Legal Malpractice

Suing Your Lawyer for Malpractice

By Sachi Barreiro, Attorney, University of San Francisco School of Law
If your lawyer made a big mistake, you might have a legal malpractice case.

Are you unhappy with your lawyer’s services or how your lawyer has handled your case? If so, you might be considering filing a lawsuit for legal malpractice. Suing your lawyer for malpractice can be a helpful way to get compensation for your losses. However, these cases can be very difficult to win. To find out whether you have a case, and how to bring one, read on below.

Common Claims Against Lawyers

Lawsuits against lawyers usually fall under three categories: negligence, breach of contract, and breach of fiduciary duty.

Negligence. Negligence is the most common grounds for a malpractice lawsuit. It happens when your attorney fails to use the skill and care normally expected of a competent attorney. For example, you might have grounds for a negligence suit if your lawyer missed an important deadline, failed to prepare for trial, or failed to follow court orders.

Breach of contract. Breach of contract occurs when a lawyer violates a specific term of the lawyer’s agreement with a client. For example, if your contract says that your lawyer will create a corporation for you by a certain date, the lawyer must stick to that agreement.

Breach of fiduciary duty. Lawyers owe certain fiduciary duties to their clients, such as the duty of loyalty and duty of confidentiality. Your lawyer must act in your best interests and must keep your communications confidential. For example, you might have a breach of fiduciary duty case if your lawyer lies to you, steals money from your client account, tells opposing counsel something you said in confidence, or represents another client whose interests oppose yours.

Challenges of Proving a Legal Malpractice Case

Most legal malpractice cases are based on negligence. To win this type of case, you must prove all of the following:

  • Your lawyer owed you a duty to competently represent you.
  • Your lawyer breached that duty.
  • Your lawyer's breach caused you to suffer a financial loss.

The first element is usually the easiest to prove. If your lawyer agreed to represent you in a case or provide other legal services, your lawyer owes you a duty of care.

The second element is more difficult to prove. It is not enough to show that your lawyer made a mistake or that you lost your case. You must show that your lawyer failed to act with the knowledge, skill, and care of other qualified attorneys practicing under similar circumstances (called the “standard of care”). Often times, lawyers must make strategic decisions or judgment calls, which don’t always turn out for the best. However, it’s not malpractice unless your lawyer fell below the standard of care.

The third element is perhaps the most difficult to prove. It’s not enough that your lawyer breached his or her duty.

For example, suppose your lawyer missed the deadline to file a personal injury suit for you. While this would clearly be a breach, you would also need to prove damages: that you would have won your case and received compensation had your lawyer not missed the deadline. This is referred to as proving the “case within the case.”

Before You Sue

Because legal malpractice cases are difficult to win, you may want to consider some alternatives before filing suit. If you’re not happy with your lawyer, you can:

  • Switch lawyers. If you haven’t suffered much damage yet, you may want to consider simply hiring a new lawyer. You’re free to switch lawyers at any time, except in rare cases. (For example, a judge might not let you switch lawyers on the eve of trial because it would cause unreasonably delays.)
  • Report the lawyer to your state’s disciplinary board. Every state has a board that disciplines lawyers for ethical violations. If your lawyer isn’t communicating with you or listening to your wishes, this might get his or her attention. In some cases, the board might order the lawyer to compensate you for a clear financial loss—for example, if your lawyer took fund from your client account. (To lean more, see our article on reporting a lawyer for an ethical violation.)
  • Participate in fee arbitration. If your dispute with your lawyer is over fees, most states offer an informal method of resolution called arbitration. A neutral third party presides over the arbitration, receives evidence from both sides, and makes a decision about what fees are owed.

If none of these options would help your situation, you should consult with a lawyer about whether you have a legal malpractice case. (For more information, see our Legal Malpractice FAQ.)

Hiring a Legal Malpractice Lawyer

Lawyers often take legal malpractice cases on a contingency fee basis—which means they take a percentage of your award or settlement rather than charge you by the hour. Because they don’t get paid if you lose, lawyers will carefully evaluate your case and consider whether it’s worth risking the time and emergency to take the matter to trial.

The time limit for filing a legal malpractice case can be as short as one year. If you think you might have a legal malpractice case, you should contact an attorney right away.

Questions for Your Attorney

  • Can I refuse to pay my attorney's bill for legal fees if I think he or she committed malpractice?
  • Should I report my attorney's mistake to the state bar association?
  • Who will decide if my attorney was negligent?
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