Damages in Attorney Malpractice Actions (Part 1)
Many plaintiffs wonder what kind of damages are available in legal malpractice actions. While knowing the available damages won’t help plaintiffs determine how much they will (or might) recover in any given case, an awareness of the available forms of damages can help injured plaintiffs understand the scope of a potential recovery.
While this article covers some of the types of damages available in legal malpractice actions, individual plaintiffs’ results may vary widely, depending on the facts and circumstances of the case. If you believe that an attorney committed malpractice while representing you, contact an experienced attorney for an individual assessment of your legal rights and potential remedies without delay. You may (or may not) be entitled to recover some or all of the damages discussed below, as well as other damages not listed here. Only an individual assessment based on the facts and circumstances of your case can determine the potential remedies available to you.
PLAINTIFFS MAY BE ABLE TO RECOVER SOME TYPES OF ATTORNEY FEES
Attorney fees incurred by a plaintiff to prosecute a malpractice actions against an allegedly negligent attorney are not normally recoverable. However, if the retainer agreement between the plaintiff client and the defendant attorney included a provision allowing for the recovery of fees in litigation arising out of the retainer contract, the plaintiff may be able to claim that attorney fees incurred in prosecuting malpractice actions were a cost of bringing suit. This claim may or may not succeed, however, and plaintiffs should not depend or count on recovering attorney fees paid in connection with bringing legal malpractice actions.
If the plaintiff incurred additional attorney fees as a result of the defendant lawyer’s malpractice–for example fees paid to defend (or bring) a legal action against a third party (where the lawsuit would not have been necessary had the defendant lawyer not committed malpractice).
Plaintiffs may not generally recover fees paid to the defendant attorney in the course of representation under any tort-related theories. However, successful plaintiffs may sometimes recover part of the attorney fees paid to the defendant attorney (where appropriate) based on a contract theory relating to the value of services paid for vs. the value of services actually received. Each case is different, and this sort of claim may or may not be available to all plaintiffs.
PLAINTIFFS MAY RECOVER “COMPENSATORY DAMAGES” EQUAL TO ALL ACTUAL, PROVEN DAMAGES SUFFERED AS A RESULT OF THE ATTORNEY’S PROFESSIONAL NEGLIGENCE
The general rule in malpractice cases is that a lawyer who breaches his or her professional duty to the client is liable for all damages suffered by the client as a result of the lawyer’s wrongful acts or advice.
The normal measure of damages in legal malpractice is the difference between what the plaintiff actually received (or recovered) in the underlying action or representation (the one in which the legal malpractice allegedly occurred) and what the plaintiff would have received (or recovered) if the attorney had not engaged in professional negligence/malpractice.
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. Legal claims against lawyers or other third parties are a complicated topic. If you believe you have a claim against an attorney who failed to provide you with competent representation, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your possible rights and claims.