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Attorney Fee Claims in Legal Malpractice Actions


Attorneys who commit malpractice are liable for all damages the client suffers as a result of the lawyer’s wrongful conduct.

Standard damages for legal malpractice include the actual, measurable damages to the client which resulted from the attorney’s malpractice. Essentially, this requires the client to prove the amount the client “lost” (or would have gained) because of the lawyer’s breach of duty.

The fact that a client loses a case, or fails to achieve the desired results from a negotiation, doesn’t necessarily mean the loss resulted from malpractice. However, if damages did result from an attorney’s negligent or wrongful conduct, they may be recoverable.

As we discussed last week, clients generally cannot recover damages for emotional distress resulting from legal malpractice (though in exceptional cases emotional distress damages may be recoverable: consult an experienced professional about your personal situation).

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A client can recover attorney fees in a legal malpractice action in some situations. For example, fees paid in connection with legal actions brought by or against the client “as a direct result of legal malpractice.” This doesn’t mean the attorney fees the client paid to the attorney who committed malpractice. Rather, this refers to additional attorney fees the client had to incur because the same or another attorney committed malpractice, thereby injuring the client or requiring the client to take legal action to recover, mitigate, or prevent the loss of legal rights.

Attorney fees incurred to prosecute the malpractice action against the negligent lawyer are generally not considered damages incurred “as a result of the lawyer’s wrongful conduct” and are not recoverable as compensatory damages in a legal malpractice action. Those fees are sometimes recoverable, however. For example, a client may be able to claim that attorney fees paid to a lawyer who committed malpractice constituted “more than the value of legal services received” under the attorney’s retainer or other fee agreement.

Fees paid to the attorney filing the malpractice claim against the original practitioner may be recoverable, but not as compensatory damages.  The reason for this has to do with the nature of malpractice claims. Generally, a malpractice claim is a form of “tort” action, which is a type of lawsuit designed to compensate an injured person for certain types of wrongful actions. This is different than a lawsuit based on a contract, which is governed by the terms of the relevant contract. However, if the malpractice action includes claims based on the lawyer’s retainer agreement (which is a contract), and if that contract allows the recovery of attorney fees, it may be possible to recover attorney fees in a successful breach of contract claim against a negligent lawyer. Your claims and recover may vary – be sure to consult with experienced counsel to determine what remedies do or do not apply in your specific case.

Clients with malpractice claims should consult an experienced litigator to determine whether (and to what extent) the fees paid to an attorney who committed malpractice are recoverable.


As always, this article is intended for informational purposes only. Never use this or any other article as a substitute for personalized legal advice and consultation with an experienced attorney. Consult a lawyer promptly if you believe you have a malpractice claim.



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