A lawyer commits malpractice when he or she fails to provide quality legal services to a client. If the lawyer, through an error or omission, fails to provide services that meet the minimum standard of care of a licensed attorney, then the lawyer has committed malpractice.

A party suing for legal malpractice must show proof of each of the following four elements necessary to prove negligence:

  1. An attorney/client relationship.
  2. A duty on the part of the attorney to the client.
  3. A breach of that duty.
  4. Damages as a direct and proximate result of the attorney’s breach of duty.

Attorney/Client Relationship
Obviously, if the client retained the attorney, there is an attorney/client relationship. There could also be an implied attorney/client relationship if the client seeks the advice of an attorney, is given professional advice and relies on that advice. In many states, an attorney owes a duty to non-clients whom the attorney knows will rely on the services rendered and those services were intended to benefit the non-client.

Duty of Care
In general, an attorney owes a duty of care to a client. The lawyer must exercise the same legal skill as a reasonably competent attorney. He or she must use reasonable care in determining and implementing a strategy to be followed to achieve the client’s legal goals. As fiduciary of a client, an attorney is obligated to treat all information relating to a client’s representation as confidential and to zealously represent the client’s interests, including the disclosure of any conflicts of interest that might impair the attorney’s ability to represent the client.

Breach of Duty
An attorney breaches his or her professional duty of care if the attorney fails to provide reasonably competent representation or violates his or her fiduciary obligations. Proving an attorney failed to provide reasonably competent representation is difficult. The law in many states generally requires the testimony of another attorney in the same or similar field of practice to testify that the lawyer fell below the minimum standard of care. Lawyers can disagree on whether a particular course of action is reasonably competent. It may be unclear whether an alternative course of action would have provided a different result.

Proximate Cause
A client must prove that an attorney’s breach of his or her duty caused some damage. To do this, the client, now the plaintiff, must show that his or her injury is sufficient related to the attorney’s breach of duty. This may require the plaintiff to show what would have happened if the attorney had chosen a different course of action. The defendant attorney will often argue that the damages or injury would have happened regardless of the actions or inactions of the attorney. The mere fact that a client suffers injury or damage as a result of an attorney’s representation is not the same as legal malpractice. The attorney may have acted in the same manner as any reasonably competent attorney, and while his or her actions may have caused the harm, if he or she did not breach the duty of care, he or she should not be held liable. This element of legal malpractice is often the most difficult for the client to prove.

Damages
Successful plaintiffs are entitled to economic damages resulting from an attorney’s negligence. The plaintiff has the burden of proving the extent or amount of damages. As a general rule, though, malpractice cases may be expensive to investigate and prosecute through settlement negotiations or through trial. They are usually highly contested and strongly defended cases.

Statute of Limitations
Each state has a requirement that a plaintiff file his or her legal malpractice lawsuit within a specific period of time. Failure to file the suit within that time period will mean that the case will be forever barred. In California, a plaintiff must generally file his or her lawsuit within one year of the attorney’s negligence or within one year from the date the client reasonably should have discovered the attorney’s negligence, unless the attorney still represents the client. It is very important that you determine the appropriate statute of limitations if you believe you have a meritorious claim.

Merely receiving a bad result from your former lawyer does not mean that the attorney has committed malpractice. You may have received the best result possible under the circumstances. However, if you believe you have been treated improperly and are the victim of professional malpractice in the State of California, please contact us for a free consultation. If you are a resident of another state you may pursue your case by contacting a lawyer who handles this type of case or your State Bar Association.