New York Professional Negligence Attorneys: Legal Malpractice - Malpractice
by an Attorney
A professional level of skill is required by those who are hired for their
legal services, and there are rights to protect victims from damage caused
from professionals not following that standard. At Rheingold, Giuffra,
Ruffo & Plotkin LLP, our attorneys will assist individuals and businesses
who believe they have suffered damages or harm due to a hired lawyer or
law firm who provided them with negligent service. Attorneys are expected
to meet certain levels of professional skill. A deviation from reasonable
care may be considered negligence. If a deviation from a professional's
standard of care has occurred, they may be liable for damages caused,
and you may have a claim for compensation against that individual or their firm.
The term "legal malpractice" encompasses breaches of contract,
breaches of fiduciary duties, and cases of negligence by an attorney.
It is important to realize that professional negligence results from a
breach in the claimed abilities of the professional, and not just because
certain results were not achieved from working with that professional.
Additionally, not all cases of legal malpractice cause damage. In order
to establish an actionable level of negligence, the injured party must
demonstrate that the attorney's acts were beyond 'poor strategy'
and a result of errors that no reasonable attorney would make.
The injured party must also provide "what if" evidence -- proof
of what would have happened had the attorney not been negligent. That
is, legal malpractice cases rely on a "but for" standard: the
case would have been won "but for the attorney's negligence."
If the same result would have occurred even without the attorney's
negligence, there can be no legal cause of action. "But for"
causation or actual causation can be difficult to prove. Additionally,
the case can devolve into a "trial-within-a-trial", in which
facts of the original case are revisited.
Common Claims for Legal Malpractice
A claim for legal malpractice may arise when an attorney breaches a fiduciary
duty to his or her client, that is, when an attorney acts, to the detriment
of the client, in his or her own interest rather than fulfilling a duty
to act in the client's best interest. Legal malpractice can also occur
when an attorney breaches the contract pursuant to which the client is
When an attorney misses a deadline for serving a paper on another party
or a deadline for filing a paper within the court, and the error is irrevocably
and incurably fatal to the client's case, a legal malpractice claim
can be made. This circumstance generally occurs with the running of the
statute of limitations, though it can also arise if the attorney fails
to timely file a notice of appeal or fails to respond to dispositive motions
filed by the opponent.
Another situation of legal malpractice arises when an attorney misses a
deadline. While the error may not have been fatal in and of itself to
a claim or defense, evidence can be provided that the client was forced
to spend far more to resolve the case than would have been necessary had
the attorney not committed such an error.
Some of the most common claims for legal malpractice include:
- Missing time limitations for filing a suit
- Suing the incorrect parties
- Failure to pursue all available insurance, corporate or personal assets
- Failure to convey settlement offers to a client
- Fail to Know/Apply Law
- Planning Error
- Inadequate Discovery/Investigation
- Fail to File Documents: no deadline
- Fail to Calendar
- Fail to Know Deadline
- Fail to Obtain Client Consent
- Conflict of Interest
- Fail to Follow Instructions
- Fail to React to Calendar
- Malicious Prosecution
- Error in Record Search
- Clerical Error
- Improper Withdrawal
- Libel or Slander
- Civil Rights Violation
- Tax Consequences
- Error in Math
- Lost File & Document
- Work Delegated to Outsider
- Poor Communication
- Work Delegated to Employee
- Attorney negligence in handling a personal injury claim
- Malpractice in drafting contracts
- Conflicts of interest with co-plaintiffs
- Real estate malpractice - including purchase agreements, title searches,
and real estate transactions
- Contractual malpractice: improper
- Mishandling or theft of client funds
- Failure to preserve an appeal
- Loss or destruction of evidence
To read the definitions of several types of alleged errors, see our definitons
In general, if the attorney fails to return the client's phone calls
or emails or if the attorney overbills the client, this does not necessarily
constitute a claim for legal malpractice. Attorneys can, and often do,
overbill their clients while exercising proper care in the performance
of their duties in the underlying case.
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Definition of Type of Alleged Error in Cases of Legal Malpractice
(Information from americanbar.org)
Clerical Error: This category applies to clerical or stenographic errors as opposed to
legal errors. In these cases, the basic act or omission is not that of
the lawyer, but of a non-lawyer working on behalf of the lawyer. Items
included would be an error in typing a legal description, the transposition
of numbers, or generally the type of error which would be disclosed by
effective proofreading. Not included in this category would be administrative
failure to carry out the attorney's instructions, such as a clerk
not following instructions to send an item by certified mail; the category
Procrastination in Performance of Services, or Lack of Follow-Up would
apply to such claims.
Conflict of Interest: This category will be used when the principal error is that the lawyer
allegedly had a conflicting interest to that of the client. It applies
whether the lawyer knew or did not know of the conflict.
Error in Mathematical Calculation: This category includes any alleged error in mathematical calculation.
Examples would be errors in tax computations, real estate closing statements
and interest calculations.
Error in Public Record Search: This category covers cases where a title search, U.C.C., or patent or
trademark search failed to disclose a relevant item on public record,
or a case where no public record search was made when it should have been.
It does not include an alleged error based on inaccurate interpretation
of the effect of a document or notice which was noted on the record.
Failure to Calendar Properly: This category covers the situation where the lawyer was aware of the existence
of a time deadline and what it was, but did not initiate any kind of calendar
entry as a reminder to himself or others in the office.
Failure to File Documents Where No Deadline is Involved: This category applies when there is no deadline by which an act has to
occur to be effective, but rather where the filing of a document or notice
is necessary to perfect a client's interests against the claim of
another party. A typical example is the requirement for filing of a mortgage
on real estate to protect the priority interest of the mortgagee against
those acquiring a subsequent interest.
Failure to Follow Client's Instructions: This category is self-explanatory. It applies in cases where the attorney
has been given instructions to follow by the client, but fails to follow
these instructions either intentionally or unintentionally.
Failure to Know or Ascertain Deadline Correctly: This category includes both the situation where there is a deadline which
the lawyer did not know about, and the case where there is an alleged
error either in determining what deadline applies, or in calculating when
the deadline occurs. If there was no calendar entry then the category
Failure to Calendar Properly applies unless the lawyer made no entry because
the lawyer did not know there was a deadline.
Failure to Know or Properly Apply the Law: This category applies where the attorney was unaware of the legal principles
involved, or where the attorney did the research but failed to ascertain
the appropriate principles. It applies in instances of erroneous reasoning
from known principles. The category also applies where the lawyer simply
fails to see the legal implications of the known facts, such as where
the attorney knows the client has children who are not to receive anything
under the client's will, but fails to recognize the requirement that
the children be mentioned in the will.
Failure to Obtain Client's Consent or to Inform Client: This category involves cases where a client asserts that, if the client
had been fully informed by the lawyer of various alternatives or the risks
involved, a different course of action would have been selected. It would
also apply where the lawyer should have communicated with the client and
obtained consent to proceed but did not.
Failure to React to Calendar: This category would apply where the proper notations were made in the
calendar system, but the lawyer failed to react to them.
Failure to Understand or Anticipate Tax Consequences: This category applies when the basis of the claim is that, in handling
a matter which was not principally a problem in taxation, the attorney
fails to properly advise the client or adequately take into account the
tax implications of other actions. (The category Failure to Know or Properly
Apply the Law also applies, but where the lack of knowledge is as to tax
implications, this more specific category was used.)
Fraud: This category covers the claim where the primary cause of the action
is the fraudulent acts of the attorney, whether covered by insurance or not.
Improper Withdrawal from Representation: This category applies whenever a question of representation arises. It
covers instances where the claimant asserts that a lawyer-client relationship
has been established, even if the attorney denies it. It also covers a
withdrawal from representation improperly communicated by the attorney.
Inadequate Discovery of Facts or Inadequate Investigation: This category includes cases where the claimant alleges that certain
facts which should have been discovered by the attorney in a careful investigation
or in the use of discovery procedures were not discovered or discerned.
Libel or Slander: This category applies where the complaint made by a claimant alleges
libel or slander.
Lost File, Document or Evidence: This category is self-explanatory, and pertains to all instances where
the alleged error was due to a lost file, document, or evidence.
Malicious Prosecution or Abuse of Process: This category applies to any claim brought by a non-client for malicious
prosecution or abuse of process.
Planning or Strategy Error: This category applies, for example, to a contested proceeding where a
lawyer has an adequate knowledge of the facts and legal principles and
makes an error in judgement as to how the client's matter should be
handled. The cases here are those involving allegedly wrong decisions
where the lawyer knows the facts and law. These are usually strategy and
judgement errors. This category does not apply if the alleged error occurs
because of a lack of knowledge of facts which should have been discovered
by the attorney, or clear legal principles which the attorney should have known.
Procrastination in Performance of Services or Lack of Follow-Up: This category applies where the delay in dealing with a client's
matter by a lawyer causes a loss even though there may not have been a
formal lapse of a time limitation, or the intervention of another interest
adverse to that of the client, such as the loss of a sale of business,
disappearance of evidence, or loss of witnesses which occurred as a result
of the lawyer's delay. Lack of follow-up is also covered under this
category. This includes the instances where the attorney has initiated
some type of action, but has not followed up to make sure the necessary
action is taken.
Violation of Civil Rights: This category covers any allegations made against the attorney for violation
of any civil rights protected by law. This error code would most commonly
arise in a third-party action against the lawyer, and would not be used
when a lawyer is retained to represent a client with respect to a violation
of the client's civil rights and makes some other errors during the