Legal Malpractice: What It Is and How It Occurs

If you believe you have been the victim of legal malpractice, it's important to educate yourself. By learning about what legal malpractice is, how it differs from an attorney's honest mistake, and by reviewing several examples of legal malpractice, you can arm yourself with knowledge. This information can be used to figure out what to do if you have fallen victim to legal malpractice.

What Is Legal Malpractice? 

Legal malpractice is categorized as a tort, which means it is a civil, not criminal, issue of law. The tort of legal malpractice is committed when the lawyer or attorney you hired to represent you breaches a duty owed to you, resulting in monetary damages. This means that your resulting damages must be financial — noneconomic damages like pain and suffering generally don't apply. It also means that your attorney's breach of duty must be the direct cause of your financial loss or actual damages.

Legal malpractice suits can be challenging to navigate alone. If you believe you have been the victim of legal malpractice, it is recommended that you contact a qualified legal malpractice attorney. They can discuss the merits of your case and review your options.

Essential Elements of Legal Malpractice

Although the elements of legal malpractice may vary slightly from state to state, three essential elements are generally required to prove a legal malpractice claim. These three elements are:

  1. Your attorney owed you a duty, meaning that an attorney-client relationship existed; 
  2. Your attorney made a mistake or acted negligently, which resulted in a breach of that duty; and,
  3. Your attorney's breach of duty resulted in your financial loss.

If you can prove all three of these elements, then you may have a successful legal malpractice claim on your hands.

Attorney-Client Relationship 

The first element you must prove is that you had an actual attorney-client relationship. If your attorney provided you with a written retainer agreement at the start of your attorney-client relationship, this is the easiest way to prove the existence of the relationship. However, if you don't have a letter of retainment, it may still be possible to prove the requisite relationship existed; it just may take a bit more effort.

Negligence by Your Lawyer or Attorney 

The next element you or your attorney must prove is that your ex-lawyer acted negligently. Perhaps, for example, your ex-lawyer failed to meet their duty of care by failing to communicate an important settlement offer to you. This failure to act may constitute negligence on your ex-lawyer's behalf. If, however, you had given your ex-lawyer explicit instructions regarding when to consult you about settlement offers, then your ex-lawyer may have a valid defense against negligence. An experienced legal malpractice attorney can help advise you on these sometimes complicated legal issues.

Client Experienced Loss Due to the Negligence

The final element you must prove to have a potentially successful legal malpractice claim is that you experienced financial loss due to your ex-lawyer's negligent actions or non-actions. Take the previous example of the miscommunication of the settlement offer: let's assume that you did not give your ex-lawyer explicit instructions not to communicate certain settlement offers to you. 

Suppose you found out about the settlement offer months later. If, after communicating with the other party, you were able to salvage a settlement of the same monetary value, then you may not be able to prove harm. In this case, you are unlikely to file a successful malpractice claim. Suppose however that you suffered some financial harm because the settlement was delayed by several months due to your ex-lawyer's miscommunication. If for example, you incurred significant legal fees in the interim, then the outcome may be different.  In this scenario, your claim may have merit. Again, an attorney well-versed in legal malpractice claims is best situated to advise you on these details.

What Can Be Classified as Legal Malpractice?

Many actions and non-actions can be classified as legal malpractice, including some particularly heinous acts ranging from purposefully accepting meritless legal suits to hiding evidence. Four overarching categories of legal malpractice occur with relative frequency: breach of fiduciary duty, wrongful conduct, negligent misrepresentation, and breach of contract.

Breach of Fiduciary Duty

Breach of fiduciary duty is seen in many legal malpractice claims. To establish a breach of fiduciary duty, you must prove each of the following three basic elements:

  1. First, a fiduciary duty did exist;
  2. Second, your ex-lawyer breached the fiduciary duty; and,
  3. Third, your ex-lawyer's breach proximately caused your injury.

One relatively common example of breach of fiduciary duty is a conflict of interest. To succeed with this claim, you must ensure you can prove all three of the above elements, not just that your ex-lawyer breached their fiduciary duty to you.

Wrongful Conduct

Another relatively popular action involved in legal malpractice claims is that of wrongful conduct on the part of your ex-lawyer. To prove this claim, you must be able to show that your ex-lawyer did something that is considered prohibited. If the act in question also happened to be illegal, then you can almost certainly argue that this action falls below the standard of care a lawyer owes a client. However, if the mistake was quite simple, it may be more difficult to prove wrongful conduct.

Negligent Misrepresentation

Negligent misrepresentation is when a lawyer accidentally misspeaks and says something untrue, and the client relies on that untruth in a way that causes the client harm. Alternatively, negligent misrepresentation could also be defined as when a lawyer makes false statements but honestly believes those statements to be true, despite a lack of reasonable ground for that belief.

Breach of Contract

In a breach of contract case, you must show that your ex-lawyer breached a specific clause in your attorney-client agreement. Many times breach of contract claims are duplicative of legal malpractice claims that are negligence based. You should consult with an experienced legal malpractice attorney to guide you through these types of issues. This is one reason why it is recommended that you navigate any legal action with an experienced attorney who is well-versed in the issue at hand.

When Should You Seek Legal Representation?

Once you've researched your potential claim, have a good idea of what constitutes legal malpractice, and believe that you can successfully argue the requisite elements of the tort in court, it's time to reach out to an experienced legal malpractice attorney. The statute of limitations for legal malpractice is often only two years, although it may be longer for breach of contract cases. Two years isn't that long, and the statute of limitations can vary slightly from state to state. Therefore, it's vital to seek legal representation quickly — certainly before your statute of limitations expires. When a statute of limitations for a legal malpractice claim begins to run can be a complicated analysis and you should not delay in reaching out to experienced counsel to assist you in this analysis. 

If you believe you have been the victim of legal malpractice, King & Jones are experienced attorneys specializing in legal malpractice cases. Contact us today to discuss your legal options.

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