Legal Malpractice & Negligence
Lawyers, also called attorneys, provide legal representation to individuals. These professionals are considered experts in the law and are supposed to provide clients with the best services possible. However, in some cases, lawyers intentionally or unintentionally make mistakes or bad decisions during a case. This sometimes means that they are guilty of legal malpractice and negligence. This is a serious issue for both the lawyer and the person she represents.
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Definition of Malpractice
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As defined by legal-malpractice.lawyers.com, legal malpractice is the failure of an attorney to give a client professional services with a sufficient level of competence. Legal malpractice prevents a client from receiving an adequate defense or collecting reasonable monetary rewards from a defendant.
Key Features
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There are three key features of legal malpractice. The first feature is negligence. Legal malpractice also involves a breach of fudiciary duty and a breach of contract. According to legal-malpractice.lawyers.com, the feature emphasized most often in legal malpractice cases is negligence.
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Negligence vs. Malpractice
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Negligence and malpractice are related but are not the same thing. Lectlaw.com and A.P. Pishevar & Associates explain that negligence means that a person acted carelessly--i.e., that he didn't act the way most reasonable people would given the same circumstances. To prove negligence (and therefore malpractice), one must prove that the mistake the lawyer made resulted in some kind of foreseeable damage (injury or loss) for the client, according to John Blumberg of the Blumberg Law Offices.
Insurance
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Clients have the legal right to sue their attorneys for legal malpractice. For this reason, many attorneys choose to carry malpractice insurance. This insurance is similar to the malpractice insurance carried by medical professionals. In the event that an attorney is found guilty of malpractice, the insurance company pays the client whatever the judge or jury awards to the client up to the limits of the policy.
Commonality
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According to LegalMalpracticeLawFirms.com, clients file approximately 35,000 lawsuits for legal malpractice every year. However, this doesn't include the filings against uninsured attorneys, so the number of malpractice cases probably is higher. Still, the United States Bureau of Labor Statistics indicates that lawyers hold nearly 760,000 jobs based on 2008 data. Each lawyer may take on hundreds of cases over the course of his career. Thus, when compared to the enormous number of cases tried, the risk of having to file a malpractice suit remains relatively low.
Pitfalls
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Legal malpractice cases are not without pitfalls. According to Blumberg, malpractice cases may fall apart if a judge or jury finds there is no merit to the underlying case, the problems in the case were the result of judicial (not attorney) error, and if the statute of limitations has expired. Cases also may not have basis if it can be proven that the lawyer's error didn't cause the client to lose rights.
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References
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