Legal Malpractice FAQ
Here are some commonly-asked questions (and answers) about legal malpractice:*
Q: WHAT IS LEGAL MALPRACTICE?
A: “legal malpractice” is the term for professional negligence committed by an lawyer. Less formally, “legal malpractice” occurs when a lawyer commits negligence in the course of representing a client.
Q: IS LEGAL MALPRACTICE A CRIME?
A: Legal malpractice is a form of negligence, which is a tort (a “civil wrong”). Torts are causes of action which are heard in civil court, while crimes are prosecuted in criminal court. However, while “legal malpractice” is not a criminal offense, the acts that give rise to a claim for legal malpractice may also constitute elements of a crime; in that case, the attorney may be prosecuted for the crime as well.
Q: IS IT MALPRACTICE WHEN A LAWYER LOSES A CASE?
A: NO. Losing a case, without more, is not legal malpractice. The fact that a person loses a case does not necessarily mean that person’s lawyer was negligent/committed legal malpractice.
Q: DO I HAVE TO SUFFER FINANCIAL LOSS TO CLAIM MALPRACTICE?
A: NOT NECESSARILY. One of the elements of a claim for legal malpractice is provable damages. While those damages may take a form other than money (for example, lost business opportunities), it is necessary to prove that material damage resulted from the lawyer’s acts. For that reason, the damages that give rise to successful legal malpractice claims are commonly financial in nature; however, it is possible to bring a claim based on other types of provable damages.
Q: I DISAGREE WITH WHAT MY LAWYER DID. IS THAT MALPRACTICE?
A: NOT BY ITSELF. A lawyer is obligated to act in accordance with the appropriate standard of professional care. If the lawyer acted in accordance with that standard, (s)he was not negligent–even if the client does not agree with the lawyer’s decisions. (However, if you believe the attorney’s actions breached the requisite standard of care, you may wish to consult an experienced attorney to determine whether your lawyer actually did commit malpractice.)
Q: DO I NEED A LAWYER TO SUE A FORMER LAWYER FOR MALPRACTICE?
A: NO, BUT legal malpractice is a technical cause of action, and inexperienced plaintiffs who choose to appear pro se (on their own behalf/without a lawyer) may face a significant disadvantage when attempting to plead and prove negligence against not only their former counsel but the experienced attorney(s) the lawyer will hire to present the case for the defense. You should consult an experienced attorney before deciding to proceed independently.
* If you believe you may have experienced a loss as a result of lawyer’s malpractice, consult an experienced lawyer immediately for an assessment of your potential rights and claims, whether or not you think this FAQ (or any other online source) has answered your questions. If you fail to do so, you may harm, or even lose, your right to make a claim.
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.