What Is Legal Malpractice?

by Gwen Case
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You trust your lawyer's expertise to protect you, but what happens if that lawyer's negligence or wrongdoing causes you more trouble?

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In some cases, you may be able to sue for legal malpractice.

What Is Considered Legal Malpractice?

Legal malpractice is when a lawyer causes harm to their client through negligence or breach of duty. A client can sue their lawyer for malpractice.

However, not every mistake is legal malpractice. If a lawyer's mistake was minor or was unlikely to affect the case's outcome, it's probably not malpractice. Additionally, lawyers often have the authority to make certain strategic decisions about cases, and these choices may not constitute malpractice even if they result in an undesired outcome.

For example, if a lawyer misses a major deadline and causes their client to lose the case, it's probably malpractice. On the other hand, there's probably no case for malpractice if the lawyer chooses not to call a particular witness based on the lawyer's opinion that the witness isn't credible. However, every case is different, so you should consult a malpractice lawyer if you believe errors were made in your case.

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Common Examples and Causes of Malpractice Cases

Legal malpractice can result from a lawyer's negligence, innocent error or malicious intent. The following acts by attorneys are examples of legal malpractice:

  • Failing to file a case before the statute of limitations 
  • Missing critical case deadlines
  • Mishandling a client's money 
  • Accepting settlement agreements without a client's consent 
  • Committing fraud against a client
  • Failing to research and investigate a case in a way that meets the professional standard of care
  • Taking on clients with conflicting interests

These are only some examples of malpractice. What constitutes legal malpractice depends on the facts of a particular case and the jurisdiction.

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What Elements Are Necessary to Prove Legal Malpractice?

The aggrieved client must prove every element of legal malpractice to win a lawsuit. These elements can vary by state, but generally, the plaintiff in a malpractice case must prove the following elements.

1. The Lawyer Owed a Duty of Care

To win a malpractice case, the plaintiff must first show that the lawyer owed a duty of care. Usually, this means proving that an attorney-client relationship existed. For example, a plaintiff can't sue a lawyer for failing to file a case if the lawyer was never hired to complete the work. Additionally, you typically can't sue someone else's lawyer for malpractice, even if they did something wrong.

2. The Lawyer Breached the Duty

The plaintiff must also show that the lawyer didn't meet a professional standard of care. There may not be a malpractice case if other knowledgeable lawyers would have taken similar action. Expert witness testimony is often needed to demonstrate that the lawyer's conduct was negligent or breached a fiduciary duty.

3. Harm to the Client

The lawyer's negligence or bad acts must have harmed the client. Plaintiffs usually need to prove that the underlying case would have probably been successful if not for the lawyer's error. Proving this element is sometimes called the "case within a case" because the plaintiff must show that the original case would have succeeded without the lawyer's negligence. The lawyer accused of malpractice may try to prove that the outcome of the original case would have been the same regardless.

4. Damages

Finally, the plaintiff must show they suffered a loss due to the lawyer's malpractice. In some states, the losses must be monetary. These damages could be due to:

  • Losing a case that would have resulted in a monetary award
  • Accepting a lower settlement offer based on negligent legal advice
  • Additional legal fees that were incurred to fix the negligent lawyer's mistakes

What Should You Do If Your Lawyer Has Committed Malpractice?

If you believe your lawyer committed malpractice, you should speak with an experienced legal malpractice attorney in your area. Legal malpractice laws vary by state, and these cases can be challenging to win. While you may find it hard to trust another attorney, getting advice from an expert will give you the best chances for recovery.

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