Can I file a malpractice claim against my lawyer?

Recently on our legal forum a user asked, “If I hired a lawyer and they failed to perform their job do I have a right to sue them for legal malpractice?”

Like other professionals, lawyers have a responsibility to provide service to their clients with the skill, expertise, and professionalism that is comparable to what other lawyers could have provided in a similar position.

What this does not mean, however, is that just because your lawyer lost the case you have the legal right to sue them. Winning and losing can be the result of many factors, many of which are not controlled by your lawyer.

Proving legal  malpractice against your lawyer

So how do you know if you can sue your lawyer for malpractice? Like other civil injury claims, you will have to prove certain elements of your malpractice case. Specifically, you will have to prove the following:

1. The attorney owed you a duty of care.

Establishing duty of care should be easy. If you have a signed contract that the attorney would provide legal services to you, a duty of care is established.

2. The lawyer breached their duty of care.

Proving breach of duty can be difficult. In essence it is proving that your lawyer acted in a way that other lawyers in the same position, working the same type of case, would not have acted.

Common examples of breach of duty can include the failure of your lawyer to work on your case and you lose your case as a result, your attorney decides to settle your case without your knowledge or agreement and the amount is for far less than your case is worth, you hire a lawyer and sign the contract but your attorney fails to file your lawsuit within the statute of limitations, or your attorney takes the money you have paid for a retainer and does not use it for your case.

3. The lawyer’s breach has caused you loss.

Causation is one of the most difficult elements to prove in a malpractice lawsuit. You may suspect your attorney did not work the requisite amount of time on your case or if they had worked a little harder you might have won, but can you prove it? Maybe you actually had insufficient evidence or the jury simply didn’t believe your claims.

4. You suffered loss.

This can be one of the most confusing elements for many claimants, but if your attorney’s breach of duty does not actually impact your case, meaning but for the negligence you would have prevailed or you did not suffer some type of financial loss, it is not malpractice.

If you are able to prove legal malpractice the court generally will award you compensation for the amount of damages you would have won for your case if your lawyer had done their job.

Proving Malpractice is not easy

Proving malpractice is not easy. In fact, you may have to hire another lawyer to help you with your case. You also need to consider whether it is worth the cost and hassle. If your settlement for the first case was relatively low and your compensation if you prove malpractice will also be low, it may be tough to get another lawyer to take your case.

Filing within the statute of limitations

Like all civil cases, legal malpractice claims must be filed within the statute of limitations. The statute of limitations also varies by state, and it is important to understand your state’s laws. For example, in the state of Texas (under Tex. Civ. Prac. & Rem. Code § 16.003(a)) the statute of limitations for legal malpractice is 2 years from the date of the breach.

Claimants who have been injured but fail to file their legal malpractice suit within the statute of limitations for their state will forfeit their right to compensation for their injury.

Bottom line:

Legal malpractice cases can present a difficult legal challenge: you generally must prove your original case would have been won if the malpractice had not occurred. This can be a difficult task for some plaintiffs. If, on the other hand, the legal malpractice is obvious and easy to prove, it may be worth pursuing your legal malpractice case.