Negligence vs Malpractice: What is the Difference?

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Negligence vs Malpractice: What is the Difference?

Spines of many law books

What is the difference between negligence vs malpractice? You hear both words thrown around whenever a professional doesn’t do their job but is there a difference? Attorneys owe their clients a fiduciary duty, often called a duty of care, to act with their client’s best interests in mind 100% of the time. When that duty of care is broken, the signs can point to either negligence or malpractice taking place — which are both essentially the same, and are serious matters.

So, how can you tell whether negligence vs malpractice is present in your current attorney-client relationship? The legal malpractice attorneys at Sears Crawford are here to clarify.

Our attorneys have been filing malpractice lawsuits against negligent lawyers in Houston for almost 30 years. We sue lawyers to protect the interests of our clients and the integrity of our profession.

What is the difference between malpractice and negligence?

Legal malpractice occurs when an attorney “acts or fails to act” how a reasonable and prudent attorney would act under the same or similar circumstances, and that act or omission causes damages to the client. Basically, this is an umbrella term to describe when a lawyer is not doing their job* by failing to carry out that duty of care mentioned earlier. Legal malpractice usually involves fraud, breach of fiduciary duty, breach of contract, or negligence.

Negligence is a type of legal malpractice that can be defined as an attorney doing something that a reasonable and prudent attorney would not have done under similar circumstances, or failing to do something that a reasonable and prudent attorney would have done.

If you’re struggling to remember the difference between negligence vs malpractice, just remember that negligence is the most common form of malpractice in a legal malpractice lawsuit. The attorney is neglecting to do something a reasonable attorney would have.

*Continue reading: Can you sue a lawyer for not doing their job?

What are examples of negligence and malpractice?

Negligence falls under the large umbrella of legal malpractice, but to further develop your understanding of both concepts, we’re going to share some more common examples that we see in malpractice lawsuits.

Malpractice examples

Common examples of attorney malpractice include but are not limited to:

  • Conflicts of interest occur when your attorney represents another party’s interest that runs counter to your own.
  • Overbilling or misuse of financial resources includes unconscionable contingency and hourly fees, as well as misuse of resources allocated to your case.
  • Failure to obtain client consent usually applies to your attorney taking a settlement without your consent. While language can be put in a contract that allows your attorney to settle a case without your consent, this is a huge red flag.

Negligence examples

What is an example of negligence? In many legal negligence cases, these are the most common scenarios we deal with.

  • Failure to know or apply the law occurs most often when an attorney takes on a case outside of the scope of their expertise and therefore cannot make the decisions that a reasonable and prudent attorney would.
  • Failure to calendar occurs whenever an attorney misses important deadlines that negatively impact your case.
  • Lack of communication about important decisions or otherwise can signify negligence in some cases.

Although there are legal distinctions between what constitutes negligence and attorney malpractice, one thing remains the same. Whether you want to know how to sue a lawyer for overbilling, a conflict of interest, negligence, or any other form of malpractice, you’ll need a legal malpractice attorney in your corner.

Can I file a malpractice lawsuit against my lawyer? YES

In order to file a malpractice lawsuit against your lawyer, three essential elements must be proved:

  1. There was duty (duty of care). It is usually evident that there was an agreement between you and your attorney because of a contract between the two parties, verbal or written.
  2. That duty was breached. It must be proved that your attorney was negligent in their action or inaction as your attorney. In other words, they breached the duty they owed you.
  3. That breach of duty resulted in harm. Lastly, that breach in duty of care must have caused you harm, this is usually proved by showing that you would have won your case or received a better outcome if it weren’t for the negligence of your former attorney.

In order to successfully sue your former attorney you will need to prove that you suffered damages and that your previous attorney is liable. To seek justice and convince the judge and jury, you’ll need an experienced and aggressive legal malpractice attorney in Houston to present your case.

Want to sue your lawyer? A legal malpractice attorney from Sears Crawford can help.

Whether it’s negligence vs malpractice, you need an experienced lawyer who specializes in legal malpractice cases. We know that after the experience with your previous lawyer, the idea of hiring another lawyer is probably the last thing you want to do. When taking the first step down the road of getting what you deserve, you should choose carefully who is going to accompany you.

Ross Sears II is an award-winning lawyer who sues lawyers. He’s a board-certified Super Lawyer with over 30 years of legal malpractice lawsuits under his belt, who will fight for you to make things right.

To speak to an experienced and compassionate legal malpractice attorney today call 713-223-3333 or contact us online to schedule a free consultation.

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