Legal malpractice is wrongdoing by attorneys, and like medical malpractice, it usually involves a claim that the attorney acted with negligence. According to the Restatement (Second) of Torts §299A, attorneys must exercise the ordinary skill and knowledge possessed by all members of the legal profession in good standing.
When a lawyer agrees to represent a client, the lawyer implies that he or she possesses the required degree of education, skill and ability necessary to practice law. By taking the client's case, the attorney also implies that she will exert her best judgment in pursuing the client's case, and that she will exercise reasonable care and diligence in putting her skill and knowledge to work on the client's behalf.
How Does One Prove Attorney Malpractice Against a Lawyer?
The attorney will be liable for any loss the client sustains that is proximately caused by the attorney's lack of skill ordinarily possessed by similarly situated members of the legal profession. If the attorney represents a client on a matter in an area of law in which the attorney lacks experience, the attorney may be committing malpractice if he does not gain the level of knowledge and skill of attorneys practicing in that area of the law.
For example, an attorney who has handled automobile accident cases for many years might agree to take on a divorce case. However, having done exclusively auto accident law for so long, the lawyer may not be familiar with the divorce laws that apply to the client's case. If the attorney makes a mistake in the client's divorce case because of his ignorance of divorce law, and if this mistake causes the client a loss, the lawyer may have committed legal malpractice.
Additionally, the attorney will be liable for loss to the client that results from the attorney's failure to use reasonable care and diligence in pursuing the client's case. Neglecting to respond to the opposing party's pleadings on time, for example, may constitute a failure to use reasonable care and diligence, particularly if the client suffers a loss due to the lawyer's neglect.
The Attorney Judgment Rule
Under the attorney judgment rule, the attorney will not be liable for mere errors of judgment or for mistakes about unsettled points of law. An unsettled point of law is one on which there is no authoritative precedent and which is still open to debate. The attorney judgment rule will not shield a lawyer from attorney malpractice for a mistake involving a settled point of law.
What Does it Take to Win a Legal Malpractice Lawsuit?
To win a legal malpractice claim against an attorney, the plaintiff must prove that the attorney negligently failed to exercise ordinary skill and knowledge and that, but for the attorney's negligence, the plaintiff would have been successful in his or her original lawsuit. In other words, the plaintiff in a legal malpractice case must prove that a reasonable jury would have found in the plaintiff's favor in the underlying case.
Filing a Legal Malpractice Lawsuit
Legal malpractice law is largely governed by state law, and the laws vary from state to state. There may also be time limits involved in suing for malpractice. Because of the complexities involved in bringing an attorney malpractice lawsuit, one should seek the assistance of an experienced professional malpractice attorney as quickly as possible after discovering that malpractice may have occurred.
Sources: Restatement (Second) of Torts §299A; Woodruff v. Tomlin, 616 F.2d 924 (6th Cir. 1980).
Additional Resource: How to Hire an Attorney
Disclaimer: This article is in no way intended as legal advice. For help with specific issues involving lawyer malpractice, one should contact a licensed attorney in one's local area.
Jessie Vanwinkle - Jessie Vanwinkle is an attorney in practice since 1998. View her full profile for more information.
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