Malpractice doesn’t just apply to doctors and dentists. It may also apply to lawyers.
The term “legal malpractice” is a rather broad catch-all phrase that includes a variety of civil liability claims filed against attorneys who breached their duty to clients. There are also rare exceptions when an attorney may also be sued for breaching duties to another person/third party.
Breaches may include violating civil or criminal statutes, violating the stated standard of care a lawyer must practice, breaching disciplinary rules or even committing a criminal offense. However, it is worth noting that not all negligent acts or breaches by lawyers cause injury, just like in medical malpractice cases, where not all bad outcomes due to a medical procedure are malpractice.
If lawyers are found in breach, they may face losing their license to practice, be disqualified or disbarred, face fee forfeiture or be required to pay damages.
Lawyers, by implication, represent themselves to any potential clients that they have the skills, the learning and the abilities to handle their case. They imply they know the law and will practice it with due diligence to the best of their abilities. They imply they will use care when using their skills and knowledge to handle a client’s case. Not performing up to the standards implied and doing so negligently may result in the attorney being sued.
To file a malpractice claim against your lawyer, there needs to be several elements present to prove negligence. Those elements are that the lawyer had a duty of care to their client, that the duty was breached, that the breach was the direct cause of injury to a client and a claim for damages.
Proximate or direct cause in cases dealing with legal malpractice means foreseeability and cause in fact, meaning the lawyer should have known the act would cause the client harm. There is one distinction here that is important to note, and that is that attorneys usually owe a duty of care to clients only – not third parties.
To prove that this standard of care was breached usually requires the expert testimony of a lawyer, which may seem a bit like the fox guarding the hen house. However, this is no different than needing a medical expert for a medical malpractice trial. In other words, proof of the required standard of care and that the standard was breached would be testified to by another attorney.
Many clients don’t realize that lawyers are actually fiduciaries, which means they owe their clients complete loyalty and are mandated to provide honest and complete disclosure of everything to their client while they are handling their case. This, in a nutshell, means the attorney must put their client’s interests before and above theirs and other people.
If the lawyer does not keep the client up-to-date on everything the client needs to know, this may be regarded as hiding information. Believe it or not, lawyers are mandated to very strict and rigorous standards. Those who fail to live up to them may pay the ultimate price of disbarment.