney.
The views expressed are those of the individual authors and do not reflect those of any affiliated organizations or a single Katz Law Firm lawyer or agent. The accuracy and applicability of the information may vary. The blog owner and authors assume no liability for actions taken based on this content. Always seek professional legal counsel before making any legal decisions.
