Not every mistake made by an attorney is considered legal malpractice. Instead, legal malpractice happens when an attorney handles a case inappropriately due to negligence or with intent to harm and causes damages to a client. To prevail in a legal malpractice lawsuit in most jurisdictions, you will need to prove an attorney-client relationship between you and the lawyer, a breach of the duty to provide skillful and competent representation (negligence), causation, and a financial loss.
Proving the first element requires you to show that an attorney gave or promised to give you legal advice or assistance, and therefore created an attorney-client relationship in which you were owed competent and skillful representation. Usually, this relationship is created by a written contract or agreement, but it also can be implied from an attorney’s actions in connection with the client’s actions. In some states, if a client has a reasonable belief that there is an attorney-client relationship based on an attorney’s representations, that is enough to find an attorney-client relationship. The nature of this element could vary depending on the ethics rules of the State Bar in your state, and occasionally attorneys do contest that there was such a relationship.
The second element of attorney negligence is similar to the standard for medical negligence. In performing legal services, an attorney must exercise the care, skill, and diligence that are commonly exercised by other attorneys in similar conditions and circumstances. An attorney can never insure a particular outcome, and a failure to choose the best strategic course of action does not necessarily amount to a breach of duty.
In many cases, an attorney chooses a strategy in good faith, and at the time this strategy is chosen it is reasonable. However, if a reasonably prudent attorney with the skill and competence level necessary to provide the same legal service would not make the decision made by the attorney, there may have been a breach of duty. It is also important to note that a simple ethics violation is rarely the basis of a legal malpractice action, even though it is a breach of duty.
With regard to the third and fourth elements, you must show that if the attorney had not been negligent or otherwise acted wrongfully, you would have been successful in the underlying case. It can be challenging to prove that the outcome of a legal proceeding would have been different if your attorney had acted differently. When a financial loss would have happened irrespective of the attorney’s mistakes, there is no malpractice. For example, if your trial attorney failed to communicate with you regularly, but whatever information he could have gotten from you would not have changed the outcome of the trial, there is no malpractice.
Some common kinds of malpractice include failure to meet a filing or service deadline, failure to sue within the statute of limitations, failure to perform a conflicts check, failure to apply the law correctly to a client’s situation, abuse of a client’s trust account, such as commingling trust account funds with an attorney’s personal funds, and failure to return telephone calls.
In addition to a civil legal malpractice lawsuit, in cases of fraud or theft, the attorney can be reported to the State Bar or criminally prosecuted. The state bar may impose disciplinary sanctions, such as fines or disbarment.