What Is Legal 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: Jun 29, 2022

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Legal malpractice, also referred to as attorney malpractice, is a civil suit that a client can bring when an attorney breaches his or her legal duty. In order to prevail in a legal malpractice civil suit, the burden is on the plaintiff to prove the required elements of the case. Those required elements are set under state tort law in the jurisdiction where the malpractice occurred. Generally, all cases of legal malpractice involve four elements: duty, breach, causation and damages.

Legal malpractice is defined under the law as any situation where a lawyer breaches a legal duty owed to a client and where that breach led to or caused quantifiable damages. This means the client will need to prove that the attorney intentionally or negligently did something no reasonably competent attorney would have done. If the lawyer’s actions were a violation of the Professional Rules of Conduct that govern attorneys or if the legal work was simply shoddy and careless, the lawyer can be considered in the eyes of the law to have been negligent.

Losing a Case Does Not Prove Malpractice

A simple disagreement as to how an attorney handled a portion of a case does not necessarily constitute malpractice. As a general rule, the client is responsible for signing off on the overall direction of a case. However, an attorney is within his purview to make decisions of strategy with regard to how a particular case is prosecuted or defended. A bad result in a lawsuit does not, in and of itself, constitute malpractice.

Much like a doctor who chooses a proper course of treatment that is ultimately unsuccessful, an attorney who decides on a proper strategy that does not lead to a satisfactory result cannot be held liable for malpractice. If that were the case, attorneys would turn down nearly every potential lawsuit, as the specter of malpractice would be far greater than the potential for success. There are too many intervening factors—courts, witnesses, jurors, etc.—that can affect the outcome of a case. An attorney who is not negligent, conforms to the law and the rules of professional conduct, and keeps the client informed and involved throughout a case has not committed malpractice just because the case is lost.

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Negligence by Omission or Commission

A successful legal malpractice case requires that the attorney actually commit a negligent act. Attorney negligence can be an act of commission or omission. Common examples of attorney negligence are failure to file timely briefs or papers required by the court, failure to appear for hearings, or failure to keep a client’s best interest front and center. Those are all acts of omission.

Failing to keep a client’s best interest is also known as a breach of the attorney’s fiduciary duty, and it essentially means that the attorney breached the relationship of trust created by his retention. A case of legal malpractice may also arise if an attorney breaks the law. Examples of this type of malpractice include improper handling of money paid to an attorney and lying to the court. These are examples of negligence by commission.

Proving Damages

If an attorney is negligent through commission or omission, the next thing to determine is whether this negligence directly caused the client to incur some kind of actual damage. This is often the trickiest part of a legal malpractice case. The client will need to show that the outcome would have been different had the lawyer not been negligent. This is difficult to prove because it can be nearly impossible to predict, in many cases, what would have happened in the future. For example, if the lawyer was careless, missed evidence and didn’t prepare properly for trial, he or she may have lost the case. However, can the client prove he would have won if the lawyer had been better prepared? If so, can the client then prove how much he would have received in damages, or how much the lawyer’s negligent actions cost him? If the answer is no, the legal malpractice case will fail.

Legal malpractice cases tend to be uphill battles. Very often, clients that have received less than favorable results in a case believe that it was somehow their attorney’s fault. The truth of the matter is that this can be difficult to determine. Unless an attorney was actually negligent in representation or breached a fiduciary duty, a malpractice case will not be successful.

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