Legal malpractice
Encyclopedia
Legal malpractice is the term for negligence
, breach of fiduciary duty, or breach of contract
by an attorney
that causes harm to his or her client. In order to rise to an actionable level of negligence, the injured party must show that the attorney's acts were not merely the result of poor strategy, but that they were the result of errors that no reasonable attorney would make.
Furthermore, legal malpractice requires the showing of an injury that would not have happened had the attorney not been negligent; that is, it would not have happened "but for" the attorney's negligence ("but for" causation). If the injury would have occurred despite different (non-negligent) actions by the attorney, no cause of action
will be permitted. "But for" or actual causation can be extremely difficult to prove and usually results in "trial-within-a-trial" situations which delve deeply into the facts of the case for which the client originally retained the attorney. For example, a person convicted of a crime who then sues his defense attorney must first prove that he was factually innocent and that he was convicted only because of his attorney's negligence. And a plaintiff who lost a civil case must prove that she had a valid case all along, which she lost only because of her attorney's negligence, so that she can then recover from her attorney all the damages which she was entitled to from the original defendant.
Legal malpractice can also occur when an attorney breaches a fiduciary duty to his or her client. This occurs when attorneys act in their own interest instead of to their client's, to the detriment of their client. A claim for legal malpractice may also arise when an attorney breaches the contract they sign with their client.
A common basis for a legal malpractice claim arises where an attorney misses a deadline for a filing of a paper with the court, such as a statute of limitations
, and this error is related to the loss of the client's cause of action.
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
, breach of fiduciary duty, or breach of contract
Breach of contract
Breach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance....
by an attorney
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
that causes harm to his or her client. In order to rise to an actionable level of negligence, the injured party must show that the attorney's acts were not merely the result of poor strategy, but that they were the result of errors that no reasonable attorney would make.
Furthermore, legal malpractice requires the showing of an injury that would not have happened had the attorney not been negligent; that is, it would not have happened "but for" the attorney's negligence ("but for" causation). If the injury would have occurred despite different (non-negligent) actions by the attorney, no cause of action
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
will be permitted. "But for" or actual causation can be extremely difficult to prove and usually results in "trial-within-a-trial" situations which delve deeply into the facts of the case for which the client originally retained the attorney. For example, a person convicted of a crime who then sues his defense attorney must first prove that he was factually innocent and that he was convicted only because of his attorney's negligence. And a plaintiff who lost a civil case must prove that she had a valid case all along, which she lost only because of her attorney's negligence, so that she can then recover from her attorney all the damages which she was entitled to from the original defendant.
Legal malpractice can also occur when an attorney breaches a fiduciary duty to his or her client. This occurs when attorneys act in their own interest instead of to their client's, to the detriment of their client. A claim for legal malpractice may also arise when an attorney breaches the contract they sign with their client.
A common basis for a legal malpractice claim arises where an attorney misses a deadline for a filing of a paper with the court, such as a statute of limitations
Statute of limitations
A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated...
, and this error is related to the loss of the client's cause of action.
See also
- Fiduciary managementFiduciary managementFiduciary management is an approach to asset management that involves an asset owner appointing a third party to manage the total assets of the asset owner on an integrated basis through a combination of advisory and delegated investment services, with a view to achieving the asset owner's overall...
- Ineffective assistance of counselIneffective assistance of counselIneffective assistance of counsel is an issue raised in legal malpractice suits and in appeals in criminal cases where a criminal defendant asserts that their criminal conviction occurred because their attorney failed to properly defend the case...
- Legal abuseLegal abuseLegal abuse refers to abuses associated with both civil and criminal legal action. Abuse can originate from nearly any part of the legal system, including frivolous and vexatious litigants, abuses by law enforcement, incompetent, careless or corrupt attorneys and misconduct from the judiciary...
- MalpracticeMalpracticeIn law, malpractice is a type of negligence in, which the professional under a duty to act, fails to follow generally accepted professional standards, and that breach of duty is the proximate cause of injury to a plaintiff who suffers harm...
- Professional responsibilityProfessional responsibilityProfessional responsibility is the area of legal practice that encompasses the duties of attorneys to act in a professional manner, obey the law, avoid conflicts of interest, and put the interests of clients ahead of their own interests....