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The Requirements For Bringing a Legal Malpractice Claim

THE ELEMENTS OF A LEGAL MALPRACTICE CLAIM.

To prevail on a legal malpractice claim, a plaintiff must prove all of the following elements, to the required degree of proof:

1.  The defendant attorney had a legally recognized duty to the plaintiff; (In addition to other things, proving this element generally includes proof of the existence of an attorney-client relationship or a legally-recognized substitute for the attorney-client relationship that gives rise to a legal malpractice claim.)

2.  The defendant attorney breached the duty referenced in #1 (normally by failing to provide competent representation, either by inappropriate actions or by a failure to act when a reasonable attorney would have done so);

3. The plaintiff suffered actual loss or damage (normally financial, but other types of harm can also be considered in proper circumstances); and

4.  The attorney’s breach of duty was the proximate cause of the plaintiff’s harm or damage.

Although sometimes called “professional negligence,” legal malpractice is not limited to negligence claims. Other breaches of the attorney’s duty to the client (or other party with standing to bring a malpractice claim), including intentional acts, can also constitute malpractice.

ADDITIONAL ELEMENT FOR CRIMINAL CASES: PROOF OF INNOCENCE.

Clients who bring a legal malpractice action against an attorney for claims arising from representation in criminal cases must also prove, by a preponderance of evidence, that the client was innocent of the criminal charges.

A person properly convicted of a crime–meaning a conviction for a crime that the criminal defendant actually did commit–normally cannot claim that the defense attorney who represented them committed malpractice. This is because (generally speaking), when a guilty client is convicted of the crime with which (s)he was charged, the law considers the conviction to be a result of the defendant’s guilt rather than the defense attorney’s negligent representation or breach of duty.

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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. Malpractice (professional negligence) claims are complicated and fact-dependent. If you believe you have a claim against an attorney who represented you, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your personal rights and claims.

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