What is Considered Malpractice for an Attorney?

What Is Considered Legal Malpractice?

Attorneys have years of training and education and are placed in a unique fiduciary position with their clients. Clients depend on them for advice and to defend their rights at trial.

When an attorney commits legal malpractice, the consequences can have a substantial impact on their client’s business, finances, property, or personal life.

Legal malpractice occurs when a lawyer:

1. breaches the duty of care they owe to their client,
2. that the lawyer’s client suffered damages,
3. that the lawyer’s breach caused the client’s damages, and
4. but for the lawyer’s conduct, the client would have succeeded in their case.

Some attorneys refer to this as the “4 D’s” of malpractice:

• Duty
• Deviation
• Damages
• Direct cause

Illinois Supreme Court Definition of Attorney Malpractice

What exactly is considered a breach (or deviation) of care, however, is more difficult to define. The Illinois Supreme Court aptly stated:

“[A] cause of action for legal malpractice is that the plaintiff would have been compensated for an injury caused by a third party, absent negligence on the part of the client’s attorney… no actionable claim exists unless the attorney’s negligence resulted in the loss of an underlying cause of action.”

Tri-G v. Burke, Bosselman & Weaver, 222 Ill. 2d 218 (2006).

Legal Malpractice Defined in Plain English

In plain English, this means that if you, the client, would have won your case if your attorney had not been negligent, then there is a malpractice claim. There is not a malpractice claim if you would still have lost your case even if your attorney had not been negligent.

You must show that your attorney’s actions were negligent, and if they had not breached the duty of care that caused you damages, you would have won or at least recovered something.

What are examples of legal malpractice?

Common examples of legal malpractice where an attorney has committed the four D’s of malpractice include:

• Missing the statute of limitations. The statute of limitations legally bars claimants from filing lawsuits after a set period of time. For Illinois personal injury actions, most cases must be filed within two years. If your attorney forgets to calendar the statute of limitations and misses the filing deadline, then your attorney likely committed legal malpractice.
• Misuse of client funds and fraud. These are perhaps the most clear-cut examples. When your attorney co-mingles your escrow funds or uses your settlement proceeds to fund his business or personal expenses, they have committed legal malpractice.
• Padded and fraudulent billing. Attorneys can only bill for actual legal work performed. If you have retained your attorneys on an hourly basis, make sure that your attorneys provide you with itemized invoices breaking down the amount of time they spent on each aspect of your case and that the billing rates conform to your retainer agreement that you signed at the outset of your case.
• Settling without client consent. Attorneys must obtain consent to settle any cases. If they settle a case, especially if it is for materially less than what the reasonable settlement value might be, they may have committed legal malpractice.
• Material conflicts of interest. Conflicts of interest may include having a financial interest in the opposing party that affects their judgment or entering into a business relationship with their client without advising them to seek separate counsel.
• Failing to pursue a case. Not issuing discovery, not taking depositions, missing court hearings, and not filing appropriate motions may constitute legal malpractice.
• Failing to add necessary claims or defendants. While there may be strategic reasons for not filing suit against some parties, parties that are collectible (you can recover money against them), likely liable for your injuries, and can be easily located should generally be added as defendants. Likewise, failing to add certain claims (such as forgetting to file a survival count in a wrongful death claim) may be legal malpractice.
• Repeated and prolonged failure to communicate. If your case fails or a business deal falls through because of your lawyer’s repeated failure to communicate and provide status updates, they may have committed legal malpractice.

What are examples that are NOT malpractice?

There are also many circumstances where a client may be unhappy with their legal council or the law firm, but the lawyer did not commit malpractice. Here are some common examples that may constitute a poor attorney client relationship, but are not legal malpractice claims:

• Rude behavior. Rudeness, impatience, and verbal abuse might make your attorney incredibly unpleasant to work with, but it does not mean they committed malpractice. If your attorney behaves poorly or is verbally abusive, it might be better to seek a different attorney.
• Personality clashes. Just because you do not like your attorney, it does not mean that they are committing malpractice. Legal malpractice must be a breach of a standard of care that has a material impact on your case or business transaction.
• Not immediately answering your phone call or email. Your attorney may be in court, busy with another case, or dropping their kid off at band practice. Attorneys have a home life and oftentimes have several clients, a business model which is completely normal so long as they can handle the caseload.However, if repeated calls or emails go unanswered over a protracted amount of time (think weeks, not hours unless it is the eve of trial or the day before a major business deal), it may become malpractice if it materially affects your case or deal.
• Bad outcome in your case. Just because your case was dismissed or you did not get the settlement award you wanted does not mean that your attorney committed malpractice. Even great attorneys lose cases, and your attorney is not expected to be Perry Mason. Without more evidence, a bad outcome alone is not malpractice.
• Your attorney is friends with opposing counsel. This is not a conflict of interest.

How do you prove attorney malpractice?

Courts have oftentimes called legal malpractice cases a “trial within a trial.” Merely showing that your attorney committed malpractice is insufficient to recover in a legal malpractice case. You must also prove that but for the attorney’s malpractice, the outcome of the case would have been materially different.

• If you were the plaintiff in the underlying case and you were forced to settle for significantly less than what your case was worth because your attorney committed malpractice, you will likely be able to recover damages.
• If you were the plaintiff in the underlying case and likely would not have prevailed even if your attorney had not committed malpractice, you will not likely be able to recover damages.
• If you were the defendant in the underlying case and you incurred a large judgment because your attorney committed malpractice, you will likely be entitled to recover damages if you would have prevailed in the case but for your attorney’s malpractice.
• If you were unable to submit a bid on a lucrative construction project due to your attorney’s malpractice that you otherwise would have won, you will likely be entitled to recover damages.

What are the damages in a legal malpractice claim?

Damages are highly fact specific to each case, and the plaintiff in the malpractice claim bears the burden of proving damages. For business transactions, this may include retaining an expert appraiser to evaluate lost profits.

Damages in Litigation

Examples of damages in litigation you might be able to recover include:

• If you were the plaintiff in the underlying case, the reasonable award in the case had the malpractice not occurred.
• If you were the defendant in the underlying case, the judgment or damages the defendant had to pay as a result of the malpractice.

Damages in Transactions

Examples of damages in transactions you may be able to recover is you pursue an attorney malpractice case include:

• Lost profits in a failed business transaction due to your attorney’s malpractice. Note: you must also be able to prove lost profits at the malpractice trial.
• Lost escrow or trust funds if your attorney fraudulently converted them to his personal or business use.

Other Example Damages

Other damages you may be eligible to recover in a legal malpractice lawsuit include:

• Any attorney’s fees incurred in curing any legal mistakes made in the case or business deal. However, you cannot recover punitive damages or attorney’s fees for the malpractice claim itself.

What should I do if I suspect my lawyer has been negligent in my case?

If you think your lawyer has committed or is committing malpractice, there are some simple steps you can take to protect yourself, including speaking with your lawyer in a mature and professional manner, documenting everything, and seeking a second opinion.

Like medical malpractice cases, it can be difficult to succeed with a legal malpractice claim. You will need to show that the attorney’s negligence caused you to suffer damages and that but for the attorney’s malpractice, the outcome of your case would have been materially different.

Learn more about what to do in our article, What to Do if You Suspect Lawyer Negligence in Your Car Accident Case.

Free Consultation

If you suspect negligence by your lawyer and have questions about how to confirm your suspicion, contact The Kryder Law Group, LLC today for a free consultation. You can speak with a malpractice lawyer from our law firm to discuss the details of your situation.

Our malpractice lawyers have experience handling legal malpractice cases. Call today and create an attorney client relationship with a malpractice attorney that can help you.