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Frequently-Asked Questions about Legal Malpractice Claims

What about “third-party claims” or claims brought on behalf of someone other than the attorney’s client?

Traditionally, legal malpractice claims could only be brought by the client, but that is changing. Third party beneficiaries, such as beneficiaries of a will, are one example of a third-party group that can sometimes sue for negligence. Third party claims have also been allowed in some cases where the attorney has caused injury to a party other than the attorney’s client. Third party claims face additional challenges and their admissibility varies across jurisdictions, but often may be alleged on the basis of malicious prosecution, defamation, abuse of process, or infliction of emotional distress, to name a few.

You should be aware that in cases of legal malpractice, an attorney may draw on previously privileged and confidential client communications in order to respond to the malpractice allegations he or she is facing.

Are there cases where an attorney-client relationship exists outside of a written contract?

Yes. Typically it is documented by a contract, but in certain cases an email or other communication may evidence that the client had reason to believe such an attorney-client relationship existed. When a client hires a lawyer, a contract is immediately created (even if it’s only verbal) which carries implied terms governing the lawyer’s conduct, such as: confidentiality, disclosure of conflict of interest, competence, etc.

What is the “standard of care”?

Standard of care is the minimum performance that any average attorney would reasonably be expected to deliver in the same or similar situation. To compare apples to apples, the attorney would be comparable in practice area and expertise.

What is negligence?

Basically, negligence is failure to meet the standard of care (see above).

What is the “case within a case”?

If the attorney negligence occurred during the course of litigation, then the burden is on the client (and his new attorney) to prove two cases at once. Essentially, the client must prove that the malpractice occurred, and but for the attorney’s malpractice, that the client would have received a more favorable outcome. In order to do that, the facts of the initial case must be revisited and the new attorney must succeed in getting the jury to find a different outcome than was originally rendered.  Further, in the case of monetary awards, the client must also show that the award would in fact have been collectible. Needless to say, these claims are especially challenging to prove.

What is “breach of fiduciary duty”?

An attorney is ethically bound to act in the best interest of their client. When an attorney puts his own interests, or those of a third party, before the client’s interest, it may be in violation (or breach) of his fiduciary duty.

What is the difference between pursuing a civil case and filing a complaint with the state bar association?

A civil case is pursued by an attorney in a court of law and ─ if successful─ should compensate clients for their losses. The Florida Bar Association regulates and disciplines misconduct by its members, but their process is not designed to compensate clients for their monetary losses. In some cases it may result in disbarment. Both or either routes may be pursued, but you should speak with a lawyer about which is the right course of action for you.

How can I prove that my lawyer’s negligence caused my damages?

You must be able to show that negligence existed (via expert testimony on “standard of care”) and then show that this negligence was the cause of measurable and real financial damages with a “but for” standard. In other words, were it not for the demonstrated negligence you would have had a favorable outcome, such as your case would have been decided differently, and the difference would have had direct impact on your financial circumstances.

In general terms, if the negligence or breach is proven and cause is established, then you could be compensated for the amount by which the outcome would have been different if not for their negligence or breach. Attorney fees may also be compensable- fees paid to the original attorney, any attorney fees incurred while trying to correct the error, and attorney fees incurred in pursuit of the legal malpractice action, as well as interest. In egregious cases (such as intentional harm or fraud) punitive, deterrence, and exemplary damages may also be awarded.

You can contact the state bar association to see if any information is available about disciplinary actions on a particular lawyer. According to an article in the American Bar Association’s Law Practice Today, law firms more prone to malpractice claims include those with either of the following:

  • A high ratio of support-staff to lawyers
  • Lawyers who dabble outside their area of expertise
  • Additionally, poor management, poor communication, poor calendaring, and poor use of technology may all influence a lawyer’s likelihood of malpractice.

According to an American Bar Association Law Practice article, the six most common types are:

  • Failure to Know/Apply Law
  • Planning Error
  • Inadequate Discovery / Investigation
  • Failure to File Documents: No Deadline
  • Failure to Calendar
  • Failure to Know Deadline

Additional legal malpractice trends are identified in this 2011 survey by the American Bar Association (citing data from 2008-2011 and limited to a group of insured lawyers in U.S. and Canada, representing 53,000 total claims):

  • Administrative errors and client relations account for over 40% of legal malpractice claims
  • Personal injury law (plaintiff-side) accounts for 15.6% of the legal malpractice claims
  • Failure to know/properly apply the law accounts for 13.6% of legal malpractice claims
  • “Procrastination in performance” accounts for 9.7% of legal malpractice claims
  • “Lost file, document, evidence” accounts for 7.1% of legal malpractice claims
  • “Intentional wrongs,” instances where the lawyer knowingly engaged in wrong-doing (such as fraud) represented 10% of reported errors.