If you believe you have been wronged by your previous attorney, you might want to familiarize yourself with some types of legal malpractice. The attorneys at Sears Crawford are some of the most experienced malpractice lawyers in Houston, and are here to share some expertise and some common examples of legal malpractice.
What are the different types of legal malpractice?
If you plan on suing your lawyer for legal malpractice, it’s important to know what offenses have been committed against you by your former attorney. Here are common types of legal malpractice we see on a regular basis:
- Failure to know or apply the law occurs when an attorney attempts to take on a case outside of their field of expertise.
- Failure to obtain client consent generally applies to settling cases, or taking any alternative resolutions, without client consent.
- Fraud is an umbrella term that encompasses any kind of deception for unlawful gain.
- Failure to calendar occurs when the attorney misses statutory or other legal deadlines that cause harm to the client.
- Inadequate investigation or inadequate discovery occurs when an attorney does not adequately identify key case information during its early stages. This can be failing to gather witnesses or properly depose.
- Overbilling/Unconscionable fees most often refers to excessive hourly billing but can mean misappropriation of client funds.
- Breach of fiduciary duty encompasses confidentiality, conflict of interest, and misleading communication.
What is fiduciary duty?
The fiduciary duty is the lawful imposition of the duty of care owed to the client. Breach of fiduciary duty is closely related to — but distinct from — legal malpractice, and is brought about by things like misrepresentation, breaches of confidentiality, or a conflict of interest.
You may be wondering, “Can I sue my lawyer for breach of fiduciary duty?”
Much like malpractice, you can sue your lawyer for breach of fiduciary duty, but not all of their irksome behaviors constitute a breach of duty. The two actually have the ability to overlap, and breach of fiduciary duty can often signify legal malpractice. If you think that your attorney has acted in a way that constitutes legal malpractice, breach of fiduciary duty, or breach of contract, you should get a second opinion from a trustworthy legal malpractice attorney like Ross Sears of Sears Crawford.
What is not considered legal malpractice?
All lawyers are held to a high legal standard of behavior, but it is important to understand what is and what is not malpractice before filing a claim. We often hear complaints from clients about things that their attorney did to frustrate them that do not quite constitute malpractice. Here are a few examples of upsetting things that an attorney may do that rarely invite malpractice claims:
- Losing your case: Unless substantial evidence of negligence on another front is present, losing a case or taking a lackluster settlement does not generally constitute legal malpractice. Malpractice committed elsewhere can cause an attorney to lose a winnable case, but a loss doesn’t signify causation.
- Being friendly with the opposition: Attorneys not only know one another personally but are required by the Texas Lawyer’s Creed to be civil and professional with opposing counsel.
What is the most common malpractice claim?
The most common complaint we get at Sears Crawford is that the client’s previous attorney missed a deadline or failed to calendar a critical date, but there are many other harmful mistakes that attorneys make that cause their clients to hire the attorneys at Sears Crawford. Negligence is an umbrella term that encompasses many common mistakes that attorneys can make. It is typically defined as an attorney failing to do something that a reasonable and prudent attorney would have done under the same or similar circumstances. It can also mean an attorney doing something that a reasonable and prudent attorney wouldn’t have done under the same or similar circumstances.
How is negligence proved?
It should be noted that in order to win any malpractice case your legal malpractice attorneys at Sears Crawford must prove the following:
- There is duty
There must be an established attorney-client relationship. If there is an attorney-client relationship, then there is a duty owed as a matter of law. All lawyers owe their clients a “fiduciary duty”, which is essentially an agreement to put their client’s interests first. This is usually proved in the form of a written contract, but can be oral or implied based on the circumstances.
- That duty was breached
We must prove that through the attorney’s actions or inactions they violated their duty to the client.
- The breach of duty resulted in harm
Harm is not just monetary and can come in many forms. Generally we must prove that the outcome of the client’s case would have been different had the attorney not breached their duty to the client. This breach of duty can be caused by attorney negligence, breach of fiduciary duty, fraud or self-dealing, overbilling, etc.
At Sears Crawford, we sue lawyers because we believe in protecting the rights of our clients, holding attorneys accountable, and preserving the integrity of our justice system.