How is Legal Malpractice Different From Attorney Discipline?
WHAT IS LEGAL MALPRACTICE?
“Legal malpractice” is a common term for Professional Negligence, which is a form of legal liability that occurs when a lawyer behaves in an actionably negligent manner when giving advice, representing a client, or handling a client’s legal affairs and when that improper conduct results in damage to the client. This could be due to incompetent handling of the case, behavior that fails to meet the relevant professional standard(s), or other acts or omissions by the lawyer that damage the client and give rise to liability for malpractice under applicable law.
Malpractice liability also arises when a client (or, in some narrow cases, another appropriate party) suffers damages because a lawyer breaches the ethical duty of good faith and fidelity.
Claims for legal malpractice can arise in connection with both civil and criminal cases. However, if a (former) client claims that a lawyer committed malpractice while representing the client in a criminal case, the client also must be able to prove, to the relevant standard, that the client was innocent of the crime in question.
WHAT IS THE DIFFERENCE BETWEEN MALPRACTICE AND “PROFESSIONAL DISCIPLINE”?
“Professional Negligence,” aka Malpractice, claims are brought by an injured plaintiff against a lawyer as a civil action (a lawsuit in a civil court). The lawyer’s conduct is judged on the basis of an objective, “reasonable lawyer” standard of care. Also, the plaintiff must prove that (s)he suffered damages as a result of the lawyer’s wrongful or inappropriate conduct. If the client prevails, the lawyer may be required to pay the client monetary damages. Generally, a legal malpractice lawsuit must be filed within one year after the client discovers the lawyer’s negligence (or four years from the date the incident occurred)*.
“Professional Discipline” refers to an action or proceeding in which a lawyer is disciplined (or, in some cases, reprimanded) by the Bar Association, which is the body that issues licenses to practice law and regulates lawyers’ conduct. The client is not a party to a disciplinary action; instead, the lawyer answers directly to the Bar Association. While disciplinary actions against a lawyer may include a fine or the payment of money, that money usually is not paid to the client. Moreover, a lawyer may be subject to discipline (in varying degrees) for engaging in inappropriate conduct even if the conduct did not harm the client in whose case the wrongful conduct occurred. Disciplinary proceedings normally must be brought within five years of the date the wrongful conduct allegedly occurred.
These are not the only differences between professional negligence (malpractice) and attorney discipline; however, the most important things to note are that the client normally is not a party to a disciplinary proceeding, and that a legal malpractice action is the one in which the lawyer generally can be required compensate the client for legally actionable damages resulting from the lawyer’s behavior.
* Statutes of limitations vary, and do not always run concurrently. If you believe a lawyer behaved inappropriately when handling your case, consult an experienced lawyer immediately for an evaluation of your legal rights. If you wait, you may lose your right to bring a claim, or to recover damages for your injuries.
Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR OR ROSS LAW AND ANY PERSON. Your legal rights and experiences may vary. Never use an online article (including this one) to evaluate your legal rights or claims. Consult an experienced attorney promptly to obtain a personalized evaluation of your claims, potential damages, and the various legal rights and options available to you.
You may lose or compromise your rights if you delay in consulting legal counsel. Most legal claims (and defenses), as well as legal and court procedures, are complicated and fact-dependent. If you believe you have a claim against someone who injured you, a lawyer who represented you in a previous lawsuit, or any other legal claim, consult an experienced lawyer immediately for an evaluation of your individual rights and claims.