The Most Common Types of Legal Malpractice Claims
The American Bar Association (ABA), in its 2010 Law Practice publication titled “The Most Common Legal Malpractice Claims”1 set out the types of legal errors that are serious enough to be considered malpractice. The most common errors are failing to know and apply the law, planning errors, inadequate discovery or investigation, failing to file documents (ones with no deadlines), failure to calendar, failure to know deadlines, procrastination, failure to obtain client consent, conflict of interest, fraud, failure to follow instructions, failing to react to a calendar, malicious prosecution, error in record search, clerical error, improper withdrawal, libel or slander, civil rights violations, among others.
Calendaring does not seem to be important or that it would even rise to the level of malpractice, however with many deadlines that attorneys have, the ABA explains that calendar errors arise in situations when the lawyer was aware of the existence of a deadline but did not initiate any calendar entry as a reminder to him or her or to the office.
Necessary Elements of a Legal Malpractice claim
In Florida, to prevail on a legal malpractice claim, a plaintiff has to show that there was an attorney-client relationship between the client and the lawyer and a breach of duty to provide skillful and competent representation, also known as negligence, causation and damages. The existence of the attorney-client relationship means that the lawyer gave or promised to give some type of legal advice and as a result of that, he or she formed the existence of the attorney-client privilege which means the client was owed competent and skillful representation. There does not have to be any promises to provide legal services in writing. The lawyer's actions such as drafting a document or discussing the case imply that an attorney-client relationship was formed. In some cases, even a reasonable belief that the attorney would provide services is enough to establish this relationship.
The second element of a legal malpractice claim means that in performing legal services, the attorney must exercise the skill, care and diligence that are commonly exercised by other attorneys within the same field. Negligence also requires that the attorney breached the duty to the client, which is measured by the reasonably prudent person standard. If an attorney fails to abide by their duty and fails to meet the standard of practice, they may be found to be negligent.
The third and fourth elements, causation, and damages, must also be proven in a legal malpractice claim. Causation is shown by demonstrating that if the attorney was not negligent or acted wrongfully, the client would have been successful with his or her case. This element can be difficult to prove because there are many elements that could affect an outcome of the case besides attorney's choice to handle an issue in the case. With respect to the damages claim of a legal malpractice case, the client must sustain some financial loss. It is important to remember that if there would have been any financial loss to the client regardless of the attorney's handling of the case, then more likely than not there would not be a viable malpractice claim against the attorney.
How to Resolve Disputes with Attorneys
If a client has failed to resolve conflicts or issues with the attorney on their own or if there were serious consequences to his or her case due to the lawyer's mistakes, there are numerous ways to attempt to resolve those disputes. In some cases, the agreement with the lawyer for the services to be provided will state that any disputes are to be resolved through arbitration. Arbitration is a procedure, similar to a court proceeding, by which disputes between the client and the attorney are resolved by a neutral third party, the arbitrator. Arbitration can either be binding or non-binding. Binding arbitration precludes any review by a court of the decision made by the arbitrator, while non-binding arbitration allows either party to reject the outcome of the arbitration and file a lawsuit. Typically, there are time frames within which a lawsuit must be filed or arbitration will become binding.
Regardless of whether arbitration or a civil proceeding is utilized for claims against attorneys, clients can also report the attorney to the State bar, especially for cases concerning theft and fraud. Criminal prosecution is also possible. The State may impose many different disciplines against the attorney including public reprimands or in severe cases, also disbarment.
Consult with a Clearwater, Florida Legal Malpractice Attorney Today
If you have any questions or are considering whether or not you have a case against your attorney, one of our experienced legal malpractice attorneys at Dolman Law Group Accident Injury Lawyers, PA will meet with you for a free consultation to discuss your legal rights. Please call our office at 727-451-6900 today.