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When Has a Lawyer Committed Malpractice?


Legal malpractice–sometimes also known as “professional negligence”–occurs when a lawyer engages in negligence, breach of contract, or breach of a fiduciary duty, and the lawyer’s actions (or failure to act) results in damages (harm) to another person — usually a client.

Not all mistakes by lawyers rise to the level of malpractice, and people cannot sue a lawyer “just” because the lawyer lost a case. Losing, by itself, is not necessarily evidence of malpractice. (If it were,  lawyers would be committing malpractice every time a lawsuit ended in the other party’s favor.) However, if the attorney lost because (s)he acted in a way that no reasonably prudent attorney would act, and that action caused the client’s harm, the client may have a cause of action for malpractice.

Note: if you believe an attorney committed malpractice in your case, consult a qualified attorney promptly for an evaluation of your legal rights and possible claims. Do not rely on this article (or any other) to determine whether or not you have a claim.


Generally speaking, lawyers in California are liable for malpractice when they engage in negligent conduct that results in loss of a client’s otherwise meritorious claim. In legal malpractice cases, attorneys’ negligent conduct is normally measured by a “reasonable attorney” standard – meaning that the court will ask whether the defendant lawyer acted in a way that differed significantly from what a reasonable lawyer would have done in similar circumstances.

Damages are also a required element of legal malpractice claims. If the attorney engaged in negligence, but the conduct did not result in actual harm or damages to the client (or, in appropriate circumstances, the non-client plaintiff), the law does not generally hold the lawyer liable for malpractice.

Malpractice actions also need to be brought (or “commenced”) within the applicable statute of limitations. This is why potentially injured clients need to consult a specialist promptly after discovering–or even suspecting–that an attorney may have committed malpractice in handling client matters. While certain facts and situations “toll” the statute of limitations – meaning the time for filing a lawsuit against the attorney does not run – injured parties should never wait to bring a legal claim. Waiting may compromise the plaintiff’s legal rights, or even prevent the defendant from incurring liability, even if a more promptly prosecuted malpractice claim would have been successful.


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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