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Legal Malpractice Liability

If a lawyer or other professional person makes a mistake and someone or something is injured, professional malpractice may have occurred. Professional malpractice law deals with the negligence or misconduct of people in the dental, legal, and medical fields, as well as many other professionals. A lawyer experienced in malpractice law can help a client determine whether malpractice has occurred, and can represent the client throughout the entire litigation process. A defendant in a legal malpractice case must seek the most zealous and competent representation available, because plaintiffs' lawyers have a duty to fervently represent their clients, even lawsuits against other lawyers, or they themselves could be subject to a claim for malpractice.

When Does Legal Malpractice Occur?

A lawyer commits legal malpractice if he or she fails to provide quality legal services to a client. A plaintiff suing for legal malpractice must establish four elements in order to prove the case: duty, breach, injury, and proximate cause. A judge or jury will determine whether all four elements have been established and, if one or more of them has not, the plaintiff will not be able to recover.

A lawyer has the duty to act honestly and with good faith, fairness, and integrity in all dealings with his or her clients. A lawyer's duties to clients include the duties of undivided loyalty and confidentiality. In addition, a lawyer must possess the skill and knowledge that is ordinarily possessed by other lawyers. No lawyer can be expected to know all laws off the top of his or her head, but lawyers are expected to know how to find answers to the client's questions through legal research and when to refer the client to another lawyer with expertise in the relevant area.

There can be confusion as to when an attorney-client relationship is established such that a duty arises. In many cases, a potential client may have a preliminary consultation with a lawyer without officially retaining him or her; in such cases, the lawyer should make it clear to the client whether it is intended that there be a continuing attorney-client relationship.

A Minnesota case is often cited on the subject of when an attorney-client relationship exists. In that case, the plaintiff claimed that her attorney had negligently advised her, after less than one hour of consultation, that a medical malpractice claim that she wanted to bring had no merit. The claim was later barred because the statute of limitations had expired, and the plaintiff then sued her lawyer. The lawyer defended on the ground that an attorney-client relationship was not created by his discussion with the plaintiff. The jury, however, disagreed with the lawyer and found that an attorney-client relationship did exist. The Minnesota Supreme Court upheld the verdict, finding that an attorney-client relationship can arise even in the absence of a formal retainer agreement or any other contractual factor when a party seeks an attorney's advice and relies upon that advice. In that instance, the relationship gave rise to a duty to at least obtain and review the medical records in the underlying case, or for the attorney to explain his lack of expertise and refer the plaintiff to another lawyer.

Other states apply different standards than in the Minnesota example, however, and find that an attorney-client relationship exists only when there is an express contract between the parties for the rendering of legal services and the payment of fees. In any jurisdiction, lawyers would be well advised to establish their relationships in a formal, written agreement in the event a dispute later arises.

A lawyer's duty of care may extend to persons who are not his or her clients, but rather are intended third-party beneficiaries of the relationship with a client. If, for instance, a lawyer incompetently drafts a will such that the testator's intent that his children inherit is not carried out after his death and the testator's children lose their intended inheritance, the children may have a legal malpractice claim against the lawyer who drafted the will, even though they never directly entered into a relationship with that lawyer.

If a lawyer makes an error that would have been avoided by a competent lawyer exercising a reasonable standard of care, the breach element of a legal malpractice claim is satisfied. A claim may also arise if the lawyer is unprofessional in his or her relationship with the client, such as violating a confidence or engaging in a conflict of interest; when a third person claims injury as a result of the attorney's conduct, as in the will example given above; or as a defense if the lawyer sues the client to recover fees, i.e., the lawyer sues to recover unpaid legal fees, and the client argues that no fees are owed because the lawyer did an unsatisfactory job.

Breach is often the hardest element for the plaintiff to establish in a malpractice case because most professionals can make mistakes and not be considered negligent. The law is not an exact science, and there is often room for disagreement on the best course of action in a particular case. Even if a client can establish that another attorney would have made a different decision or chosen a different strategy, he or she may not be able to establish a breach of duty.

If the plaintiff can prove a breach, he or she must next show that the breach caused an injury. If, for example, a lawyer files an appellate brief late and the client loses the appeal, there is no injury if the court subsequently granted the lawyer an extension and accepted the brief. If, however, the appellate court dismisses the appeal due to the late filing, the client may be able to recover damages. Even so, the client will probably have to establish that the appeal would have been successful, which may be hard to prove.

Lastly, the plaintiff in a legal malpractice case must prove that the lawyer's breach proximately caused the plaintiff's injuries. As most lawyers are aware, the issue of proximate cause essentially asks the question, "Is the lawyer's conduct sufficiently responsible for the client's damages that the lawyer should be held accountable?" Proximate cause is fairly easy to establish in a simple case, such as when the lawyer misses a critical deadline and loses the case, but it is harder to prove in more nebulous cases, such as when the client claims that the lawyer pursued the wrong course of action at trial. In the latter case, the client will need to show that had a different strategy been employed, he or she would have won the case, or that the damages awarded would have been significantly higher.

If the plaintiff establishes all four elements, the lawyer will be held liable for direct economic losses, such as the cost of hiring a new lawyer to correct the first lawyer's errors and any fees or penalties paid. It is usually more difficult, however, to recover more speculative damages, such as amounts for what might have been the outcome if a different lawyer had handled the case, for emotional damages, or for the costs of the lawyer handling the malpractice case. Sometimes punitive damages are awarded, but only if the attorney's breach was willful or especially malicious.


Generally speaking, an attorney can be liable for damages if he or she had a duty to a client, the duty was breached, the client was injured, and the breach caused the injury. Attorneys, like doctors, are, unfortunately, frequent targets of malpractice suits. A lawyer experienced in professional malpractice law can help a potential defendant determine whether he or she has committed malpractice, determine what defenses may be available, and provide representation throughout the entire litigation process. Lawyers experienced in professional malpractice law can also advise attorneys on preventing malpractice in the first place through good professional practices.

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Donald Briggs C. Donald Briggs, III Feb. 7, 1954 - Sept. 7, 2014 Your dedication and hard work continue...