Most Common Types of Legal Malpractice in Texas

As lawyers who sue lawyers for malpractice in Houston, we’ve seen it all. Our co-founder and Texas legal malpractice attorney, Ross Sears, has been holding lawyers accountable for their actions for more than 30 years, for everything you can imagine — countless types of legal malpractice, and professional negligence. Some of the more common types of legal malpractice we see at Sears Crawford include the following:

• Failure to know or apply the law
• Conflicts of interest
• Missed deadlines
• Overbilling or misuse of client funds
• Failure to obtain client consent (usually for a settlement)
• Attorney fraud or self-dealing

Although these are the more common types of legal malpractice, there are innumerable ways for an attorney to harm their clients, and at Sears Crawford, we’ve seen them all. WE SUE LAWYERS because of our commitment to our clients and the integrity of our profession, and if you believe your attorney committed malpractice and messed up your case, we can help you sue them, too.

Contact Ross Sears at Sears Crawford today at (713) 223-3333 and ask him to sue your lawyer. He can help guide you through the process and help turn uncertainty into action.

What is legal malpractice?

Can you sue your lawyer? You can — when they’ve committed legal malpractice. Legal malpractice, sometimes called attorney malpractice, occurs when an attorney acts (or doesn’t act) in the way that a reasonable and prudent attorney would under similar circumstances, and this action or inaction results in harm to the client. Essentially, it occurs when your attorney’s actions fall below the standard of care expected of legal professionals, and it hurts your case.

Legal malpractice is not just about receiving an unfavorable outcome in your case; it stems from specific errors or omissions that violate the duty of care that your lawyer owes you as a client. These errors might include failing to file documents on time, giving incorrect legal advice, or representing clients despite clear conflicts of interest.

Most legal malpractice claims arise from negligence or breaches of fiduciary duty, but there are a number of ways for your attorney to commit malpractice. Whatever the cause, to establish a valid claim, you must demonstrate that your attorney’s misconduct caused tangible damages, usually financial losses or the inability to seek a legal remedy for your case.

What is the most common type of malpractice?

Can I sue my lawyer for not doing their job? Can I sue my lawyer for taking too long? These are common questions. Although there are countless ways for lawyers to make mistakes that harm their clients, some forms of legal malpractice are more common than others.

1. Negligence

Negligence is an umbrella term that covers almost all of the most common types of legal malpractice in Texas. Attorney negligence occurs any time an attorney fails to do something that a reasonable and prudent attorney would do under similar circumstances or does something that a reasonably prudent attorney wouldn’t do.

Negligence can manifest in various ways, such as missing important deadlines, failing to file documents correctly, or providing incorrect legal advice.

For example, if an attorney fails to file a lawsuit within the statute of limitations, the client may lose their right to seek legal remedy, resulting in significant harm to that client. To sue a lawyer for negligence, you often have to prove that they failed to act as a competent attorney would, thereby causing damage to the client.

2. Breaches of contract

Suing for breach of contract occurs when an attorney fails to fulfill the obligations outlined in the attorney-client agreement. This can include failing to perform promised services, or not adhering to agreed-upon fees.

For instance, if an attorney agrees to represent a client in a personal injury case but then charges more for their fees or expenses than the contract permits, this could constitute a breach of contract. The client may suffer financial or legal consequences as a result, leading to a potentially viable claim for breach of contract.

3. Conflicts of interest

Conflicts of interest are another common type of legal malpractice in Texas. Suing for conflict of interest occurs when an attorney’s personal or professional interests are at odds with the interests of their client, compromising their ability to provide impartial legal representation. For example, if an attorney has an existing relationship with their client’s opponent in a civil matter, their ability to advocate effectively for both may be compromised.

Conflicts of interest can also arise if an attorney has a financial stake in the outcome of a case that conflicts with the client’s best interests. In Texas, attorneys are required to avoid conflicts of interest and disclose any potential conflicts to their clients. Failure to do so can lead to a legal malpractice claim and possibly a breach of fiduciary duty claim. Depending on the circumstances, this type of lawyer conduct may also give rise to a claim for breach of fiduciary duty, more fully disclosed below and in our other blogs.

4. Breaches of fiduciary duty

Breach of fiduciary duty is a serious type of legal malpractice in Texas that occurs when an attorney fails to act in the best interests of their client, violating the trust and confidence placed in them. Attorneys are bound by a fiduciary duty to uphold loyalty, fidelity, confidentiality, and integrity in all matters related to their clients. This duty requires them to prioritize their client’s interests above their own and to avoid any actions that could harm the client or undermine their legal position.

Suing for breach of fiduciary duty can occur because the attorney used client funds for personal gain, disclosed confidential information without the client’s consent, or entered into agreements that benefit the attorney at the client’s expense — anything that elevates the interests of the attorney above those of the client.

For instance, if an attorney advises a client to settle a case because it benefits the attorney’s financial interest rather than the client’s best interest, this could constitute a breach of fiduciary duty. Such breaches can cause significant financial and legal harm to the client, leading to a potential claim.

What to look for in a Houston legal malpractice attorney

If you’re looking for attorneys who sue attorneys for malpractice, you should familiarize yourself with the things that set apart the good attorneys from the great ones. Finding the right legal malpractice attorney can make all the difference in the outcome of your case, so look for the following qualities in any attorneys you consider:

• Experience. Seek an attorney with extensive experience in cases like yours. They should understand the complexities of legal malpractice cases and have a track record of success.
• Specialization in the field. Legal malpractice is a niche field of the law and therefore not all attorneys are equipped to handle legal malpractice claims. Look for lawyers who specialize in legal malpractice, like Ross Sears at Sears Crawford.
• Always ask attorneys how many legal malpractice cases they have handled before you hire them to handle your legal malpractice matter. If their answer is not “well over 100,” then call Ross Sears at Sears Crawford immediately. He has handled hundreds of legal malpractice cases in the past 30 plus years.
• Reputation with clients and peers. Research reviews, testimonials, and case results. A reputable attorney will have a history of satisfied clients and professional recognition from other attorneys.
• Notably, Sears Crawford does not have a single negative review from a current or former client. Any negative reviews on the website are from non-clients, whom Sears Crawford turned down because their cases did not meet the criteria for a case that Sears Crawford will handle.
• Strong communication skills. Your attorney should be responsive, transparent, and able to explain the legal process in terms you can understand. We always say that you can learn a lot about an attorney during your initial consultation, so pay attention to the way they treat you, as well as how receptive they are to your concerns.

If you’re looking for additional credibility, you can research organizations like Texas Super Lawyers* and The National Trial Lawyers, who award recognition to attorneys at the top of their respective fields.

*Because of his dedication to his clients and the profession, Ross Sears has been named a Texas Super Lawyer for 13 years running. 

How to prove legal malpractice

Whether you’re wondering how to prove attorney overbilling or need to prove that your attorney had a conflict of interest, the elements required to prove legal malpractice are the same. In order to establish that legal malpractice occurred, four elements must be proven:

1. There was duty. This can be proved by the existence of an attorney-client relationship — typically through a written agreement but sometimes through verbal or implied agreements.
2. That duty was breached. Your attorney failed to act in accordance with the standard of care expected of them, either through negligence, incompetence, or unethical behavior.
3. That breach of duty harmed your case. It must be proven that this breach of duty proximately caused harm to your case. This is sometimes called proximate cause and is often the most difficult element of malpractice to prove.
4. You suffered damages because of it. Your attorney must show that you suffered quantifiable damages as a result of the malpractice. This often takes the form of lost cases, financial losses, or the inability to pursue legal claims.

Saving any communications between you and your previous lawyer can help your legal malpractice attorney immensely with your legal malpractice case. Save all emails, messages, or other forms of communication with your attorney and anyone else involved in your original case, and make sure your malpractice lawyer has access to this information.

How to sue for legal malpractice

Although suing a lawyer for legal malpractice is mostly done by your new legal malpractice attorney, we can provide a general outline of how cases are handled.

1. Consult a legal malpractice attorney. The first thing that you need to do is engage a qualified attorney to evaluate your case and determine if you have a viable claim.
2. Gather evidence. Collect all relevant documents, including contracts, correspondence, court filings, and financial records. This evidence will help your attorney prove that your previous lawyer’s actions fell below the standard of care.
3. File the complaint. Your attorney will prepare and file a formal complaint outlining the malpractice allegations. The formal complaint initiates the lawsuit.
4. Enter litigation. This may involve pre-trial motions, discovery (where both parties exchange information), and potentially, settlement negotiations. If the case does not settle, it will proceed to trial, where a judge or jury will determine the outcome.

At trial, your attorney will present evidence to prove the four elements of legal malpractice: duty, breach of duty, causation, and damages. Suing for legal malpractice can be a complex and lengthy process, but with the right legal malpractice lawyer, you can pursue justice and compensation for your losses.

How long do you have to sue an attorney for malpractice?

In Texas, the statute of limitations for filing a legal malpractice claim is generally two years from the date that the client discovered (or reasonably should have discovered) that the malpractice occurred.

This means that you have two years from the date you knew or should have known about the attorney’s wrongful conduct to file a lawsuit. If a claim is not filed within this timeframe, you may lose your right to seek legal recourse. Additionally, it’s important to note that separate and distinct claims for breach of contract and breach of fiduciary duty have a four-year statute of limitations and may (but not always) extend the two year statute of limitations to four years (when applicable).

Determining the exact date when the statute of limitations begins can be very complex, especially in cases where the malpractice was not immediately apparent. This is where the discovery rule, which states that the statute of limitations does not begin until you have discovered the malpractice, comes into play.

No matter when you discovered, or should have discovered, your attorney’s malpractice, you need to move quickly. Consult a trusted malpractice attorney as soon as you suspect that your attorney’s behavior has been negligent or unethical — otherwise you may struggle to meet deadlines or collect important evidence.

Continue reading: When is it too late to fire your attorney?

Think your attorney committed legal malpractice? Call Ross Sears today.

If you believe your attorney committed one of the common types of legal malpractice, you don’t have to face the aftermath alone. We know that hiring a lawyer may be the last thing on your mind, but Ross Sears has been holding negligent attorneys accountable and securing justice for his clients in Houston for over 30 years. If you need a legal malpractice attorney you can trust, you need to call Ross today.

From missed deadlines to attorney fraud, Ross has seen it all. He understands the deep complexities of legal malpractice lawsuits and is dedicated to finding justice for those who have been wronged.

Don’t let your previous attorneys’ mistakes define your future. Call Ross Sears at Sears Crawford at (713) 223-3333 or contact us online today.

More Helpful Articles by Sears Crawford: 

• How to Find a Lawyer to Sue Another Lawyer
• Suing for Breach of Fiduciary Duty: What You Need to Know
• Five Reasons to Sue an Attorney
• What Constitutes a Conflict of Interest?
• How Do You Prove Legal Malpractice?