How can I recover compensation for legal malpractice?
UPDATED: February 20, 2013
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Legal malpractice occurs when an attorney provides you with unprofessional or careless representation. Attorneys have a fiduciary duty to their clients to act in their best interests and a duty to provide competent representation to their clients. If your attorney breaches the duty he or she owes to you, you may recover compensation for losses you incur as a result. You can recover this compensation through a legal malpractice civil lawsuit or through settling your malpractice claim outside of court.
Types of Legal Malpractice Claims
There are various types of legal malpractice claims for which you can recover compensation, among the most common are:
Negligence claims: A negligence legal malpractice claim asserts that your attorney performed inadequately and breached the professional duty of care that was owed to you. Attorneys have a duty to provide the level of representation that a reasonable attorney would in the same situation. If your lawyer makes a legal mistake, doesn't file your claim within the statute of limitations, or otherwise behaves below the standard expected of attorneys, you may be entitled to compensation for negligent legal representation.
Breach of fiduciary duty: Attorneys have a duty to act in the best interests of their clients. If your attorney fails to do so, you may have a claim for a breach of fiduciary duty. Examples of such a breach may include an attorney representing you despite a conflict of interest, an attorney acting to benefit himself instead of you (such as buying a piece of real estate property out from under you) or an attorney making a decision that goes against what is best for you.
Proving a Legal Malpractice Claim
If you wish to recover compensation for legal malpractice, you have the burden of proving the four essential elements of the case. These include:
- That the attorney owed you a duty of care. This duty is imposed by virtue of the attorney-client relationship. Your attorney owes you a duty once you have paid a retainer or entered into a representation agreement. In some cases, a duty may arise after you have met with and discussed the case with your attorney. Sending unsolicited emails or having an initial consultation does not necessarily create a duty, and you will need to prove that you did in fact enter into a professional relationship.
- That the attorney breached the duty of care that was owed. This can be proven by showing that a reasonable attorney would have acted more competently or provided more skilled legal representation than your attorney did.
- That the breach of care was a direct cause of loss or damage. This is often the most difficult element of a legal malpractice claim to prove as you have to show that you would have had a different outcome if your attorney was more competent. For instance, you may have to show that you would have won your case if your lawyer had filed it on time or not made a legal error.
- That you actually suffered financial losses for which you can be compensated.
These elements of your case must be proven by a preponderance of the evidence before you can receive compensation for legal malpractice.
How to Recover Your Damages
Damages for attorney malpractice may be obtained through filing a civil lawsuit against your attorney, however many legal malpractice claim settle outside of court before a case gets to a jury. When you settle a claim, you negotiate with your attorney's malpractice insurer and are paid an agreed upon sum of money in exchange for giving up your legal right to sue.
To get help recovering your damages for a legal malpractice claim, you should contact an experienced attorney who specializes in legal malpractice.