Legal Malpractice

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 What is Legal Malpractice?

Lawyers are required to follow numerous rules that govern their professional conduct. Many of these rules relate directly to the lawyer’s duty to act in the best interest of their clients.

If a lawyer violates a professional standard, the client who is affected by the lawyer’s actions may be able to sue the lawyer for legal malpractice, also referred to as attorney malpractice. Attorney malpractice does not occur when the attorney loses the case for their client.

In cases where a client needs a lawyer’s help, it typically means that their issue has become too complex to resolve themselves. In some situations, a lawyer may make an individual’s situation worse instead of better.

When an individual hires a lawyer to represent them, that lawyer is obligated to provide competent and professional services. If a lawyer does not provide competent and professional services and their client suffers damages as a result, the lawyer may be liable for the damages they caused.

If the lawyer made a serious error, their client may be able to sue them for malpractice. Malpractice means that a lawyer failed to use the ordinary skill and care that would be used by another lawyer handling a similar issue or circumstance.

What are Some Common Examples of Lawyer Misconduct?

There are 3 main categories of malpractice, including:

  • Negligence;
  • Breach of fiduciary duty; and
  • Breach of contract.

If an attorney does not treat their client’s issue as well as the average lawyer should, they may have been negligent in handling the case. In this instance, the lawyer may have committed malpractice and may be held liable for damages that result.

If the lawyer acted in their own best interests instead of their client’s best interests and it adversely affected their client’s case, the lawyer may have committed malpractice by breaching their fiduciary duty. In that case, the client may be able to sue the attorney for the damages they suffered.

When an individual hires a lawyer, they sign a contract with that lawyer. If the lawyer fails to perform as outlined in the contract, then they have committed malpractice and their client may be able to recover damages.

Attorney malpractice lawsuits may be based on lawyer’s conduct, including:

  • Misuse of a client’s money;
  • Violating the confidentiality agreement; and
  • Incompetent legal work.

There are numerous other ways in which a lawyer can commit malpractice, including:

  • Blunders: If a lawyer makes outrageous mistakes, such as missing court dates or deadlines, fails to properly submit documents to the court, or otherwise behaves irresponsibly, they may have committed malpractice;
  • Bad checks: If a lawyer sends a check from their own account for damages the client has won and that check bounces, they may have committed malpractice;
  • Settling without their client’s permission: If a lawyer settles a case without their client’s permission, they 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 lawyer may have committed malpractice.

One other common example of attorney malpractice occurs when the attorney simply stops working on the case. As a result of this inaction, the case may be dismissed or a default judgment may be entered against the client.

There are certain circumstances that, while they may seem questionable, do not constitute malpractice. These include when a lawyer recommends their client take a settlement for far less than they initially believed the case was worth.

It is also not malpractice for a lawyer to socialize with a lawyer on the opposing side of a case. However, an issue may arise if the lawyer reveals confidential information regarding the case, thereby breaching their duty to their client.

What Should I Do if I Believe My Lawyer has Committed Malpractice?

Prior to initiating a lawsuit against an attorney for a malpractice claim, an individual should fully communicate their frustrations to their attorney in writing. If their attorney is not responsive, they should file a report with their state’s agency that oversees attorney conduct, typically the state’s bar association.

It is important to note that a state bar association will not be able to help the individual recover any damages they suffered. In order to recover damages, the individual will be required to file a lawsuit against their lawyer in court.

The individual should consider seeking counsel from another lawyer concerning a possible malpractice action. If a client believes malpractice occurred, they should take action as soon as possible.

In many states, the statute of limitations for lawyer malpractice claims is 1 year from the date the malpractice occurred. In many situations, the lawyer will conceal the malpractice and it may not be discovered for a long period of time.

Typically, the statute of limitations will provide that a case may be filed 1 year from the time the malpractice was discovered.

What are the Elements of an Attorney Malpractice Claim?

In order to prove lawyer malpractice, an individual is required to prove all of the elements of legal malpractice, including:

  • The lawyer’s duty;
  • A breach of that duty;
  • The breach caused the plaintiff’s damages; and
  • Damages the client suffered.

The individual filing the lawsuit, or the plaintiff, is required to show that the lawyer owed them a duty. Typically, this is fairly easy to demonstrate, as when a lawyer takes a client’s case, they owe their client a duty to handle the matter completely.

The second element the plaintiff is required to prove is that their lawyer breached the duty that was owed. This breach may come in many forms, as noted above.

The third element the plaintiff is required to prove is causation, or that the breach caused their damages. This is typically the most difficult element to prove, as the plaintiff must prove malpractice.

The last element the plaintiff must prove is that, but for the lawyer’s mishandling of their case, they would have won their case and would have collected damages. To prove this, the plaintiff may be required to prove that the individual they sued had insurance or assets with which to pay the damages.

In most cases, the damages will be the amount which the plaintiff would have won had the malpractice not occurred.

It is important to note that these elements vary by state. In Ohio, for example, the plaintiff is not required to show that they would have won their underlying case if the attorney had not mishandled it.

Should I Seek Legal Help?

If you believe that your lawyer has committed malpractice, you should consult with a qualified liability lawyer. In many cases, an individual will hesitate to contact a new lawyer to bring a malpractice case.

If you believe malpractice may have occurred in your case, it is important to keep all documents and communications you have related to your case for your new lawyer to review. Your new lawyer can review the issue, determine whether malpractice did occur, and assist you with filing a lawsuit in court.

It is important to consult with a different lawyer as soon as possible, as the statute of limitations is relatively short. After this time passes, you will be barred from bringing any kind of claim to recover lost damages you were entitled to.


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