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What Constitutes Legal Malpractice - 7 Guidelines

Apr 23, 2008
Legal malpractice is probably less well-known by most people than is another type of malpractice issue: medical malpractice. However, legal malpractice cases can be just as serious as are their medical counterparts. They have potentially far-reaching impact upon the lives of people who have been involved in a legal battle that ended unfavorably due to incompetency or intentional misrepresentation on behalf of the attorney(s) who represented them.

What constitutes legal malpractice and how do you determine whether you may have cause for a legitimate case?

Here are 7 guidelines for discerning whether you may have grounds for a legal malpractice case. Note, however, that it is essential that you consult with a licensed legal malpractice attorney to help you determine if there are grounds for a legitimate case in your particular situation:

Guideline 1: A legal malpractice cases is really a case within a case:

A legal malpractice case must by definition come about after the close of another case whereby the would-be legal malpractice plaintiff has experienced an unfavorable decision - either a loss or an inadequate settlement. In this sense, a legal malpractice case is really a case within a case. If all of the qualifying conditions for legal malpractice are met, such a case may be brought against the attorney representing the client in the underlying (i.e., original) case. If the first attorney is found to have been negligent or misleading, he or she may be liable for damages to the original plaintiff.

Guideline 2: The concept of legal malpractice rests upon the assumption that attorneys are obligated to act competently:

Legal malpractice cases are built upon the premise that attorneys, when representing clients in legal cases, are expected to conduct themselves in a professional and competent manner. Like other professionals, attorneys are implicitly trusted by their clients to do everything reasonable within their power to act on behalf of their clients. The failure to do so, especially if a particular legal case ends in an unfavorable decision for the client, may represent an instance of legal malpractice.

Guideline 3: Legal malpractice proceedings may be called for when any of at least three types of conditions are met:

There are three primary situations whereby a client may have grounds for a legal malpractice case: if the attorney in the case missed an important court-related deadline (e.g., a filing deadline), if the attorney intentionally misrepresented material facts to the client, or if the settlement resulting from a case was inadequate. Meeting one or more of these conditions does not automatically qualify as legal malpractice, but they are necessary for the case to move forward at all.

Guideline 4: The plaintiff in a legal malpractice case must prove that the underlying case had merit:

Before bringing a legal malpractice case against the attorney in the initial case, the would-be plaintiff of the new case must first prove that the underlying (i.e., original) case had merit. If it cannot be shown that the underlying case had sufficient merit such that it could have otherwise potentially won in court, then any statements made about the incompetency or misrepresentation by the attorney in that case become moot.

Guideline 5: The second attorney must thoroughly investigate the underlying case:

If one approaches a second attorney about the possibility of representing them in a legal malpractice case, this second attorney is obligated to thoroughly investigate the underlying case to verify whether it indeed had merit. In fact, if the second attorney fails to do so before initiating a legal malpractice case, they themselves could potentially in turn be held liable for legal malpractice.

Guideline 6: The second attorney must make sure there are no other legal options available:

Another prerequisite for the secondary attorney taking on a legal malpractice case is that they make sure that their client has exhausted all other legal options for the underlying case. In other words, it must be shown that the legal malpractice case would be the only justifiable way for the client in the original case to have the chance of receiving justice.

Guideline 7: To be successful, the initial attorney must be proven to have acted incompetently:

Acting incompetently and being proven to have acted incompetently are of course two different things. Even if the second attorney is convinced that the original case acted incompetently, the second attorney must still be prepared to prove that this was indeed true. Ultimately, to win a legal malpractice case, there needs to be substantial evidence that the first attorney did indeed act in a manner that is not commensurate with the duties and obligations of a professional, practicing attorney.

Initiating a legal malpractice suit may be the best path to justice for those who have met with unfavorable outcomes in past legal cases whereby there is strong reason to believe that their representing counsel was acting incompetently or that they intentionally misrepresented the potential success of the case. The guidelines shared above can help you preliminarily determine whether you might have grounds for a legal malpractice case. Please consult with a seasoned legal malpractice attorney to confirm whether you may have a case.
About the Author
You can contact Daniel B. Ross through his Web site: MyRossLaw.com . Mr. Ross is licensed as an attorney by the Supreme Court of the State of Texas and has years of experience fighting for the rights of clients.
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