Legal malpractice occurs when an attorney representing a client fails to competently handle a case that substantially harms the client. The attorney’s conduct must have fallen below a standard of care, which is possessing reasonable skills and knowledge in handling a case like other competent attorneys in the legal community would have handled. Unfortunately, certain areas of the law have more legal malpractice claims than others.
Attorneys who practice in complex or challenging legal matters may have a higher risk of being sued for malpractice; or attorneys who try to spread themselves too thin representing folks in multiple areas of law, and not knowing the intricacies of how to do so. Before undertaking such matters, the attorney should perform the necessary research and readings of case law and statutes, be familiar with court rules and practices, observe experienced attorneys in court, or even associate with more knowledgeable and seasoned attorneys before undertaking a complex case.
Which Legal Areas Have More Malpractice Claims?
The following practice areas are prone to malpractice claims, even though an attorney practicing in any legal area can be sued for malpractice:
- Business transactions—An attorney must have a solid understanding of business law and regulations and draft necessary and applicable contract provisions, as failure to know and apply them can result in unnecessary costs and liability.
- Compliance—failure to comply with statutory regulations can lead to penalties, fines, and lawsuits
- Business structuring—failing to advise about the proper legal entity or its implications, or to failing to advise about following the required formalities, can affect tax liabilities and lead to personal liability
- Intellectual property—lawyers need to be aware of regulations, of encroaching on the IP of other entities and individuals, and how to protect the client’s own IP
- Drafting or reviewing contracts—failure to protect the client by not thoroughly reviewing a contract or omitting key provisions in drafting one or not tailoring a provision for the protection of the client can lead to substantial monetary losses
- Exposing trade secrets or other confidential information, whether inadvertent or not
2. Estate planning—It is essential to avoid probate when possible or structure a client’s estate to avoid unnecessary taxes or other complications. Key mistakes include:
- Improper drafting of wills and trusts
- Improper handling of estate assets
- Poor tax planning
- Not accounting for a testator’s mental capacity or not properly documenting it can lead to expensive probate battles
- Leaking or exposing intimate or confidential information
3. Real Estate—A client’s major asset is usually real estate so incompetent handling can have serious consequences. Commercial real estate is especially prone to malpractice claims for the following errors:
- Inadequate title review—a failure to uncover liens or licenses, or disputes over boundary lines or even ownership, can lead to protracted and expensive lawsuits
- Zoning—failure to confirm zoning prohibitions or conditions can result in a client being unable to build or become liable for expensive compliance costs
- Closing procedures—lawyers handling a closing need to ensure all documents, payments, and other conditions have been met
- Contract drafting—a poorly drafted contract can leave clients exposed to substantial costs or liability for things that could readily have been avoided
- Improper management of escrow funds
4. Personal Injury—While handling injury cases may appear relatively uncomplicated, many attorneys ignore the basics and find themselves defendants in legal malpractice claims for the following errors:
- Failing to file a claim within the statute of limitations
- Inadequate or no investigation of a claim—critical evidence can be overlooked, such as the existence of surveillance footage, eyewitnesses, or other possible entities or persons who could be held liable
- Underestimating damages–this is a key element of any PI case. Maximizing damages is essential to obtain the most compensation possible
- Handling expert witnesses—be sure to retain qualified experts to prove and establish liability and damages
- Failing to inform a client of a settlement offer—attorneys may want to settle a case without a client’s consent to obtain a quick settlement or because the attorney failed to competently handle the case
- Inadequate discovery—discovery allows both sides to see what evidence the parties possess or do not to properly frame arguments, settlement negotiations, and prepare for trial
- In motor vehicle cases, not understanding PIP, Personal Injury Protection, law and not understanding how insurance adjusters and insurance defense counsel work.
Conflicts of Interest
Failure to advise clients of a conflict of interest or to obtain a waiver is a major cause of legal malpractice claims in any legal matter. An attorney cannot represent a client against a party with whom the attorney had a preexisting relationship, or represent opposing parties, such as in real estate or domestic matters, unless they obtain a waiver. He also cannot handle a case where his and the client’s interests are at stake and where he may, or potentially, prioritize his own interests over his client’s.
Retain a Legal Malpractice Attorney from Burns and Jain
An unfavorable result is not necessarily evidence of malpractice. However, if you feel your attorney was ignoring you, giving excuses for certain actions, was missing court appearances or not appearing interested in your case, contact a legal malpractice attorney from Burns and Jain. We have the experience and knowledge to give you a reasoned evaluation of your possible legal malpractice claim.