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When Has a Lawyer Breached a Professional Duty to a Client?

To prevail in a legal malpractice claim, a plaintiff must not only prove that the defendant attorney owed the plaintiff a legal duty, but also that the lawyer behaved in a way that constitutes a legally-recognized breach of that duty.

The plaintiff is usually a former client, but also may be a non-client to whom the lawyer owed a special kind of legal duty. (The last few posts have examined the situations when this occurs.)

“Breach” is a legal term for violations. Proving breach requires the plaintiff to demonstrate, through legally admissible evidence, that the lawyer violated the specific legal duty owed to the plaintiff, and did so at a time when the duty was actively owed.


Proving breach of duty requires an examination of the time period when the alleged professional negligence (also called “malpractice”) occurred. In order to prove a breach, the plaintiff must prove that the attorney’s advice (or action) was:

1. Legally deficient or actionable at the time the relevant advice was given (or action taken), and

2. Taken or given in a manner which failed to demonstrate the minimum level of skill commonly possessed by other lawyers in similar circumstances. (In other words: lacking the minimum standard level of legal knowledge and competence.)

If the action or advice was competent¬†when given, but was later proven wrong (or inadvisable) due to changing circumstances or new information which was not available (through no fault of the lawyer’s) at the time the advice was given, then there was no breach of duty.

14B15 legal research



More accurately, it depends on the facts and circumstances of the individual case and claim.

The existence and nature of the attorney’s duty to the plaintiff (or, in some cases, the lack of such a duty) is a question of law, which means that issue is decided by a judge (even if the lawsuit involves a jury).

However, the question of whether a defendant lawyer breached the duty (s)he owed the plaintiff by failing to conform to the legal standards for competence is generally a question of fact, which gets resolved by a jury. (In cases where there is no jury, the judge makes this decision also, as a “trier of fact.”)

On occasion, the facts presented at trial are so clear that “reasonable minds cannot differ” as to whether or not the lawyer breached his or her duty to the client. In these cases, a judge can take the decision out of the jury’s hands and decide the issue of breach as a matter of law. Judges should not do this, however, where reasonable people could disagree about the facts, or where the facts are heavily disputed.

14B02 Witkin


Plaintiffs should always consult an experienced malpractice attorney to seek an evaluation of their claims. Evaluation of legal malpractice issues involves significant legal experience, as well as the examination and analysis of legal rules. It’s easy for inexperienced plaintiffs (and clients) to become confused, or to misinterpret legal claims — and also to lose those claims through delay.

Never rely on this or any other article or non-personal evaluation as a substitute for a personalized, specific evaluation of your individual claims. If you believe that your attorney committed legal malpractice, consult an experienced practitioner without delay.

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