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? And how do you know if you have a case?

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 training. Proving a malpractice case requires showing more than that your lawyer didn't do what they should and that you lost your case.

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 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:

1. The attorney had a duty towards you. The fee agreement or retainer you signed with the attorney for legal services proves this duty;
2. The attorney breached that duty in some way. Losing a case is not necessarily a breach of duty;
3. The breach was the cause of the harm you suffered; and
4. 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.

To Sue or Not To Sue

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 and see if you have enough evidence to make your case. If the new attorney thinks you have a case, fire your old attorney, and try it.

Other Alternatives

You may need to think about alternatives. 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. Some options:

• 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.

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.