What to Do if Your Lawyer Doesn’t Have Legal Malpractice Insurance
When you hire a lawyer, one of the first things you should ask is, “Do you carry legal malpractice insurance?” If the answer is “no,” you should run away from their office as quickly as you can. Legal malpractice coverage is essential for any lawyer who cares about their clients — why? Because if an attorney makes a mistake and it results in harm to their client, and they don’t carry insurance, it potentially leaves their client out in the cold.
Any lawyer who chooses not to carry malpractice insurance is almost certainly a terrible lawyer, and almost certainly does not have the money to satisfy your claim(s) if you are forced to sue them for harming your case. So RUN!, do not walk, away from any attorney who says they don’t carry insurance. Nothing they can say after that makes any difference. DO NOT HIRE THEM!
If you’ve already hired an attorney without legal malpractice insurance and believe you may have a valid case against them, here’s what you should do:
- Verify the absence of coverage
- Gather all communications, case files, and evidence of the alleged malpractice
- Determine whether you can prove the four essential elements of legal malpractice: duty, breach, causation, and damages
- Investigate whether the lawyer has personal assets, other insurance policies, or if your state has a client protection fund
- Be aware of statute of limitations deadlines for filing malpractice claims
- Consult with a legal malpractice attorney
If you find yourself in the unfortunate position of dealing with an uninsured attorney who has committed malpractice, DO NOT call Ross Sears, because we will not handle cases against attorneys who are dead-beats and choose not to protect their clients by carrying malpractice insurance. We recommend that you report them to the State Bar and the the Bar know how they harmed your case, and see if the State Bar can refer you to an attorney who sues deadbeat lawyers.
How does legal malpractice insurance work?
Legal malpractice insurance is a professional liability policy that covers attorneys when they make errors, omissions, or negligent acts in their legal practice. When a valid claim is filed, the insurance company typically handles the defense and pays settlements or judgments up to the policy limits, protecting both the attorney’s and ensuring clients have a source of recovery.
If your lawyer doesn’t have malpractice insurance…
1. Verify the absence of coverage immediately
IF you already hired an attorney, whom you now suspect does not carry malpractice insurance, then the first step is to contact the Texas State Bar Association directly. Do lawyers need malpractice insurance? In Texas, attorneys are not legally required to carry malpractice insurance as a condition of practicing law.
The absence of coverage should raise serious red flags, as it means any potential recovery for malpractice will depend entirely on your lawyer’s personal assets and financial situation — and your ability to successfully sue them.
2. Document everything thoroughly
Comprehensive documentation becomes your lifeline when pursuing a malpractice claim against an uninsured attorney. Gather all case files, correspondence, billing statements, and any written communications that demonstrate the attorney’s handling of your matter. Pay particular attention to missed deadlines, failed communications, and billing statements,* as these create clear evidence of professional misconduct.
Create a detailed timeline of events, including dates of important deadlines, court appearances, and any critical decisions made by your attorney. Preserve voicemails, text messages, and emails that show the attorney’s responsiveness or lack thereof. This documentation can be helpful for proving the elements of your malpractice claim and demonstrating how the attorney’s actions or inactions directly caused you harm.
*Continue reading about how to sue for overbilling
3. Assess the strength of your malpractice claim
To succeed in a legal malpractice case, you must prove four essential elements:
- Duty (the attorney-client relationship existed)
- Breach (the attorney failed to meet professional standards)
- Causation (the breach directly caused your damages)
- Damages (you suffered actual harm)
Common legal malpractice examples include missing statute of limitations deadlines, failing to file necessary paperwork, inadequate case preparation, or providing incompetent legal advice that resulted in unfavorable outcomes.
The “case within a case” requirement means you must also prove that you would have had a more favorable outcome in your underlying legal matter if not for the attorney’s negligence. This can be particularly challenging and often requires expert testimony from other attorneys in the same practice area. Consider whether you have sufficient evidence to demonstrate both the malpractice and the fact that you would have achieved a better outcome with competent representation.
4. Explore alternative recovery options
When your attorney lacks law malpractice insurance, you’ll need to investigate alternative sources of compensation. More than likely, this will mean that you need to sue your lawyer or their firm.
Your previous attorney’s personal assets may need to stand in for an insurance policy if they are uninsured or, if your attorney practiced with a firm, you may be able to pursue claims against the firm itself or other partners who may have supervised the negligent attorney.
5. Consider the timing carefully
The statute of limitations in Texas is generally two years from the date of discovery of the malpractice — but it could vary in breach of fiduciary duty cases and under some other circumstances. Always contact an experienced attorney to check, and always act as soon as possible.
When is it too late to fire your attorney? While you generally have the right to terminate your attorney at any time, doing so too close to important deadlines can create additional complications and potentially harm or limit your malpractice claims.
If you’re considering firing your attorney due to suspected malpractice, act quickly to preserve your rights and ensure you have adequate time to both secure new representation and file any necessary malpractice claims before the statute of limitations expires.
6. Seek immediate legal counsel
Pursuing a malpractice claim against an uninsured attorney requires specialized expertise that most general practice lawyers lack. Look for attorneys who focus specifically on legal malpractice cases.
Legal malpractice insurance — FAQs
What is the average settlement for legal malpractice?
Legal malpractice settlements vary widely depending on the value of the underlying case, the severity of the attorney’s error, and resulting damages, which can range from thousands to millions of dollars. Most cases settle between $50,000 and $500,000, though complex cases involving significant financial losses can result in much higher awards. The settlement amount depends largely on what the client would have recovered in their underlying case if not for the attorney’s negligence.
Are Texas attorneys required to have malpractice insurance?
No, Texas attorneys are not legally required to carry malpractice insurance as a condition of practicing law.
What are the requirements for legal malpractice in Texas?
In Texas, legal malpractice requires proving four elements: the existence of an attorney-client relationship, breach of the applicable standard of care, causation linking the breach to the client’s harm, and actual damages.
Additionally, Texas malpractice cases often contain a “case within a case,” meaning plaintiffs must prove they would have won their underlying legal matter or achieved a better outcome but for the attorney’s negligence.
Do NOT hire an attorney without legal malpractice insurance!
Whether an attorney says it’s because of high costs, fear that it will make them a target to be sued, a belief that they’re too careful to need it, or they specialize in a low-risk practice area, there is never an excuse good enough to not carry legal malpractice insurance — no matter how the lawyer spins it. And you should never work with a lawyer who doesn’t care enough about their clients to carry insurance to protect them.
At Sears Crawford, we always carry legal malpractice insurance to protect our clients. As a firm, we believe it is our fiduciary duty to protect you as our client by ALWAYS putting your interests ahead of our own.
If you have been harmed by your previous lawyer’s representation and need a legal malpractice attorney in Houston that you can trust, call Ross Sears II at (713) 223-3333 or contact us online for a free consultation.
More Helpful Articles by Sears Crawford:
- Four Elements of Legal Malpractice in Texas
- Texas Rules of Professional Conduct for Lawyers
- How Do You Sue a Lawyer for Legal Malpractice?
- Most Common Types of Legal Malpractice in Texas
- How to Find a Lawyer to Sue Another Lawyer