What is legal malpractice?

Malpractice is defined as negligence or carelessness on the part of a professional person, for example, a doctor or lawyer. Malpractice is the failure to provide the quality and kind of service that another legal professional would provide under the same circumstances and consistent with generally accepted standards of care. If you believe that your lawyer has committed malpractice, it is likely that you lack the training and background to evaluate the legal services that you have received — and equally likely that you could benefit from the expertise of Wagner, McLaughlin & Whittemore in this area of the law.

If you are disappointed with the advice or results you received from your attorney, we urge you to seek the counsel of Wagner McLaughlin as to the quality of representation you have received and whether you may bring a legal malpractice claim against the first attorney. You should be aware upfront that a poor result or bad advice alone is not sufficient to be successful on a claim of attorney malpractice. Alleging legal malpractice against a former attorney should not be done before many factors, both factual and legal, have been evaluated by an attorney experienced in the field of professional malpractice law. Failure to do so can lead to your being disappointed a second time. Wagner, McLaughlin & Whittemore has the experience, knowledge and resources to advise you on these issues.

Attorney Malpractice Law

An attorney is not expected to be infallible or perfect. Likewise, a lawyer does not undertake to be an insurer or guarantor of a particular result, unless you and your attorney have agreed to achieve a specific result beforehand.

In general, a lawyer undertakes a responsibility and obligation to provide fair and reasonable professional services on a par with other attorneys acting under similar circumstances. An attorney is not required to exercise extraordinary skill or ability. Nor is an attorney held liable for an error of judgment, so long as the attorney exercises his or her reasonable judgment.

Negligence, or the failure to use reasonable care, is the claim usually associated with legal malpractice. The assumption is that a lawyer has committed an error that would have been avoided by the hypothetical “competent” attorney who complies with the standard of care. Unlike the usual negligence case, the test for whether a lawyer has breached reasonable care in a lawyer malpractice case is not in relation to the “reasonable person” standard but, rather, whether the attorney has departed from the usual and customary practice of other lawyers under similar circumstances.

When an attorney agrees to handle a matter for you, he or she impliedly represents that he or she possesses the required degree of learning, skill, and ability necessary to the practice of law that other attorneys in the same profession ordinarily possess and that he or she will exercise reasonable and ordinary care and diligence in the use of his or her skill and in the application of knowledge to the client’s cause. To succeed in a legal malpractice case, you must prove the following:

(1)   the existence of an attorney-client relationship;
(2)   that your attorney either by doing something or failing to do something violated or breached the required duty of reasonable care owed to you;
(3)   that the attorney’s breach of duty was a cause or substantial contributing cause of damages or injury; and
(4)   that you did, in fact, suffer actual injury, loss, or damage.

In attorney malpractice cases, the causal requirement is worded in the negative. For example, it is often said that the client can recover against the former attorney only when it can be shown that the harm to the client would not have occurred “but for” the negligence of the lawyer. In other words, the client must show that only because of the negligence of the lawyer was the client’s cause of action or defense against a claim in the underlying action unsuccessful.

There is another hurdle to clear before you can recover against your former attorney. Many malpractice actions fail because the client is unable to show that, even if a favorable judgment had been recovered, there would have been a solvent defendant to pay it. A claim that could not have been collected on, even if completely prosecuted, cannot result in malpractice liability for failing to prevail. The solvency requirement is intended to demonstrate whether the original defendant could have paid a judgment, had one been rendered against it.

In a legal malpractice action, a client may try to recover both direct and consequential damages. Direct damages are compensation for the loss of the expected benefits from the attorney’s services and any expenses incurred due to the attorney’s failure to achieve those benefits. The measure of direct damage is the difference between the amount actually recovered or paid and the amount that should have been recovered or paid. The measure of direct damages can also include punitive damages that were not recovered or imposed.  The direct damage may be the value of a lost settlement opportunity or the cost of a disadvantageous settlement. Additional elements of direct damage can be the legal fees paid to the defendant attorney and expenses incurred to mitigate the loss of the intended benefit.

Consequential damages are compensation for those additional injuries that are a result of the attorney’s negligence but do not flow directly from or concern the objective of the attorney-client relationship. In other words, a consequential injury is not the loss of the intended benefit of the attorney’s services but damage that occurred because the benefit was lost. Such injuries may include damages for mental stress and related personal injuries, injuries to reputation, economic losses, and expenses incurred in suing that attorney for legal malpractice. In Florida, these damages are not recoverable in many cases, and this area of the law is quite unsettled.

As soon as you realize that you may have a malpractice claim, you should promptly consult with an attorney so that your claim can be investigated and evaluated to determine whether it has merit. During the investigation or evaluation of your malpractice claim, we will need to obtain and review the legal records in question. You will usually be asked to sign written authorizations for the release of these records.  We may also need to retain the services of an expert witness to assist in our review and evaluation of your malpractice claim.

After investigating and evaluating your malpractice claim, we will advise you on whether or not your potential claim is one that we are willing to pursue on your behalf and whether we believe that you have a valid claim for legal malpractice. Our representation is almost always handled on a contingency-fee basis. That is, we accept as our fee a percentage of any financial recovery which you may receive either by settlement or by court judgment. In connection with our written representation agreement, we agree to advance all reasonable and necessary costs to investigate and pursue your claim. We are paid a fee and our costs reimbursed only if we are successful in making a recovery on your claim. If there is no recovery, you will not owe us anything. There is no fee owed for our investigation or if, after our investigation, we decide that we are unable or unwilling to handle the case.

Our representation agreement is in writing and clearly explains our fee arrangement and representation obligations.

There are time limits for the filing of malpractice lawsuits, and we will be able to advise you about these rather complex time limitations and any exceptions to them. Malpractice lawsuits should never be filed frivolously or to avoid an honest debt for professional services. You should be aware that a less than ideal result does not necessarily mean that malpractice has occurred. Indeed, you may have obtained the best possible result under the circumstances of your case or, despite the result, the services or treatment rendered may have been reasonable.

As a general rule, it is a good practice to seek legal advice immediately after you suspect that you may have been a victim of professional malpractice. Although malpractice cases can be complicated, an attorney can assist you in determining whether you have a valid claim.  Wagner, McLaughlin & Whittemore looks forward to assisting you in evaluating and providing advice, counsel, and representation regarding your potential claim.