Legal malpractice may have occurred if
an attorney acts in a negligent or malicious manner when providing
legal representation to their client. Approximately 5 - 6 percent
of the lawyers in private practice in this country will be served
with a malpractice claim.
This means that out of all U. S. attorneys
who have malpractice insurance, approximately 35,000 every year
will have a legal malpractice claim filed against them. This figure
does not take into account the lawyers (roughly half) who do not
have malpractice insurance.
The largest percentage of legal malpractice lawsuits are filed
as the result of the plaintiffs being unhappy with the outcome
of their personal injury cases. The second
largest percentage of legal malpractice cases are filed in unsatisfactory
real estate litigation.
In order to prevail in a legal malpractice case, the plaintiff
1. An attorney-client relationship exists
2. Negligence (or maliciousness) in the client's legal representation
3. An injury must be the result of the attorney's negligence
4. Resulting damages have to be established
It must be established that an attorney-client relationship does
exist in order to proceed with a legal malpractice case. Usually
proof payment for the attorney's retainer or a signed contract
with the attorney spelling out what duties will be performed is
all that is necessary.
Once this has been established, then the negligence of the attorney's
legal representation will need to be proven. In order to do this,
a "standard of care" will need to be established as
a benchmark for how the attorney's behavior differed from that
of an attorney acting in a "reasonably prudent" manner.
Sometimes, another attorney will need to testify in court, saying
what actions they would have taken in the case, had they been
the client's attorney. Other times, this standard of care is so
obvious, such as theft from a client, that the standard will not
involve the testimony from another attorney.
If no tangible injury can be pinpointed as the result of the
offending attorney's negligence, then the legal malpractice case
will fail. In negligence claims,
the client usually believes that they would have received more
money for their own injuries, had their attorney taken specific
courses of action during trial. If this casual relationship between
the offending attorney's actions (or inaction) and the resulting
monetary damage can be established, then only the last point needs
to be proven.
The last point is the amount of damages that were the result
of the attorney's misconduct. In any legal malpractice case, a
dollar figure will need to be established and linked to the misconduct.
Some of the most common examples of legal malpractice include
the lawyer failing to a know or ascertain an important deadline
such as statute of limitations, failing to secure witnesses or
experts for the case, failing to properly pursue the case or forcing
a settlement that unjustly harmed the client.
It is important for clients to understand that if they bring
a legal malpractice case against their former attorney, this attorney
may not be subject to attorney-client privilege. In order to defend
themselves from the charges of legal misconduct some of all of
attorney-client privilege may be breached.
Legal malpractice cases are also usually lost when an attorney
makes errors, not due to neglect or malice. Errors in judgment
that occurred in good faith are usually not actionable. In addition,
changes that happen in the law during or after trial are not something
that lawyers are usually held accountable for unless the changes
had received much attention up to the actually implementation
of the new law.
Some people may not think that their attorney committed legal
malpractice, but rather that the attorney's bill is unreasonable.
It is best to get a fee agreement upfront so that costs can be
outlined and expectations set. For matters such as this, negotiating
for lower fees with the lawyer would be the first step. Clients
may also turn to audit companies, other attorneys or legal professionals
to help assess whether or not one's primary attorney's fees are
out-of-line with the standard fees within the legal community.
Many people mistakenly think that they will not be able to find
an attorney who would be willing to go up against another attorney
for legal malpractice in a court of law. This is simply not true.
While some attorneys may be hesitant, they are also under an obligation
to represent those who have been wrongfully injured. The ABA Cannons
of Ethic and Model Code or "model rule" as it is sometimes
called, at one time stated this specifically and now is generally
accepted as part of common law that attorneys need to provide