Tort law (2022): Negligence: Malpractice: Legal malpractice + Medical malpractice

Legal malpractice is the term for negligence, breach of fiduciary duty, or breach of contract by a lawyer during the provision of legal services that causes harm to a client.

Examples.

A common example of legal malpractice involves the lawyer missing a deadline for filing a paper with the court or serving a paper on another party, where that error is fatal to the client's case or causes the client to spend more money to resolve the case than would otherwise have been required. For example, a lawyer may commit malpractice by:

After being retained to file a claim or lawsuit, failing to file a case before the statute of limitations expires.

Failing to respond to potentially dispositive motions filed by the opposing party.

Failing to timely file a notice of appeal.

Malpractice may also occur as the result of a breach of the contract pursuant to which the client is represented by the attorney.

United States.

Under U.S. law, in order to rise to an actionable level of negligence (an actual breach of a legal duty of care), the injured party must show that the attorney's acts were not merely the result of poor strategy, but that they were the result of errors that no reasonably prudent attorney would make. While the elements of a cause of action for legal malpractice may vary by state, under typical state law the four elements of legal malpractice are:

1. An attorney-client relationship,

2. Negligence by the attorney,

3. A loss or injury to the client caused by the negligence, and

4. Financial loss or injury to the client.

To satisfy the third element, legal malpractice requires proof of what would have happened had the attorney not been negligent; that is, "but for" the attorney's negligence ("but for" causation). If the same result would have occurred without negligence by the attorney, no cause of action will be permitted. "But for" or actual causation can be difficult to prove. If the malpractice allegedly occurred in litigation, the legal malpractice case may result in a "trial-within-a-trial" which delves into the facts of the case for which the client originally retained the attorney.