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What is Legal Malpractice?


The term “legal malpractice” refers to the professional negligence of an attorney within an attorney-client relationship. Less formally, “legal malpractice” occurs when an attorney acts negligently in the course of representing a client. It is a form of negligence, which is a tort (a “civil wrong”).

Strictly speaking, legal malpractice is not a criminal act (i.e., it is addressed via an action in civil court, rather than punished under the criminal law, through a criminal prosecution). However, the acts that constitute legal malpractice may or may not also be punishable as crimes. (Note: holding a person liable in civil court for professional negligence and prosecuting that person in criminal court for criminal offenses arising from the same acts is not “double jeopardy” because the malpractice claim and the criminal charges are legally distinct.)



Losing a case does not mean an attorney committed legal malpractice. (If that were so, half of the attorneys who try cases would be negligent!) An attorney can do everything correctly and still lose, for many reasons. The question is whether the attorney acted in accordance with the proper professional standard of care.



If an attorney acts within the standard of care, but the court (or jury) refuses to accept the attorney’s arguments, or to act in accordance with the attorney’s requests, that fact alone does not make the attorney negligent. Note that this is true even if the client loses the case as a result. A claim for legal malpractice derives from the actions or omissions (i.e., the conduct) of the attorney against whom the claim is made. While the results of the case do matter in malpractice claims (as we’ll discuss in blogs to come), those results are only relevant to a malpractice claim where the attorney engaged in negligent conduct during the course of representing a client.



Claims for legal malpractice can arise in either a litigation setting or in connection with transactional representation. In either situation, the question is whether the attorney’s actions met the relevant standard of care, and whether the elements of a negligence claim can be pleaded and proven.

Generally speaking, it is possible to bring a claim for legal malpractice against a negligent lawyer regardless of the nature of the underlying matter in which the negligence occurred–as long as the elements of that claim can be met and shown to the required standard of proof.



As mentioned above, legal malpractice is a form of negligence, which sounds in tort. Unsurprisingly, the elements are those of a negligence claim.

In order to make a prima facie case for negligence, the plaintiff must prove:

1.  The attorney’s duty to act with the skill, prudence and diligence common to members of the legal profession;

2. The attorney breached that duty;

3. The attorney’s breach of duty was the proximate cause of the plaintiff’s injury; and

4. The plaintiff suffered actual loss or damage.

As we will examine more closely in the weeks to come, the ease with which a plaintiff can prove these elements varies widely, depending on the facts and circumstances of the case. However, all plaintiffs must prove them with sufficient certainty in order to prevail.


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.

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