lawyer talking with a client about their caselawyer talking with a client about their case

What Constitutes Legal Malpractice?

What Qualifies as Legal Malpractice?

lawyer talking with a client about their caselawyer talking with a client about their caseWhen an attorney makes a mistake in the handling of a claim, does a client automatically have a case for legal malpractice?

The short answer is no. When a lawyer fails to win a case or it settles out of court for much less than anticipated, that doesn’t necessarily mean that the attorney is guilty of malpractice. 

 As with any negligence lawsuit, to prevail in a malpractice case against an attorney, a client must prove the following elements: 

  • The lawyer owed it a duty to act properly.
  • The lawyer breached that duty by making some type of mistake or through a lack of action.
  • The attorney’s conduct caused the client to suffer harm.
  • The client sustained a financial loss as a result of the lawyer’s conduct.

How Do You Prove Legal Malpractice?

Generally, to win a malpractice claim, the plaintiff must prove that the attorney did not act within the professional standard of care that lawyers are held to, and made serious mistakes in handling its case. Here are some common scenarios that might constitute legal malpractice:

  • The attorney either ignores a case or stops working on it, and as a result of that inaction, the case is thrown out of court.
  • The attorney settles a case without the client’s authorization, provided the client can prove that the attorney agreed to a settlement that was much less than the case was worth.
  • The attorney forgets an important deadline, such as a statute of limitations, barring a client from being able to bring a lawsuit.
  • The attorney breaches the duty of confidentiality to a client.
  • The attorney mishandles the money a client paid as a retainer, takes a client’s money, or comingles trust funds.

Is Legal Malpractice Civil or Criminal?

In some cases a legal malpractice claim can be filed in both civil and criminal court. Situations in which your claim may also qualify as a criminal case include:

  1. If your attorney committed fraud
  2. If your attorney committed theft

In instances like this the attorney may be reported to the state Bar, as well as face criminal charges.

Legal malpractice is actually relatively difficult to prove, and a dissatisfied client who sues its lawyer simply because a case did not turn out the way it hoped is rarely successful.