Legal Malpractice Representation

The definition of Legal malpractice is negligence, breach of fiduciary duty, or breach of contract by an attorney that causes harm to his or her client. In order to rise to an actionable level of negligence (an actual breach of a legal duty of care), the injured party must show that the attorney's acts were not merely the result of poor strategy, but that they were the result of errors that no reasonably prudent attorney would make. While the exact definition varies from jurisdiction to jurisdiction, typically, the four elements necessary for a legal malpractice are:

• An attorney-client relationship
• Negligence
• Causation
• Financial loss

To satisfy the "Causation" element, legal malpractice requires proof of what would have happened had the attorney not been negligent; that is, "but for" the attorney's negligence ("but for" causation). If the same result would have occurred without negligence by the attorney, no cause of action will be permitted. "But for" or actual causation can be difficult to prove. If the malpractice alleged occurred in litigation, the legal malpractice case may result in a "trial-within-a-trial" which delves into the facts of the case for which the client originally retained the attorney.

Legal malpractice can also occur when an attorney breaches a fiduciary duty to his or her client. This occurs when an attorney acts in his or her own interest instead of fulfilling a duty to act in the client's interest, to the detriment of the client. A claim for legal malpractice may also arise when an attorney breaches the contract pursuant to which the client is represented.

A common basis for a legal malpractice claim arises when an attorney misses a deadline for filing a paper with the court or serving a paper on another party, and that error is irrevocably and incurably fatal to the client's case. This situation normally arises with the running of the statute of limitations (where the client timely reported a potential basis for a lawsuit to the attorney and subsequently authorized its filing, but the attorney failed to timely prepare and file the complaint) but can also arise in the context of failing to respond to dispositive motions filed by the opponent or failing to timely file a notice of appeal.

A less common basis is where an attorney misses a deadline and the error, while not fatal in and of itself to a claim or defense, still forces the client to spend far more to resolve the case than would have been necessary otherwise.

If you believe you are a victim of Legal malpractice, contact Scaringi Law today for a free case evaluation.