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The building blocks of a legal malpractice claim

On Behalf of | Apr 6, 2023 | Attorney-Client Relationship, Damages, Duty of Care, Legal Malpractice |

Today we go back to the basics that define legal malpractice. When an attorney fails to adhere to a reasonable duty of care in the legal matter they took on for a client and the client suffers harm as a result, the client has a claim for attorney malpractice that can form the basis for a lawsuit.

An attorney-client relationship

The first required element of a legal malpractice claim is that the harmed individual and the lawyer had formed the professional relationship of attorney and client. The parties may have memorialized their professional relationship in a written, signed retainer agreement. If no written contract is available, the relationship may be evident from other factors.

For example, was there a verbal agreement for representation? Did the lawyer behave as if they represented the other party? Was the lawyer entered as attorney of record in a lawsuit or on a legal document? Did others in the law office believe the person was a client based on the lawyer’s representations? Did the “client” discuss the attorney with third parties as if the lawyer were the person’s legal counsel? Did the lawyer perform billable legal work such as research, writing or document drafting? Did the client receive a bill from the lawyer for services rendered?

In very narrow circumstances, a third party who was not the attorney’s client may have a claim for legal malpractice. This most often comes up in the estate planning or probate context when an intended beneficiary of estate work does not receive the expected gift or inheritance because the attorney made a drafting error in a will or trust. In Florida, another area of third-party right to sue for legal malpractice involves an entity with a subrogation interest in the actual client’s rights and interests.

The lawyer breached their reasonable duty of care owed to the client

The attorney’s duty of care to the client is confined to the legal matter for which the client retained the lawyer. Counsel must not be an above-average lawyer, nor must they win a client’s lawsuit – so long as during the litigation their decisions and actions adhered to a reasonable standard. The duty of care is reasonable, meaning that the lawyer must take precautions and perform legal work as an average lawyer would.

Put another way, an attorney must perform legal work for a client at a level and with the quality of other reasonable lawyers doing similar work. A simple example might be of a lawyer who misses the filing deadline for a lawsuit, causing the client to miss their right to litigate a claim. If the lawyer missed the deadline because they did not keep a reasonable calendaring and tickler system in their office as most reasonable lawyers do, they would have breached the duty of care to the client.

In the subsequent legal malpractice case, the plaintiff’s lawyer will often use an attorney-expert at trial to testify about the duty of care in the given circumstances.

The breach of duty harmed the client

Finally, legal malpractice is only actionable if the lawyer harmed the client by breaching their duty of care. The client may establish the first two elements, but if the breach of duty caused no harm, there is no claim for malpractice. A major part of a legal malpractice trial could be proving monetary loss from the lawyer’s negligent breach of the duty of care in the original claim.

This can be particularly challenging to show when the alleged malpractice occurred during previous litigation and the plaintiff must show that without the breach of care, they would have had a different, more valuable outcome in a lawsuit.

An experienced legal malpractice attorney can answer questions about attorney negligence and assist in analyzing a set of circumstances in this context. In addition to legal malpractice, an attorney’s insufficient representation may also form the basis for other claims like breach of fiduciary duty or breach of contract.