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What constitutes malpractice? for an attorney?

Tarzana, CA |

we all have had the horrible lazy, thief of an attorney...or so it seems from what people say, and how people feel about you all in general...

what actually warrants a malpractice suit,
*and where do I find another attorney to go after the first one, that is not also a crook themselves?

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Attorney answers 6

Best Answer

Seriously, you expect us to help you now?


Sorry you are having a bad experience with a horrible, lazy attorney. You don't specify the type of case or area of practice, so it is hard to guess what might be the problem.

To answer your question in general about what constitutes attorney malpractice:

First, you need to establish legal duty. Typically, the duty is defined by the attorney-client agreement which sets forth the scope of work. An attorney does not owe a duty to perform some legal obligation which was not agreed upon.

Second, you need to establish that the attorney breached his or her duty to the client. Usually, the client must show that the attorney did not exercise the care, skill, and diligence commonly exercised by other attorneys under similar circumstances. Breach of duty almost always must be proven through the use of expert witnesses.

Thirdly, you need to establish damages as a result of the attorney's conduct of the attorney. Thus, when a legal malpractice claim is based on the negligent handling of a lawsuit, the client must establish that he or she would have prevailed in the underlying action had it not been for the negligent conduct of the attorney.

If your lawsuit is still pending, it would probably not warrant a legal malpractice lawsuit because your damages are yet uncertain and speculative.

However, you might have grounds to make a State Bar complaint:

And you certainly have grounds to substitute a new attorney for your case.

The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.



Hi Mr. Chen is there a statute of limitations for 1) filing a complaint to the State Bar or 2) suing for fraud?


Really, "we've all had bad lawyers"? I get that people resent people who are smarter then them, but I don't get lawyer bashing while asking for favors from all us horrible lawyers.

Malrpactice doesn't mean "horrible," whatever you mean by that, or "lazy" (if you had any understanding about how rigorous law school is, and how stressful the practice of law can be, I don't think you'd say that). "Thieves" and "crooks" who actually steal money should be reported to the police or the State Bar. That's not malpractice either. Your post is very short on facts and is more name-calling with your own vague conclusions. If you want to blame lawyers (or a particular lawyer) for your problems, fine, but if you want some lawyers to provide you with meaningful help, try adjusting your attitude and providing more facts.

Generally, malpractice is performance of duty below the standard of care that causes bad result which would have been avoided "but for" the negligence. It's work (or failure to do work) so bad that no other lawyer in the locality would do (or not to) the same thing.

Malpractice cases require you to prove a "case within a case." It requires to you prove the case the lawyer alleged screwed up, to show that "but for" the lawyer's negligence, the case would have been won. So you need a winning case, and you need some actual acrew up that causes the good case to be lost. If you didn't have a good case, then the worst lawyer in the world isn't at fault.

There are lawyers that specialize in legal malpractice cases, and you can probably find some on AVVO or by googling "legl malpractice lawyer los angeles."

Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.


I can't add much to two excellent answers already posted. I teach ethics to other lawyers and handle legal malpractice cases all the time. I will vouch for the fact that the vast majority of lawyers are honest hardworking people who are committed to their clients. You may find more detailed information in my Avvo guide on legal malpractice. You can access it by clicking on my picture and following the links at the bottom of my bio.

Any opinions stated in response to Avvo questions are based upon the facts stated in the question. Responses to Avvo questions are for general information purposes only, and should not be construed or relied upon as legal advice.


You don't give enough facts to answer your question. In general, legal malpractice is a failure to represent a client within accepted standards of care in the legal community - i.e. negligence. You also must have damages, i.e. harm that is caused by the negligence. Obviously if a lawyer is stealing from you, he is a thief and a crook and should be reported to the police and the state bar to be disciplined.

The very nature of legal disputes usually results in one winner and one loser. Just because someone loses doesn't mean that person's lawyer committed malpractice. Also, just because the lawyer charged a losing client a fee doesn't mean the lawyer is a crook or a thief. It often just means the loser had a bad case from the beginning.

Lawyers are kind of like cops, you don't like them until you need one. And when you need one it's not necessarily a happy time.


So, your approach is to first insult a group, then ask for help?

My guess is that you will have many opportunities to be involved with lawyers in the future.

I am licensed in the Commonwealth of Virginia, answering your query does not create an attorney-client relationship and I AM NOT providing you legal advice. You should speak with an attorney to whom you have provided all the facts, before you take steps that may impact your legal rights--or rights to recovery of damages. I wish you the best of luck with your situation.

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