Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Dec 16, 2019

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An attorney has a duty to his clients to act with a certain standard of care. If the attorney fails in his duty to act as a reasonably competent attorney would, then he may be guilty of legal malpractice, a form of professional malpractice. Failing to file a complaint on time may, in certain circumstances, constitute professional malpractice. However, whether or not you are able to successfully sue your attorney in an attorney malpractice lawsuit will be based on a number of different factors.

Understanding Attorney Malpractice

Attorney malpractice is a form of professional malpractice and the proper remedy is a civil suit called a “legal malpractice lawsuit.” In order to prove attorney malpractice, you must prove:

  • That the lawyer was negligent. 

To prove this element of your case, the lawyer’s behavior will be held up to what a reasonable lawyer would have done. If the lawyer’s actions or omission was something that no reasonably competent lawyer would have done, then the lawyer may be viewed as negligent. If you came to your lawyer with a claim and there was sufficient time to file that claim before the statute of limitations ran out, and if your lawyer told you he would file and did not, this could be viewed as below the standard of professional conduct that a reasonable lawyer would have exhibited. If, on the other hand, you came to your lawyer one day before the statute of limitations expired, then your lawyer probably won’t be considered negligent for failing to file on time because many reasonable attorneys would have been unable to meet the time limit in that case.

  • That the negligence directly damaged you in some way.

This, too, can be hard to prove. In order to show you suffered damage as a result of your lawyer’s negligently failing to file your claim, you’ll need to prove that you probably would have won your case if the claim had been filed on time. This can be a hard thing to prove since it is almost impossible to know what would have happened. 

Getting Help

There are lawyers who specialize in professional malpractice. If you believe your original attorney was guilty of legal malpractice, you should contact a legal specialist for advice on the issue and to determine if you have a case.