Legal Malpractice

What Is Legal Malpractice?

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

If your lawyer has mishandled your case, and you have suffered a monetary loss as a result, you may be able to sue your lawyer for legal malpractice. To win a legal malpractice case, you must prove the following three elements.

  • Your attorney owed you a duty of care. You must show an established attorney-client relationship, meaning that your lawyer was representing you in a legal matter. This is usually the easiest element to prove.
  • Your attorney breached the duty of care. Attorneys must act with the knowledge, skill, and care of other qualified attorneys practicing in similar situations (called the “standard of care”). Not every mistake by a lawyer will breach the standard of care. Rather, your lawyer must make a mistake or act in a way that the average lawyer would not. Sometimes, it’s obvious that a lawyer has breached the standard of care—such as in the case of a lawyer missing the deadline to file a lawsuit. Other times, expert testimony is needed to establish how lawyers in the area generally act in similar situations.
  • Your attorney’s breach caused you a financial loss. Your attorney’s wrongful actions must have actually caused you to suffer damages. In some cases, this element is easy enough to prove. For example, if your lawyer stole funds from your client account, it’s obvious that his or her actions have caused you a financial loss. However, this element can be particularly tricky if you’re claiming that your lawyer caused you to lose the underlying case that the lawyer was handling. For example, if you believe your lawyer mishandled a personal injury lawsuit, you must prove that—more likely than not—you would have won the personal injury lawsuit and been awarded monetary damages (or received a settlement). Sometimes, this is referred to as proving the “case within the case.”

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