What Is Legal Malpractice and How Can Lawyers Avoid It?

//What Is Legal Malpractice and How Can Lawyers Avoid It?

Legal-MalpracticeThe thought of legal malpractice lawsuits can really unnerve any attorney and fill them with self-doubt and fear. But legal malpractice suits don’t get filed without clients having the right legal malpractice elements in place.

Legal Malpractice Definition

The definition of malpractice in law is when an attorney fails to handle a legal case properly due to their negligence, incompetence or because they’re intentionally trying to harm the client.  Some of the most common legal malpractice complaints brought against attorneys are failure to know and apply the law appropriately, planning errors, failure to calendar, missing deadlines, procrastination, and failure to get the consent of the client.  The major issues in legal malpractice stem from an attorney’s legal negligence, not necessarily from fraud or maliciousness.

Filing an Attorney Malpractice Lawsuit

So what constitutes legal malpractice? Before a client can file an attorney malpractice lawsuit against a lawyer, they must prove the following:

  • Attorney/client relationship. Before filing a lawyer malpractice case, the client must prove that the attorney did in fact agree to give legal advice on their legal issue. If there is a written agreement between the attorney and the client this should suffice as proof that an attorney/client relationship did exist. If there is not, courts undertake other tests to determine if that relationship existed.
  • Legal negligence. If a client wants to win a legal malpractice suit, they must have solid evidence that the attorney failed to provide appropriate advice or failed to carry out their duties as an attorney. For example, if an attorney missed deadlines, failed to file the right paperwork, or misapplied the law to the case, this can serve as proof of legal negligence. Using a law practice management software like Smokeball can help avoid this kind of negligence with features like legal document preparation softwarelegal billing and time tracking software and more.
  • Financial loss. If an attorney’s negligence caused the client to lose money, this could be grounds for a legal malpractice suit. For example, if the legal negligence of the attorney caused the client to lose a case that they were most likely to win, this could be considered a financial loss if there was settlement money involved.

In essence, any client bringing a legal malpractice suit against a lawyer or law firm will need to prove that there was inappropriate and negligent lawyer behavior that caused them harm in their case.

Consequences for Legal Malpractice

If a lawyer is found guilty of legal malpractice, the punishment for the violation can vary depending on the details of the case. If an attorney purposefully misled the client, failed to work on the case, or purposefully failed to handle their case appropriately, this could carry very stiff penalties. But it’s important to understand that in most cases the attorney’s negligence would fall under civil malpractice meaning that the offense is to be punished with sanctions, fines and restitution as opposed to criminal malpractice, which is punishable with prison time.

Legal Malpractice Statute of Limitations

Depending on the state where the attorney practices law, there may be a statute of limitations limiting how long a client has to bring a suit or complaint against the lawyer for legal malpractice. Some states have a statute of limitations of two years, four years, or six years. Once the statute of limitations has run out, the client cannot file a legal malpractice suit against the attorney.

How to Avoid Legal Malpractice

Most attorneys want to do a great job and never intentionally engage in legal malpractice on a client case. But there are some lawyers who make mistakes; here are a few things lawyers can do to avoid legal malpractice.

Don’t Overpromise

So many clients want to know the exact outcome of their case before they’ve even filed the paperwork with the court. It’s important that lawyers avoid promising a certain outcome on a case even if they are certain they can win.  If the client doesn’t get the outcome that the attorney promised or even suggested, they may become disappointed and decide to file a legal malpractice complaint. Letting the client know that the outcome is unpredictable may help attorneys avoid unfounded legal negligence complaints.

Use a Calendar System

No attorney can remember all of their appointments and deadlines for every case. And even using a traditional paper calendar leaves a lot of room for error. Some very good attorneys make mistakes because their memory simply can’t hold all of the information for the 20 cases or more that they’re juggling. Using legal calendaring systems available through case management software like Smokeball can help lawyers avoid missing deadlines. And the fewer deadlines an attorney misses, the less likely they will be faced with legal malpractice complaints.

Put It in Writing

Attorneys should confirm in writing any instructions they’ve received from a client verbally. Sometimes an attorney may have heard an instruction a way that the client didn’t intend. Getting written confirmation can avoid misunderstandings and accusations of legal negligence.  Don’t depend solely on verbal conversations. Lawyers should summarize important points of a verbal conversation in email so that any clarifications can happen before action is taken.

Create a Communications Protocol

Clients don’t like to be ignored. If it takes weeks to return a client’s email message or phone call, the client may feel ignored.  Lawyers should create a communications protocol that sets a policy of how soon clients should receive a response from the attorney or the attorney’s assistant.  Once this policy is put in place and communicated to the client, the lawyer should follow it.  Be prompt in responding to client calls and emails. If a lawyer’s failure to communicate to the client in a timely manner negatively impacts the case they may end up with a legal malpractice suit against them.

Keep Meticulous Records

When clients don’t get the outcome on their case that they expected, they may decide to scrutinize the work the lawyer did.  This is why it’s important that lawyers keep meticulous time tracking records. This can be difficult with a paper system, so using a case management system is important. Legal case management software makes it easy for every attorney to record what they did on a case and how much time they spent; it even does this automatically. If a client accuses a lawyer of legal malpractice, producing the time tracking records could help deescalate the situation.

Legal malpractice lawsuits can be frustrating for both attorneys and clients. It’s important that law firms put in place systems and processes that help avoid legal negligence so that customers are always satisfied with the service received regardless of their legal case’s outcome.

By | July 18th, 2018|

About the Author:

For years, Josh has helped lawyers become more organized, productive, and profitable. A trained litigator, Josh came to Smokeball from a large east-coast law firm where his practice focused on franchise, insurance, marine, and general litigation. His work with Smokeball, and his continued passion for what he does each day, is driven by a desire to help lawyers and their staff do better in every way. Knowing well the stress and strain put on today’s legal professional, he regularly focuses on improving work and life in the law. He has traveled the country working with and learning from lawyers and their staff. Josh speaks regularly to bar associations about successful law firm practices and other legal topics. Recent notable engagements have been with the Chicago Bar Association, the Illinois State Bar Association, and the Missouri Bar’s Solo and Small Firm Conference. In addition to his work at Smokeball, Josh serves on the Writing Resource Center staff at The John Marshall Law School. Besides legal technology, his research interests include judicial decision-making, jury decision-making and psychology, and legal writing. He has written and overseen research exploring causal effects of sex/gender on federal appellate court decision-making, and assisted with research for a forthcoming textbook on judicial decision-making. Additionally, Josh sits on the Board of Chicago Fringe Opera Company. Josh holds his J.D., cum laude, from Washington University in St. Louis, where he served as a Senior Editor of the Wash. U. Law Review, held the prestigious Thompson Coburn Research Fellowship, served as Research Assistant to then-Vice-Dean (now Chancellor) Andrew D. Martin, and clerked at the U.S. District Court for the Eastern District of Missouri. He holds a B.A. in Political Science and a B.M. in Music Performance with Honors Scholar distinction from the University of Connecticut, making him a Huskies basketball fan through and through. Follow Josh’s activity on LinkedIn, and keep up with new articles on the Smokeball Blog.

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