What Is Legal Malpractice?

Legal malpractice occurs when an attorney causes damage to his/her client or a non-client either by doing something wrong or not doing something he/she was supposed to do in his/her role as an attorney.

The Lawyer - Client Relationship

A lawyer and a client usually begin their relationship:

• by signing a contract that sets out what the client expects from the lawyer and what the lawyer is going to provide for the client.
• The lawyer volunteers his or her services.
• The court appoints a lawyer.
• Simply providing advice or investigating a case may start a lawyer-client relationship.

The Lawyer's Duty to the Client

The lawyer has a duty to represent you with the knowledge, resources, time and energy that is reasonable to present a fair case. He/she is expected to know the basics of the law as they relate to your case and to research areas of the law that he or she is not familiar with. The attorney can also owe a duty to someone who is not a client. For example, when a lawyer is working for an insurance company, he/she not only represents the insurance company, but also the people insured by that company. The lawyer only represents the people insured by the company in matters that relate to the insurance policy. Moreover, an attorney has certain obligations when consulting with potential clients even if that client does not retain that particular attorney. Such duties include providing information such as applicable statute of limitations.

When the Relationship Ends

Attorney - Client Privilege & Legal Malpractice

A lawyer-client relationship ends when the work the attorney was hired to do is finished. The relationship can also end if something in the contract between the client and attorney says it ends before the work is finished. This can happen when an attorney decides to withdraw from a case. If the attorney decides to stop working on the case before it ends, he or she must make sure that his or her leaving does not ruin the case.

When the relationship ends the attorney does not have to represent you in another case; however, the attorney must not tell anyone about information that was discussed between the attorney and the client that might hurt the client, which falls under attorney-client privilege. Violation of attorney-client privilege can result in a legal malpractice lawsuit.

The Lawyer's Negligence & Legal Malpractice

A lawyer can be held responsible in a legal malpractice lawsuit for causing you damage if you can show four things:

• The lawyer had a duty to represent you with the knowledge, resources, time and energy that is reasonable to present a fair case (standard of care).
• The lawyer is not fulfilling that duty.
• Because the lawyer did not fulfill that duty you were injured.
• The injury actually occurred, which includes losing money, going to jail, emotional distress, or having your case thrown out of court.

  You need all four of these elements for a lawyer to be held responsible for his/her negligence in a legal malpractice lawsuit.

Third Party Injuries & Legal Malpractice

If you are a person that was not represented by the attorney you may still be able to sue if you can show:

• The issue that the lawyer was working on was intended to affect you
• The harm to you could be foreseen
• You have actually suffered an injury
• You were injured because of the lawyer's actions
• There is a need to prevent this type of harm in the future

Courts do not require you to meet all of these factors in a legal malpractice lawsuit, but they do take all of them into account when trying to decide if the lawyer was responsible for your injury.

The Attorney Judgment Rule

Under the attorney judgment rule, an attorney is not liable for what, in hindsight, were errors in judgment where the attorney made those judgments in good faith and in the honest belief that the decisions were well founded in the law and made in the best interest of the client.

Common Areas of Liability

Litigation & Legal Malpractice

• An attorney may be held responsible in a legal malpractice lawsuit for failing to bring a lawsuit in a timely manner. In several states there are rules called statutes of limitations. These rules set the time line for how much time you have to bring a case. If an attorney misses the deadline, he or she will not be allowed to bring the case. For example, if there is a one year statute of limitations for getting money for a car accident and the lawyer does not bring the case in that year, you will not be able to collect that money. However, this is just an example and you should consult legal counsel before moving forward.

• The attorney may also be held responsible in a legal malpractice lawsuit for an involuntary dismissal of an action. For example, if the attorney fails to serve and return the summons and complaint within the applicable time limit or fails to bring a case to trial within the applicable time limit the case will be dismissed.

• An attorney may also be responsible in a legal malpractice lawsuit for letting a judgment be entered against his or her client. For example, if a defense attorney fails to file a responsive pleading the judge may decide the case in favor of the other side.

• An attorney can also be held responsible in a legal malpractice lawsuit for not following a client's instructions.

The attorney does not have to follow instructions by the client in terms of legal issues or things that the client does not have any knowledge of, but the lawyer does have a duty to follow the general wishes of the client. For example, if a settlement offer is made, not only must the attorney tell the client about all offers, but he or she must also abide by what the client wants to do, even if they think they could get more.

Corporate, Securities Law & Conflicts of Interest in Legal Malpractice Lawsuits

• If a lawyer is representing a corporation, he/she must act in the same manner they would if it was an individual person. Thus the lawyer must represent the corporation with the knowledge, resources, time and energy that is reasonable to present a fair case.

If you are a shareholder in a corporation you can sue the board of directors and officers that are not acting in the best interests of the corporation. The lawyer for the corporation can not represent the directors or officers if he or she is working for the corporation. If they do, a conflict of interest may exist and the lawyer will be responsible for any damages caused by his or her working for both the corporation and the board of directors.

Family Law & Legal Malpractice

• A lawyer should not represent both sides in a family law case. If he/she does, then the lawyer must tell both sides and get them to agree to being represented by the same person. For example, in a divorce case a lawyer can not work for both the husband and wife.

If the lawyer does represent both sides, then the lawyer must make sure both sides know what the consequences are and obtain their informed consent.

Marital Settlements & Legal Malpractice

If a lawyer fails to discover how much property a couple shares or what share one spouse has in the other's pension plan or retirement account, such negligence may be the basis for a legal malpractice lawsuit. For example, if a lawyer tells a client that a certain account the other spouse has is not part of the community property the client can decide not to ask for any of it. If it is later discovered that the client could have gotten some of that money, then the lawyer is going to be held responsible for any damages that occur because of it. The lawyer can also be held responsible for damages that happen from not drafting a martial settlement correctly.

Professional Negligence & Legal Malpractice

If a lawyer refuses to continue helping a client or delays helping a client because the client will not accept his/her sexual advances, then the lawyer can be sued for professional negligence. The lawyer cannot imply that you should have sex with him/her. The lawyer cannot scare you or force you to have sex with him/her as a condition for continuing to represent. Moreover, the lawyer cannot continue to represent a client if they are having a sexual relationship. Lawyer-client sexual relationships are prohibited in many states. However, you should check with the appropriate agency before proceeding further.

Wills, Trusts, Estate Planning & Legal Malpractice

Wills, trusts, and estate planning cases usually involve a beneficiary to the will or trust. These lawsuits usually happen when the beneficiary feels that he/she has not been fairly taken care of by the will, trust or estate plan.

• The attorney is usually sued with legal malpractice because he/she did not draft the will correctly. This can include not following the non-deceased client's wishes or failing to discover all the taxation issues created by the will or trust.
• The attorney can also be sued with legal malpractice for representing more than one party in an issue about the will or trust. For instance, if a brother and a sister are fighting over who gets the money an attorney can not represent both of them because they are fighting against each other. In such a case, the lawyer can be held responsible in legal malpractice for any damages caused by representing both of them.

Bankruptcy & Legal Malpractice

If an attorney causes a client to file bankruptcy and subsequently does not accurately appraise the client's property and that results in the client selling the property for much less than it was worth, the attorney can be sued with legal malpractice for the damages caused by his/her actions.

Damages & Legal Malpractice

• A difficult legal aspect that must be proven is that due to the lawyer's malpractice, the case was lost.
• If you can prove that the lawyer's actions caused you damages, you can recover all of those damages from the attorney with a legal malpractice lawsuit.
• You can recover all the damages the attorney directly caused.
• You can also recover all the damages that occurred as a result of the attorney's actions with a legal malpractice lawsuit.
• It is important to note that within the context of a legal malpractice action, a lawyer may utilize what were formerly privileged communications from the client in order to respond to allegations of negligence.