What is Legal Malpractice?

Discovering that your attorney betrayed your trust can be devastating. You invested time, money, and confidence in their representation, only to find that their negligence or misconduct damaged your case and your financial future. Now you’re left picking up the pieces, wondering if you have a case.

What is legal malpractice? Legal malpractice occurs when an attorney fails to act with the skill and diligence of a reasonable attorney under similar circumstances, causing financial harm to their client. In Texas, this professional negligence happens if your attorney:

• Breaches their contract with you
• Violates their fiduciary duty
• Engages in undisclosed or harmful conflicts of interest
• Overbills or charges unreasonable attorney fees
• Improperly solicits clients or engages in barratry
• Fails to know or correctly apply the law
• Acts negligently or commits professional misconduct
• Engages in fraud or intentional deception
• Violates the Texas Deceptive Trade Practices Act (DTPA)
• And many other acts or omissions that harm their client

When you need lawyers that sue lawyers in Houston or throughout Texas, you need someone who understands both the law and the unique challenges of proving attorney negligence. That someone is Ross Sears II from Sears Crawford.

Ross has dedicated over 33 years to holding negligent lawyers accountable. As one of the few Legal Malpractice attorneys in the state of Texas who is Board Certified in Personal Injury Law — the area that includes legal malpractice — he has focused his practice almost exclusively on suing lawyers who fail or betray their clients’ trust.

If you believe you’ve been a victim of legal malpractice, don’t face this challenge alone. Call Ross Sears at (713) 223-3333 or contact us online today for a confidential consultation.

— Carol Pace, Google Review

To successfully bring a legal malpractice suit in Texas, you must prove four essential elements. Texas courts have consistently held that all four elements of legal malpractice in Texas must be established for a valid claim.

So, what are the four elements of a legal malpractice cause of action?

You must prove that an attorney-client relationship existed, establishing that the lawyer owed you a professional duty of care. In Texas, this relationship is typically established through:

• A written engagement letter or retainer agreement
• A formal contract for legal services
• Documented communications showing the attorney actively represented your interests
• Evidence of payment for legal services

Texas courts may recognize implied attorney-client relationships in certain circumstances, even without a written agreement, if the attorney’s actions demonstrated they were representing your interests.

Under Texas law, the attorney must have breached their professional duty by failing to handle your case with the skill, prudence, and diligence that a reasonable Texas attorney of similar training and experience would use under the same or similar circumstances.

Common examples of breaches in Texas legal malpractice cases include:

• Missing critical deadlines, including the Texas statute of limitations for your underlying case
• Failing to properly file documents with Texas courts in a timely manner
• Making significant errors in legal documents, contracts, or court filings
• Failing to follow Texas court orders or procedural requirements
• Inadequate legal research or failure to understand applicable Texas law
• Failure to communicate material case developments to the client
• Failure to conduct proper discovery and investigation
• Failing to properly designate expert witnesses as required by Texas Rules of Civil Procedure
• Failure to identify key fact witnesses who could support your case
• Not pursuing all available legal remedies on your behalf

Texas law requires you to prove what’s known as the “case-within-a-case” doctrine. This means you must demonstrate that but for your attorney’s negligence, you would have obtained a more favorable result in your underlying Texas case.

This is often the most challenging element to prove. Texas courts require clear evidence that:

• Your original case would have been more successful with proper representation
• You would have been able to collect on any judgment obtained
• The attorney’s negligence was a cause that prevented this favorable outcome

The causation requirement means you essentially must, through expert testimony, re-litigate your entire original case within the malpractice lawsuit. You’ll need to prove what should or, in all probability, would have happened if your attorney had performed competently.

Texas law requires proof of actual, measurable financial losses proximately caused by the attorney’s negligence. Under Texas courts, recoverable damages may include:

• Lost compensation or recovery from the underlying case you should have won
• Additional legal fees paid to fix the problems created by the negligent attorney
• Lost settlement opportunities that were more favorable than the eventual outcome
• Lost business opportunities resulting from the malpractice
• Court costs and expenses that could have been avoided
• Other financial consequences tied to the attorney’s breach of duty

Continue reading: What constitutes legal malpractice?

Not every legal mistake rises to the level of malpractice. The error must be serious enough to fall below professional standards and must cause you actual financial harm. While attorney negligence is the most common type, malpractice can also involve:

Breach of contract

When you hire an attorney in Texas, you typically enter into a written or verbal contract that defines the scope of representation, fee arrangements, responsibilities, and expected services. Legal malpractice based on breach of contract occurs when your lawyer:

• Fails to perform agreed-upon services
• Abandons your case without proper notice or justification
• Misses deadlines specifically outlined in the engagement agreement
• Fails to achieve results explicitly promised in the contract (when such guarantees were made)
• Breaches confidentiality provisions in your agreement

Unlike negligence claims that focus on whether the attorney met professional standards of care, breach of contract claims center on whether the attorney fulfilled their contractual promises to you.

Breach of fiduciary duty

Your lawyer owes you a fiduciary duty, which is the highest legal duty imposed by law, and it requires complete honesty, loyalty, and transparency from the attorney to the client. A breach of fiduciary duty occurs when an attorney:

• Places their own interests or another person’s interests above the client’s interests
• Represents clients with competing interests without proper informed consent
• Uses confidential client information for personal gain
• Takes financial advantage of the attorney-client relationship
• Accepts compensation from third parties related to the client’s matter without disclosure

Important Note: Attorneys should carry legal malpractice insurance, which reflects their commitment to protecting your interests if malpractice arises and ensures funds are available to compensate victims.

Conflict of interest

Texas Rules of Professional Conduct strictly regulate conflicts of interest because they undermine the fundamental trust that must exist in the attorney-client relationship. Common conflict scenarios include:

• Representing both the buyer and seller in the same transaction
• Representing co-defendants in criminal or civil matters where their interests diverge
• Representing a client in a matter substantially related to a prior representation, where confidential information could be used against the former client
• Having personal financial interests in the outcome that compete with the client’s interests
• Representing family members, business partners, or romantic partners with opposing positions in related matters
• Representing the husband and wife in a divorce

If your attorney failed to disclose a conflict, proceeded despite your objection, or represented conflicting interests that harmed your case, you have grounds for legal malpractice.

Attorney overbilling and unreasonable attorney fees

This form of malpractice occurs when an attorney:

• Charges excessive fees disproportionate to the services actually rendered
• Bills for work never performed or duplicates billing entries
• Charges unreasonable hourly rates compared to prevailing market rates
• Takes an unconscionable contingency fee percentage
• Fails to properly account for retainer or trust account funds
• Bills for services that should have been performed by lower-rate staff

Learn more about how to prove attorney overbilling and unreasonable attorney fees

Improper solicitation and barratry

Barratry, defined in Texas Penal Code Section 38.12, involves attorneys or their agents stirring up litigation or encouraging people to file lawsuits through unlawful solicitation methods for personal gain. This predatory practice includes:

• Contacting accident victims or their families at hospitals, funeral homes, or their homes before they’ve had a reasonable opportunity to make informed decisions about legal representation
• Paying “runners,” “cappers,” or other non-lawyers to solicit clients in exchange for referral fees or kickbacks
• Making false or misleading statements about legal rights or the attorney’s qualifications to pressure people into hiring them
• Using confidential information obtained from police reports, medical records, or other sources to target vulnerable individuals
• Soliciting clients within restricted timeframes prohibited by Texas law

Beyond the ethical and criminal violations, improper solicitation and barratry often serve as a red flag for additional malpractice because attorneys who obtain clients through illegal means frequently provide substandard representation across the board.

Failure to know and apply the law

When you hire an attorney, you expect expertise in your case’s area of law — but that’s not always what you receive. Attorneys working outside their specialty often lack the necessary knowledge, which can severely damage your case.

For example, a divorce lawyer handling a complex medical malpractice case or a criminal defense attorney taking on a sophisticated business dispute may not possess the specialized knowledge required for effective representation.

This is precisely why hiring a board-certified attorney in the relevant field is essential. At Sears Crawford, our legal malpractice attorney in Houston, Texas, Ross Sears, is Board Certified in Personal Injury Law by the Texas Board of Legal Specialization — the area of law that includes legal malpractice — so that you receive truly specialized representation.

Negligence and professional misconduct

Attorney negligence occurs when an attorney fails to do something that a reasonable and prudent attorney would have done under the same or similar circumstances. Common examples include:

• Missing deadlines, particularly the statute of limitations (failure to calendar properly)
• Inadequate case preparation and failure to understand relevant facts
• Failure to conduct discovery or respond to opposing party’s discovery requests
• Failing to research applicable law or stay current with legal developments
• Poor document drafting containing errors or omissions
• Failure to advise the client of material developments or settlement offers
• Abandoning the client’s case without proper notice or transition

Fraud and intentional misconduct

Fraud in legal malpractice occurs when an attorney intentionally deceives a client for financial or other gain. This includes:

• Misrepresenting the status or progress of a case
• Lying about deadlines, court dates, or legal requirements
• Withholding critical information that affects the client’s decision-making
• Forging documents or falsifying evidence
• Misappropriating client settlement funds or trust account money
• Making false promises about case outcomes to secure representation
• And other similar conduct

If your attorney misled you, withheld key information, or engaged in deception causing you financial harm, you may have grounds for a legal malpractice claim based on fraud.

Violations of the Texas Deceptive Trade Practices Act (DTPA)

The DTPA is a Texas consumer protection statute that prohibits false, misleading, or deceptive business practices. Legal services are considered “goods” or “services” under the DTPA, meaning attorneys who engage in deceptive practices may violate this statute.

Attorneys may violate the DTPA by:

• Making false or misleading representations about their qualifications or experience
• Failing to disclose material information about conflicts of interest
• Representing that services have characteristics or benefits they do not possess
• Engaging in unconscionable conduct in billing or fee collection

Not all legal malpractice cases qualify for DTPA treatment, but when applicable, these claims can increase your potential recovery.

Understanding what doesn’t qualify as legal malpractice is just as important as knowing what does. Many people mistakenly believe they have a malpractice claim when the situation doesn’t meet Texas legal standards.

Here are several instances where you may not have a legal malpractice case:

Losing your case
A bad outcome alone is not evidence of legal malpractice. Attorneys cannot guarantee results, and even with excellent representation, you may lose your case. To constitute malpractice, you must prove that your attorney’s specific errors — not the inherent weaknesses of your case — caused the unfavorable outcome. If your attorney made informed, reasonable strategic decisions and still lost, that typically does not constitute malpractice under Texas law.

Disagreements about legal strategy
Attorneys exercise professional judgment in developing case strategy. Differences of opinion about how to proceed — such as whether to settle or go to trial, which arguments to emphasize, or how to examine witnesses — generally do not constitute malpractice if the attorney’s strategic choices fall within the range of reasonable professional judgment.

Minor errors that cause no harm
Not every mistake constitutes legal malpractice. Small errors, oversights, or imperfections that don’t materially affect the outcome or cause financial damages typically don’t support a malpractice claim. Texas law requires proof of actual damages — if you suffered no financial loss, you likely don’t have a viable claim.

Your attorney knows opposing counsel
Attorneys knowing each other professionally is not a conflict of interest. Houston’s legal community is relatively small, and attorneys frequently know opposing counsel from previous cases, bar association activities, or law school. This professional familiarity does not constitute a conflict of interest or grounds for malpractice unless there’s evidence that the relationship improperly influenced the outcome of your case.

Poor communication alone (without damages)
While attorneys have a duty to communicate reasonably with clients, poor communication alone — without resulting financial harm — typically doesn’t support a malpractice claim. If your attorney didn’t return calls promptly but still handled your case competently and achieved appropriate results, you likely don’t have grounds for malpractice.

Personality conflicts or unprofessional behavior
Being rude, difficult to work with, or unprofessional doesn’t automatically constitute legal malpractice. While such behavior may violate professional conduct rules and warrant a grievance with the State Bar of Texas, it only becomes malpractice if the attorney’s conduct breaches their duty of care and causes you financial harm.

If you’re wondering how to find a lawyer to sue another lawyer, the answer starts with finding a firm that extensively and primarily handles legal malpractice — not one that treats it as a side practice. When it’s time to hire an attorney to hold a negligent lawyer accountable, you need specialized expertise that only comes from dedicated focus.

At Sears Crawford, we’ve built our reputation on suing lawyers who have failed their clients. Here’s what sets us apart:

Ross’s philosophy is simple: “I didn’t become a legal malpractice attorney to make friends among my colleagues. I became a legal malpractice attorney to help people who have been harmed by their attorney.”

When you need an attorney who understands both the law and the ethical obligations your previous lawyer violated, we deliver the focused experience and aggressive advocacy your case demands. Unlike your former attorney, our clients ALWAYS come first.

So, what is legal malpractice? It’s when an attorney fails to act with the skill and diligence of a reasonable attorney under similar circumstances, causing proximate harm or financial loss to their client.

If you believe you have been wronged or misled by your former attorney, you need to turn to a trustworthy legal malpractice attorney for help. But when it’s time to hire an attorney to sue your lawyer, DO NOT simply call the first name you see on a billboard or Google. Do your research.

Ross Sears II has more than 33 years of experience successfully handling legal malpractice cases of all types. By successfully prosecuting legal malpractice cases, we not only compensate victims but also send a clear message: negligence and misconduct will not be tolerated.

Call (713) 223-3333 or contact us online today. We are here to help you get the justice that you deserve.

How to prove legal malpractice

To prove legal malpractice in Texas, you must establish four essential elements:

1. Prove an attorney-client relationship existed (duty)
2. Demonstrate your attorney breached professional standards (breach)
3. Show the breach caused your damages (causation)
4. Prove actual financial losses resulted (damages)

Legal malpractice cases require specialized expertise and expert testimony, so consult an attorney who focuses exclusively on suing lawyers.

Filing a grievance and pursuing a malpractice lawsuit are separate processes. A grievance may result in disciplinary action against the attorney but it won’t compensate you financially. You should consult with a legal malpractice attorney to understand both options.

How long do I have to file a legal malpractice lawsuit in Texas?

Most legal malpractice claims have a two-year statute of limitations from when you discovered or should have discovered the malpractice. Some claims, such as breach of contract, breach of fiduciary duty, or fraud, may have a four-year deadline. Don’t wait — contact an attorney immediately to protect your rights.

What if my attorney didn’t have malpractice insurance?

While not required in Texas, many attorneys carry malpractice insurance. If your attorney doesn’t have coverage, you may still pursue claims against their personal assets, though collection can be more challenging. This is one reason to verify insurance coverage when hiring an attorney.

ALWAYS ask your attorney, BEFORE you hire them, if they carry malpractice insurance and HOW MUCH? Make sure it is an amount that meets or exceeds the amount of damages you are asking them to seek on your behalf. For example, you do not want to hire an attorney on a multi-million dollar case, who either carries no insurance, or carries an amount less than your damage claim.

How much is a legal malpractice case worth?

The value depends on what you would have won in your original case if properly handled. According to both the malpractice definition, and law in Texas, you must prove actual financial damages caused by your attorney’s negligence. Cases range from thousands to millions of dollars.

Still have questions about your legal malpractice case?

Every legal malpractice case is unique, and the answers to your specific questions require a thorough review of your situation. Don’t let uncertainty prevent you from pursuing justice. Texas’s statute of limitations means every day counts — call Ross Sears today at (713) 223-3333 or contact us online today for your free, confidential consultation.