What is Considered Malpractice for an Attorney?
What is considered malpractice for an attorney? Sometimes, even great lawyers make mistakes that can cause their clients to suffer economic damages (although not all mistakes made by attorneys can be considered malpractice). There are also many bad lawyers that can do even worse. It is our job to do right by those clients and get them the justice they deserve.
At Sears Crawford, we know the ins and outs of legal malpractice. In this article we’ll be discussing what is considered legal malpractice for an attorney and what is needed to prove your case against your former attorney. If you believe your attorney committed legal malpractice and you want to know your options, learn more about why and how we sue lawyers for malpractice by calling us at 713-223-3333 to set up a FREE consultation today.
What constitutes malpractice by an attorney?
Generally speaking, legal malpractice is 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.
Some of the most common examples of what is considered malpractice for an attorney include:
- Failure to know/apply the law: This type of legal malpractice tends to occur when lawyers attempt to take on cases outside of their area of expertise.
- Conflicts of interest: If your lawyer represents another party’s interest that is opposite of your interest (the client), this can create a conflict of interest that must be disclosed to the client and may result in the removal of the attorney from the case. Additionally, if the lawyer enters into a business transaction with the client, this can be a huge conflict of interest for the attorney and the laws require certain disclosures to avoid problems for the attorney. Conflicts of interest are frequent problems for attorneys and are common complaints by potential clients when they call us here at Sears Crawford.
- Failure to calendar and/or procrastination: These types of legal malpractice claims occur when there are time management issues. For example, an attorney can fail to properly plan for (“calendar”) deadlines or fail to even be aware of the deadline to begin with, which often results in missed deadlines that cause irreparable harm to the client.
- Overbilling: This type of legal malpractice involves lawyers who charge an excessive fee for the services rendered. It is more common in situations where the attorney bills hourly for their time, but it can also occur when an attorney is charging a contingency fee. It is not uncommon for law firms that bill by the hour to have multiple attorneys and staff members doing the same or similar work which ends up costing the client significantly more money. We have also seen cases where lawyers charged a 40-50% contingency fee for something that could have been resolved quickly and amicably for significantly less money had it been handled on an hourly basis. If you believe your attorney has overcharged you for the work performed, whether it be by hourly fee or by contingency fee, call Ross Sears at Sears Crawford to discuss your possible claims.
- Failure to obtain client consent: Generally speaking, your lawyer must have your consent before settling your lawsuit. Some attorneys get around this legal requirement by inserting language in their contract that allows them to settle your case without your consent or input. DO NOT sign a contract with an attorney who inserts such language in their contract. It is ripe for corruption. A lawyer should not want to, nor ask you for permission to settle your case without your consent. Written consent is best. If you give your consent and your lawyer acts against what you agreed upon, this may also be grounds for a legal malpractice suit.
- Fraud: In legal malpractice claims, fraud typically involves a lawyer deceiving a client for financial gain. Unfortunately, this happens more frequently than one might expect.
- Inadequate discovery: When your lawyer takes on your case, they should spend time gathering evidence and investigating your case. If your lawyer doesn’t perform a sufficient investigation, they may fail to discover important elements that can build a more successful case and more beneficial outcome.
What legal malpractice is NOT
While it’s important to understand what is considered malpractice for an attorney, it’s also important to know what is not considered malpractice. Notably, an unfavorable outcome of your case does not mean your lawyer has committed malpractice. If your lawyer exhibits bad communication skills (i.e. not returning your phone calls) or is seen speaking to your opponent’s attorney, this also does not qualify as malpractice and is not grounds for a malpractice claim. If your lawyer takes your case to trial and loses, that does not mean that malpractice was committed. Each case is fact specific.
How do you prove legal malpractice?
There are three legal malpractice elements to consider when trying to prove legal malpractice:
- There is duty: By definition, lawyers owe a fiduciary to you, the client. This duty is often called the “duty of care.” This is usually easy to prove because there is typically a contract between the parties, or a course of action by the lawyer on the client’s behalf. The contract between the attorney and client can be oral or written, depending on the circumstances.
- The duty was breached: The lawyer acted or failed to act, in a way that harmed the client and in a way that a reasonable and prudent attorney under the same circumstances would not have acted.
- The Breach of Duty caused a harm to the client: In legal malpractice cases, the harm is typically proven by showing that the outcome of the client’s case would have been better for the client if the attorney had done what he or she was required to do under the standard of care for attorneys in the same or similar situation.
Legal malpractice claims often depend on two issues of evidence: liability and damages. Liability refers to whether an attorney was negligent, and damages refers to any harm –– usually economic –– done to the client as a result of that attorney’s negligence.
Proving these elements are present involves convincing the judge and jury that these elements were present in your case. A legal malpractice attorney in Houston from Sears Crawford can help you make this case.
Sears Crawford: We sue lawyers for malpractice
If your lawyer has done anything to harm you or your case, don’t let just anyone represent you. Ross Sears II is an award-winning legal malpractice attorney in Houston with over 30 years of experience successfully handling legal malpractice cases of all types. He is board-certified in personal injury law, a designated Super Lawyer for 10+ years, and was selected as being one of the Top 100 Civil Attorneys in Texas by The National Trial Lawyers Top 100.
To speak with a top malpractice attorney, professional negligence lawyer, or someone to advise you on other legal situations like barratry in Texas, call 713-223-3333 or contact us online and request a consultation today.
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