Proving a Negligence Claim
The most common type of legal malpractice claim is based on negligence, or a simple mistake by the attorney. Proving a legal malpractice claim based on negligence usually requires the showing of: (1) wrongful conduct by the attorney; (2) that was the primary cause of; (3) damages to the client
(1) Wrongful Conduct
First and foremost, the lawyer must have committed an act that was wrongful or as they say, “fell below the standard of care.” If the lawyer did something illegal, such as stole a client’s money, it is safe to say that this conduct would fall below the standard of care. For simple mistakes, showing wrongful conduct by the lawyer is more difficult. Experts are generally called in to explain to the jury the “standard of care” or level of acceptable practice and whether the mistake that hurt the client was a deviation from that norm.
The client must also be able to prove that the wrongful conduct caused the client (or sometimes non-client) financial damages. In other words, the client must show that “but for” the lawyer’s conduct, the financial damages would not have occurred. The client must also show that the lawyer could anticipate that his or her conduct would cause the financial damages to the client. This is called foreseeability and is usually required to show causation.
The client must have suffered damages by the lawyer’s conduct and the damages must be measurable. Commonly, the damages a client incurs are a result of an underlying case or transaction that has been impaired or devastated by his or her lawyer’s mistakes and/or conduct. Non-economic damages can occur as well, such as losing custody of one’s children.
Other Types of Legal Malpractice Claims
When a lawyer says something untrue by mistake as opposed to saying it deliberately and the client has relied on that untruth in a way that harmed the client. A non-client may be able to sue an attorney for negligent misrepresentation. However, these claims are often more difficult because of certain doctrines that protect lawyers, such as the attorney immunity doctrine.
Breach of Fiduciary Duty
Any time a lawyer breaches any of the various fiduciary duties owed to a client, such as putting his or her interests ahead of the client’s or putting another client’s interest ahead of the client’s, the attorney has fallen below the standard of conduct for attorneys practicing law, and has committed a wrong by breaching the fiduciary duty owed to their client. There are also implied terms that govern a lawyer’s conduct such as disclosure of conflicts of interest, obligation to inform the client about certain matters, confidentiality, and the obligation to obtain the client’s consent before settling a case. Again, experts are generally called in to explain to the jury the professed “standard of conduct” or level of acceptable practice and whether or not the attorney breached one of their fiduciary duties.
Violations of the Texas Deceptive Trade Practices Act
A lawyer may be liable under the Texas Deceptive Trade Practices Act if the client is considered a “consumer” of legal services (usually occurs if the client is an individual rather than a business) and the lawyer makes an express misrepresentation of a material fact that cannot be characterized as advice, judgment or opinion or engages in “unconscionable action” that cannot be characterized as advice, judgment or opinion.
Breach of contract
Occurs when a lawyer fails to perform any of the terms of the contract between them and their client and that breach causes the client damage. This typically occurs when the lawyer overcharges the client or charges the client an amount that was not agreed to in the original contract. In this situation, the contract could become grounds for a lawsuit. Even if there is no written contract, when a client hires a lawyer to represent him, a contract is immediately formed between the two. As a general rule, the contract determines payment for a certain scope of work. If the lawyer doesn’t perform either the oral or written terms of the contract, the lawyer has committed a wrong and breached the attorney-client contract.
Fraud or Fraudulent Inducement
Anytime a lawyer purposely misrepresents something and the client or non-client is injured in some way because of his or her reliance on the untruth, the lawyer has committed a wrong by committing fraud on their client or, sometimes, even non-clients. This is one of the few claims where a non-client can sue an attorney.
Theft or Conversion
A lawyer who bills a client for fees that were not incurred, or takes a payment of settlement that belongs to the client has committed a wrong by committing theft or conversion.
Aiding and Abetting or Conspiracy
A lawyer may also be held liable if he or she aids or assists their clients in committing wrongful or criminal conduct against third parties. For instance, a lawyer may not assist a client in stealing money from a third party or aid a client in breaching their fiduciary duties to a third party. If this occurs, the third party may have a claim against both the client and the lawyer. These claims, however, are often difficult at least in Texas due to the attorney immunity doctrine.