Legal malpractice claims are a unique part of the law of torts. Bringing a tort claim against a professional, like an attorney, always entails a stricter approach than a more standard tort case, like a personal injury claim. Although professionals are generally covered by their own liability insurance, an allegation of malpractice can seriously impact a professional’s career, potentially leading to suspension by the bar and even disbarment in severe cases.
The elements to prove a legal malpractice claim are:
- Demonstrating an attorney-client relationship
- The attorney breached his duty to exercise reasonable care or competence while handling the client’s case
- The attorney’s breach was the cause of the client’s loss or damages
- And, not an element, but a practical point – the damages must be collectable. That is, there needs to be insurance, or a deep pocket attorney or law firm.
The standard that must be met is how a reasonably competent attorney acting under similar circumstances would have acted in your case.
Attorney-Client Relationship
A written retainer agreement can evidence the attorney-client relationship, but also if the attorney provided legal advice to the client, regardless of whether the attorney was paid for their services.
Breach of Attorney’s Duty of Care
An attorney can breach his duty to the client by various incompetent or unethical practices. Common examples are:
- Failure to file a claim with the appropriate court and within the statute of limitations
- Chronic failure to communicate with the client
- Not revealing a conflict of interest
- Forging documents
- Co-mingling the attorney’s funds with the client’s or taking funds from the attorney’s trust fund for his own personal benefit
- Failing to investigate the facts of a case
- Not appearing in court or for court-related matters
- Giving advice that is contrary to known and established law
- Not adhering to attorney-client confidentiality
- Ineffective assistance of counsel
Although unlawful conduct is considered a breach by any standard, other examples are not so apparent. Your legal malpractice attorney will need to show that the attorney’s conduct fell below the standard of what a reasonably competent attorney would have done under similar circumstances. If this is an issue, your legal malpractice attorney may have to retain a legal expert to explain the acceptable standard of care and how your attorney failed to adhere to it. A mere error in judgment is different from a significant departure from recognized legal norms and practices.
Causation
However, the most difficult element to prove in a legal malpractice claim is causation, which means demonstrating that the attorney’s negligent conduct was the direct cause of the client’s damages. Also, the client must have suffered actual damages and not speculative damages.
Why is Causation the Most Challenging Element to Prove?
Not all negligent conduct by an attorney leads to an actionable claim for malpractice. If your attorney neglects to return your phone calls, does not inform you of a court appearance or a settlement offer, it does not mean that you automatically suffered damages. Although the attorney may face disciplinary action if you file a complaint with the state bar, you must prove that you suffered provable and actual damages as a result to recover compensation in a legal malpractice claim.
For example, the failure to file a complaint on time is apparent incompetence, as is the failure to reveal a conflict of interest or to conduct the necessary research and investigation. Still, you must show that the underlying claim had merit and that you would have recovered damages as a result. At times, your legal malpractice attorney may need to litigate the underlying claim, often called the case-within-the-case, to prove that the claim had merit and that you suffered a quantifiable loss.
A personal injury claim may lack sufficient facts to establish liability on the part of the defendant, or your attorney may be unable to demonstrate that you sustained injuries because of the accident or economic loss. In that case, the malpractice claim will not stand.
Retain a Legal Malpractice Attorney from Burns and Jain
Legal malpractice claims should be handled only by attorneys with years of experience in this challenging area of the law, which few attorneys attempt to tackle. If you suspect that your attorney negligently handled your legal case, do not hesitate to contact the Law Office of Burns and Jain for a free, in-depth consultation about your possible legal malpractice claim.