Legal Malpractice

Legal malpractice is the term for negligence, breach of fiduciary duty, or breach of contract by an attorney that causes harm to his or her client. In order to rise to an actionable level of negligence, the injured party must show that the attorney's acts were not merely the result of poor strategy, but that they were the result of errors that no reasonable attorney would make.

Furthermore, legal malpractice requires proof of what would have happened had the attorney not been negligent; that is, "but for" the attorney's negligence ("but for" causation). If the same result would have occurred despite different (non-negligent) actions by the attorney, no cause of action will be permitted. "But for" or actual causation can be difficult to prove and usually results in a "trial-within-a-trial" which delves into the facts of the case for which the client originally retained the attorney. In some jurisdictions, a person convicted of a crime who then sues his defense attorney must first prove that he was factually innocent (in other words, he must be exonerated first) and that he was convicted only because of his attorney's negligence. A plaintiff who lost a civil case must prove that the legal malpractice complained of caused the case to be lost, so that the plaintiff can then recover from the negligent attorney the damages that would have been owed by the underlying defendant.

Legal malpractice can also occur when an attorney breaches a fiduciary duty to his or her client. This occurs when attorneys act in their own interest instead of to their client's, to the detriment of their client. A claim for legal malpractice may also arise when an attorney breaches the contract they sign with their client.

A common basis for a legal malpractice claim arises where an attorney misses a deadline for a filing of a paper with the court, such as a statute of limitations, and this error is related to the loss of the client's cause of action.