In many cases, an attorney chooses a strategy in good faith, and at the time this strategy is chosen it is reasonable. However, if a reasonably prudent attorney with the skill and competence level necessary to provide the same legal service would not make the decision made by the attorney, there may have been a breach of duty. The actions that occur will many times prevent the client from moving forward to the merits of the underlying case. For example, the failing to plead various elements necessary or failing to file documents at all, may prevent the client from getting to the argument and litigation of the underlying case. In this case, a client must understand that the further analysis of the matter will require that the underlying case be valid and not frivolous. Said another way, if the underling case is not rightous, then the lawyer’s malpractice cannot be said to have contributed, because the underlying case would have failed even without the actions of the attorney. This is referred to as being the “case within the case”.
It is also important to note that a simple ethics violation is rarely the basis of a legal malpractice action, even though it is a breach of duty.
With regard to the third and fourth elements, you must show that if the attorney had not been negligent or otherwise acted wrongfully, you would have been successful in the underlying case. It can be challenging to prove that the outcome of a legal proceeding would have been different if your attorney had acted differently. When a financial loss would have happened irrespective of the attorney’s mistakes, there is no malpractice. For example, if your trial attorney failed to communicate with you regularly, but whatever information he could have gotten from you would not have changed the outcome of the trial, there is no malpractice.
Some common kinds of malpractice include failure to meet a filing or service deadline, failure to sue within the statute of limitations, failure to perform a conflicts check, failure to apply the law correctly to a client’s situation, abuse of a client’s trust account, such as commingling trust account funds with an attorney’s personal funds, and failure to return telephone calls.
In addition to a civil legal malpractice lawsuit, in cases of fraud or theft, the attorney can be reported to the State Bar or criminally prosecuted. The state bar may impose disciplinary sanctions, such as fines or disbarment.