What Is Legal Malpractice?

When we think about malpractice, it is normal to associate this legal matter with the healthcare industry. However, that is not the only industry that can face malpractice cases, as there are also legal malpractice claims. Legal malpractice occurs when the attorney you hired fails to represent your interests, resulting in a significant financial loss. 

To be able to sue a lawyer, you will need to understand what legal malpractice is by proving you had an existing attorney-client relationship, that the lawyer was negligent, and that the negligence resulted in injuries and financial loss. You also need to get help from a qualified legal malpractice attorney to initiate a lawsuit. 

What are the elements of legal malpractice?

Four essential elements of legal malpractice must be present in order to have a claim against an attorney. Each element must be tested against the concept of what another lawyer would have done in similar circumstances and whether the other lawyer’s actions would have been different, resulting in a different outcome. 

• The lawyer had a legal duty: Lawyers, like doctors and healthcare professionals, must ensure they meet the duty of care standard. This means that they should provide legal services in accordance with the rules and regulations established by the American Bar Association, as well as state and federal laws. You need to establish that the lawyer was negligent and failed to provide a legal duty of care. 
• The lawyer did not fulfill the duty due to carelessness or mistakes: Everyone is human, and even lawyers make mistakes. However, in legal malpractice claims, you must prove that the lawyer’s breach of duty resulted from carelessness or mistakes, which caused your case to have a different outcome had they not been careless or made those mistakes.
• The carelessness or mistake caused injury harm: In addition to establishing that the lawyer failed to provide a duty of care and that they breached that duty, you must also provide actual causation, meaning their actions or lack thereof caused you actual injuries or harm in some manner, such as causing you undue stress or anxiety
• The harm caused financial loss: The last element to establish legal malpractice is experiencing actual damages, such as loss of income, legal fees, or medical bills. The financial loss must also be significant.

What qualifies as legal malpractice?

It is important to remember that not every careless action or mistake is grounds for legal malpractice. It is only when the lawyer handled the case inappropriately, resulting in negligence against the client, that a malpractice claim can be explored. 

Some common examples of legal malpractice include:

• Acting without the client’s authorization: The attorney made decisions that negatively impacted your case without consulting you first. For example, they decided to accept a reduced settlement amount that was significantly less than the lawyer said you could receive. 
• Failure to reveal a conflict of interest: The lawyer has a conflict of interest in the case that interferes with their ability to represent your best interests. For example, the defendant is a relative. 
• Missed deadlines: The lawyer failed to meet deadlines related to your case, which resulted in a negative outcome — for example, if your case was dismissed or they failed to file before the statute of limitations ran out on your claim
• Clerical errors: The lawyer made clerical errors that did not accurately represent your interests or intentions. For instance, they left a zero off the demanded settlement amount, resulting in a much lower settlement offer from the other party. 

Please remember that there are also other actions your lawyer could have made that could be considered negligent and legal malpractice. Generally, you must be able to demonstrate you would have won your case if your lawyer had not been negligent, careless, or made significant mistakes.

What damages can I pursue in a legal malpractice case?

Like other personal injury cases, there are different types of monetary damages one can seek, such as:

• Compensatory damages: Compensatory damages represent the financial impact of the outcome of your claim had the lawyer not been negligent in the first place. This could include the settlement amount they should have received or make up for any financial losses the plaintiff had to pay the defendant.
• Non-compensatory damages: These damages are also called non-economic damages. They cover such things as pain and suffering and emotional distress. 
• Prejudgment interest: In some cases, prejudgement interest may be awarded, which is based on the financial damages one experienced, and compensates for the monetary award one should have received had their lawyer not been negligent
• Foreseeable harm: You can only seek damages that are related to foreseeable harm, meaning only those damages you would have been aware of at the time that resulted in the negative consequences
• Punitive damages: In certain cases where the lawyer’s actions were considered reckless, grossly negligent, or malicious without any regard for the legal process or your interests, the court may award punitive damages. While these damages are monetary in nature, they are meant to punish the lawyer and prevent other lawyers from behaving in a similar manner.

What is the statute of limitations for legal malpractice? 

In Florida, the statute of limitations for filing legal malpractice is two years “from the time the cause of action is discovered or should have been discovered.” If you fail to file your claim within this period, you cannot seek any damages from the lawyer. 

What should I do if I suspect legal malpractice?

If you suspect your lawyer is committing legal malpractice, it is essential to take action as soon as possible. The first thing you should do is talk to the lawyer, share your concerns with them, and allow them to respond. 

If the outcome of that meeting does not go well, or the lawyer fails to respond, the next step is to gather evidence relating to your case and consult with another attorney who specializes in legal malpractice claims. If there is legal malpractice, then you can have this attorney take action to file the appropriate legal forms to seek damages and sue the other lawyer. 

How long does it take to settle a legal malpractice claim?

The amount of time it takes to settle a legal malpractice claim depends on the willingness of both parties to reach a settlement during negotiations. If the defendant is not amenable to reaching a settlement and the case must go to trial, then it can take longer to settle. On the other hand, if the defendant is open to negotiations and willing to settle, the case could be resolved in a matter of months. 

Call Jack Bernstein, Injury Attorneys, if you suspect legal malpractice

If you suspect your lawyer is engaging in legal malpractice or your case did not turn out as planned due to their negligence, mistakes, and carelessness, it is vital to get honest, legal advice from Jack Bernstein, Injury Attorneys. Our experienced Tampa personal injury attorneys offer a free consultation to help you understand your legal rights and options. In the event that legal malpractice has occurred, we will work diligently in your best interests to ensure you are compensated fairly and justly.

Sources:

Buckner, S. (2023). What Is an Attorney Conflict of Interest?

FLA. STAT. § 95.11(4)(b).

Khoury, G. (2019). What Is Prejudgment Interest? 

Types of Damages in Personal Injury Lawsuits. (2023).

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