Legal Malpractice

If you believe your lawyer's mishandling of your legal matter has caused you harm, you may be considering a legal malpractice claim. This intricate area of law requires a clear understanding of your rights and the legal hurdles you'll need to overcome. To successfully sue a lawyer for malpractice, you generally must prove four essential elements: duty, breach, causation, and damages.

Proving Duty

You must first establish that an attorney-client relationship existed. This relationship creates a legal "duty" for the attorney to act in your best interests with the skill, prudence, and diligence that a reasonably competent attorney would exercise under similar circumstances.

Proving Breach

You must then demonstrate that your attorney "breached" this duty by acting negligently. This means their conduct fell below the established standard of care. Proving a breach often requires testimony from an expert witness—typically another attorney in the same field—who can explain to a court what a reasonably prudent attorney would have done.

It is crucial to understand that a simple mistake, an unfavorable outcome, or unprofessional behavior does not automatically constitute a breach. The error must be one that a competent attorney would not have made.

Common examples of a breach of duty include:

• Missing a statute of limitations (the deadline to file a lawsuit).
• Failing to conduct a thorough investigation.
• Not knowing or properly applying the law.
• Having a conflict of interest without your informed consent.
• Settling your case without your permission.

Not all ethical violations amount to malpractice. A lawyer has professional duties, such as communicating promptly. Failing to return your phone calls is an ethical breach and could lead to discipline from the state bar. However, for it to be malpractice, that failure must have directly caused you financial harm. If the lawyer's poor communication caused you to miss a settlement offer, it could be malpractice. If it was merely frustrating, it is likely not grounds for a lawsuit.

Proving Causation

This is often the most challenging element to prove. You must show that your attorney's breach of duty was the direct and proximate cause of your damages. In other words, you have to prove that "but for" your attorney's negligence, you would have achieved a more favorable outcome in your original case. This often involves a "case-within-a-case" scenario, in which you essentially have to re-litigate the original matter within the malpractice lawsuit to demonstrate what the result should have been.

Proving Damages

Finally, you must prove that you suffered actual financial harm as a result of the attorney's negligence. These damages can include the money you lost in the underlying case, any judgment you had to pay, or additional legal fees you incurred. In most jurisdictions, you cannot sue for emotional distress alone in a legal malpractice case.

The Statute of Limitations

Every state has a strict deadline for filing a legal malpractice lawsuit, known as the statute of limitations. This time limit can be complex and varies by state. There are certain situations, known as "tolling" provisions, that can extend this deadline. For example, the clock may be paused while the attorney continues to represent you on the same matter.

Common Defenses to Legal Malpractice Claims

Attorneys accused of malpractice have several potential defenses. Understanding these can help you anticipate the arguments you might face:

• No Attorney-Client Relationship: The attorney may argue that no formal relationship was ever established.
• No Breach of Duty: The attorney might claim their actions were reasonable strategic decisions, not negligent errors. The law does not hold attorneys liable for every tactical choice that doesn't pan out.
• Lack of Causation: A frequent defense. The attorney may argue that even if they made a mistake, the outcome of your original case would have been the same.
• Statute of Limitations: If you file your claim after the legal deadline, the case will almost certainly be dismissed.

What Damages Can Be Recovered?

If you are successful, the damages you can recover are typically limited to the financial losses you can directly prove. These may include:

• The value of a lost judgment you would have otherwise received.
• The amount of a judgment entered against you that would have been avoided.
• Additional attorney's fees incurred to fix the original attorney's mistake.

Practical Advice

If you suspect you have a valid legal malpractice claim, consider the following tips:

1. Gather all your documents: Collect all correspondence, emails, contracts, and case files related to your representation.
2. Consult with a specialized attorney: Legal malpractice is a highly specialized field. Seek advice from an attorney who has experience with these cases. They can evaluate the merits of your claim and guide you through the process.
3. Act quickly: Due to the strict statute of limitations, time is not on your side. Contacting a new attorney promptly is critical to preserving your rights.

Last reviewed July 2025