What is Legal Malpractice?
Your previous attorney made a mistake, but do you have a claim? The answer is yes — the fact that the responsible party may be your own attorney does not absolve that attorney from all liability.
Legal malpractice occurs when there is a failure to perform according to industry standards and codes of ethical and professional conduct. It is important to keep in mind that an unfavorable outcome in a previous legal matter is not sufficient to warrant a legal malpractice claim. Any viable legal malpractice claim will depend on the facts of your particular case. Moreover, the prevailing view on legal malpractice is that it includes any professional misconduct whether attributable to a breach of the standard of care or of certain fiduciary obligations.
If your attorney made a mistake, here are some questions to consider:
Was the attorney negligent?
• Approximately 25 percent of legal malpractice cases occur through an attorney’s negligence in the handling of their relationship with the client.
• Again, not every mistake amounts to negligence. Typically, negligence is looked at in terms of the reasonableness of an ordinary attorney at the time or under similar circumstances. This leads to an attorney’s requirement to act consistently with the community standard of care.
• “Neglect” is an important term to know. Neglect is defined as a disregard of duty resulting from carelessness, indifference, or willfulness.
Did the harm cause a financial loss?
• Statistics show that as much as 40 percent of all legal malpractice claims that are filed concern the attorney’s handling of a fee arrangement or the communication of the value of all services rendered.
• “Commingling” is an important term to know. Commingling describes an attorney’s act of combining funds from a client with his own funds. This is generally seen as a breach of the attorney’s duty to act in good faith and with care, candor, and loyalty.
What does an unsuccessful claim look like?
• When plaintiffs allege malicious prosecution, abuse of process, intentional infliction of emotional distress, and defamation, among others, it is difficult to win.
• These types of suits are typically unsuccessful because of the privileges available to attorneys.
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, and Whaley Law Firm can help you assess the strength of your case and the appropriate next step.
Sources:
https://www.americanbar.org/groups/litigation/committees/commercial-business/practice/2019/when-does-a-mistake-become-malpractice/
https://hirealawyer.findlaw.com/choosing-the-right-lawyer/legal-malpractice.html
Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice §1.1 (1st ed. 2006).
