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Legal Malpractice Is Serious Business

When lawyers make mistakes, this is called legal malpractice. It’s their duty to serve their clients ethically.

Lawyers owe their clients a certain level expertise, a duty, to provide ethical, professional and competent legal services. From time to time, a lawyer may breach these duties and harm a client. Actions that breach the duties owed to clients may fall into a variety of areas that include violations of the professional standard of care or disciplinary rules, or a violation of civil or even criminal statutes. This kind of conduct, if indeed proven, may end up with the attorney paying damages, forfeiting fees and disqualification and/or a loss of their license to practice. Legal malpractice is serious business.

The fact that lawyers have many years of training to become experts in the law and that they have graduated with a degree and have set up a practice, means they are representing themselves to their clients that they have the skills, the know-how, learning and ability to competently practice law. In that representation it is implied that they will apply due care and diligence when using their knowledge to handle client’s legal matters.

“Generally speaking, the most common claim brought against lawyers is negligence. To file a negligence claim against an attorney there needs to be several elements present: that the lawyer owed a duty of care to the plaintiff; that the attorney breached that duty; that the breach of duty caused the plaintiff harm and that damages are owed for the injury,” outlined Brooks Schuelke, an Austin personal injury attorney with Perlmutter & Schuelke PLLC. “You should also be aware that lawyers don’t normally owe the duty of care to third parties, though that area of the law is changing rapidly,” he added.

In Texas, the Pattern Jury Charges says that professional negligence is the “failure to use ordinary care, that is, failing to do that which an attorney of ordinary prudence would have done under the same or similar circumstances or doing that which an attorney of ordinary prudence would not have done under the same or similar circumstances.” In order to try a case like this, the proof of the standard of care and the breach of it usually requires the expert testimony of an attorney.

Another common area of legal malpractice is called breach of fiduciary duty. Lawyers are classified as fiduciaries and that means they owe their clients supreme loyalty and must tell them everything that is going on with their case. This isn’t something they do to please their clients; it’s a “must do” duty that involves good faith and dealing fairly with integrity. Put another way, lawyers must place the interests of their clients above all others and if they don’t fully disclose what is going on, this amounts to concealment.

“Some of the fiduciary duties a lawyer has are the duties to avoid conflicts of interest, keep client communications in confidence, reveal all material information to the client, follow all instructions the client issues and not get mixed up in activities that would adversely affect the client. In breach of fiduciary duty cases, the burden of the proof is on the lawyer to prove that the lawyer complied with the duties,” remarked Schuelke.

“If you feel you have been a victim of legal malpractice, seek legal counsel immediately and discuss the case with an attorney who has experience in this area of the law. This is serious business and you deserve unimpeachable representation. If you have any questions, call me,” Schuelke suggested.

Contact Perlmutter & Schuelke PLLC at or (512) 476-4944.


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