Almost everybody has heard the term “medical malpractice.” But have you ever heard the term “legal malpractice”? If you haven’t, it’s probably because lawyers don’t like to talk about it. Nevertheless, legal malpractice claims are common.
What You Have To Prove To Win a Legal Malpractice Claim
Almost all legal malpractice claims are based on negligence. Below are the four elements you must prove to win almost any negligence claim, including a legal malpractice claim.
Duty of Care
To prove that your lawyer owed you a duty of care, you need to prove the existence of a lawyer-client relationship. Your written fee agreement with the lawyer should suffice. You might have trouble proving this relationship if:
- You participated in a free initial consultation but never hired the lawyer;
- The advice was outside the context of an attorney-client relationship (a conversation with a stranger in a bar, advice you read on a website, or something similar); or
- You didn’t enter into a formal written agreement with the lawyer.
Once you establish a lawyer-client relationship, you need to determine the exact nature of the lawyer’s duty of care to you. You may or may not need an expert witness for this purpose.
Breach of Duty
To prove that your lawyer breached their duty of care to you, you generally need to prove that they failed to exercise the skill, care, and diligence that other attorneys within the same field of law commonly exercise.
Duty of care plus breach of duty equals negligence. Proving negligence isn’t enough to win, however. You must also prove damages and causation.
Damages
Your damages are whatever you lost because of your lawyer’s negligence. For example, in a personal injury case, you must prove that you probably would have won your case absent your lawyer’s negligence. You must also prove how much you likely would have won.
How much poorer are you than you would have been without your lawyer’s negligence? That is the measure of your damages. In other words, to prevail in a legal malpractice claim, you have to win two cases in one.
Causation
Proving that your attorney is an alcoholic, for example, is not enough to win your claim. In that case, you would also need to prove that your lawyer’s alcoholism caused you to lose your case. If you would have lost your case anyway (for reasons other than your lawyer’s negligence), you have no viable legal malpractice claim.
Compensation You Can Get
You may qualify for the following compensation if you win your legal malpractice claim:
- A refund of any money you paid your lawyer. This is not automatic—you have to prove your entitlement to this money. Of course, in a personal injury case, you pay nothing upfront. Consequently, you would receive no refund.
- Whatever amount you lost by losing the case on which your legal malpractice claim was based-–a $100,000 car accident case, for example.
- The money you spent pursuing your legal malpractice claim.
- Punitive damages, if the lawyer’s conduct was sufficiently outrageous. It’s relatively unlikely that a mere negligence claim would qualify for punitive damages. However, deliberately losing your case because of a personal vendetta against you might qualify.
It’s possible to win non-economic damages such as emotional distress, but it’s not very likely.
Types of Legal Malpractice
Following are some common examples of legal malpractice:
- Failing to communicate with the client, especially concerning matters relevant to important decisions that only the client can make.
- Conflict of interest: A conflict of interest might occur if, for example, the attorney has a business relationship with the opposing party or represents both spouses in a divorce.
- Accepting a settlement offer without your consent. A lawyer should never accept a settlement offer without their client‘s consent. You can, however, grant your lawyer broad authority to accept a settlement offer on your behalf. If you decide to go this route, grant your consent in writing and be specific about the limitations of the authority you are granting.
- Co-mingling your funds with the attorney’s funds. Your lawyer should keep any money that is still yours (not already paid) in a separate account.
- Missing the statute of limitations deadline to file a lawsuit. This is a very serious error, yet it is easy to commit.
- Telling your secrets (breach of confidentiality): Divulging information about your case without your permission is unacceptable. It’s generally okay, however, for your attorney to share information about your case with members of their own firm.
- Committing major errors of law or legal strategy that cause you to lose your case.
- Fraud: Cheating you out of your money, lying to you about an important matter related to their representation, or even forgetting to tell you important information.
- Inadequate preparation, if it causes you to lose your case.
- Lack of informed consent. In most cases, the client has the sole authority to make the major decisions about their case unless they delegate some or all of that authority to their lawyer. A lawyer can get you into trouble when they arrogate that authority to themselves.
Many other types of actions can constitute legal malpractice.
The Negotiation Option
Instead of suing your lawyer for legal malpractice, you could try to negotiate your claim privately. Be aware, however, that most personal injury attorneys are expert negotiators.
Another strategy would be to negotiate, wait until you reach an impasse, file a legal malpractice lawsuit, and then agree to abandon your lawsuit in exchange for a reasonable settlement.
Reporting Your Attorney to the State Bar of Texas
The practice of law is governed not only by the law that everyone is subject to. Texas attorneys are members of the State Bar of Texas. The state bar enforces strict ethical standards against attorneys. An attorney can violate ethical standards without breaking the law. In extreme cases, this might result in the disbarment of the attorney.
Reporting a dangerous lawyer to the state bar can protect the lawyer’s future clients or “would-have-been” future clients against damages caused by the lawyer’s future misconduct.
Is It Time for You To Look for Another Lawyer?
It might be. You could face challenges, however—legal malpractice cases can be difficult to win (after all, the defendant is an attorney). Finding another attorney willing to take your case can also be difficult, although far from impossible. Do what you can to schedule a free initial consultation with another Dallas lawyer.
Remember that legal malpractice is not a personal injury claim. However, it is a type of professional malpractice claim, a subset of tort law. Before you schedule your consultation, mention that you intend to pursue a legal malpractice claim. Some attorneys take such claims, and some attorneys don’t.
We offer a confidential consultation for you to learn about your legal options and how we can help. Call Jay Murray Personal Injury Lawyers at (214) 855-1420.
