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 represented.
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 section below.
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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