St. Denis & Davey, P.A.

Legal Malpractice Issues

What qualifies as legal malpractice?

| Jan 31, 2018 | Legal Malpractice Law |

You might be very upset with your attorney if you recently lost a case. The legal process is often very long and draining, making an unsatisfactory outcome very hard to take. It’s very common for any client to blame their lawyer when this happens, and many want to seek compensation.

Failing to win is not the same as malpractice, however. The standard for legal malpractice is very high and has some very specific hurdles. You may have a good case, but it takes a lot of expertise in the area of legal malpractice to pursue your claim all the way through to a conclusion more satisfying than your first encounter with the courts.

Meeting the high bar

Legal malpractice has two components which together set a very high bar for any case. To qualify as legal malpractice your previous attorney has to have:

  • Made an ethical or procedural mistake, and
  • Lost the case over that identified mistake.

The connection between a mistake which can be pinpointed and the loss of your case is often the difficult part. For example, if a court deadline was missed and it resulted in a conviction, a clear case of malpractice can be established. But many other areas are much harder to prove to the high standard.

Mistakes which make a difference

Everyone makes mistakes, even attorneys. Not all mistakes are fatal to a case, however, which means they cannot be considered legal malpractice. The kind of mistakes which commonly make a big difference in the outcome of a case include:

  • Missing a filing deadline, such as a statute of limitations
  • Mismanaging client money or otherwise improper financial conduct
  • Not reporting a conflict of interest

The most important consideration is not that a mistake was made, it’s that it was significant and carried with it clear consequences for the case. This can include ethical violations, such as not reporting a conflict of interest, if that appears to have made a difference in the course of the case. The connection between the mistake and the outcome of the case is always the key element, however.

Caution with arbitration

If you have filed a complaint with your previous attorney, there is a good chance it is either going to or has gone to arbitration. This is a common part of any contract with an attorney and it is a required first step.

After the conclusion of arbitration, however, it may become legally binding after 30 days. Many clients do not understand that there is a clock running on when legal malpractice can be filed. In all cases, under Florida law, a client has two years from the date of the conclusion of a legal contract to file a suit for malpractice.

Time is of the essence in many of these cases, so it is important to move quickly and decisively.

Consult an expert

Given the technical nature of legal malpractice, it is vital that you have an attorney experienced in legal malpractice representing you. An important first step is a consultation to see if you do have a good case in the first place. Not everything rises to the high standards of legal malpractice, so it is best to know exactly where you stand.