Similar to medical malpractice, legal malpractice occurs when an attorney fails to perform according to the proscribed standards and codes of ethical and professional conduct. Still, not getting the desired (or expected) outcome in your case is not enough to warrant a malpractice claim. Attorneys must have been negligent, in breach of a contract, or otherwise in violation of the American Bar Association’s Rules of Professional Conduct (adopted by all state bars except California ).
If your lawyer has violated these rules (such as comingling financial accounts or a conflict of interest) or acted negligently in some way, you may file a legal malpractice claim. In order to win your case, you would have to show that a typical (and competent) lawyer would have prevailed in your case.
For legal malpractice claims based on negligence, you need to prove the following four elements:
The lawyer owed a duty to provide competent and skillful representation;
The lawyer breached the duty by acting carelessly or by making a mistake;
The lawyer’s breach caused an injury or harm; and
The harm caused a financial loss.
Terms to Know
Commingling: Attorney’s act of combining funds of his beneficiary, client, employer, or ward with his own funds. Such act is generally considered to be a breach of his fiduciary relationship.
Conflict of Interest: A conflict between competing duties, as in an attorney’s representation of clients with adverse interests.
Fiduciary: One often in a position of authority who obligates himself to act on behalf of another (as in managing money or property) and assumes a duty to act in good faith and with care, candor, and loyalty in fulfilling the obligation.
Neglect: A disregard of duty resulting from carelessness, indifference, or willfulness.
Working with a Legal Malpractice Lawyer
Proving legal malpractice is no easy task. In addition to proving the four elements discussed above, you would need to show a clear causation. In other words, it must be clear to the court that you would have prevailed in your case had the attorney abided by the Rules of Professional Conduct.
Additionally, facts that may suggest violations of ethics or professional responsibility are not necessarily actionable. For instance, two lawyers who are good friends may eventually end up on opposite sides of the same case. That is not necessarily a conflict of interest, as long as it’s not a familial relationship, but could be in some circumstances. And while your attorney is required to communicate with you in a reasonable manner, failure to return your every phone call is not necessarily an act of neglect.
So these types of cases really come down the specifics and what can be proven as the cause of a given outcome. See FindLaw’s directory of legal malpractice attorneys if you would like to learn more or need to file a claim.