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How to Sue an Attorney for Malpractice

by John Hensley
How to Sue an Attorney for Malpractice

Most of the time, if you need an attorney’s help, it is because a particular situation has become too complex for you to resolve on your own. So what if the lawyer actually makes things worse rather than better? Here are some things to keep in mind if you are thinking about suing your lawyer for malpractice following a loss of trust.

Malpractice Is Hard to Prove

You might consider suing your lawyer for malpractice if he or she made serious errors. The odds of winning a malpractice suit are very slim. Malpractice occurs when a lawyer fails to exercise the skill and care that other lawyers would use in handling the same problem or case. The fact that your lawyer lost your case does not constitute malpractice.

In order to prove that an attorney committed malpractice, you must prove four elements:

  • breach — an attorney breached their duty by being negligent, making a mistake, or failing to perform what they agreed to do
  • damages — monetary losses you suffered.
  • causation — you suffered financial harm as a result of this conduct
  • duty — The attorney was obligated to act appropriately for you

A malpractice claim is won by proving that your attorney made mistakes in handling your case. If the underlying case was handled improperly by the lawyer, you must prove that you could have won it if the lawyer had handled it properly. Lastly, you must show how you would have collected from the defendant if you won the underlying case.

When Is a Bad Job Malpractice?

Client complaints about lawyers are analyzed here, along with whether their actions (or inactions) constitute malpractice.

The lawyer who is handling your case stops working on it. It is more likely that malpractice will be committed by your attorney if he or she ignores you and your case for a long period of time. In order to make sure your case is properly handled, you should act as soon as possible and, if necessary, find another lawyer.

Your case is thrown out of court because your lawyer did no work. There may be malpractice involved here. It will be challenging not only to prove that your lawyer mishandled your case but also to prove that had the case been handled correctly, you would have won. 

Lawyer recommends settling your case for much less than she initially estimated it was worth. In this case, malpractice is not involved. You may have been given an overestimation of your case’s value by your lawyer to get you to hire her.

You should get a second opinion on your case. It may be a good idea to change lawyers if another reputable attorney feels that you are being advised to settle for too little.

Without your consent, your lawyer settles your case. Without the client’s permission, a lawyer cannot accept a settlement. Your malpractice claim will, however, only be successful if you can prove that your lawyer agreed to a settlement that was less than what your case was worth.

Your lawyer socializes with your opponent’s lawyer. Attorneys are not guilty of malpractice or breach of ethics in this case. It’s not ethically wrong for opposing attorneys to play tennis, bridge, golf or engage in other social activities together.

The attorney’s duty to you would be violated if your lawyer let slip something you said in confidence when opposing attorneys talk about your case.

You suspect the retainer you paid to your lawyer may have been misused. A lawyer’s duty is to use your funds exclusively for your case, so stealing a client’s money is malpractice.

There are many people who retain the services of a reliable attorney. Find out what an average divorce lawyer’s retainer fee is.

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