Attorney Malpractice

Legal jargon can be confusing, and lawyers often use 20 words when just 5 will do. That’s why Andrew Kryder, Esq., founding partner of our personal injury law firm, created this legal glossary to help you understand complex legal terms in clear, straightforward language. This article includes examples to explain attorney malpractice and shows what does—and does not—count as negligence in the legal profession.

What Is Legal Malpractice?

Attorney malpractice occurs when a lawyer’s negligence—like missing deadlines or giving poor advice—harms a client. If this conduct directly causes financial or legal loss, the client may seek compensation.

Legal malpractice happens when:

1. A lawyer doesn’t give the care or attention their client deserves.
2. The client is harmed or loses money.
3. The harm was caused by the lawyer’s mistake.
4. If the lawyer had done their job correctly, the client would have won or gotten a better outcome.

How Does a Client Prove Legal Malpractice?

To prove attorney malpractice, you must demonstrate two key elements: your lawyer failed to meet professional standards, and you would have achieved a better outcome if they had done their job properly.

Simply being unhappy with your case result isn’t enough; you need to show that your attorney’s mistakes directly caused you to lose money or miss out on a favorable outcome you otherwise would have received.

If you would have lost your case anyway, even with competent legal representation, then you don’t have grounds for a malpractice claim.

What Are Examples of Legal Malpractice?

Common examples of legal malpractice in professional conduct include:

• Attorneys failing to file a lawsuit or important documents within the required statute of limitations
• Using client funds for unrelated expenses or failing to keep client money separate from firm accounts
• Charging clients for services that were never provided or inflating legal bills without justification or explanation
• Agreeing to settle a client’s case without first obtaining clear client consent or authorization
• Representing clients with competing interests without properly disclosing the conflict and obtaining the necessary written consent
• Neglecting to follow up on or pursue a case after being retained, leading to dismissal or missed opportunities
• Overlooking essential parties that should have been included in a lawsuit, weakening the client’s legal position
• Not keeping clients informed about important case developments or failing to respond to repeated questions and concerns

What Is Not Considered Malpractice?

Not every negative experience with a lawyer is malpractice. Here are some situations that do not qualify:

• A lawyer being rude or unpleasant is not malpractice.
• Not getting along with your lawyer does not mean malpractice occurred.
• Delayed responses to phone calls or emails are not considered malpractice.
• Losing your case alone is not enough to prove malpractice.
• If your lawyer knows the opposing attorney, that is not malpractice.

Damages You Might Recover in a Legal Malpractice Case

Damages are specific to each legal malpractice claim, and the plaintiff in the malpractice claim bears the burden of proving damages. For business transactions, this may include retaining an expert witness—a legal appraiser—to evaluate lost profits.

Damages in Litigation

Litigation is resolving disputes through the court system with a legal malpractice lawsuit. Damages in litigation you might be able to recover include:

• The amount you would have been awarded if malpractice hadn’t happened (if you were the plaintiff)
• The damages you had to pay because of the malpractice (if you were the opposing party—the defendant)

Damages in Transactions

You may be able to recover damages from business transactions such as:

• Lost profits from a failed deal caused by malpractice, if you can prove the losses
• Escrow or trust funds taken by your attorney for personal use

Other Damages

In settlement negotiations, you may recover attorney fees spent correcting mistakes but not fees or punitive damages for the malpractice claim itself.

What Are the Legal Consequences of Attorney Malpractice?

A law firm with legal professionals found liable for malpractice may need to pay damages, cover client losses, and deal with a damaged reputation, making it harder to keep clients. Insurance costs typically rise, and the firm may face disciplinary actions or attorney disbarment. In serious cases, loss of license, court fines, or permanent closure can result.

What Should I Do If I Suspect My Lawyer Has Been Negligent in My Case?

Do you suspect your attorney’s duty of care was breached? Learn more in our article, “What to Do When Your Lawyer Messed Up.”