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How to Identify a Lawyer’s Breach of Duty to a Client

“Breach of a duty (owed to the plaintiff)” is a major element of a legal malpractice case, and like the other elements, the plaintiff bears the initial burden of proving breach of duty.



At trial, issues of law are normally decided by the judge, but issues of fact are decided by the jury. An exception to this arises when the facts are so overwhelmingly weighted toward one conclusion that “reasonable people could not differ”–and in such cases, the court (the judge) may decide the facts as well, or tell the jury how they must decide on that particular issue. (In a bench trial, where there is no jury, obviously the judge decides both questions of fact and issues of law.)

The attorney’s duty to the client (its existence and what it entailed) is a question of law, outside the scope of a jury’s deliberations. However, the question of whether or not the lawyer breached that duty is a question of fact normally decided by the jury.

Not surprisingly, questions of fact are proven in court on the basis of factual evidence–what actually happened between the attorney and the client. For this reason, it’s important for both attorneys and clients to document interactions carefully (in writing, where possible and appropriate) in order to minimize contested facts in the event of a future question or dispute.


The breach of duty required to support a claim for legal malpractice is tested as of the time the defendant attorney gave the allegedly negligent advice or took the allegedly negligent action. The question is whether the attorney’s action or advice was “legally deficient” at the time it occurred. This timing is critical, because although the jury has the benefit of hindsight, the action itself must be evaluated in the setting, and under the circumstances, under which it actually occurred.

For purposes of professional negligence, “legally deficient” means lacking the degree of skill other lawyers possess and use when giving the advice or taking the action in question. If the defendant attorney acted with reasonable professional skill, the action or advice was not legally deficient.

If you believe an attorney gave you legally deficient advice or acted without the required level of professional skill when handling your case, contact an experienced malpractice attorney for an evaluation of your legal rights. Whether you contact our office or someone else, do not delay. Doing so could negatively impact your rights and your ability to recover.



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.

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