Legal Malpractice

The area of legal malpractice can be particularly challenging because it requires one attorney to make the case that another attorney acted negligently when providing legal representation. Often, this means the attorney has to convince a judge or jury of the rightness of their client’s underlying legal claim, as well as the prove the elements of legal malpractice itself.

Elements of Legal Malpractice

In order to prove an attorney has engaged in malpractice, four elements are required:

  • There was an attorney/client relationship. If not, the attorney owed the complainant no duty. There are instances when a third party, that is someone who wasn’t the actual client, can bring a malpractice suit. However these are quite limited.
  • The attorney was negligent in his or her representation. Malpractice doesn’t need to be intentional. However, if the malpractice attorney does believe the attorney did act fraudulently or dishonestly, some jurisdictions, including Illinois, require the malpractice attorney to report that misconduct.
  • The attorney’s negligence was the proximate cause of the complainant’s injury. If there is no injury, the attorney can’t be held liable even if he or she did negligently represent the complainant. For example, if an attorney doesn’t challenge the inclusion of one piece of disadvantageous evidence that could have been excluded, there is only injury if the judgement against the complainant was due directly to that evidence. If there was other sufficient evidence on which the jury could have reached the same adverse decision, the attorney’s failure to challenge that specific evidence didn’t cause an injury.
  • Prove the extent of the damage caused by the injury. If the complainant suffered no actual damages, there is nothing to recover from the attorney.

What Malpractice Is Not

Due to the unique nature of the attorney/client relationship, attorneys are bound by a variety of laws and codes of ethics to ensure they represent their clients responsibly and ethically. However, it is important to understand what is legally actionable malpractice and what is not.

An attorney isn’t guilty of malpractice simply because he or she lost the complainant’s case. Many jurisdictions, including Illinois, apply the “attorney judgement” rule to malpractice cases. The attorney judgement rule states that if an attorney exercised reasonable judgement and skill, based on the law as it was at the time of the underlying case, then there is no malpractice. An attorney can make a bad strategic or tactical decision without fearing being held legally liable by their client.

In addition, an ethical violation might not meet all the elements required of a legally actionable malpractice case. Attorneys are bound by various canons of professional ethics, such as the Illinois Rules of Professional Conduct. Attorneys can be brought up on charges of professional misconduct before the boards that enforce the ethical codes, but these are an entirely different type of proceeding.

Common Malpractice Complaints

Most malpractice complaints full under the rubric of a breach of fiduciary duty or breach of contract. The most common malpractice complaints include:

  • Inappropriate use of client funds.
  • Overbilling the client.
  • Missing filing deadlines.
  • Incomplete filings.
  • Failing to disclose a conflict of interest.
  • Failure to properly advise a client.