In our complex and diverse society, with the increasing and rapid proliferation of laws, rules, regulations, and unique circumstances, we need lawyers who can competently advise their clients. Regrettably, we often witness lawyers undertaking cases beyond their expertise, leading to ineffective counsel and potential legal malpractice.
Many legal malpractice claims are filed by claimants who suffered substantial financial losses because their lawyer agreed to take a case outside their usual area of practice and who failed to research the law regarding the situation for which they were retained. A lawyer who agrees to give advice regarding laws in a state or foreign country where they are not licensed to practice risks being exposed to a legal malpractice claim.
Even though you may have had a satisfactory experience with a lawyer in a personal injury matter, it does not mean that the same lawyer can adequately represent you in a marital dissolution matter. In these cases, a lawyer needs experience and knowledge in distributing the parties’ pensions, 401Ks, and IRAs, coping with child custody and visitation issues, and handling stock options from a family-run business.
Even in personal injury cases that may seem relatively easy to handle on the surface, an inexperienced lawyer will encounter underlying issues that can drastically affect the outcome of a case, even where liability is undisputed. For instance, an auto accident claim may involve worker’s compensation, PIP claims, and uninsured and underinsured claims. Medical providers and worker’s comp carriers often file subrogation claims. If a municipality is involved, there are rules regarding written notice of a tort claim, there may be caps on damages, and a different or shorter statute of limitations may apply.
The law is a dynamic entity, constantly evolving and changing. Lawyers must keep pace with these changes to provide effective counsel. While attorneys are required to take CLE or continuing legal education courses, these are not always sufficient. They also need to subscribe to legal publications or journals in the areas where they practice and attend seminars. A lawyer who takes a case in an unfamiliar area of the law is also encouraged to speak to those practitioners who regularly practice there, highlighting the importance of continuous learning in the legal profession.
Proving a Legal Malpractice Claim
Legal malpractice is also negligence. Like other negligence causes of action, the plaintiff in a legal malpractice proceeding has the burden to prove all the elements of the case by a preponderance of the evidence or that it is more likely than not that that element has been proven. These elements are:
- The defendant-attorney had a duty of care to the client (existence of an attorney-client relationship)
- The attorney breached the standard of care (failing to adhere to the standard of care, skill, and diligence expected from members of the legal community)
- The attorney’s negligent conduct was a proximate cause of damages to the claimant
- The claimant can prove she suffered demonstrable damages that are recoverable
If the defendant-attorney’s negligence was his failure to know or to properly interpret a law, rule, or regulation that led to substantial financial losses to the claimant, then that attorney may have committed legal malpractice. The damages incurred, however, must not be speculative in nature.
It is not malpractice for a lawyer to handle matters in which he has little to no experience so long as he takes the necessary steps to become knowledgeable and to apply and properly interpret the applicable laws or regulations. Your legal malpractice attorney can demonstrate that the defendant-lawyer committed malpractice by showing that he failed to attend any seminars or courses about the specific legal area he agreed to take on, did not conduct legal research about your matter, and failed to speak to experts or other attorneys who regularly practice in that area of the law. If he failed to advise you properly, which led to your losing substantial funds or compensation that would not have occurred if he had followed the standard of care reasonably expected of an attorney in the legal community, you may have a valid cause of action.
Retain a Legal Malpractice Attorney from Burns and Jain
Legal malpractice claims are a unique area of the law that few legal practitioners care to handle. If you suspect that your attorney misapplied the law or regulation in your case or failed to know the applicable law that substantially affected the outcome of your case, then call a legal malpractice attorney at Burns and Jain at (617) 227-7423 for a free consultation.