An attorney has a professional obligation to advocate for your best interest. When an attorney fails to do so, the outcome of legal proceedings may leave you in a bind or literally cost you money. Thankfully, the remedy of legal malpractice may enable you to recoup what you have lost and hold that attorney accountable.
Fighting lawyers within their own legal system is not easy, but it is possible. There are a few key things to know before pursuing a legal malpractice case.
The high burden of proof
As with other types of professional malpractice, a legal malpractice claim requires proof that you suffered a loss due to the negligence or improper acts of the defendant. To prevail in a malpractice lawsuit, it is not enough merely to show that your legal counsel was incompetent or unethical. You must prove that you would have won your case “but for” the attorney’s error or negligence.
That is a high standard and attorneys are reluctant to take their peers to task. A few lawyers specialize in this niche area of the law, but many personal injury lawyers handle legal malpractice cases.
Elements of legal malpractice
In order to litigate a malpractice case successfully, you need to put your trust in another lawyer. Your new attorney must establish four main elements to prove malpractice:
- The original attorney had a duty of care (i.e., you hired them to represent you).
- The attorney breached that duty through error, omission, conflict of interest or other misconduct.
- The attorney’s incompetence or misconduct caused tangible harm to your case.
- You suffered financial loss as a result of the malpractice
What do you get if you win?
A legal malpractice lawsuit is a civil case. Criminal charges or professional discipline against the lawyer, if any, are handled in separate proceedings (though you might be called to testify).
If your malpractice lawsuit is successful, you are entitled to recover your monetary losses, plus attorney fees incurred in bringing the legal action. Some cases are resolved through settlement negotiations, others are resolved at trial.
In addition to court filings and courtroom records from the original case, any documentation you can provide may prove critical. An experienced legal malpractice lawyer can help you reconstruct what happened and how your original legal counsel breached their duty to you.