What Is Legal Malpractice?
What is Legal Malpractice?
Legal malpractice is a serious matter involving the breach of a duty owed by a lawyer to a client resulting in demonstrable damage to the client. Lawyers are obliged to conduct themselves with the skill, care and diligence of an ordinary, qualified practitioner in the practice area of a client’s case. In other words, if it causes you harm, below-average performance by your lawyer is generally considered malpractice. I have successfully handled below-average performance claims against divorce lawyers, criminal lawyers, business lawyers, bankruptcy lawyers, trial lawyers, real estate lawyers, probate/estate lawyers and many others.
What is not Legal Malpractice?
The mere fact that you lost your case or lost an asset / legal right is not by itself evidence of malpractice. You still have to show that your lawyer violated the duty of care described above and that the violation resulted in a loss. An ordinary, average performance by your lawyer is also not malpractice. The fact that an excellent lawyer would have done a better job does not necessarily mean that your lawyer’s ordinary performance is malpractice, even if you lost.
WHY IS IT SO HARD TO FIND A LEGAL MALPRACTICE LAWYER?
A new lawyer’s oath in Massachusetts is “to conduct myself in the office of an attorney within the courts according to the best of my knowledge and discretion, and with all good fidelity as well to the courts as my clients”. Unfortunately, many lawyers forget their oath all too quickly. I take the oath to mean in part that a lawyer should not mindlessly rule out taking on any just cause that he is competent to handle. Nevertheless, many lawyers refuse to take cases that require them to sue other lawyers.
The Rules of Professional Conduct require lawyers to represent their clients zealously, within the bounds of the law. Most lawyers have no problem suing a doctor, a builder, a negligent motorist, a company that makes a defective product, etc. Not so with cases against lawyers. It may be that they are afraid they will lose esteem in the eyes of their colleagues, or be seen as some sort of a traitor. I am glad to say that not all of us see it that way. To the lawyers who harbor those fears, I say: what would happen to the quality of lawyering if all lawyers knew they could never be brought to justice for committing legal malpractice? By bringing lawsuits, lawyers have made products safer, operating rooms safer, and our roads safer. Lawyers can make courtrooms safer too.
Yes, it is wrong to bash lawyers mindlessly. People love to quote Shakespeare’s line, “The first thing we do, let’s kill all the lawyers”, while forgetting that Shakespeare wrote it to describe the ignorant prejudice and foolishness of that very proposition. As Shakespeare knew, this is a worthy profession sworn to help people seek justice. For better or worse, it is also a business; lawyers need to earn a living. We do so knowing that if and when we negligently cause harm to our client’s case, our system of justice may require us to make good. This is why every honest, prudent, conscientious attorney carries legal malpractice insurance
I can think of no valid reason why a lawyer would not be willing to seek justice against another lawyer, if he believes in good faith that the case is well-founded, and if in so doing, he is carrying out his oath.