How Do I Evaluate My Malpractice Claims? In brief, your claims in legal malpractice consist of two parts: (A) the damages that you have experienced, and (B) the wrongs of your attorney. You must prove both parts of your claim (damages and wrongs), together with the fact the wrongs of your attorney caused the damages to you, before you can obtain compensation for your claim. A. The DamagesYou must have suffered some defined economic damages to have a valid claim against your attorney. Generally, the law does not allow compensation for psychological injury, pain and suffering, or distress caused to you by your attorney. Your damages must be measurable and of an economic nature. Usually, the damages to you involve an underlying case or transaction that has been ruined or harmed by your attorney’s errors. B. The Wrongs of Your AttorneyYou must prove that the economic damages were caused by your attorney’s wrongful conduct. The law requires you to prove one or more of a broad range of wrongs, in addition to proving they were the cause of your damages, before you can obtain compensation. The following list is not exhaustive, but it will give you a good starting point for understanding how the wrongs of an attorney are conceptualized in the law. Breach of Contract
Breach of Fiduciary Duty
Theft by Conversion 1. Breach of Contract. When you retain an attorney to represent you in any matter, a contract is immediately formed between you, as client, and your attorney. This is true even if you only have an oral (spoken) agreement with you attorney. So while there may be no written contract, there is always a “contract” that you can sue on. The contract most typically involves the scope of certain work to be performed by the attorney in exchange for certain money you agree to pay. This contract may become the basis of a lawsuit if the attorney fails to perform any of its terms, and that breach causes you damage. Every contract, whether oral or written, also has a number of “implied terms” that govern an attorney’s conduct even if these terms were not discussed with you. These implied terms and there are many of them- include the obligation to practice competently, the obligation to disclose any conflict of interest your attorney may have, the obligation to keep you informed about certain matters, the obligation to keep all communications with you absolutely confidential, and the obligation to obtain your consent before settling a case. If an attorney fails to perform either the oral or written terms of your agreement, or the implied terms, he or she has committed a wrong. 2. Negligence. Negligence is a mistake made by your attorney. While in most cases a jury will ultimately decide if the mistake is a wrong, experts will be called upon to explain to the jury the so called “standard of care” (the level of acceptable practice) and whether the mistake that injured you was a departure from that standard. 3. Negligent Misrepresentation. When an attorney makes a false statement by mistake, as contrasted with making one intentionally, and you have relied on that false statement in a way that harmed you, then a wrong has been committed by your attorney. 4. Breach of Fiduciary Duty. An attorney owes a client the highest degree of loyalty and fidelity. Any time an attorney has put his or her interests ahead of your interest as a client, then a wrong has been committed. Any time an attorney acts in a way that compromises the duty of loyalty and fidelity owed to you, then a wrong may have been committed
5. Fraud. Any time an attorney intentionally misrepresents a fact to you and you rely on that misrepresentation to your detriment, then that attorney has committed a wrong. Fraud also occurs when your attorney intentionally omits a material fact that he should have disclosed to you.
6. Theft by Conversion. The most unfortunate wrong committed by attorneys is the taking of unearned money from clients. At its most hidden level, conversion consists of nothing more than your attorney billing you for fees or costs that were not incurred. At its most overt level, this wrong involves the outright theft of the payment of a settlement or judgment check that belongs to you. While these wrongs would seem to be quite clear, they become complicated by criminal proceedings, ethics investigations, and the “aggrieved client.”
An attorney’s insurance policy will not cover fraud and conversion.
If you have suffered as a result of your attorney’s wrongdoing, contact my firm to arrange a time when we can discuss your case.
< What is legal malpractice? | What is the statute of limitations? >