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What Is Legal Malpractice?

Definition of Legal Malpractice

Similar to medical malpractice, legal malpractice occurs when a lawyer doesn't do what they are supposed to do, and their error hurts their client. Lawyers have a duty to follow certain standards of ethical and professional conduct. When they fail to follow those standards, they can be sued for legal malpractice.

Yet, it's not as simple as saying, "my attorney didn't work hard enough to win my case." You must be able to show that your attorney didn't do what they were supposed to do according to their profession's rules.

Can I Sue My Lawyer for Malpractice?

If you can show that your attorney did one of the following, then you may be able to bring a legal malpractice lawsuit against your lawyer:

  • The attorney's conduct was negligent
  • The attorney was in breach of a contract
  • The attorney's actions violated the American Bar Association's Rules of Professional Conduct (adopted by all state bars except California)

If your lawyer has violated these rules (such as commingling financial accounts or creating a conflict of interest) or acted negligently in some way, you may file a legal malpractice claim. In order to win your case, you would have to show that a typical (and competent) lawyer would have prevailed in your case.

If you are bringing a legal malpractice claim based on your attorney's negligence, you need to show:

  1. Your lawyer had a duty to represent you competently
  2. Your lawyer made a mistake or otherwise acted in a way that breached their duty to you
  3. Their actions caused harm to you and you lost money as a result

Proving Legal Malpractice

Proving legal malpractice is no easy task. In addition to proving the elements discussed above, you would need to show clear causation. In other words, it must be clear to the court that you would have prevailed in your case had the attorney followed the Rules of Professional Conduct.

You should also note that facts that may suggest violations of ethics or professional responsibility are not necessarily actionable. For instance, two lawyers who are good friends may eventually end up on opposite sides of the same case. That is not necessarily a conflict of interest, as long as it's not a familial relationship, but could be in some circumstances.

And while your attorney is required to communicate with you in a reasonable manner, failure to return your every phone call is not necessarily an act of neglect.

How to Sue a Lawyer for Malpractice

If a lawyer mishandled your case, you might be able to sue them for malpractice. But before you sue, make sure you do the following:

  • Gather enough evidence to show your attorney was negligent
  • Fire your attorney and get a new attorney experienced in legal malpractice claims
  • Make sure to save every document and correspondence that can help with your legal malpractice case

Before You Sue, Look for Other Alternatives

You should consider other alternatives before you sue your attorney. This is because winning an attorney malpractice claim is both very hard and costly. Some of the options you may want to consider before suing your attorney include:

Terms to Know

    Commingling:
    Attorney's act of combining funds of his beneficiary, client, employer, or ward with his own funds. Such an act is generally considered to be a breach of his fiduciary relationship.
    Conflict of interest:
    A conflict between competing duties, as in an attorney's representation of clients with adverse interests.
    Fiduciary:
    One often in a position of authority who obligates himself to act on behalf of another (as in managing money or property) and assumes a duty to act in good faith and with care, candor, and loyalty in fulfilling the obligation.
    Neglect:
    A disregard of duty resulting from carelessness, indifference, or willfulness.

Additional Resources

Working With a Legal Malpractice Lawyer

Like most professionals, lawyers sometimes make mistakes that gravely affect their clients. In such cases, you may bring a suit against your attorney. See FindLaw's directory of legal malpractice attorneys if you would like to learn more or need to file a claim.

Next Steps

Contact a qualified attorney to make sure your rights and interests get protected.

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