What Is Legal Malpractice?

Attorneys are not much different than other professionals. They see their clients in moments of personal crisis. Their clients expect them to work miracles; sometimes, the attorney can’t deliver. The hurt and angry client threatens to sue the attorney for malpractice for failing to win their case.

Did the attorney commit legal malpractice? What is legal malpractice? This article explains the difference between legal malpractice versus a bad client experience.

In some cases, you might need more personalized advice. You can consider speaking with a different attorney who handles legal malpractice lawsuits to get help.  

Read about legal malpractice in the sections below:

• Definition of Legal Malpractice
• Basic Standards for Lawyers
• Elements of Legal Malpractice
• Should I Sue My Lawyer?
• Frequently Asked Questions About Legal Malpractice

Definition of Legal Malpractice

Like any professional malpractice, legal malpractice occurs when a lawyer’s performance falls below the standard of care expected of an attorney of similar ability and legal training. Proving a malpractice case requires showing more than that your lawyer didn’t do what they should and that you lost your case.

Basic Standards for Lawyers

Attorneys must follow the Rules of Professional Conduct established by the American Bar Association. The Rules of Professional Conduct establish a duty of care expected of all attorneys in handling their clients’ cases. They also establish the grounds for malpractice and misconduct.

Attorneys must:

• Provide competent representation, meaning they must have the knowledge, experience, and ability to represent their client’s case.
• Communicate with their client during the legal representation. During a case, there may be nothing to report. Personal injury cases may take months or years to resolve. But the attorney has a duty to let the client know if they are waiting to hear back from an insurance company or other law firm.
• Avoid conflicts of interest and advise the client immediately if such conflicts occur. There may be legal matters where attorneys represent clients with opposing interests. This is not always malpractice unless the clients are unaware of the conflict.
• Maintain client confidentiality during and after the representation. Attorney-client privilege outlasts whatever case the attorney is working on. The attorney has a duty to ensure client confidentiality unless the client waives privilege for future cases.
• Practice with due diligence and candor toward the court, other legal professionals, and all others in the court system. As an officer of the court, the attorney must always act as a professional, no matter the circumstances.

If an attorney fails to act within these rules of professional behavior, they may be liable for malpractice.

Elements of Legal Malpractice

As with medical malpractice, legal malpractice is a type of negligence. You must show the same four elements as in negligence. Courts hold attorneys to a higher standard of care because of their professional responsibilities.

You will need to show all of the following:

• The attorney had a duty towards you. The fee agreement or retainer you signed with the attorney for legal services proves this duty.
• The attorney breached that duty in some way. Losing a case is not necessarily a breach of duty.
• The breach was the cause of the harm you suffered.
• You suffered some kind of financial or other injury.

The most difficult thing to prove in a legal malpractice case is that the attorney’s negligence caused your financial loss. There are no guarantees in law. An attorney can do everything right, and you can still lose your case. Other times, a lawyer can do something wrong, but you could still win.

To prove malpractice, you must show causation — that, but for the attorney’s actions, there would have been a different outcome in your case. This puts you and your new attorney in the difficult position of proving both the malpractice claim and the underlying case.

The classic example is the negligent attorney who fails to file a case before the statute of limitations expires. Because of that negligence, you cannot file your case, and the other side gets a default judgment. This is a serious error, but you must show that filing the case on time would have led to a win. Proving a particular case can be hard when you are opposing your former lawyer.

Should I Sue My Lawyer?

Victims of legal malpractice are left with a legal dilemma. They must prove their original case to sue the attorney who helped them lose it.

The best thing to do is consult an attorney specializing in legal malpractice claims. They can help you see if you have enough evidence to make your case and sue. If the new attorney thinks you do, fire your old attorney and try it.

Alternatives to a Malpractice Lawsuit

You may need to think about your other options. Winning an attorney malpractice claim is hard and can be expensive. Unless the possible award is larger than the loss, you should consider other ways to deal with your former attorney.

You could report the lawyer to the state’s disciplinary board. The state bar of every state keeps track of negligent attorneys in their state, and disciplinary actions are publicly searchable.

Some actions, such as commingling funds, are illegal and grounds for disbarment. Commingling the funds of a client, beneficiary, or employer with personal or law firm funds is a breach of fiduciary duty. It may also be a violation of your state’s penal codes.

Civil suits for breach of contract may be possible. Depending on the nature of your fee agreement, you should get legal advice on this matter. But a civil claim for the return of any retainer or other fees is always possible.

Frequently Asked Questions About Legal Malpractice

Find answers to common questions about a legal malpractice case below.

Is it a conflict of interest if my attorney is friends with the defendant’s attorney?

Opposing attorneys being friends does not necessarily mean a conflict of interest exists. A conflict of interest is unlikely because it is a friendship rather than a familial relationship with a spouse, parent, child, or sibling.

Your lawyer has a duty of loyalty to you, so a close relationship may sometimes create a conflict. If you fear a conflict of interest, you should first raise your concerns with your lawyer. However, attorneys face one another constantly in the legal profession and form bonds of mutual respect. This doesn’t mean your lawyer is not seeking your best interests.

Can my lawyer accept a settlement offer without my consent?

No. A lawyer is required to communicate all settlement offers to their clients. They must also get their client’s consent before they accept a settlement.

Usually, you’ll tell your attorney what the minimum settlement is that you’ll accept. They are then allowed to accept any offer that exceeds your bottom line. If your lawyer fails to do this, they may have committed a breach of fiduciary duty.

My lawyer said I could win more money than I actually did. Can I sue them?

No attorney can guarantee how much you’ll receive in a lawsuit. All they can do is tell you what you may potentially recover. However, a lawyer does have a duty to act competently. They must have the legal knowledge and skills to represent you with zealous advocacy.

If a lawyer falls below this standard and you can prove that their actions amounted to incompetence, you have a viable legal malpractice claim. However, if the lawyer can show that their legal advice didn’t include a promise or guarantee of damages, it won’t be easy to win your case.

Does my lawyer have to return my phone calls?

Attorneys must return their clients’ phone calls, texts, and emails within a reasonable time. Even though they are often busy, they still have to inform clients about their case’s progress.

An attorney’s failure to call you back does not amount to legal malpractice. It is unprofessional and a warning sign that it may be necessary to hire another attorney.

If the lawyer has stopped working on a case, this may amount to legal malpractice. An attorney has a duty of due diligence, which means they must work promptly and diligently on a case until completion. The failure to do so violates the attorney’s duty to you.

Can I fire my lawyer?

Absolutely. You can discharge your lawyer at any time during their legal representation. If you don’t feel your lawyer is honoring the standard of care they owe you, you have the right to terminate their services.

You are also entitled to see the work product created by the lawyer while working on your case. This is important because your new attorney may need this information. When requested, the lawyer must readily give you or your new lawyer your file.

Finding a Legal Malpractice Lawyer

Lawyers sometimes make mistakes that seriously affect their clients. You may bring a legal malpractice lawsuit against your attorney if you are one. See FindLaw’s directory of legal malpractice attorneys if you need to file a claim.