What constitutes legal malpractice? Does false information fall under that? This has to do with probate.

Asked about 2 years ago - Dallas, TX

Big bill. Said deposition was scheduled. No notice ever sent. Said sanctions were issued. No motion ever filed. Said Contempt charges were issued. No motion ever filed. Said search warrants were going to be issued against other side as well as their attorney for not cooperating in producing documents. Found out a probate judge can not issue search warrants. This went on for 4 years and we were charged for it all along, so you can imagine the size of the bill. We have changed attorneys and the files have been gone over. None of these things were ever done. Is this considered legal malpractice or breach of contract?

Attorney answers (5)

  1. Orsen E. Paxton III

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    Answered . I seem to recall these facts from a previous posting and you apparently followed the advise given by several lawyers and obtained a new attorney. Good. If your new attorney is not interested in evaluating the legal malpractice claim it is probably because that is not part of his/her practice area. But, he/she could probably refer you to an attorney who does represent people in that type of tort claim. You have only 2 years after learning of the malpractice to file a lawsuit seeking damages. That can be extended sometimes using breach of fiduciary duty as the basis. You can also file a grievance through the State Bar of Texas but that will not result in the award of damages. Most lawyers who handle malpractice claims take them on a contingent fee basis.

    DISCLAIMER: This is not specific legal advice and does not establish an attorney/client relationship.
  2. Joseph Jonathan Brophy

    Contributor Level 20

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    Answered . I can't tell based on your question whether this is legal malpractice, breach of contract or just shoddy representation. You are now represented by another attorney who has the file and knows the facts and the law in detail. That's who you should be asking for advice or for a referral to a profesional responsibility attorney who can address your issues with prior counsel.

    Any opinions stated in response to Avvo questions are based upon the facts stated in the question. Responses to... more
  3. Don Karotkin

    Contributor Level 16

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    Answered . Your question inquiring what constitutes legal malpractice sounds simple, but the answer is very complex. In general terms, however, legal malpractice is lawyering that is below the applicable standard of care which proximately causes a financial loss to the client. The standard of care is what an ordinarily prudent lawyer would do under the same or similar circumstances. This issue is usually resolved by the jury on the basis of their evaluation of conflicting expert testimony of lawyers retained as expert witnesses in a legal malpractice lawsuit.

    Misrepresentations of fact by a lawyer to a client are not, generally speaking, legal malpractice. Legal malpractice involves negligent conduct, not intentional misconduct such as lying. However, lying to a client can also form the basis of lawyer liability, if it causes financial harm, based on a fraud/misrepresentation claim.

    Lawyers have the same duty to perform contractual duties as everyone else. If they breach their contract and thereby cause financial harm, they are liable for that harm just like anyone else. I cannot say whether or not your lawyer breached his contract with you because you do not say what its terms were and your description of what happened is a little vague.

    Since you now have a new lawyer, I strongly recommend that you take these matters up with him or her. He or she may wish to refer you to a plaintiffs' lawyer who specializes in legal malpractice.

    Good luck.

  4. David M. Pyke

    Contributor Level 15

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    Answered . What you describe is more clearly a breach of fiduciary duty and a breach of ethics instead of malpractice. Semantics aside, it is wrong. A lawsuit should be strongly considered. I'm attaching a link about fiduciary claims against executors/trustees, but it applies to lawyers (who are fiduciaries for their clients) as well.

    There is no legal relationship created or implied by the exchange of message on this website. All statements are... more
  5. Eric Jerome Gold

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    Answered . Given that you have new representation in the matter, you should be directing these questions to your attorney(s). Determining whether or not your prior counsel committed malpractice is a factual question which would require an in depth analysis of the facts. If you new counsel does not want to explore this on your behalf, they should refer you to a local practitioner for assistance.

    When responding to questions posted on Avvo, I provide a general purpose response based on California law as I am... more

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Legal malpractice and negligence

Legal malpractice is when an attorney harms a client through unreasonable errors, and harm would not have occurred "but for" the errors.

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