Legal Malpractice

Has My Lawyer Breached a Duty of Care?

By Sachi Barreiro, Attorney, University of San Francisco School of Law

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.

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