Legal malpractice is when a lawyer violates the legal standard of care and causes permanent damage to a valid case. In plain English, this means the following:
1. Lawyers have what is known as a standard of care. This means that in a given set of circumstances, a lawyer is expected to do certain things. For example, lawyers are expected to file lawsuits in time to avoid missing the statute of limitations. If a lawyer fails to file a legitimate suit in time and as a result, the client can never sue, the lawyer may have committed legal malpractice. In fact, violating the statute of limitations (SOL as it is called) is one of the most basic ways to commit malpractice.
2. In order to sue a lawyer for malpractice, that lawyer must have had a duty to you. This means the lawyer must have been your lawyer. You cannot sue opposing counsel for malpractice because she is not your lawyer and does not owe you a duty of care.
3. If your lawyer violates the standard of care, that violation must have directly caused your damage. For example, if a lawyer sends a document to the wrong place and that is considered a violation of the standard of care, but you lost your case because your expert witness didn’t do a great job on the stand, the fact that the lawyer messed up where he sent the document is irrelevant and the violation is not a basis for a lawsuit against your attorney.
4. You must have actually suffered damage. If you would have lost your case anyway, it doesn’t matter that the lawyer violated the standard of care. Even in the case of missing a statute of limitations, if you cannot prove you would have won your case if the lawyer had filed it, you did not suffer damages and do not have a case for legal malpractice.
A Case Within a Case
Legal malpractice is sometimes called a case within a case. This is because you must prove both the original claim and its value, as well as the malpractice. If you are suing a lawyer because he didn’t file your car accident claim in time, but it turns out that you caused the car accident, you don’t have a case for either your car accident or your legal malpractice case. As a result, you didn’t suffer any damage from your lawyer’s mistake. For this reason, legal malpractice cases are quite complex. They are also quite expensive, due to the need for expert witnesses.
Your legal malpractice attorney has to retain another attorney who practices in the same areas as your original lawyer. For example, if you have a divorce case and you are claiming that the lawyer messed up your equitable distribution to the degree that it was a violation of the standard of care, your malpractice lawyer would have to retain a divorce lawyer who is willing to testify about that violation. That divorce lawyer would also have to be able to tie the violation to the actual damages and be able to testify as to what those damages should have been. Sometimes, your malpractice lawyer has to hire other experts. In the divorce case, the attorney would need to put on a trial just as she would have done in family court, perhaps using vocational experts, accountants and other experts to show the worth of your marital assets, how much you or your ex-spouse would have been able to work (and earn) and so on.
Why Isn’t it Malpractice? The Three Major Reasons.
When someone first contacts me about legal malpractice, I listen to why she thinks the lawyer made a mistake. Frankly, most of the time, I find one of the following:
1. Lawyer just lost. The lawyer lost the case simply because she lost the case. It might not have been a good case, or perhaps the lawyer wasn’t the best person for the case. But losing in and of itself is not malpractice. We must meet all four requirements explained above for a legitimate claim. In such a case, there is nothing to be done. If you call me and I believe that you simply lost, I will tell you so. I always suggest that you seek a second opinion, of course.
2. Lawyer committed an ethical violation. The most common complaint involves the failure of the lawyer to return calls or emails. This, if egregious enough, is an ethical violation and the basis to file a complaint with the Office of Disciplinary Counsel. But in and of itself, failure to communicate is not legal malpractice and does not form the basis for a suit. The solution, if you believe your lawyer committed an ethics violation, is to file a complaint. The ODC will investigate and decide if it is appropriate to go forward. I suggest you review the ethics rules to determine if a complaint might be valid. Ethics complaints do not generally help in legal malpractice cases. The only time ethics complaints help with money is when the lawyer stole money from the client. If your lawyer stole money from you, you should file a disciplinary complaint and also a claim with the Pennsylvania Lawyers Fund for Client Security. This fund does not cover fee disputes. This fund is for if a lawyer did not disburse your settlement to you or something along those lines; an actual theft. Please understand, I cannot help you file an ethics complaint. Fortunately, a lawyer is not required.
3. Lawyer and client disagree on the fee. Fee disputes are neither malpractice nor basis for an ethics violation complaint. What they are is a contract disagreement. In some counties, you might find that the local bar association offers a way to mediate a dispute. In others, a fee dispute requires a lawsuit. Keep in mind, unless the lawyer’s fee is so egregious as to be shocking, a fee dispute will not be successful. I cannot help with fee disputes, but you can retain another lawyer to assist you. If the fee is small enough, you can sue in small claims court with or without legal representation. The first step in resolving a fee dispute is to speak with your lawyer and see if you can come to an agreement.