Legal Malpractice and the Standard of Care for Professionals

We hire professionals to handle matters we ordinarily have little or no knowledge or training in, and we trust that the professional has the requisite skills to perform a particular task to our benefit. When that professional fails to perform in a way that is reasonably expected, then the client may have a cause of action for malpractice, breach of contract, or breach of fiduciary duty.

Professionals are held to higher standards of conduct than ordinary people. For example, an attorney has a fiduciary duty towards a client and cannot benefit from a case to the detriment of or in opposition to the client’s best interests. However, other actions by an attorney can also constitute legal malpractice if the attorney fails to adhere to a certain standard of care. 

What is the Standard of Care for Attorneys?

Not every situation for which we retain an attorney turns out satisfactorily. But because a case or claim does not meet our satisfaction or even results in a monetary or other judgment against us, it does not necessarily mean that the attorney committed malpractice. 

In any negligence or malpractice case, the claimant or plaintiff must prove that the attorney breached the standard of care. The standard of care to which the attorney must adhere is the amount of care for which a reasonably prudent attorney practicing in that area of law would be expected to exercise or meet. If a claimant loses a case because the facts and the law were not on his side, there is likely no malpractice. The result of a case might also hinge on a court or jury’s judgment on how it interpreted the facts or the credibility of the witnesses. The attorney’s performance in cross-examination or arguments might not have been stellar, but a poor performance does not automatically rise to the level of malpractice unless the attorney’s incompetence is unusually stark. This might include continually failing to object to evidence that should not have been admitted or not cross-examining a crucial witness, all due to the attorney’s neglect, lack of knowledge, or perhaps his having been in a drowsy or intoxicated state. 

Fiduciary Duty and Legal Malpractice

An attorney owes a client a fiduciary duty when he occupies a position of trust and is expected to act only in his client’s best interests. Although breach of fiduciary duty and legal malpractice may appear similar, courts generally separate the two causes of action if the facts dictate it. Breach of fiduciary duty usually implies an intent to defraud the client, while the legal malpractice standard of care assumes negligence on the attorney’s part where his conduct in the case falls below the professional standard of care. For instance, if the attorney assisted his partner in committing fraud or intentionally lied or misrepresented facts to the client about the lawsuit, this would likely result in a claim for breach of fiduciary duty. 

The difference between these two lies in the attorney’s culpability and state of mind when intentionally misleading the client or committing an illegal act, such as stealing the client’s funds from the attorney’s trust account. Legal malpractice usually assumes that though the attorney may have lacked criminal intent, he failed to act competently or in the manner reasonably expected of a reasonably prudent attorney under similar circumstances. 

Examples of Breach of Standard of Care

As noted, legal malpractice generally connotes acts of negligence rather than an intentional or criminal act. Common examples of the breach of the attorney’s standard of care are:

  • Missing filing or other document deadlines leading to the case’s dismissal or which greatly diminishes reasonably expected compensation.
  • Constant failure to communicate–an attorney who rarely returns phone calls or responds to emails.
  • Irresponsible conduct—this might entail being unprepared for trial, not filing an opposition to a motion that has drastic consequences, failing to appear at meetings, or appearing in court intoxicated or under the influence of drugs
  • Failing to gather or obtain evidence that a reasonably prudent attorney would have done, such as obtaining witness statements, surveillance videos, emails, social media posts, or neglecting to file a claim against a party who demonstrated liability or culpability in the case
  • Failing to adequately investigate the case or investigate at all, such as not conducting discovery
  • Overcharging or overbilling a client for work that was minimal or not performed at all
  • Failing to properly advise a client of obvious tax consequences in a transaction
  • Giving unreasonably poor advice that leads to a breach of contract or other monetary loss

If you suspect that your attorney acted incompetently or irresponsibly in your case, do not hesitate to consult an experienced legal malpractice attorney to determine if your attorney’s conduct may be legal malpractice.

Retain the Law Office of Burns and Jain

All clients deserve to be represented by competent legal counsel who act in their client’s best interests and perform their professional duties in a manner consistent with that of reasonably capable attorneys practicing in that area of the law. When an attorney fails in his duty, or you suspect he has, you should immediately contact a legal malpractice attorney at Burns and Jain.

Contact our office at (617) 227-7423 for a free consultation about your legal malpractice claim.

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