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Legal Malpractice Lawsuit FAQ

What is Legal Malpractice?

Legal Malpractice occurs when a lawyer's services fall below the standard of care; it means a lawyer has been negligent when providing legal advice or representation and has caused harm. Three areas of liability are Negligence (the most common cause of action); Breach of fiduciary duty; and Breach of contract.

(Standard of care means that a lawyer has an obligation to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise under similar circumstances.)

What constitutes "harm" in legal malpractice?

In a legal malpractice case, harm (or injury) requires that the client has suffered a financial loss or wrongful criminal conviction. Generally, emotional suffering does not constitute legal malpractice but there are a few exceptions to every rule. For instance, you could suffer stress and anxiety due to your lawyer’s fraudulent actions. The threat of possible future harm is not considered an "injury" in legal malpractice cases.

My lawyer made a few mistakes—does that count as legal malpractice?

Not as a rule. The mistake must have been one that a lawyer of ordinary skill, prudence, and diligence would not have made. If it did not cause harm, the mistake is not legal malpractice.

Is there a difference between a grievance or bar complaint and legal malpractice claim?

Yes. As stated above, a legal malpractice claim means that a lawyer's conduct did not meet the standard of care. A grievance or bar complaint is made to the organization (for instance, the bar association in your state) that licenses the lawyer. The state bar can discipline an attorney up to and including disbarring him or her or suspending his or her license.

Common grievance cases include:
  • Lack of communication, i.e., not returning phone calls
  • Unreasonable or excessive fees charged
  • Clients have paid for work an attorney did not do
  • Inappropriate charges
Common legal malpractice claims include:
  • Failure to know/apply law
  • Failure to file documents and failure to know deadline
  • Inadequate discovery/investigation
  • Failure to obtain Client Consent
  • Conflict of Interest
  • Fraud
My lawyer doesn't return my phone calls but I am still paying her bills. What can I do?

Lack of communication with a lawyer/client is the most common complaint made to state bars. If your lawyer isn't returning your phone calls, make a paper trail. Follow up with a letter and/or fax, telling him or her that you would appreciate a call back, ASAP. If you don't get response from a letter, you might want to speak with another attorney—in another law firm. You are entitled to request your file, regardless whether or not you have outstanding bills.

The American Bar Association (ABA) reports that most legal malpractice claims occur when an attorney is perceived as failing to communicate with clients or to educate them about a case.

What are some typical examples of legal malpractice?

Some examples are loss of the right to file a lawsuit, dismissal of a valid lawsuit, and losing a case that should have been won.

Legal malpractice suits filed by disgruntled borrowers and lenders against lawyers are most prevalent, with plaintiffs claiming a lawyer should have advised them about the appropriateness of a mortgage. And bankruptcy related claims are common.

Statistics show that lawyers who practice outside of their specialties run a greater risk of being sued for legal malpractice. And lawyers who have suffered from the economy may take on clients that they shouldn't.

My lawyer didn't file the right paperwork on time with the court and missed a deadline. Can I file a legal malpractice suit against him?

There are time limits on when you can bring a lawsuit against someone who has violated your rights and missing a deadline with the court is very important. For example, you were injured because of someone's negligence and in your state, you only have two years to file a personal injury lawsuit. If you bring your case to a lawyer in a timely fashion but the lawyer fails to file the papers in time, you could lose your chance to take legal action.

The failure of your lawyer to file paperwork by a deadline is a form of negligence. To establish legal malpractice under negligence, it is necessary to demonstrate the following:
  • The lawyer owed a duty to provide competent and skillful representation;
  • The lawyer breached the duty by acting carelessly or by making a mistake;
  • The lawyer's breach caused an injury or harm;
  • The harm caused a financial loss.
To win a legal malpractice claim, it is also necessary to prove causation. It must be shown that if the lawyer had been competent the client would have prevailed in the underlying case and the client would have been able to collect the damage award from the defendant. Causation is often the most difficult to prove in a legal malpractice lawsuit.

I suspect that my lawyer committed legal malpractice; what should I do first?

First, speak with your lawyer and find out why specific actions were taken. Perhaps there is a legitimate and justifiable explanation. If you aren't satisfied, you can contact your state's bar's discipline committee and you can also consult a legal malpractice attorney. An experienced legal malpractice attorney can assess your case and determine if indeed you have a case for legal malpractice.

What must I prove to win a legal malpractice case?

To win a legal malpractice case, you must prove four points:
  1. Your attorney owed you a duty.
  2. Your attorney breached that duty by acting negligently, and making mistakes a reasonable attorney would not have made.
  3. Your attorney's behavior caused you damage. This includes proving that the results of your case would have been different (for example, you would have won the case) had the attorney acted properly.
  4. You suffered a financial loss because of the negligence.
What will a legal malpractice case cost?

Legal malpractice cases are typically complicated—and costly. Generally a legal malpractice case will be more costly than the former case because two cases must be proved: first, whether the attorney committed malpractice, and second, the former case must be presented. This is referred to as "a case within a case".

Some attorneys work on a contingency basis while others might bill by the hour. Speak with your attorney about fees as soon as possible and avoid any surprises.

Does a statute of limitations apply with a legal malpractice case?

Yes, and a statute of limitations varies from state to state. Some states allow you two years from the date you knew or reasonably should have known that some error or omission by your attorney caused you some harm, even if you are not yet sure how extensive the harm might be. If you do not file your malpractice suit in court by that date, you won't be able to file again—ever.

Do I have to fire my lawyer before consulting with a legal malpractice lawyer?

No. You can consult with another attorney at any time and they may be able to remedy your problem right away, without getting into a legal malpractice situation.

LawyersandSettlements.com makes it easy for you to find the Legal Malpractice lawyer. We work with legal malpractice attorneys throughout the US and Canada who practice in this specialized area.

If you--or someone you know --believe that you have been the victim of legal malpractice, you should check with a legal malpractice lawyer about the specific elements of a legal malpractice action under the laws of your state, and to determine if the incident might constitute legal malpractice.
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Last updated on Jan-3-11


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