What is Considered Malpractice for an Attorney?

If you recently got out of a bad situation with an attorney or wrapped up a case with less-than-stellar results, you may be wondering what is considered an innocent mistake for an attorney and what is considered malpractice.

Although not every mistake an attorney makes is considered malpractice, there are a lot of ways in which an attorney can commit malpractice. At Sears Crawford, our job is to fight for our clients who have been wronged by their previous attorneys and get them what they deserve.

We know the ins and outs of legal malpractice and are here to discuss what is considered legal malpractice, common examples of legal malpractice, and the evidence that you and your attorney will need to successfully sue your lawyer.

Ross Sears has been suing lawyers in Texas for over 33 years. If you or a loved one believes that your attorney committed malpractice and screwed up your case, call Ross at Sears Crawford today at (713) 223-3333.

What are the grounds for legal malpractice?

When a lawyer messes up, it is not always considered legal malpractice. Like with any job, there are varying degrees of mistakes, some less serious than others—sometimes it’s just the nature of being in the practice of law. But when is your attorney’s mistake considered legal malpractice? Legal malpractice occurs when:

• Your attorney acts, or fails to act, how a reasonable attorney would act under the same or similar circumstances; AND
• That act or omission causes you damages

If your attorney made a mistake and that mistake has harmed your case, they may have committed malpractice, and you may have grounds to sue them.

What is an example of malpractice?

Now that you know what is considered legal malpractice, let’s look at some examples of how it often presents itself. Some common legal malpractice examples that we see at Sears Crawford 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 (or “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 (and often improper) 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.
• Failure to obtain client consent: A question that we often get is “Can my lawyer settle my case without me?” and generally speaking, the answer is no. 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.
• Attorney 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.

Whether you believe that your attorney has overcharged you for the work performed or took on your case despite it being outside of their area of expertise, Ross Sears at Sears Crawford is equipped to discuss and represent you in any possible future claims.

Continue reading about how to prove attorney overbilling

What is NOT legal malpractice?

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 necessarily 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 necessarily mean that malpractice was committed.

Each case is fact-specific, and to be considered legal malpractice, there must be a difference between your attorney’s actions and what would be considered the actions of a “reasonable attorney.”

If you’re wondering whether or not your attorney committed malpractice, the best way to find out is to contact lawyers who sue lawyers, like Ross Sears at Sears Crawford, and discuss with them whether or not you may have a case.

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

What is the difference between malpractice and negligence?

We’ve already detailed that legal malpractice occurs when an attorney “acts or fails to act” reasonably and causes their client harm. This act or omission describes a wide array of circumstances, making “legal malpractice” an umbrella term under which many types of legal malpractice can fall.

Negligence is one of the types of legal malpractices. In fact, it is the most common type of legal malpractice, in which an attorney through negligent action makes a mistake that harms their client’s case — or, in other words, neglects to do (or not do) something that a reasonable or prudent attorney would have done.

How to prove legal malpractice

There are three essential elements necessary to prove legal malpractice, which your new malpractice attorney will have to prove to successfully sue your previous lawyer.

1. There was 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.
2. Duty was breached. Duty is breached when your lawyer acts or fails to act, in a way that a reasonable and prudent attorney under the same circumstances would not have acted.
3. That breach of duty caused you (the client) harm. 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.

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

Once your attorney has breached their duty and caused you harm, how long do you have to sue an attorney for malpractice in Texas?

The legal malpractice statute of limitations in Texas is generally two years from the date of discovery of the malpractice, although it can sometimes be longer.

The clock starts ticking the moment that you become aware of your lawyer’s behavior that might constitute malpractice. Determining exactly when this clock starts can be complex, and it might have started earlier than you think, so the safest course of action, if you believe your lawyer might have mishandled your case, is to contact an experienced Texas legal malpractice lawyer as soon as you possibly can.

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

Contact the legal malpractice attorneys at Sears Crawford to sue your lawyer

What is considered malpractice for an attorney? Although there are many ways for an attorney to commit malpractice, all of them involve “acting, or not acting” in the way that a reasonable or prudent attorney would, and because of that action or nonaction, causing harm to your case.

If your attorney mishandled your case and caused you harm, you need to act fast. Ross Sears is Board Certified in Personal Injury Law (the area of the law that encompasses legal malpractice), a designated Super Lawyer for 10+ years, and was selected as one of the Top 100 Civil Attorneys in Texas by The National Trial Lawyers Top 100.

If you’re looking for a legal malpractice attorney in Houston to fight for what you deserve, call Ross Sears at Sears Crawford today at (713) 223-3333 or contact us online and request a free consultation today.

More Helpful Articles by Sears Crawford: 

• Do Lawyers Have To Carry Malpractice Insurance?
• What Is the Standard Contingency Fee for an Attorney?
• How To Fight Excessive Attorney Fees
• How To Tell if Your Lawyer Is Cheating You on a Settlement
• Can I Fire My Attorney if I Signed a Contract?