Legal Malpractice FAQ -- Legal Malpractice -- Learn about Law

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Legal Malpractice FAQ

Sometimes lawyers mishandle cases, give faulty advice, or make other significant mistakes. If this has happened to you, and you’ve suffered a financial loss as a result, you may be able to sue for compensation. Below, you’ll find answers to common questions about legal malpractice cases, including what you will need to prove in order to win your case. You can also find out how to report a lawyer to a disciplinary board, what to do about a fee dispute, and how to switch to a new lawyer.

What Is Legal Malpractice?

If your lawyer has mishandled your case, and you have suffered a monetary loss as a result, you may be able to sue your lawyer for legal malpractice. To win a legal malpractice case, you must prove the following three elements.

Your attorney owed you a duty of care. You must show an established attorney-client relationship, meaning that your lawyer was representing you in a legal matter. This is usually the easiest element to prove.
Your attorney breached the duty of care. Attorneys must act with the knowledge, skill, and care of other qualified attorneys practicing in similar situations (called the “standard of care”). Not every mistake by a lawyer will breach the standard of care. Rather, your lawyer must make a mistake or act in a way that the average lawyer would not. Sometimes, it’s obvious that a lawyer has breached the standard of care—such as in the case of a lawyer missing the deadline to file a lawsuit. Other times, expert testimony is needed to establish how lawyers in the area generally act in similar situations.
Your attorney’s breach caused you a financial loss. Your attorney’s wrongful actions must have actually caused you to suffer damages. In some cases, this element is easy enough to prove. For example, if your lawyer stole funds from your client account, it’s obvious that his or her actions have caused you a financial loss. However, this element can be particularly tricky if you’re claiming that your lawyer caused you to lose the underlying case that the lawyer was handling. For example, if you believe your lawyer mishandled a personal injury lawsuit, you must prove that—more likely than not—you would have won the personal injury lawsuit and been awarded monetary damages (or received a settlement). Sometimes, this is referred to as proving the “case within the case.”

Has My Lawyer Breached a Duty of Care?

Unfortunately, it’s not uncommon for a client to be unhappy at the end of a legal case. Lawsuits can be stressful and emotionally draining, and even successful plaintiffs rarely feel that they were fully compensated for all their losses and inconveniences. However, just because you weren’t happy with the end result or how your lawyer handled the case doesn’t mean that there are grounds for a malpractice lawsuit.

Some actions are clearly a breach of the duty of care owed by lawyers—for example, when a lawyer lies to the client or another party in the case, commits a crime, or totally abandons a case without telling the client. Here are some other common errors that might qualify as a breach:

Missing deadlines. Lawyers have a duty to know enough about the law to competently represent you. This includes knowing the applicable deadlines for filing a lawsuit or other important events in the case. If your lawyer misses a deadline in your case—and is unable to fix the mistake—that is typically a breach.
Acting without permission. In general, lawyers have a lot of freedom to handle day-to-day matters in your case without consulting you. However, there are certain matters that your lawyer must get your permission on before acting. Notably, your lawyer typically must get your permission before agreeing to a settlement or any other resolution of your case. Failing to do so is a breach of the standard of care.
Failing to know the law. A lawyer must know the area of law that he or she is handling for you. If most practicing attorneys would know about a particular law, your lawyer should too. For example, any lawyer handling an employment discrimination case should know that an employee must file a claim with the Equal Employment Opportunity Commission (or a similar state agency) before filing a discrimination lawsuit under federal law. As a client, it can be hard to know exactly what your lawyer “should” know. For that reason, you will probably need to consult with other lawyers who practice in that area of law.
Failing to gather evidence. Your lawyer must gather relevant evidence when representing you in your case. For example, if you are accused of a crime, your lawyer must talk to any witnesses who might have information that could help your defense.

Here are some common issues that usually don’t rise to the level of malpractice:

Taking too long to get back to you. It can be frustrating when your lawyer doesn’t respond to your phone calls or emails quickly enough. While this can certainly be unprofessional, it’s not malpractice unless you can prove a specific delay that harmed your case.
Making strategic decisions. A significant part of a lawyer’s job is to strategize on how best to get you your desired result. Most of the time, there’s more than one way to handle a situation in any given case. As long as your lawyer knows the law, applies it correctly, and anticipates the possible outcomes, a strategic decision that doesn’t pan out usually isn’t malpractice.
Encouraging you to settle for less than you want. You might think your attorney is going against your interests by recommending a settlement that’s far lower than what you want—or even than what the lawyer originally thought was possible. However, new facts and evidence come up during discovery that could increase or decrease the value of your case. Your lawyer’s job is to constantly reevaluate your case and recommend what’s in your best interest.

Even if your lawyer breached a duty of care, you’ll still need to prove that the error caused you to suffer damages. This often means proving that you would have won your case, or you would have received more money in your case, had your lawyer acted properly. Or, if you’re a defendant, you must prove that you wouldn’t have been found liable (in a civil case) or guilty (in a criminal case) had your lawyer acted properly.

Can I Sue My Lawyer for Breach of Contract?

A legal malpractice lawsuit is based on the lawyer’s negligence: the failure to live up the general standards that we expect from lawyers. However, you can also sue your lawyer for breaching a specific promise in your retainer agreement. A retainer agreement is a contract between you and your lawyer, explaining the role, expectations, and obligations of each party. If your lawyer broke a promise in the contract, you may have a breach of contract claim in addition to a negligence claim.

Can I Report My Lawyer to a Disciplinary Board?

Each state has its own ethical rules that lawyers must follow, usually called the “rules of professional conduct.” In most states, these rules are broader than the standard of care in a legal malpractice case. This means that, even if your lawyer hasn’t committed malpractice, your lawyer might have committed an ethical violation for which he or she can be disciplined.

Each state has a disciplinary board in charge of administering attorney discipline. You can file a complaint with your state’s disciplinary board by mail, or in some states, by phone or online. The state board will investigate your complaint and discipline the lawyer if there is evidence of an ethical violation. (For more information, including your state board’s contact information, see our article on reporting a lawyer for an ethics violation).

What If I Dispute My Lawyer’s Fees and Costs?

Your lawyer should give you a breakdown of all fees, costs, and other expenses taken out of your settlement or award. If you have questions about any deductions, ask your lawyer to explain what the charge was for. Your lawyer should also give you copies of invoices, bills, and receipts for relevant charges, upon your request.

If your lawyer is charging fees or costs in clear violation of your retainer agreement, you can bring a breach of contract claim. However, if there is no contract or the contract isn’t clear, you may want to resolve the dispute another way. Most states have a fee arbitration program that helps lawyers and clients resolve disputes over legal fees. In some states, fee arbitration is required before you can file a lawsuit against your lawyer over legal fees.

My Lawyer Isn't Returning My Phone Calls. What Can I Do?

A lawyer’s lack of communication is one of the most common complaints by clients. Often times, communication issues are the result of the lawyer’s busy schedule or failure to set proper expectations on how soon you can expect a response. In these cases, the lawyer might be working on your case regularly, even if there isn’t much news to communicate to you. Other times, a lawyer who neglects to call you back is also neglecting your case. Either way, you deserve to be kept reasonably up-to-date on what’s going on in your case.

Send your attorney an email or letter explaining that you've made multiple attempts to reach him or her at the office. Mention how long it has been since your phone calls or emails have gone unreturned. Let the lawyer know that you have questions about your case, or that you would like an update, as soon as possible. This will create a paper trail documenting your attempts to contact your attorney. If your lawyer calls you briefly to say that he or she can’t talk, but will call you back soon, be sure to set up a specific time when you can reach him or her.

How Do I Get a New Lawyer?

Clients are generally free to change lawyers at any time. (Although, if you are about to begin a trial in your case, a judge may refuse to allow you to switch lawyers.) However, there are some drawbacks to doing so. First, it may take extra time for your new lawyer to get up to speed in your case. Second, you might take a financial hit, as both your old lawyer and new lawyer will need to get paid. However, this depends on several factors, including your fee agreement, state law, and how much work your old lawyer did on your case.

If you’re not able to fix your problems with your lawyer, you should start looking for a new one immediately. This time around, be sure to do your research. Meet with each potential lawyer and ask questions, especially about issues that concerned you with your last lawyer. You should also contact your state’s disciplinary board to see if the lawyer has a history of ethics violations.

Once you select a new lawyer, send your old lawyer a certified letter terminating the attorney-client relationship and asking for your client file. If you’re having trouble getting your file from your old lawyer, your new lawyer can assist you. To learn more on this topic, see our article on how and when to fire your lawyer.

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