Attorney malpractice is not simply when an attorney loses a case for their client. When a client is in a situation where they need an attorney’s help, it usually means the issue has become too complex to resolve themselves.
In some cases, an attorney can make an individual’s situation worse instead of better. When an individual hires an attorney to represent them, that attorney is obligated to provide competent and professional services.
If an attorney does not provide competent and professional services, and their client suffers damages as a result, the attorney may be liable for those damages. If an attorney made a serious error, their client may consider suing them for malpractice.
Attorney malpractice means that the attorney failed to use the ordinary skill and care that would be used by other attorneys handling a similar case, problem, or circumstance. As noted above, malpractice does not occur every time an attorney loses a case.
What are Some Common Types of Attorney Malpractice?
There are three main types of attorney malpractice, including:
- Breach of fiduciary duty; and
- Breach of contract.
If an attorney does not treat their client’s case as well as an average attorney should, then the attorney was most likely negligent in handling the case. The attorney may have committed malpractice, and can be held liable for damages that result
If the attorney acted in their own best interest instead of their client’s best interest and their client’s case was adversely affected because of their actions, the attorney probably committed malpractice by breaching their fiduciary duty. The client can sue their attorney for damages they suffered.
When an individual hires an attorney, they sign a contract with that attorney. If the attorney fails to perform as the contract outlines, then that attorney has committed malpractice and their client may be able to recover damages.
What are Some Examples of Attorney Malpractice?
There are many ways in which an attorney may commit malpractice. A few common examples of attorney malpractice include:
- Blunders: If an attorney makes outrageous mistakes, such as missing court dates or deadlines, fails to properly submit documents to the court, or otherwise behaves irresponsible, the attorney may have committed malpractice;
- Bad checks: If an attorney sends a check from their own account for damages the client has won and that check bounces, the attorney may have committed malpractice;
- Settling without their client’s permission: If an attorney settles a case without their client’s permission, the attorney may be liable for malpractice; and
- Failing to contact the client: If the attorney has not returned a client’s phone calls or responded to their letters for a long period of time, the attorney may have committed malpractice.
Another common example of attorney malpractice occurs when an attorney simply quits working on a case. As a result, the client’s case may be dismissed or a default judgment may be entered against them.
There are some circumstances that, while they may seem questionable, do not constitute malpractice. These include when an attorney recommends their client take a settlement for far less than they initially believed the case was worth. Sometimes, an attorney may inflate the perceived value of a case in order to get a client to hire them.
It is also not malpractice for an attorney to socialize with an attorney on the opposing side of a case. However, an issue may arise if the attorney reveals confidential information regarding the case, thereby breaching their duty to their client.
How Do I Prove Attorney Malpractice?
In order to prove attorney malpractice, an individual must prove all elements of legal malpractice. These include:
- The attorney’s duty;
- A breach of the duty;
- The breach caused the plaintiff’s damages; and
- Damages the client suffered.
The plaintiff, or individual who files the attorney malpractice lawsuit, must first prove that their attorney owed them a duty. This is often easy to show because when an attorney takes a client’s case, they owe them a duty to handle the matter completely.
The second element the plaintiff must prove is that their attorney breached the duty that was owed to them. A breach can come in many forms, including:
- Mistake; and
- Not performing as agreed.
The third element the plaintiff must prove is causation. This will likely be the most difficult element to prove. This is because the plaintiff must first prove malpractice by the attorney.
Then, the plaintiff will have to prove that they would have won their underlying case but for the way the attorney mishandled it. Lastly, the plaintiff must prove that if they had won their case, they would have collected damages. This may require the plaintiff to prove that the individual they sued had insurance or assets with which to pay the damages.
The last element the plaintiff must prove is that they suffered damages. The damages must be in the form of a financial loss. In the majority of cases, the damages amount will be that which the individual would have won if attorney malpractice had not occurred.
It is important to note that these elements may vary by state. For example, in Ohio, the plaintiff is not required to show that they would have won their underlying case if the attorney had not mishandled it.
I Think My Attorney has Committed Malpractice, What Should I Do?
If an individual believes their attorney has committed malpractice, the first step they should take is file a complaint with their attorney’s state bar association. The state bar association is the organization that licenses and regulates attorneys in each state.
It is important to note that the state bar cannot help the individual recover any damages they have suffered. In order to recover damages, the individual must sue their former attorney in court.
If an individual believes malpractice occurred in their case, it is important to take action as soon as possible. In most states, the statute of limitations for attorney malpractice claims is one year from the date of the malpractice, however, it may be longer in some states.
In many cases, the attorney will conceal the malpractice and it may not be discovered until long after it actually occurred. It is not always as simple as adding one year from the date an alleged malpractice occurred.
Do I Need a Lawyer to Help Me with My Attorney Malpractice Problem?
Yes, it is essential to have the assistance of an experienced liability attorney if you believe your attorney has committed malpractice. As noted above, it is very important to consult an attorney as soon as you can so that you do not miss the deadline for filing a claim.
Proving that an attorney committed malpractice can be extremely difficult. The individual best suited to do so is a legal malpractice attorney who is aware of the duties and responsibilities attorneys have to their clients.
An attorney will know what constitutes malpractice and best be able to present evidence of malpractice. Your attorney can review your case, determine if malpractice occurred, and file a lawsuit on your behalf. They will also represent you during any court proceedings and attempt to get you the damages you deserved the first time.