Guide to Legal Malpractice

By Elspeth Crawford

If your lawyer has acted in a way that resulted in your financial loss and violated the lawyer’s code of professional ethics, you may be entitled to recover under a legal malpractice claim. Like medical malpractice claims, legal malpractice claims are usually paid by a malpractice insurer. If you have been wronged by your attorney, a legal malpractice suit may give you a chance at getting remuneration.

Ethical Duties
Lawyers owe duties to clients which they can be punished for breaking. The duties are set by each state’s individual bar association and change slightly location by location, but ordinarily lawyers must:

• Competently analyze legal issues and exercise knowledge of the law applicable to your case.
  
  
• Communicate with clients in a timely and effective manner. This means returning your phone calls, answering your e-mails, and letting you know about big developments in the case.
  
  
• Keep conversations with the client confidential.
  
  
• Not create a conflict of interest. A conflict of interest can occur when a lawyer represents two clients whose interests are averse to one another. For example, it would be a conflict of interest if a lawyer represented both a person being sued for assault and the person who is suing.
  
  
• Follow the client’s directions in handling a case unless those directions require the lawyer to do something illegal, like put a witness on the stand who he or she knows will commit perjury. Generally, the client is in charge of the overall strategy of the case (how to plead, how much to settle for, etc…) and the lawyer is in charge of determining which legal avenues will best meet the client’s demands.
  
  
• Keep the client’s personal property and money separate from his or her own property and money.
  

Attorneys have many ethical duties, but these are some of the most important and commonly litigated.

Malpractice Claims
Malpractice claims come in a few different varieties. Three of the most common are claims stemming from a lawyer’s negligence, a breach of a fiduciary duty, or a breach of contract.

Negligence. If a lawyer has done something they should not have done or failed to do something they should have, they may have been negligent. Negligence is judged by the standard of care a competent attorney would use under like circumstances. A lawyer might be negligent if he or she misses an important court date, fails to file a case within the prescribed statute of limitations, fails to follow a court order, or does not prepare adequately for trial.

Like in all negligence cases, proving liability isn’t as simple as showing that a lawyer made a mistake. Plaintiffs must show that the lawyer owed a duty to them, that the lawyer breached the duty, and that the breach resulted in some form of financial harm to the plaintiff. Showing a link between the breach and a financial harm can be difficult, so make sure that you have a competent legal malpractice lawyer capable of convincingly forecasting loss.

Breach of a Fiduciary Duty
Lawyers are bound to act with a high degree of honesty and loyalty and in the best interests of their clients. This is called their fiduciary duty, and breaching it can be grounds for a malpractice lawsuit. A lawyer can breach his or her fiduciary duty by representing another client whose interests are averse to the injured client, lying to the client about important information, inappropriately using money that belonged to the client, or making improper sexual advances toward a client.

Breach of Contract
Breach of contract cases are brought against lawyers who violate the terms of their specific agreements with their clients. Obviously, the circumstances of this will change depending on what kind of agreement the lawyer and the client made. If, for example, the case involves a bankruptcy, the lawyer could be sued for failing to file the client’s schedules as agreed.

In order to show liability in a legal malpractice case, the plaintiff must show that they would have won the underlying case if the lawyer had not been negligent, breached his or her fiduciary duty, or breached a contract. This is not an easy thing to prove, so claims for legal malpractice can be particularly difficult to litigate. Insurers know this, so such claims tend to settle less often than do claims in other areas of law. This should not deter you from filing suit if you think you have a case, but know that the life of a legal malpractice suit can be a difficult one.

Alternatives to Legal Malpractice
If you think your lawyer has wronged you, legal malpractice is not your only option. Here are some alternatives:

• If you have a problem with your attorney’s fee, you can engage in fee arbitration with an impartial mediator. Call your state bar association to get the names of qualified mediators.
  
  
• Report professional ethics violations to your state bar association. The bar associations will go on to punish the lawyers themselves. This method will not net you any recovery, but it could be an option if you’re unlikely to win in a formal legal malpractice case but still think your lawyer should be punished for his or her misconduct.
  
  
• Hire another lawyer to repair the damage done to a case by the misbehaving lawyer.
  

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