Legal malpractice is the term for negligence, breach of fiduciary duty, or breach of contract by an attorney during the provision of legal services that causes harm to a client.
Video Legal malpractice
Examples
A common example of legal malpractice involves the lawyer's missing a deadline for filing a paper with the court or serving a paper on another party, where that error is fatal to the client's case or causes the client to spend more money to resolve the case than would otherwise have been required. For example, a lawyer may commit malpractice by:
- After being retained to file a claim or lawsuit, failing to file a case before the statute of limitations expires.
- Failing to respond to potentially dispositive motions filed by the oppsing party.
- Failing to timely file a notice of appeal.
Malpractice may also occur as the result of a breach of the contract pursuant to which the client is represented by the attorney.
Maps Legal malpractice
United States
Under U.S. law, 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 of legal malpractice are (i) an attorney-client relationship, (ii) negligence, (iii) causation, and (iv) financial loss.
To satisfy the third 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.
In at least 11 jurisdictions, a person convicted of a crime who then sues his defense attorney must first prove that he was factually innocent (in other words, he must first petition for and obtain exoneration from the court that originally convicted him before filing suit) and that he was convicted only because of his attorney's negligence. A plaintiff who has lost a civil case must prove that the legal malpractice complained of caused the case to be lost, so that the plaintiff can then recover from the negligent attorney the damages that would have been owed by the underlying defendant.
See also
- Fiduciary management
- Ineffective assistance of counsel
- Legal abuse
- Malpractice
- Professional responsibility
References
Source of the article : Wikipedia
0 Comments