Legal Malpractice Law and Litigation

What Is Legal Malpractice?

Legal malpractice may occur when a lawyer acts in a negligent manner when providing legal advice or representation, or commits a breach of fiduciary duty to the client, resulting in harm to the lawyer's client.

Common examples of legal malpractice include:

  • Missing filing deadlines or court appearances, causing a case to be dismissed or lost;

  • Failure to file a lawsuit within the statute of limitations;

  • Failure to file a timely appeal;

  • Failure to properly analyze the legal issues in a case to the client's detriment;

  • Improper withdrawal from a case;

  • Taking action such as entering into a settlement of a case without a client's consent;

  • Losing or misplacing important documents or evidence; and

  • Sharing confidential client information with other persons or parties.

Financial improprieties by a lawyer, such as commingling personal and client funds and misappropriation of the client's funds, may also constitute legal malpractice.

The Elements of Legal Malpractice

To prevail in a legal malpractice lawsuit, a plaintiff must prove all of the following:

  1. The existence of an attorney-client relationship;

  2. Negligence in the legal representation of the plaintiff;

  3. That the negligence was a proximate cause of an injury;

  4. The fact and extent of the injury alleged.

Although these elements are largely consistent from state to state, as laws are different in each state there may be some differences in the elements of the cause of action under any given state's laws.

Proving Legal Malpractice

The Attorney-Client Relationship

As the elements outlined above suggest, the first thing a plaintiff must do in order to prove legal malpractice is to establish that an attorney-client relationship existed. Absent an attorney-client relationship, the lawyer doesn't have any duty to the client, and there is no basis for a malpractice action.

After a bad experience in a lawsuit, some people wonder if they can sue the other party's lawyer for malpractice. They cannot, as they have no attorney-client relationship with the other party's lawyer.

Standard of Care

Next, a plaintiff must establish the "standard of care" which governed the legal representation, and show that the attorney violated that standard of care. Sometimes this is easy, and may not even require any expert testimony.

For example, if a lawyer steals money that the lawyer holds in trust for a client, the fact that the attorney violated a duty to the client is a "no brainer". However, as legal representation is often complex, it is often necessary to use an expert witness to establish the governing standard of care, and to describe how the lawyer violated that standard of care.

Causation of an Injury

Once those elements are satisfied, is is necessary to demonstrate that the plaintiff suffered an injury as a proximate result of the lawyer's negligence. That is, that the injury followed from the lawyer's misconduct.

For example, where a lawyer fails to make an evidentiary objection which would have kept a murder weapon out of evidence, a criminal defendant may have a case for legal malpractice - but if the defendant confessed to the murder, left fingerprints all over the victim's house, and was caught while trying to use the victim's credit cards, the defendant won't be able to demonstrate that the lawyer's mistake affected the outcome of his case, and thus won't be able to show that the injury resulted from the negligence.

Similarly, if the connection between the alleged act of negligence and the harm suffered is speculative or extremely attenuated, it may not support a malpractice claim - the injury suffered must ordinarily be a reasonably foreseeable consequence of the attorney's negligence.


Finally, the plaintiff must ordinarily establish that damages actually were suffered as a result of the legal malpractice, and the nature and amount of those damages. Even if all other elements of a malpractice case are established, if the plaintiff cannot show that any damages resulted from the legal malpractice the lawyer will typically be entitled to a dismissal of the case.

Defenses to Legal Malpractice

The most common defense to a legal malpractice claim is simply a denial that an error occurred. However, with the benefit of 20/20 hindsight, it is always possible to identify lawyer decisions that might have negatively affected the outcome of a case, even if they seemed reasonable at the time. Common defenses raised in legal malpractice cases include:

The "Attorney Judgment Rule"

Under the attorney judgment rule, an attorney is not liable for what, in hindsight, were errors in judgment where the attorney made those judgments in good faith and in the honest belief that the decisions were well founded in the law and made in the best interest of the client.

In other words, while a gross error in judgment may be actionable as legal malpractice, a mere error in judgment made in good faith is not. This rule protects the attorney who acts in good faith and keeps the client informed and involved in the case, but makes what turn out in hindsight to be strategic or tactical errors in handling a case.

Changes In The Law

Attorneys are not ordinarily charged with anticipating changes in the law. This means that it is not ordinarily possible to secure a malpractice verdict against a lawyer where the lawyer's advice or representation turns out to be faulty based upon a court decision or new legislation passed after the lawyer acted or provided the advice.

Sometimes there are a lot of indications that a change in the law may be coming - some legislation is under debate for years prior to passage - and a good lawyer will advise a client about possible changes. However, lawyers are not charged with being able to predict the future.

The "Case Within A Case"

In many legal malpractice actions, there may be discussion of whether the plaintiff could win the "case within a case", sometimes referenced as a "trial within a trial". This discussion occurs in malpractice cases involving prior litigation, in which a plaintiff claims that as a result of the lawyer's negligence they either lost the case or to recovered a smaller amount of damages than warranted by the facts and law.

In order for the plaintiff to establish that damages were suffered as a result of the alleged malpractice it is usually necessary for the plaintiff to prove that, but for the malpractice, a favorable verdict would have been won or greater damages recovered. In essence, this is a retrial of the original litigation within the context of the malpractice action - thus, a case within a case.

Attorney-Client Privilege in Malpractice Cases

It is important to note that within the context of a legal malpractice action, a lawyer may utilize what were formerly privileged communications from the client in order to respond to allegations of negligence. For example, if a defendant sues a criminal defense lawyer alleging that the lawyer's mistakes resulted in conviction, the lawyer may be able to introduce admissions of guilt made by the client during the course of the litigation to defend against the lawsuit and claim of damages.

A client suing a lawyer for malpractice should consider whether the disclosure of confidences within the context of a malpractice lawsuit will cause a harm disproportionate to the potential recovery.

Finding a Legal Malpractice Lawyer

It can sometimes be difficult to find a lawyer who is willing to handle a legal malpractice action, but there areĀ  lawyers in every state who accept legal malpractice cases. If you are having difficulty finding a lawyer, try using a lawyer referral service offered by your state or county bar association.

Copyright © 2005 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 24, 2017.