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What is Legal Malpractice?
Definition & Common Examples

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Collen Clark Published by Collen Clark

Schmidt & Clark, LLP is not currently accepting these types of cases and has posted this content for information purposes only. We encourage you to seek a qualified attorney, if you feel you might have a case.

Over the years of my legal profession practice, I have run into attorneys who occasionally make errors. Those mistakes have serious consequences. In the end, a viable legal malpractice claim will turn on the facts of the case. 

However, you must keep in mind that not every mistake is considered legal malpractice. In this article, I will tell you what legal malpractice is and what you need to look out for.

Summary of the Key Findings

  • Malpractice is when a lawyer does not use the same skill and provide the legal service that other lawyers would use in similar situations.
  • To prove that someone was guilty of legal malpractice, you need to show that they did not meet the standards of their profession. 
  • The most common type of legal malpractice is negligence. This happens when a lawyer mishandles your case, resulting in harm.

What is Legal Malpractice?

Two lawyers pointing to a book

Legal malpractice is the legal term used to describe when an attorney’s actions do something wrong that harms their client or does not provide them the proper standard of care [1]

This can mean that the attorney didn't provide the legal services they were supposed to or that they didn't do it with the right level of care.  

"Lawyers make mistakes. Sometimes those mistakes have consequences. Ultimately, a viable legal malpractice claim will turn on the facts of the case, but here are three basic things to consider in determining if an attorney's mistake justifies a legal malpractice lawsuit."
- Michael S. LeBoff, Malpractice Lawyer


What Is an Attorney-Client Relationship?

Two business people shaking handsAn attorney-client relationship is a business relationship between the client and an attorney who provides legal services. 

This legal process can be done in several ways, but usually, it's done by signing a written contract or paying the attorney. The attorney then must provide those legal services to their client.

This is considered a sacred relationship and is one of the most important ones in our legal system. It's essential because, without it, people wouldn't be able to get access to legal help when they need it.

What Are the Most Common Legal Malpractice Claims?

A lawyer holding a gavel

The most common legal malpractice claims include failure to apply the law, missing deadlines, and fraud. However, here are the most common examples that can be used as legal grounds for legal malpractice actions:

1. Failure to Apply The Law

Most common malpractice claims in the United States are when people do not know or understand the law. Lawyers should have a lot of knowledge about the law in their area of practice to help their clients succeed. 

An attorney who does not understand the law correctly in different situations can be bad for a case. This might happen more often if a lawyer practices in multiple areas [2].

2. Missing Deadlines

Because the law firm has many turnovers or is very busy, more than one lawyer is handling different parts of your case. 

Failure to calendar does not meet a deadline to file a suit or take action in a particular case. 

This can lead to missing important deadlines because it’s not always one person that is in charge of the case.

3. Miscommunication

If an attorney fails to plan for every possible outcome, they may make mistakes. 

This could include not coming up with a good plan in a civil case or not keeping essential documents, although it is part of their professional responsibility.

4. Not Being Prepared

When you are getting a divorce, your lawyer should find all the information about the case or legal matter. 

This includes finding out about all of your spouse's assets. 

5. Lack of Consent

If an attorney decides on your behalf without your knowledge or consent, they may be guilty of legal malpractice. This includes settling your case without talking to you first or taking money out of your settlement without telling you. 

6. Misuse of Finances

An attorney may borrow money from you that they are supposed to hold in trust or use your money to pay their own legal fees and expenses. 

In some cases, an attorney may even forge your signature on documents. This serious breach of trust can have devastating consequences for the client.

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Proving a Legal Malpractice Case

A lawyer holding a gavel while writing down notes

Winning legal malpractice cases against a defense attorney requires you to prove four things in a legal malpractice action:

  1. The attorney owed you a duty to act appropriately and not do anything that would hurt you.
  2. The attorney did not do what they agreed to do. This is sometimes called a breach of contract.
  3. The reason you suffered financially was because of the other attorneys' conduct.
  4. The damages you suffered were losses of money.

Types of Legal Negligence

A lawyer reading from a book

In my legal practice experience, there are three main types of legal malpractice claims.

1. Negligence

An attorney's negligence is a common type of legal malpractice claim. This happens when someone doesn't use reasonable care when doing something that could have resulted in harm.

For it to be considered negligence, the attorney must have:

  • Failed to provide the legal services they were supposed to
  • Failed to do it with the right level of care
  • To win a negligence claim, the client must prove that the attorney was negligent and that this negligence led to them being harmed.

2. Breach of Contract

A breach of contract legal malpractice claims happens when an attorney’s duty is comprised, and they don't do what they agreed to in the contract.

To win a breach of contract claim, the client must prove that:

  • There was an attorney-client relationship.
  • The attorney didn't do what they agreed to in the contract.
  • A reasonably prudent attorney took an uneducated decision leading to a breach of duty, which somehow harmed the client.

3. Fraud

Fraud happens when an attorney lies to their client or hides information from them, violating ethics rules.

To win a fraud claim, the client must prove that:

  • The attorney made a false statement.
  • They knew that the statement was false, therefore violating ethics rules.
  • They made the statement to trick the client.
  • Because of this, the attorney harmed the client in some way.


How is an attorney-client relationship created?

An attorney-client relationship is created when an attorney agrees to provide legal services to a client. 

What is the difference between a bad tactical decision and legal malpractice?

The difference between a bad tactical decision and legal malpractice is that a bad tactical decision is a decision that doesn't turn out well but wasn't necessarily illegal or unethical. A legal malpractice claim is a claim that an attorney did something illegal or unethical.

What is the "case within a case?"

The "case within a case" is a legal term that refers to the need to prove what would have happened if the attorney had not been negligent. 

Do You Want to Sue for Legal Malpractice?

If you think you may have a legal malpractice case and want to sue your former attorney, the first step is to talk to a legal professional. 

Our legal malpractice attorneys at Schmidt & Clark, LLP have years of experience handling these cases and can help you get the compensation you deserve. Contact us today for a free consultation.