Legal malpractice occurs when an attorney fails to render competent legal advice or representation to a client. Legal malpractice can occur as a result of either negligent or intentional conduct. The three common bases of liability for legal malpractice are breach of contract, breach of fiduciary duty, or negligence.
Elements of a Legal Malpractice Claim
Attorney- Client Relationship Established
In order to successfully bring a legal malpractice claim, the plaintiff must prove the essential elements of the claim. First, the client must prove that the attorney owed a duty to competently represent the plaintiff. While this may seem like an obvious element, it requires the plaintiff to prove that an attorney-client relationship was established. Generally speaking, an attorney-client relationship is established when an attorney gives or promises to give legal advice. Money does not need to change hands between the client and the attorney.
Attorney Breached Duty to Competently Represent Client
Secondly, the plaintiff must prove that the attorney breached his duty to competently represent the client. An attorney can breach his duty either by acting negligently or with intent. An attorney acts negligently when he fails to act with the same diligence, care, and skill that a reasonable attorney would use.
Breach of Duty Harmed Client
Finally, a plaintiff must prove that the attorney's failure to provide competent professional service caused actual harm to the plaintiff. This can be difficult to prove because the plaintiff must show that the same result (or worse) would not have occurred but for the attorney's malpractice.
In addition to proving these three elements, a plaintiff must prove that he or she brought the legal malpractice suit within the applicable statute of limitations. If suit is not brought within the statute of limitations, the court will likely dismiss the suit.
Types of Legal Malpractice
Legal malpractice can occur in a variety of ways. For example, an attorney may fail to competently perform legal research, fail to bring the appropriate causes of action, or fail to comply with the court's orders and filing deadlines. Many times, malpractice actions stem from an attorney's failure to adequately communicate with a client about his case.
Using Expert Witnesses
In most cases, it is advisable to use an expert witness to prove legal malpractice. While some malpractice may be obvious, most times it will take an expert witness to explain the applicable standard of care and how the attorney breached that standard of care.
Legal Malpractice Remedies
Once a court has found an attorney liable for malpractice, there are several remedies. The most common remedy is for the court to award damages to the plaintiff representing the monetary harm the plaintiff suffered. The court may also order restitution. In some instances, criminal fraud or theft charges may be brought against the attorney. All states have a bar organization or supreme court that oversees attorney discipline. These organizations may impose discipline against an attorney, including suspending or disbarring the attorney from the practice of law.
Attorneys owe a duty of care to properly represent their clients. If an attorney breaches this duty of care to a client, the client may sue the attorney for legal malpractice, In successfully litigating such a claim, a client must prove that there was a duty of care, the attorney breached it, and that the client was harmed as a result.