Legal malpractice Lawyers

Like doctors, attorneys make mistakes too. Not every mistake made by a doctor is malpractice, and not every mistake made by an attorney is malpractice either. The general rule is that legal malpractice occurs when an attorney negligently represents a client or intentionally causes a client to suffer damages.

Negligence
To show negligent representation by an attorney, the claimant must prove certain elements. Those elements are that:

• There was an attorney and client relationship
• There was a duty of competent representation
• A breach of that duty caused the claimant to be damaged
• The breach of that duty caused the client monetary loss

The attorney and client relationship
To prove an attorney and client relationship, the claimant must show that a lawyer gave or promised to give legal counsel or help that created the professional relationship. As a result, that attorney agreed to provide competent representation. The relationship is ordinarily established pursuant to a written retainer agreement, but an oral agreement creating the attorney and client relationship is actionable too.

The duty of competent representation
Like the standard of care in medical negligence cases, an attorney representing a client is required to use a combination of the care, proficiency and diligence that is ordinarily used by other lawyers under similar circumstances. Legal strategy often comes to issue in this context. An attorney’s decision on a chosen strategy in a case might be made after evaluating the facts, but if another reasonable attorney with the experience and competence necessary to undertake the client’s representation in the same case would have made a different strategy decision, an issue of material fact arises, and there may have been professional negligence.

Causing the claimant to be damaged
In legal malpractice cases, this issue gets hotly contested. It’s difficult for a legal malpractice claimant to show that had the attorney acted differently, the claimant would have prevailed in the underlying case. If a monetary loss would have been suffered regardless of any breach of duty by the lawyer, malpractice can’t be proved. Simply put, if he or she was going to lose the case anyway, there was no malpractice.

Common negligence scenarios
Failing to meet a filing deadline is the easiest way to prejudice a client’s case. The most notable filing deadline would be a statute of limitations in a personal injury case. For example, New York has a three year statute of limitations for personal injury. The general rule is that if a lawsuit isn’t filed within that three year period of time from the date of the accident, the injured person is barred from proceeding further. Few exceptions exist to this rule, but the claimant would still be required to prove that he or she would have prevailed in the underlying personal injury case. Other common types of malpractice claims involve failing to comply with court orders, commingling the attorney’s funds with the client’s funds, lack of diligence, conflicts of interest and failure to keep clients updated on any progress in their cases.

Intentional acts
Theft of a client’s funds is the most common intentional act under the law of legal malpractice. An attorney might accept a client’s money to perform legal services and do nothing. Larger sums are involved in estate administration or personal injury cases and client trust accounts.

Who decides whether my attorney committed legal malpractice
Like medical malpractice cases again, settlements are made in legal malpractice cases. If a legal malpractice case or claim isn’t dismissed or settled, a judge would decide the case in a bench trial, or a jury would decide the case in a jury trial.

Legal malpractice cases might appear to be very straightforward, but there are many viable defenses. If you retained an attorney for a specific purpose, and you believe that the attorney was negligent or acted intentionally and caused you monetary losses, don’t hesitate to contact us for a free case consultation and evaluation.