Proving Your Attorney’s Malpractice

Proving Your Attorney’s Malpractice

Because we already know what legal malpractice is, it’s time to jump into the standard needed to prove an attorney’s legal malpractice.


The standard of proof in a legal malpractice claim against your former attorney breaks down into four elements: (1) the existence of a client-attorney relationship, (2) a breach of the duty to provide skillful and competent representation, (3) causation, and (4) financial loss.


Attorney-Client Relationship


A relationship of lawyer and client arises when (a) a person’s intent is shown to a lawyer that their legal services are desired; and either, (a) the lawyer takes clear action consenting to the representation of the person; or (b) the lawyer fails to demonstrate their lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.


A legal relationship is a two-way street. You and the lawyer both play roles in establishing the relationship. Let’s break down the establishment of the relationship into the role of the client and the role of the attorney.


Role of the Client


​As the client, you will likely be the party initiating the legal relationship. You are able to demonstrate to a lawyer that you intend for that lawyer to provide legal services for your matter. For example, this may take place when you call the lawyer’s office or come into the office for a consultation on your case. Keep in mind that this alone might not be enough to establish a legal relationship with an attorney. Each situation is different.


Role of the Attorney


​Once a potential client demonstrates their intent to an attorney that they would like the attorney to provide legal services, attorneys must do one of two things to bind themselves to the relationship.


1. A simple demonstration of their consent to the legal representation. For example, a written agreement or contract is the usual course of action, but the relationship can also be implied. Contingent fee arrangements must be in writing, however.


2. The attorney-client relationship may also be established when the attorney does not provide a well-defined denial of legal services. In this situation, the attorney must also know or reasonably should know that the potential client is reasonably relying on the lawyer to provide the services. This issue comes into play when the attorney is not clear that they will not be representing the client. It is important to note that either of these scenarios is enough to establish the attorney-client relationship when combined with the clients’ personal belief that they have shown a desire for that attorney to provide legal services.



Breach of Duty


In performing legal services, an attorney must exercise the care, skill, and diligence that are commonly exercised by other attorneys in similar conditions and circumstances.

A common example of this duty being breached is when the lawyer is incompetent. Incompetence can take the form of missing filing deadlines, failing to conduct sufficient discovery, and failing to communicate settlement offers. Another example of this breach of duty is missing important deadlines for filing with the court.  For more on competence please see the linked article.


More examples of this breach include conflicts of interest and intentional wrongdoing. A conflict of interest is a simultaneous representation of parties with opposing interests without their consent. Intentional wrongdoing can take the form of overbilling, misuse or commingling of client funds, and fraud.



Causation and Financial Loss


You must show that if the attorney had not been negligent or otherwise acted wrongfully, your case would have been successful. Typically, this causation evaluation is made using a “but for” evaluation. For example, but for the attorney’s incompetence in missing the proper filing deadlines, your case would have been successful. In that case, it must be proven that the outcome of a legal proceeding would have been different if your attorney had not missed your filing deadline. It should be noted that when a financial loss would have happened irrespective of your attorney’s mistakes, there is no malpractice.


Whaley Law Firm has experience working with clients whose former attorneys failed to provide appropriate legal representation and suffered harm as a result. That harm can come in many forms.  Whaley Law Firm can help you assess the strength of your case and the appropriate next step.