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Legal Malpractice – A Primer for Non Lawyers

Posted by attorney Joseph Brophy

Legal malpractice and breach of legal ethics are not the same thing. It is common and understandable, that non lawyers do not understand this very important distinction. The same situation may both involve malpractice and ethical issues, but the two concepts are very different and often do not overlap at all. This brief guide focuses on legal malpractice only.

Legal malpractice is professional negligence on the part of a lawyer. Negligence is defined in the law as lack of due care. Negligence is not the same as an intentional wrong. For example, stealing a client’s money is not legal malpractice, because it is an intentional act, not an act of negligence. Malpractice is negligence in the conduct of a professional duty. All of the elements of legal malpractice must be present, or there is no valid claim. These elements are:

  1. A lawyer-client relationship giving rise to a duty of care

  2. A failure of the lawyer to exercise due care

  3. Financial damages to the client directly resulting from the lawyer’s negligence

In many cases the lawyer client relationship can easily be proved by the existence of a written retainer agreement, or by the lawyer appearing for a client in a legal matter. A lawyer-client relationship can also be established by the reasonable expectations of both the lawyer and the person seeking legal advice or services. For example, it is common for people with legal problems to ask lawyers for advice in a rather informal manner. But, if a lawyer gives advice with the expectation that it will be relied on, that may be enough to establish a duty of care. The person on the other end of the phone may well become a client, if the lawyer gives advice expecting it to be relied on, or if they both reasonably expect the lawyer to render some further service.

Failure on the part of the lawyer to exercise due care might involve giving incorrect advice, that a careful lawyer would not give, or not giving advice that the client needs to know. A very common failure of due care, is failure to file legal papers on time, or failure to sue a necessary party to a lawsuit. To prove failure of due care, testimony of a legal expert is usually, but not always required. In cases where the lawyer misses a clear legal deadline, expert testimony may not be required.

Damages are an integral part of a legal malpractice claim. Without damages, the claim cannot prevail. It is up to the plaintiff to prove that the lawyer’s negligence caused a direct financial loss. For example, if the lawyer committed malpractice in handling a lawsuit, the plaintiff former client must prove that but for the lawyer’s negligence, the lawsuit would probably have been successful, and must also prove what would have been been recovered in the lawsuit. If the lawyer gave bad advice in connection with the administration of an estate, the executor of the estate must prove how much money the estate actually lost. In a legal malpractice claim, the plaintiff cannot recover for mental anguish arising from the mishandling of the prior matter. In effect, a legal malpractice claim is a property damage claim, and the plaintiff client can therefore recover interest from the date of the loss.

The plaintiff client cannot recover for remote consequences of the legal malpractice. For example, if ownership of a house is lost because of the lawyer’s negligence in searching the title, the plaintiff client may recover the value of the house as of the time of the malpractice, but not future increases in its value, nor rentals that the house might have produced in the future.

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