Frequently Asked Questions

   

What is legal malpractice?

"Malpractice" denotes the failure of professional services to meet a minimum standard of competence.  Your lawyer has an obligation to use the skill, prudence and diligence that would be exercised by a lawyer of ordinary skill and capacity under similar circumstances.  This is called the "standard of care."  When a lawyer's counseling or case handling falls below the standard of care, it is called "legal malpractice."  The three major theories of liability for legal malpractice are negligence, breach of fiduciary duty, and breach of contract.  Of those three, negligence is the most common theory of liability used in legal malpractice cases. 

 

Is it legal malpractice if my attorney overcharges me? 

It can be, although in some cases it may just be a fee dispute.  If your attorney charges you significantly more than your fee arrangement provides, that overcharge can constitute legal malpractice.  That is one reason why clients always should have a written fee arrangement that spells out the services being provided and the fees for those services.  It can be difficult to prove overcharges if you had an oral fee arrangement.  Similarly, it can also be legal malpractice if a lawyer fails to keep a client reasonably informed about the projected costs and risks of litigation, about certain decisions and case strategy, and, for example, failing to advise the client of settlement offers and providing an assessment of settlement opportunities. 

Does every mistake made by a lawyer constitute legal malpractice?

Not every mistake made by a lawyer will constitute legal malpractice.  On the other hand, if an attorney's mistake involved a lack of ordinary skill, prudence and diligence, then it may amount to legal malpractice – especially if the error is so serious and devastating that it damages or destroys the client's case.  Attorneys often are not held liable for malpractice if the legal advice they gave was sound at the time it was given.  This principle can affect malpractice liability in a number of ways.  One of the key ways is that giving advice that was correct when it was given means that the client’s case probably would not have reached a more favorable result had the advice been different.  Of course, if the law changes while the representation is ongoing, the attorney has a duty to know of the changes,  advise the client of the changes, and act accordingly. 

The mere fact that there was a poor result in your case does not mean that the lawyer committed malpractice.  The practice of law is an art. During the preparation and trial of a case, an attorney must make judgment calls. A jury may simply prefer the testimony of the opposing party rather than that of the client. A result can be unsatisfactory even if the lawyer did everything correctly.  Conversely, an attorney can do things wrong and still achieve a satisfactory result.  The critical questions are always whether the lawyer did what a "reasonably prudent lawyer practicing in the same or similar circumstances" would have done and, if the lawyer failed to meet that standard, did his or her failure cause damages to the client.

What if my lawyer settled my lawsuit without consulting me before settling?

If you authorized your lawyer to settle your case and authorized a specified dollar range, and if your lawyer settled it within that range, then your lawyer likely was following your directions.  Settling the case without your permission or without consulting with you first likely constitutes an unauthorized act. It may be that the circumstances will allow you to re-open your case with a new lawyer and continue your pursuit of justice against the party who first harmed you.  Or, depending on the circumstances, you may have a claim against the lawyer for the difference between what a jury in a malpractice case would assess the fair value of your original claim to have been, versus the dollar amount your lawyer took in settlement without your authorization.  Even if you did not authorize the settlement in the first instance, if the lawyer fully discloses the settlement to you and you accept the settlement proceeds you may have “ratified” the unauthorized act and “accepted its benefits”, thereby relieving the lawyer of liability to you.

Other Questions You May Have:

What is legal malpractice? 

What are your fees?

Some common mistakes of lawyers that may be legal malpractice

How long do I have to sue my lawyer?

I have settled my case but I believe my lawyer was negligent. Can I do anything?

Can you evaluate my claim without cost to me?

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