Legal Malpractice Explained

At its simplest, legal malpractice is when an attorney makes a sloppy mistake that causes you to lose your case. Common mistakes leading to malpractice claims include not filing a motion on time or missing a court hearing. It’s not enough for the attorney to make the mistake, however; other conditions must apply. Here is what you need to know before filing a legal malpractice suit.

What Is Malpractice?

Most important, to even begin considering filing a malpractice suit, you must have had an attorney-client relationship with the attorney you’re planning to sue. Think about what your interaction with the attorney was like. Was it in the attorney’s office? Was it over the phone? Was it at a party? The more formal the meeting, the more likely there’s an attorney-client relationship. If you’ve got an actual contract or retainer signed by both you and the attorney, then you’ve definitely got an attorney-client relationship, and you can move on to the next step.

Furthermore, for the mistake to be malpractice, it has to be more than just a mistake in judgment. As long as the judgment was the kind of decision that was reasonable to make given the knowledge the attorney had at the time, a choice of strategy that doesn’t work out is not grounds for malpractice.

The Criteria for a Malpractice Charge

For a malpractice charge to stick, the attorney must have:

  • Made a careless mistake
  • Failed to live up to a contract
  • Behaved in a manner that’s against the rules of professional conduct
  • Made a mistake that directly caused you damage

Once you can prove those things, you can start thinking about suing for malpractice.

Three kinds of mistakes or behaviors lead to successful malpractice charges:

  • Proof of negligence
  • Breach of contract
  • Breach of fiduciary duty

Each of these mistakes and behaviors are covered in detail in the following sections. For all of them, the following conditions must be met:

  • The behavior you’re complaining about had to be one that a reasonable attorney would not engage in.
  • The behavior caused your injury (loss of money, etc.).
  • But for your attorney’s behavior, you would not have suffered an injury.

If you can show that these three conditions apply, together with proof of negligence, breach of contract, or breach of fiduciary duty, you’ve got a legal malpractice case.


In everyday English, the term negligence means carelessness. Carelessness is an element of legal negligence as well, but that’s not all there is to it. Legal negligence also requires that there be a relationship between the parties that makes one party responsible for behaving with reasonable care toward the other. This is called a “duty of care” toward that other person. The attorney-client relationship fits that requirement.

In addition, to prove legal negligence you have to show that the responsible person didn’t live up to her duty to act reasonably carefully, or “breached” her duty of care. This is the part where you have to show that the lawyer didn’t do what a reasonable attorney would have done in this particular case. What a reasonable attorney would’ve done is decided by determining the “standard of care” that should be used. To do that, you’re likely to need an expert witness, like another lawyer, to testify as to what that standard of care should be and how the accused lawyer violated that standard.

You also have to show that the attorney’s failure to act with reasonable care was the direct cause of what happened next. Believe it or not, this is often the weakest link in the negligence case. There are lots of reasons that a case doesn’t go the way you hoped. Narrowing those reasons down to one main reason can be hard for a jury when they’re presented with all the problems that a case presents. Expert witnesses can be useful in establishing a link between the attorney’s breach of duty and what went wrong in the case.

Finally, you have to show that you were injured as a result of the attorney’s failure to act with reasonable care. This seems easy, but like everything else in negligence, it’s not a cut-and-dried matter. Your injury has to be one that can be measured and that wouldn’t have happened without (or “but for”) the attorney’s failure to act reasonably in your case. For example, you might have lost the case anyway, based on other issues.

This brings up the issue of the case within a case. In many states, in order to win a malpractice case based on negligence, you have to show that you would have won the original case had the attorney not made careless mistakes. This means that you’ll have to conduct the trial for your original case all over again. This makes malpractice cases take longer than many other kinds of court cases.

Breach of Contract

To win a malpractice suit based on breach of contract, you have to prove there was an agreement between you and the attorney, and that the attorney didn’t live up to her end of the agreement. You can see how this fits with the idea of negligence: with negligence, you have a relationship with requirements that the attorney didn’t live up to; with breach of contract, you have an agreement that the attorney didn’t live up to.

Hopefully, you signed a written retainer agreement with the attorney at the beginning of the representation. This is a contract between you and the attorney under which you both have obligations. For example, you agree to pay the attorney for her work, and she agrees to do specific things for you, like file your case with the appropriate court on time.

The retainer agreement should list what the attorney agreed to do and what you agreed to do in exchange. Check through the list and look for what the attorney didn’t do that he was supposed to do according to the contract. For instance, the attorney may have promised to return calls within a certain time period or may have listed a series of actions he was going to take.

Even without a written contract, you may be able to argue that you had a verbal or oral contract that required the attorney to do specific things. The difficulty here is not that oral contracts aren’t enforceable; it’s that they’re hard to prove. They’re not impossible to prove, though, so don’t give this up as a possible way to recoup your losses unless your malpractice attorney tells you it’s not worth it.

Breach of Fiduciary Duty

“Fiduciary duty” isn’t just about money. It’s actually about loyalty, which can include dealings with money but certainly isn’t limited to it. When someone has a fiduciary duty toward you, he has a duty to act in your best interest, not his own. Lawyers have a fiduciary duty to their clients that requires them to give up opportunities for themselves if those opportunities conflict with the client’s needs.

This is where temptation can lead to malpractice. Lawyers keep client money in trust for the client; the lawyer’s fiduciary duty means that he can’t use the client’s money for anything other than the client’s case, even if the lawyer plans to (and does) later replace it. Because lawyers are officers of the court, and because of their fiduciary duty, they are trusted to keep a client’s money safe. When it’s discovered that the lawyer broke that trust, it’s definitely the basis for malpractice. (It’s also the basis for losing his license to practice, but that’s a separate issue.)

Again, it’s not just money that leads to fiduciary issues. If an attorney is involved in negotiating a business deal for you and takes a portion of the deal for himself, that’s a breach of fiduciary duty. If he were truly loyal to you, he would’ve tried to get that portion of the deal for you, not himself.

Other Sources of Malpractice

Attorneys promise to follow rules of professional ethics in exchange for permission to practice law. These are not optional rules, and while they may differ slightly from state to state, they are, for the most part, consistent in their underlying goals. Essentially, the rules state that an attorney has several duties, including …

  • A duty of loyalty to a client (fiduciary duty).
  • A duty to keep client communications confidential.
  • A duty to provide competent service.
  • A duty of honesty in all dealings.
  • A duty to act in a timely fashion.

The rules break these concepts down into more specific, complex issues, like the rules about conflict of interest between one client and another, but for the most part, the preceding list summarizes the major ethical rules.

Why should you care? Because if the attorney violates one or more of the ethical rules, not only is she subject to discipline by the state licensing board (up to and including losing her license to practice law), but she’s also open to malpractice charges. Remember, in order for a malpractice charge to work, you have to show injury. Ethical violations will be punished regardless of whether they result in an injury or not.

What Kinds of Mistakes Can Lead to Malpractice?

The number of mistakes that can lead to malpractice is almost infinite, but some mistakes tend to lead to malpractice claims more than others. These include …

  • Incompetence. This doesn’t mean bad judgment; it means missing deadlines or not doing legal research on a case.
  • Revelation of client confidences. This can support a malpractice claim if the disclosure damages the client’s case.
  • Misleading advertising or unethical “solicitation.” If an attorney’s ads are misleading, or the attorney improperly pursued the client to get her business, it can lead to a valid charge of malpractice.
  • Mishandling client money. After incompetence, this is one of the most common charges in malpractice cases.

Hopefully your lawsuit will go well and you won’t ever need to use this Quick Guide. But if you do have to consider legal malpractice, you now have the knowledge to move forward. Good luck!

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