Who can be liable for 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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UPDATED: Jul 16, 2021

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Legal malpractice occurs when your attorney breaches a duty that he or she owed to you under the law. Legal malpractice claims can be made when your attorney is negligent or when your attorney breaches the fiduciary duty that is owed to you.

Who Can Be Sued for Legal Malpractice?

Legal malpractice claims are based on the idea that your lawyer is a professional and thus owes a duty to behave as a professional. The rules that govern lawyers, called the ABA Model Rules of Professional Conduct, require that attorneys put client’s interests first and that they represent clients with the same level of competence that a reasonable attorney in their position would display.

In order to sue for legal malpractice, you must show that your lawyer breached the duty of care he or she owed either by acting more carelessly than a reasonable attorney in the same position would have or by acting in a way that was contrary to your interests. You must also be able to show that there would have been a different result – like winning your case or winning more money – if the lawyer had not breached this duty. Finally, you must be able to prove that there was actual financial loss caused by the attorney’s breach. 

Because legal malpractice is a claim of professional negligence, in general, only attorneys may be sued for legal malpractice. Paralegals or support staff in a law firm may not be sued for malpractice. However, an attorney may sometimes be sued as a result of the careless errors made by paralegals or those working under him.

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Suing a Law Firm for Legal Malpractice

In addition to suing an attorney for malpractice, it may also be possible to sue a law firm. When law firms are held responsible for legal malpractice, their liability stems from a legal doctrine called vicarious liability, which makes employers responsible for their agents. Under vicarious liability, a law firm can be held responsible if one of their employees, acting within the scope of his or her employment, breaches a duty owed to you.

It is important to note that a legal malpractice claim against a law firm will likely require that at least one lawyer in the firm is being sued for malpractice. For instance, in a 2009 Ohio case called National Union Fire Ins. Co. of Pittsburgh, PA. v. Wuerth, (Slip Opinion No. 2009-Ohio-3601), the Ohio Supreme Court dismissed a complaint against a law firm because the statute of limitations had expired on the claim against the lawyer. The court ruled that the law firm itself did not practice law and thus could not be held responsible for legal malpractice unless at least one of its agents was subject to liability.

When a law firm is sued for malpractice, both the firm and the lawyer(s) can be held jointly and severally liable for damages. This means each could be individually responsible for paying up to the total amount of damages awarded or that they could split the amount owed and each pay part.

Consult a Legal Malpractice Attorney

Making a claim for legal malpractice can be challenging because it can be difficult to prove you would have had a more favorable outcome with a more competent lawyer. If you believe you have a claim for legal negligence, you should seek help from an attorney who specializes in legal malpractice claims.

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