Including: Legal Malpractice, Breach of Fiduciary Duty and Attorney Negligence
Did your attorney commit legal malpractice?
In recent years, the number of lawyers across the country has grown tremendously. As the sophistication of practice in various specialty areas has become more prevalent, the opportunity for an attorney to commit legal malpractice has increased.
The two most essential elements of a legal malpractice case are:
a) The client can prove that the lawyer committed malpractice, negligence, breach of contract, or breach of fiduciary duty; and
b) That “but for” the malpractice, negligence or breach of contract/duty of the lawyer, the client would have prevailed in the underlying litigation or transaction.
Basically, the client must show that the lawyer caused the client’s damages.
Types of legal malpractice cases include:
Negligence
Similar to a medical malpractice case, the attorney’s conduct is judged as to whether it met the “ opens in a new windowstandard of care” expected of other attorneys in the area, or whether that conduct deviated from the norm.
Breach of contract
When an attorney is retained by a client, there are implicit and explicit agreements as to the scope of the work to be performed, the manner in which it is to be done, and obligations of the parties. Generally, there will be a retainer agreement setting forth all of the obligations of the parties. Breach of the contract for legal representation may be proved to have occurred.
Fraud
Fraud involves the intentional misrepresentation of material facts which adversely affects the client.
Theft
Conversion of moneys or property of a client may take a few forms. For instance, a lawyer may overbill for services not performed, or retain funds from a settlement that do not belong to the attorney.
Breach of fiduciary duty
Sometimes, the attorney will be acting in a fiduciary capacity, such as by power-of-attorney, and has certain responsibilities of ensuring that the attorney puts the client’s interests ahead of all others.
