Malpractice
| Author | Jeffrey Wilson |
| Pages | 43-47 |
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Malpractice is professional negligence or (less frequently) professional misconduct. Attorney malpractice generally implies an unreasonable lack of skill, or failure to render professional services in a manner consistent with that degree of skill, care, and learning expected of a reasonably competent and prudent member of the legal profession. Claims against attorneys (lawyers) for legal malpractice are viable in all fifty states. There is no federal law governing attorney malpractice, and state statutes typically address only the appropriate statute of limitations (limiting the time period) for filing claims or lawsuits against attorneys. However, state case law will define and set the parameters for actionable cases of malpractice within the state.
For legal malpractice to be "actionable" (having all the components necessary to constitute a viable cause of action), there must be a duty owed to someone, a breach of that duty, and resulting harm or damage that is proximately caused by that breach. The simplest way to apply the concept of proximate cause to legal malpractice is to ask whether, "but for" the alleged negligence, the harm or injury would have occurred?
First and foremost, an attorney must owe a legal duty to a person before his or her competency in performing that duty can be judged. In American jurisprudence, a lawyer has no affirmative duty to assist someone—in the absence of a special relationship with that person (such as doctor-patient, attorney-client, guardian-ward, etc.). That "special relationship" between an attorney and his/her client is generally established by mutual assent/consent. This is most often confirmed by a written "retainer" agreement in which the client expressly and exclusively retains a lawyer and his/her law firm to represent the client in a specific legal matter.
Under rare and limited circumstances, a court may infer that an attorney-client relationship existed as a matter of law, even without a contract or agreement between the parties, and even without the attorney's assent. Such a legal conclusion may be
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drawn from the facts presented, such as reliance on the part of the client (who believed in good faith that an attorney-client relationship existed) or by the fact that the attorney provided more than just informal or anecdotal opinion or answer to a question. The paying of a fee or retainer is not dispositive in determining whether an attorney-client relationship existed, and courts generally defer to the "client" and base their conclusions on—or at least give substantial weight to—whether the client believed such a relationship existed, confided in the attorney, and relied upon the professional relationship to his or her detriment.
In any event, once the requisite attorney-client relationship is established, the attorney owes to the client the duty to render legal service and counsel or advice with that degree of skill, care, and diligence as possessed by or expected of a reasonably competent attorney under the same or similar circumstances. The "circumstances" may include the area of law in which the attorney practices (although all attorneys are deemed to have basic legal skill and knowledge in the general practice of law), the customary or accepted practices of other attorneys in the area, and the particular circumstances or facts surrounding the representation. The requisite degree of skill and expertise under the circumstances is established by "expert testimony" from other practicing attorneys who share the same or similar skill, training, certification, and experience as the allegedly negligent attorney.
The practice of law requires state licensure. All fifty states have criteria governing admission to practice within their states. Although requirements may vary slightly, almost all states require graduation from an accredited law school, passing the "bar exam" (referring to the...
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