Legal malpractice is a type of professional negligence committed by an attorney while in representing a client. When there is an attorney-client relationship (an attorney has formally been retained), a lawyer owes the client a duty of care. Malpractice occurs when an attorney breaches that duty, causing the client some form of harm.
Legal malpractice doesn’t occur merely because a client is unhappy with the outcome of a case, but an attorney is generally required to respect and abide by a client's wishes. Legal malpractice could occur if the attorney had a conflict of interest and failed to disclose it to the client. This could happen if, for example, the lawyer represented another entity in a matter that was against the client’s interest, absent a conflict of interest waiver by the client.
Filing a Complaint About an Attorney
People who believe that they’ve been harmed by legal malpractice are able to file attorney complaints with the bar association in the applicable state. This complaint is separate from a legal malpractice lawsuit. The bar association is charged with investigating whether an attorney has provided services in accordance with ethical requirements and legal guidelines.
Duties Attorneys Owe to Clients
The duties attorneys owe to their clients are outlined in the state's rules of professional conduct. Generally, a lawyer must provide competent representation to clients, communicate reasonably with them and be diligent in their representation. Attorneys must also maintain client confidentiality, be prompt, meet deadlines and respect their clients’ legal decisions.
Attorneys also have fiduciary duties to their clients. Accordingly, a lawyer tasked with managing one's funds may not commingle these funds with his or her own. Such actions constitute a breach of trust, and they can be grounds for getting a lawyer disbarred or removed from a case.
In some situations, attorneys have duties to multiple parties. When these obligations interfere with each other, such as when a divorce attorney represents both spouses in a contentious split, it's known as a conflict of interest.
Not every conflict of interest prohibits a given lawyer from representing their clients properly. Nonetheless, most courts would agree that legal professionals have a duty to disclose these conflicts and give their clients the opportunity to seek alternative representation.
Common Types of Lawyer Malpractice Claims
The most common claim made in a legal malpractice lawsuit is that the lawyer did not know the law or failed to correctly apply it, which may have led to losses for the plaintiff. Other types of malpractice include:
- inadequate preparation, investigation or discovery in a case;
- not meeting statutes of limitations and other deadlines;
- failing to file documents or calendar court appearances;
- lack of communication;
- and fraud.
A negative trial outcome is not necessarily valid grounds for a malpractice judgment. But those who can establish that their attorneys misrepresented their expertise or otherwise abused their trust may be able to file successful malpractice suits.
What a Legal Malpractice Attorney Does
When a legal malpractice attorney meets with a prospective client, the first order of business will be to determine whether it is likely that malpractice occurred. In order to prevail in a case, the attorney's negligence must have resulted in actual harm to the client. The lawyer can determine what amount of damages, if any, the client may expect to receive. A malpractice lawyer may work to either resolve the case through a negotiated settlement or pursue litigation if an agreement can’t be reached.
The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.