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Breach of a lawyer’s duty of care before trial during investigation and discovery, part 2

by | Aug 13, 2021 | Duty of Care, Investigation and Discovery, Legal Malpractice |

In part 1 of this post, we described the investigation and discovery phases of a trial. Today, we will share ways in which lawyers might commit legal malpractice during these processes.

Missing important evidence

An attorney owes their client whom they represent in a lawsuit the duty of reasonable care. Should counsel breach this duty, it could harm the client in several ways, including financially.

In investigation and discovery, a lawyer must conduct reasonable research to discover the facts of the case. Then, the attorney must analyze them in light of applicable law to determine which witnesses to question as well as what documents, things or data to request for review. If an attorney fails to uncover and gather the evidence needed to prove (or defend) the case and that failure was unreasonable, the lawyer would be liable in malpractice or negligence for any resulting losses to the client.

For example, an inadequate investigation might miss factual details that could have been important enough that the client’s lawsuit should not have been filed, costing the client extra legal fees and expenses and potentially a loss in court that could result in financial liability. Or, a key witness may not have been called who may have made a huge difference in the trial outcome.

Failure to follow court rules or meet legal requirements

An attorney in discovery must meet deadlines for requesting as well as for responding to the other party’s requests. Either mistake can harm the client in the litigation. For example, if the lawyer does not respond to a request for admissions in time, the court will deem the matter admitted by the unresponsive party.

Failure to conduct a robust privilege review

When an attorney receives a discovery request, before they release evidence to the other side, the lawyer must conduct a privilege review to determine whether revealing the material would violate the attorney-client privilege or the work-product doctrine. The attorney-client privilege protects confidential communications between a client and their lawyer concerning legal advice or litigation.

The work-product doctrine protects from discovery attorney records produced for their own use in anticipation of litigation. For example, the doctrine protects from release a lawyer’s notes, memos or other writings created for or about litigation, with some narrow exceptions, according to the National Law Review.

If a lawyer fails to reasonably conduct a privilege review of requested documents, they might negligently release a document that they should have kept confidential. If that inadvertent release harms the client in the lawsuit, the attorney may be liable for client losses from the mistake.


This post introduces an area of legal malpractice, but there are many other examples of how an attorney can breach their duty of due care throughout investigation and discovery. Negligent mistakes in these phases of litigation can create significant malpractice liability.