Legal Malpractice Law
By Aaron Larson
March, 2005
Contents
Legal malpractice refers to situations where a lawyer acts in a negligent manner when providing legal advice or representation, causing a client to suffer harm. The laws and standards for a legal malpractice case can vary significantly between states and regions of the country, so if you wish to have a specific set of facts and circumstances evaluated as possible legal malpractice you should consult with a qualified legal professional in the jurisdiction where the lawyer represented you.
Elements of Legal Malpractice
To prevail in a legal malpractice case, a plaintiff must typically prove all of the following by a preponderance of the evidence:
- Duty: The existence of an attorney-client relationship;
- Breach: Negligence in the legal representation of the plaintiff;
- Causation: That the negligence was a proximate cause of an injury;
- Damages: The fact and extent of the injury alleged.
Malpractice laws vary from state to state, and you should be aware that state may require elements of proof different from those listed above.
Proving Your Case
The first element that a plaintiff must establish in a legal malpractice case is the existence of an attorney-client relationship. Absent a professional relationship between the plaintiff and the defendant lawyer, the lawyer has no duty to the plaintiff and there is no basis in law for a malpractice action. (Except in very unusual circumstances, such as where the lawyer attempts to represent both sides in the same litigation, you can't sue the other side's attorney for malpractice.)
The second element involves proof of the "standard of care" applicable to the legal representation, and evidence that the lawyer violated the governing standard of care. There are cases where it is easy to establish a breach of duty by the lawyer. For example, where an attorney is holding money in a trust account for a client, but steals the money and spends it, there is a very clear duty owed to the client and very clear violation of the duty by the lawyer. As legal representation is often complex, it is often necessary to use an expert witness to testify as to the governing standard of care and to establish how the lawyer violated that standard of care.
It must also be proved that the plaintiff suffered an injury as a proximate result of the lawyer's negligence. That is, that the injury resulted from the error or misconduct of the lawyer. By way of example, if a lawyer failed to make an evidentiary objection which would have kept a murder weapon out of evidence, a criminal defendant may have a case for legal malpractice - but if the defendant also confessed to the murder, left his fingerprints all over the victim's house, and was caught with the victim's credit cards in his pocket, the defendant won't be able to demonstrate that the lawyer's mistake changed the outcome of his case, and thus won't be able to establish that an injury resulted from the attorney's negligence. Also, if the connection between the alleged act of negligence and the harm suffered is speculative or extremely attenuated, it may not support a malpractice claim. To support a legal malpractice suit, the injury suffered must ordinarily be a reasonably foreseeable consequence of the attorney's alleged negligence.
Finally, the plaintiff must ordinarily establish that damages were actually suffered as a result of the legal malpractice, and the nature and amount of the damages suffered. Where the plaintiff cannot show that any damages resulted from the legal malpractice, even if all other elements are proved the lawyer will typically be entitled to a dismissal of the case.
In arguing a legal malpractice case, the following factors can be very important:
The "Attorney Judgment Rule" - Under this rule a lawyer is not liable for what, in hindsight, were errors in judgment where the attorney made those judgments in good faith and in the honest belief that the decisions were both well founded in the law and made in the best interest of the client. That is to say, while a gross error in judgment may support an action for legal malpractice, a mere error in judgment made in good faith is not ordinarily adequate to support a malpractice suit. This rule protects a lawyer who acts in good faith and keeps the client informed and involved in the case, but makes what appear in retrospect to be strategic or tactical errors in handling a case.
Changes In The Law - A lawyer is not ordinarily charged with anticipating changes in the law. It is not ordinarily possible to secure a malpractice verdict against an attorney merely because the attorney's advice or representation turns out to be faulty based upon subsequent changes in the law. At times there are a lot of indications that a change in the law may be forthcoming, and a good lawyer will usually try to advise a client about anticipated changes in the law which may affect the client. But, to put things simply, lawyers are not charged with being able to predict the future.
The "Case Within A Case" - Within a legal malpractice lawsuit involving errors alleged to have been made in the course of prior litigation, there may be discussion of whether the plaintiff could win the "case within a case". Depending upon state law, the plaintiff may have to prove that, but for the malpractice, a favorable verdict would have been won or greater damages recovered. In effect, this involes a retrial of the original litigation within the context of the subsequent malpractice action - a case within a case.
Attorney-Client Privilege - In defending against an accusation of malpractice, a lawyer may be permitted to use what were formerly privileged communications from the plaintiff in order to respond to plaintiff's accusations.
Finding a Legal Malpractice Lawyer
Sometimes it is difficult to find a lawyer for a legal malpractice action. This is typically because some lawyers don't feel comfortable suing other members of their profession, and lawyers within a particular area may not want to be thought of by their peers as somebody who might file a suit against them. Nonetheless, there are lawyers in every state who accept legal malpractice cases. If are having trouble finding a malpractice lawyer, try using a lawyer referral service offered by the state or county bar association.