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A Lawyer’s Mistake is Not Necessarily Malpractice


For every lawyer who wins a lawsuit (or prevails in a negotiation) there’s generally another one who loses–it’s the nature of an adversarial system. Clearly, then, losing a case (or negotiation) doesn’t constitute malpractice. A loss is only malpractice if the loss results from the lawyer’s breach of duty, improper conduct, or failure to act with the appropriate level of skill and competence.

Similarly, if a lawyer gives a client advice that later turns out to be incorrect (or results in a loss or failed negotiation), the lawyer is not liable for malpractice if the error was reasonable, the law was unsettled, and/or the attorney’s advice was based upon reasonable, informed judgment. In other words: if a lawyer makes a mistake, but otherwise acted as a reasonable, competent attorney would have acted under the circumstances, the lawyer is probably not liable for malpractice.


Attorneys have a legal obligation to represent clients zealously, to render informed judgment, and to advise clients as to the reasonable potential outcomes of the client’s case or situation. However, an attorney who fails to warn the client of every possible outcome has not necessarily committed malpractice. Instead, the lawyer is obligated to exercise reasonable professional judgment when advising the client.

In some cases, particularly where the law is unsettled, the lawyer’s obligation to advise the client about potential outcomes may be more involved. Similarly, lawyers may have a greater obligation to advise the client about the various options where the client’s conduct or chosen path presents a greater legal risk. However, the law does not require lawyers to advise clients about every possible outcome or possibility, no matter how small. If it did, lawyers would need to spend countless hours researching and discussing even the most unlikely legal outcomes–a situation that would cost clients thousands of dollars in unnecessary research and conference calls, and which, in many cases, would actually make it more difficult for clients to understand their legal rights and evaluate their legal options.

As with other areas of law, the lawyer’s obligation to advise the client about possible outcomes varies with the facts and circumstances of the client’s case. If you suspect a lawyer did not properly advise you, or that legal malpractice resulted in your loss or injury, consult an experienced attorney promptly for an evaluation of your rights and claims.


Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR AND ANY PERSON. Your rights and experiences may vary. Never use an online article (including this one) to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel. Malpractice (professional negligence) claims are complicated and fact-dependent. If you believe you have a claim against an attorney who represented you, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your personal rights and claims.

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