Legal Malpractice

Overview

Legal malpractice occurs when an attorney intentionally or negligently mishandles a case and causes injury to a client. Statistics indicate that lawyer malpractice is a significant problem in the United States and that the number of legal malpractice claims brought each year is increasing faster than the growth of the legal industry.

Elements of Legal Malpractice

Clients bring legal malpractice claims when they feel that they have been harmed in some way by their attorney's representation. To succeed in legal malpractice claim, a client must prove four distinct elements. First, a client must show that an attorney-client relationship existed between the two parties. An attorney-client relationship typically arises when an attorney gives or promises to give legal advice to any person. Second, a client must prove that the attorney acted negligently, or with the intent to harm the client. Attorney negligence is defined as the failure to exercise the care, skill and diligence commonly possessed by a member of the legal profession. Third, the plaintiff must show that the attorney's actions were the cause of the plaintiff's injury. Finally, the plaintiff must convince the court that without the attorney's improper behavior, the plaintiff would have been successful in the underlying case. The final element is often the most difficult to prove. If the injury may have occurred despite the attorney's actions, no cause of action for legal malpractice will be admitted. In order to preserve a claim for legal malpractice, a client must file a complaint within the statute of limitations period. The length of the statute of limitations for legal malpractice claims varies among states. Failure to file a claim within the limitations period bars the plaintiff from pursuing legal action against the attorney.

Types of Legal Malpractice

Legal malpractice may take a number of different forms, ranging from minor instances of negligence to intentionally fraudulent conduct. Common types of legal malpractice include:

  • Failure to meet court deadlines.
  • Failure to act within the statute of limitations.
  • Failure to return phone calls or communicate with a client.
  • Failure to resolve conflicts of interest.
  • Failure to know the law or perform adequate research.
  • Abuse or misuse of a client's trust account, including commingling trust account funds with the attorney's personal account.
  • Improper withdrawal from representation.

Remedies for Legal Malpractice

A victim of legal malpractice may seek recovery in several different ways. The most common remedy for legal malpractice is to file a civil lawsuit against the attorney. If successful, a client may recover money damages. If the attorney committed theft or fraud, the attorney may also be subject to criminal prosecution. If the prosecution is successful, the court may order the attorney to pay restitution to the client. A client with a legal malpractice claim may also report the attorney to the state disciplinary board. Each state has a licensing board (also known as the "state bar") which is responsible for regulating the ethical behavior of all attorneys within the state. While the client is unlikely to recover damages, potential disciplinary sanctions include disbarment or the payment of fines to the state bar association.