Legal Malpractice

Most people have heard about cases that deal with medical malpractice, but there are also many situations in which claims for legal malpractice can arise.  Generally lawyers are competent and do excellent work for their clients, but there are times when careless errors or mistakes are made which constitute legal malpractice.  Legal malpractice can be as simple as a missed deadline or incorrect legal advice which then leads to a financial loss for you, a family member or a friend. Legal malpractice can occur anywhere when the standards or rules of practicing law are not met.

Below is a look at the elements needed to prove legal malpractice.

Duty of Care – The Existence of an Attorney/Client Relationship

In order for a claim to be successful against an attorney for legal malpractice, the plaintiff must first prove that a duty of care existed.  In the legal sense, this is best proven by the existence of an attorney/client relationship either through a contract or a letter from the lawyer setting out the terms of the attorney/client relationship.  When an attorney/client relationship exists, the attorney is bound by his or her rules of ethics and a standard of professional care when providing the legal services.  Generally this means that an attorney should provide the legal services which a reasonably prudent attorney would provide under similar circumstances. 

A client does not necessarily need to sign a retainer agreement and pay the attorney a fee for such a relationship to arise in many states.  In fact, most state ethical canons say that as long as a person could have reasonably believed that an attorney/client relationship existed, that this could be enough to create an attorney client relationship.

Breach of Duty of Care – Representation was Negligent

After the plaintiff has proven that an attorney/client relationship existed, he or she must next move on to prove that this duty (or standard of care) was breached by the attorney.  When doing so, the plaintiff must prove that the attorney in question did not meet the ‘reasonable attorney’ standard.  What this means is that based on the facts of the original representation, a judge or jury must find that the attorney/defendant did not act in a way that a reasonable attorney would have acted in similar circumstances. 

Again, this is not a mathematical equation, and will often require the opinion testimony by experts to establish the alledged negligence or malpractice by the attorney. If the jury believes that the attorney failed to meet this standard of care, then the plaintiff can proceed to working towards proving the next component of the legal malpractice case, damages.

Causation – The Attorney’s Malpractice Caused the Harm Done to the Client

Causation is always the most difficult component of any legal malpractice case.  Even attorneys and judges have been confused by this required element.  Basically, the plaintiff must prove that the attorney’s malpractice is what caused the plaintiff to be harmed.  This can be done using any of several available legal tests, including:

1. The ‘but for’ test – This is a measuring tool used by courts that basically states that ‘but for’ the attorney’s malpractice, the plaintiff (client) would not have been harmed.
2. Many times this means you will have to prove to a reasonable degree of probability what would have happened if your attorney would have done the legal work in the way a reasonably prudent attorney would have done his legal work for you.

Depending on your states laws regarding legal malpractice different rules for establishing legal malpractice and damages may apply. Nothing on this page constitutes legal advice and does not establish an attorney client relationship between the reader and the attorneys at Parilman & Associates.

 

Damages – The Malpractice Must Have Caused an Injury

After the plaintiff has proven the three elements above, there still remains the matter of damages.  The plaintiff must show that he or she suffered a loss as a result of the attorney’s malpractice.  This can be done by proving a monetary loss, such as losing a case for a personal injury claim where the alleged malpractice was the reason for the result. 

Why You Need an Attorney

The elements above are not easy to prove.  Those who have been harmed by legal malpractice also need to understand that it’s not always easy to simply hire an attorney to sue another attorney, as professional courtesy is a real thing, and some attorneys simply do not want to go after ‘one of their own.’ 

However, there are attorneys out there who feel as though lawyers should be held just as accountable for their negligence as doctors or any other professional.  One law firm that holds that ideal firm is Parilman & Associates.  The firm has been helping clients who have been harmed in several different contexts for some time, and if you have been wronged by any legal professional, Parilman & Associates will work diligently to make sure that your rights do not go unprotected.  Contact the firm today to schedule a free initial consultation.