What Is Legal Malpractice?

In a legal system where, by definition, someone wins and someone loses every case, many people become highly dissatisfied with the legal services they have obtained from their  lawyers. Sometimes they consider suing the lawyer for legal malpractice, and potentially, there is indeed a civil cause of action for that. I am one of a very small number of New  Jersey lawyers who handle such cases, and I also serve as expert witness for other  attorneys in similar cases. Of course, I only do it when I can reach an opinion that it is well-founded.  I am a Certified Civil Trial Attorney, having been so designated by the  Supreme Court of New Jersey. Here are some basics on what legal malpractice is, and how to determine whether or not you may have a case.

The Standard of Care

Just like physicians, architects and all other professionals, attorneys are required to comply with “the  standard of care” in the things that they do for their clients. If their  services fall below this standard of care, that may constitute legal malpractice. The term for this concept that is used in the courts is a “deviation from the standard of care”. If there is a “deviation”, and also resulting damages, that may entitle the injured client to sue the lawyer for legal malpractice. Still, I get a lot of calls from people who are convinced they have such a case, but really do not. The “standard of care” is a very simple concept. It simply means that which most lawyers practicing in the same field would do, in a particular situation.

Sometimes there is only one appropriate response to a circumstance affecting a client, and in other cases, there may be several, depending on the attorney’s judgment. In some situations, a statute or court rule dictates what the lawyer should have done, and will serve as the standard of care. In most situations, however, it is not so simple, and it requires the expert opinion of some other attorney as to what should have been done, and whether there was a deviation from that. Usually the lawyer who is sued will also have some expert opinion on his side, and the trial of this kind of case may become “a battle of the experts”. Failing to achieve the client’s objectives, by itself, is not evidence of malpractice. After all, in our legal system, someone usually loses. If the attorney has done the things required by the standard of care, and not done the things forbidden by it, that is simply not malpractice, no matter how disappointed the client may be in the result.  Indeed, sometimes an attorney is powerless to stop a problem, even when he sees it.

The standard of care is not limited to the handling of a client’s litigation. There are many other kinds of things for which people come to lawyers, everything from the drafting of wills and contracts to the conveyance of real estate, or the sale of a business. In all the many things that lawyers do, there is a standard of care, and there is the possibility that some lawyers have not met that standard.

How To Know If You Have Suffered Damages

Even where an attorney’s handling of a matter has been very poor, you do not have a malpractice case unless you have also suffered damages. Further, there is a requirement that the damages you suffer be “proximately caused” by the negligence of the lawyer. These are not always easy requirements to meet. To cite the most obvious example, if you are the plaintiff in a civil lawsuit, and your lawyer in some way is negligent, causing your suit to be lost, you probably think there is malpractice. And it may well be that the lawyer has violated a rule, and has therefore deviated from the standard of care. However, if the case your lawyer was handling for you was a weak one, and likely to have become a “loser” even with good handling, then you have not suffered proximately-caused damages.

Do not think that you can sue the attorney anyway and collect from his malpractice insurance, because if the defense sees no significant damages, they will fight you all the way, and make you prove your case. If you cannot prove your damages, then don’t even try.  In some states, even a case that is settled could give rise to a malpractice claim, though in other states, this is not a recognized principle. In New Jersey, it is possible, but very difficult, to prove this kind of malpractice. If the lawyer’s advice to settle for a particular amount turns out to have been negligent, there may indeed be a malpractice claim against him, for the difference between the settlement figure, and what should have been a reasonable settlement figure. However, how to counsel a client about possible settlements is one of the most delicate areas of judgment for any attorney.  The law gives the attorney a great deal of discretion in carrying out that task. You will probably have to find a specific and clear mistake in the lawyer’s approach to the case, or a specific omission in the work he did, before such a claim would be viable.

Things That Are Not Malpractice

If you have had a dispute with your attorney about fees and expenses, this is not considered to be legal malpractice. Therefore, a malpractice attorney will not be interested in handling such a dispute. In some cases there may indeed be a legitimate claim against the attorney for overcharges, but most clients are better off seeking fee arbitration, which is provided by the county Bar Associations in New Jersey, under the aegis of the New Jersey Supreme Court. You usually do not need to have an attorney for that, although you might possibly need an accountant. Where there are both fee issues and malpractice issues, however, a malpractice attorney may be willing to handle both.

If you feel your attorney has violated one of the Rules of Professional Conduct, that is, has acted unethically, that is also outside the ambit of a malpractice claim, and a malpractice attorney will not be interested in it. The New Jersey Supreme Court has set up District Ethics Committees in the various counties, which accept complaints filed against lawyers for unethical conduct. A Committee Investigator will decide whether he or she really thinks there has been unethical conduct or not.  Ultimately, attorneys found guilty of unethical conduct may suffer punishment.  In an extreme case, they can even be disbarred for life. The Ethics Committees may order restitution to a client, but this is rare.

There are certain situations where the violation of an ethics rule may overlap some kind of malpractice, in which case a malpractice attorney will handle it. In most cases, however, private attorneys refuse to get involved in the possible ethics breach of another attorney, which does not constitute malpractice in itself. In fact, don’t tell a malpractice attorney you are calling him because of another attorney’s unethical conduct, because he will fear you are complaining purely out of anger, and will feel unable to help you in any way.

Financial Considerations for Legal Malpractice Cases

The typical legal malpractice case will be expensive. By definition, almost all of them require you to have an expert witness, meaning another lawyer practicing in the same field as the one you are suing, who is willing to specify what your former lawyer did wrong that constitutes malpractice. These experts have to be paid by the hour for their time, whether you win or lose, and will not wait for payment until your case is over. There are also out-of-pocket costs for court costs, depositions, obtaining or copying records and files, and sometimes research or investigation fees. Although I do not make a rigid rule about this, most of the time, I am not willing to pay for any of this out of my own pocket. The client has to advance the funds which I expect to need for these purposes.

Many people have seen TV ads from personal injury lawyers, who take their cases on a one-third contingency, and also advance the cost of prosecuting the case. They therefore think they have a right to expect similar treatment from malpractice attorneys. However, there is a very big difference between personal injury cases (such as those arising from falldowns and auto accidents) and legal malpractice cases: the fact that they are fought hard, can easily be lost, and may never give rise to a settlement offer at all. Expect to have to work out a mixed arrangement with your attorney, by which you pay him at least some retainer, as well as advancing expense money. These specifics will vary depending on the merits of your case, and various other factors and considerations which the lawyer feels are relevant. Basically, however, do not expect the lawyer to work for you for free, or to wait three or four years to find out if he is ever going to get paid.

In many cases, a malpractice attorney has to spend a great deal of time going through your file and listening to your story, and maybe doing some legal research, before he can even decide whether you have a viable case or not. When I feel it will take a lot of work just to get to the point of knowing if I am interested in the case or not, I require a consultation fee up front. I also need to know right away who the lawyer is that you are complaining about.  It’s not that I will tell them – I won’t – but if I know him or her, or feel some kind of conflict getting involved, then I may as well not even listen any further!  However, I am usually willing to spend a few minutes on the phone, or responding to e-mail, to determine whether a full consultation is indicated. If you ever expect to get good results, be cooperative and candid with the malpractice attorney at the outset, and afterwards too. We can only work with “the truth, the whole truth, and nothing but the truth”. We cannot achieve anything for you if we do not have the full facts. However, these cases are always interesting, and I therefore always try to give them the full attention and critical effort that you would want me to.

The Purpose of Legal Malpractice Cases

Remember one thing: a lawyer handling a civil case for you can only try to win you an award of damages, or a money settlement. In other words, the sole purpose of these cases is financial: to compensate you for your losses or damages. Don’t think of them as a way of getting revenge, of making a point, or of hurting the person you are suing, even if you have good cause to feel these emotions.  Also, do not be concerned that the public needs to be warned, or the lawyer taught a lesson. The system cannot help you with that, lawyers like me will not want to represent you, and you will wind up disappointed again. You have suffered one wrong: now just concentrate on vindicating your rights, not on creating another wrong.