Legal Malpractice

A lawyer who fails to competently represent his client may have committed "legal malpractice." For instance, a client who suffers damages (loses her case at trial) may have a claim against her attorney for malpractice. Typically, malpractice claims are based on the lawyer's:

• negligence,
• breach of fiduciary duty, and
• breach of contract.

Proof of Legal Malpractice

To win a legal malpractice cases against your attorney, you must show that all the following facts exist:

1. An attorney-client relationship existed between you and your lawyer.
2. Your lawyer acted negligently (the most common claim) by not performing up to the standards practiced by other attorneys in the area.
3. The lawyer's behavior (typically failure to attend to the matter) caused damage to you, the client.
4. The legal result or outcome would have been different if the lawyer had not acted negligently.
5. You suffered a financial loss as a result of the lawyer's malpractice.

The fourth element is the most important. Unless the client can show that the underlying case (the case the lawyer neglected) had merit and she likely would have won that case, she does not a claim for legal malpractice. Because of this element, legal malpractice claims are really a "case within case." The client has to prove the lawyer's negligence as well as show the underlying case could have been won.

TIP: Even if a million dollar verdict would have been awarded, unless the judgment could be collected, the malpractice claim may fail. For example, the absolutely winnable case against a hospital for medical malpractice (which the lawyer neglected to such an extent the case was lost) does not establish a cause of action for legal malpractice if the hospital is bankrupt and the judgment could never have been collected.