What is Legal Malpractice?

Legal malpractice defines any situation in which an attorney fails in his or her duty to provide competent legal counsel to a client. This may include negligence, breach of contract, or a breach of a fiduciary duty that causes measurable harm to the client. A client who has been harmed in such a way by an attorney will have the option to sue that attorney for damages.

When it comes to suing an attorney, you’ll need a legal representative who knows how to navigate such cases, one you can trust to fulfill his or her obligations faithfully and thoroughly. We’ve compiled a list of some of the most common types of legal malpractice, so you understand your attorney’s obligation to you.

Errors of Negligence

Legal proceedings are complex and require thorough knowledge of the law, the elements of a case, and the requirements for pressing a claim forward. In some situations, an attorney may be guilty of negligence if he or she makes a grievous error that another reasonably skilled attorney would not have made. The plaintiff’s counsel must prove that the defendant had a duty to fulfill his or her obligations to the plaintiff with reasonable care, failed to do so, and that failure harmed the plaintiff.

While legal malpractice follows guidelines similar to personal injury law in terms of requiring proof of negligence, the client suing (the plaintiff) must also provide proof of what would have happened had the attorney (the defendant) not been negligent. This is known as “but for causation” and can be very difficult to prove.

Some types of legal malpractice due to negligence include:

  • Failure to know or appropriately apply the law: Attorneys are required to know the laws surrounding a case, previous rulings, and precedents, and apply that knowledge to their client’s benefit. Failure to recognize an opportunity to bolster the client’s case is a form of negligence.
  • Planning errors: The attorney may fail to recognize an important opportunity that would benefit the client or does not use the evidence of the case strategically.
  • Inadequate discovery or investigation: Discovery is the process by which the two sides of a legal issue exchange their documentation and evidence so that both sides have all the information relevant to the case, and there are no unfair surprises in the courtroom. If your attorney fails to provide necessary evidence, does not adequately measure provided evidence, or fails to investigate a case fully, it may constitute legal malpractice if it could have resulted in a more favorable outcome.
  • Procrastination or failure to handle deadlines: Failing to file various forms of documentation with the courts or putting off casework until the last minute can severely impact the outcome of a case or even get it dismissed.
  • Conflicts of interest: An attorney must be careful not to sue former clients or attempt to derive any benefit from acting as legal counsel for a particular client. An attorney does not need to be aware of the conflict to be held accountable for it.

This is not an exhaustive list, and almost any situation that another attorney would or could have prevented with a reasonable degree of competence can constitute legal malpractice due to negligence.

Breach of Duties

An attorney may be guilty of legal malpractice due to a breach of contract or a breach of fiduciary duty. When an attorney enters into an attorney-client relationship, a contract outlines the terms of the representation that both parties sign. An attorney who fails to uphold the requirements agreed to would be guilty of a breach of contract. In other cases, an attorney can be guilty of breaching his or her fiduciary duties to the client. If an attorney were to take action in self-interest rather than in the interest of the client, and this action harms the client, the attorney is guilty of legal malpractice.

In some states, you must prove your innocence before you can sue your attorney if you were found guilty. You must prove that you are in fact innocent and would have been found so had your attorney fulfilled his or her duties and acted with reasonable care. That being said, legal malpractice can occur and knowing what to look out for can be the difference between a successful outcome and a long process of complex litigation.

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