Types of Attorney Malpractice

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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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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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An individual may bring a claim against an attorney for malpractice based on negligence, breach of contract, and breach of fiduciary duty.

It is also important to remember that not every mistake amounts to legal malpractice. Attorneys are allowed to make good-faith, reasonable errors in judgment when doing their job. This means that if an attorney makes a tactical decision that he or she believes—in good faith—will benefit a client’s case, the attorney did not act below a reasonable standard of care, even if the decision didn’t turn out to be the best one.


Attorney negligence is the most common reason for bringing a malpractice claim. As stated above, an attorney has a duty to provide a client with certain standard of professional service. When an attorney’s actions fall below this standard, and as a result, the outcome of a client’s case is negatively affected, they may be liable for malpractice.  

Some examples of attorney negligence include missing statute of limitation deadlines, failing to show for court hearings or file motions on time, being grossly unresponsive to a client, failing to advocate for a client, or failure to keep accurate accounting of expenses.

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Breach of Contract

A breach of contract is when an attorney goes against one of the terms provided in the initial contract a client signs when the attorney agrees to represent them. These initial contracts, often called “retainer agreements,” can spell out the terms of the attorney-client relationship, fee agreements, settlement agreements, and more.

For example, some initial contracts made between the client and the attorney include whether or not the attorney needs the client’s permission to settle the case. Suppose a client signs a retainer agreement in which the attorney agrees to obtain client consent before agreeing to settle the case. However, during litigation, the attorney agrees to settle the case without first obtaining permission. Even if the settlement was reasonable, and the client would have consented, the attorney has breached the retainer agreement and the client would likely have an action for malpractice.

Breach of Fiduciary Duty

Fiduciary duties include duty of loyalty and duty of care. All attorneys owe fiduciary duties to their clients, meaning that they must put their client’s interest before their own. Further, because a client must give up control and put a high level of trust into their attorney, a fiduciary duty owed to a client is usually measured under a higher standard than most malpractice claims. This means that instead of measuring the potential breach against how a reasonable attorney would act, attorneys are held to the highest standard—that is, any breach of fiduciary duty is actionable.

For example, if an attorney made a tactical decision in a case that they knew would help their own career, but hurt the outcome of their client’s case, this is a breach of fiduciary duty. Other examples of breach of fiduciary duty include, failing to inform a client of a conflict of interest before or during litigation of his case, acting in way that is adverse to a client’s interest, or gross breaches of client confidentiality.

Legal Malpractice in a Trial

When a trial is lost as a direct result of a lawyer’s negligence, it can be considered legal malpractice. Here, a client must be able to show that, had it not been for the attorney’s actions, his or her case would have turned out in their favor.

For instance, suppose an attorney failed to use an available evidentiary objection to keep a bloody knife from coming in as evidence during a criminal trial. The fingerprints on the knife were smeared and the item is a questionable piece of evidence, but because of the attorney’s failure to object to its admission as evidence, it sways the jury to convict the defendant. The defendant is found guilty. If the defendant can show that he or she lost the trial as a result of the knife coming into evidence, this may be enough to prove legal malpractice—provided that any reasonable lawyer in the same situation would have objected to the admission.

However, suppose it comes out that there was also evidence of the defendant’s bloody fingerprints and footprints all over the crime scene and the attorney could not have kept this from coming in at trial. In this case, it is unlikely that the defendant will be able to show that the attorney’s failure to keep the knife out of evidence was the reason the defendant was found guilty; he or she will therefore not likely have a basis for a medical malpractice case.

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