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: Feb 20, 2013

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Only when a lawyer has intentionally or negligently done or failed to do something that hurts a client’s case, such that no reasonable attorney would have done the same, has malpractice actually occurred. In general, the lawyer’s client (or former client) must prove four distinct elements to be successful on a legal malpractice claim.

Proving Attorney-Client Relationship

The first element the client must prove is the existence of an attorney-client relationship. This relationship can be established any time an attorney has given, or promises to give, legal advice to an individual seeking it. A formal acknowledgement made by both parties that the attorney is representing the client’s interests is clear evidence of an attorney-client relationship. 

This may take the form of a contract (either written or verbal), an ongoing agreement to use the services of a particular attorney (the attorney is on retainer), or through payment for legal services rendered. An attorney-client relationship may also be created through communications via email, phone, letter, or simple conversation. But merely stating “you are my attorney” or “you are my client” is not enough – legal advice must be given or promised in these communications.

Being the first of the four mandatory elements of a legal malpractice claim, if no attorney-client relationship existed, a legal malpractice suit will be over before it even begins.

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Proving Intent or Negligence

The second element a client must prove is intent or negligence on the part of the attorney. To successfully maintain the suit for legal malpractice, the client must prove that the attorney either intended to harm the client, or negligently failed to use the care, skill, and judgment required of a member of the legal profession (commonly called the standard of care requirement). Intentional harm is clearer and easier to prove assuming the client actually has evidence of it – if an attorney actively did something to sabotage a client’s case, the attorney’s actions were intentional. Intentional attorney misconduct, however, is extremely rare. Meanwhile, failure to meet the standard of care can be more difficult to prove.

Further complicating matters is the fact that the standard of care is a local standard, based on the rules adopted by the bar in each state, meaning that the standard in Detroit could be different from the standard in El Paso. Examples of attorney conduct generally held to be negligent across all jurisdictions include failing to meet deadlines, not complying with court orders, or simply failing to work on a case.

Proving the Action Caused Harm

The third and fourth elements of a legal malpractice claim are closely related. The third element a client must prove is that the attorney’s action or inaction was the cause of the harm. The fourth and final element is probably the hardest to prove – that the injury sustained would not have occurred but for the attorney’s actions. 

Proving that an attorney caused the harm can be relatively easy. If the client’s case was dismissed because an attorney either intentionally or negligently failed to comply with a court order, the attorney caused the injury. Proving that the case would not have been dismissed but for the attorney’s actions, however, is much more difficult. A client may have to go as far as proving that his or her case was a clear winner, and that the only reason it was lost was because of the attorney. If a case could have gone either way based on the facts, a legal malpractice claim is unlikely to be successful.