Legal malpractice is just as frustrating as it is damaging. You put your trust in a lawyer and rely on them to help you resolve a pressing issue. When they fail to handle the problem correctly, the result can be devastating. Now the situation grows even worse. Is suing your lawyer the right route?
Malpractice means that the lawyer failed to use the ordinary skill and care that would be used by other lawyers to handle your unique situation. Not only did they lose your case, but they lost your confidence.
Does legal malpractice apply to your case?
Suing a lawyer for malpractice is similar to suing a medical professional for malpractice. The court requires sound evidence to consider your legal malpractice claim. If a surgeon causes permanent scarring after performing on a patient, he/she might be sued for negligence. An attorney can be guilty of negligence as well. Perhaps they did not file your paperwork on time, misused your funds or had a clear conflict of interest.
Four elements must be proven to establish legal malpractice:
- Your lawyer broke a written contract or agreement in which you were owed a duty. They owed you competent and skillful representation, but failed to handle your case properly.
- Your lawyer breached that duty. They acted carelessly, negligently or made a mistake.
- Your lawyer’s breach resulted in damages to you. To prove causation is the most difficult element.
- All the above resulted in financial loss. You must be able to prove the amount you could have won if it wasn’t for legal malpractice.
What does not qualify as legal malpractice?
A lawyer who acts negligently, breaches a contract or violates professional conduct can be sued for legal malpractice. Some situations, although, do not always warrant a claim:
- You lost your case. The outcome of your case is not sound evidence of malpractice, when presented alone.
- Bad communication. While it is your attorney’s job to reasonably communicate with you, failure to answer your emails or calls is not always considered as neglect.
- Conflict of interest. There is a gray area when it comes to conflict of interest. You might argue that your attorney is friends with the opposing attorney, but that does not mean a conflict exists.
Proving legal malpractice
The first step is proving the four elements above. Next, you will need to show a clear causation. This is where it gets complicated, and why you will ironically need a lawyer. You must prove to the court that you would have won your original case if that attorney followed the Rules of Professional Conduct. In summary, you show that your case could have been won with any other competent lawyer.