Bankruptcy is a very serious, and complicated, legal matter that affects the person filing the bankruptcy for years to come. If an individual retained the services of a bankruptcy attorney and believes that the attorney did not perform his job according to the standards required by the legal profession, then the client may have the basis for a legal malpractice lawsuit against the attorney.
What Is Legal Malpractice?
Legal malpractice is a negligent tort claim. Torts is the area of the law that deals with injuries -- physical, financial or emotional -- to a plaintiff, or victim. All negligent tort claims are based on four basic elements -- duty of care, breach of the duty of care, causation and damages. In a legal malpractice case, the plaintiff must show that the attorney breached her duty of care to the plaintiff. In an underlying bankruptcy case, the plaintiff will need to establish the standard of care required and then prove that the attorney breached that standard, or duty, of care.
The plaintiff in a legal malpractice case must show that the damages she suffered are actually a direct result of something the attorney did, or failed to do, while representing her. In a bankruptcy case, for example, let's say the plaintiff was required to relinquish her home to the court to pay her debts. If she would have lost her home regardless of anything the attorney did, then a minor mistake made by the attorney will not qualify as malpractice. On the other hand, if an attorney failed to claim an exemption on behalf of the plaintiff that would have allowed her to retain her home, then that might be considered causation for the purpose of a legal malpractice lawsuit.
"Damages" is the legal term used to refer to monetary injuries sustained by the plaintiff. In a legal malpractice action against a bankruptcy attorney, the plaintiff will need to prove that he suffered an actual financial loss as a result of the attorney's negligence, or malpractice. Simply showing negligence without any real financial loss will not work.
In order to initiate a legal malpractice lawsuit against a bankruptcy attorney, a plaintiff should first be aware of the statute of limitations in the jurisdiction where the alleged malpractice occurred. Statutes of limitation will vary by state but may be as short as one year from the date of occurrence. A potential plaintiff who believes she has a viable malpractice claim should consult an attorney as soon as possible. A legal malpractice lawsuit is filed in the same manner as other civil lawsuit by filing a complaint against the attorney. If the plaintiff wins, he will be awarded a monetary judgment against the attorney.
How to File a Complaint Against a Federal Judge
A complaint against a federal judge may be filed for several reasons. Legitimate grounds for filing a complaint against a federal judge...
How to File a Lawsuit Against a Child Molester
Child molesters can cause long-term emotional and sometimes physical damage to a child. From a legal standpoint, child molesters can face both...
How to File a Complaint Against an Employer
Workplace complaints are heard as often as office gossip. However, when you feel your rights as an employee have been violated because...
How to File a Lawsuit Against Your Employer Successfully
Sometimes it can be difficult for an employee to file a lawsuit against an employer or company that has been a great...
Elements of Negligence in Florida
A tort is defined as a civil wrong --- as opposed to a criminal wrong --- from which damages or injury occur....
How to File a Motion to Change a Family Law Court's Order
In a family law court, a motion to modify requests that the court change existing orders due to a change in a...
How to File for Bankruptcy After a Lawsuit
After you are successfully sued, you may need to file bankruptcy if you cannot pay the debt. Successful lawsuits can lead to...
Can You File Bankruptcy During a Civil Lawsuit?
You can file for bankruptcy during a civil lawsuit, even if the outcome of the trial has not been determined. However, filing...
What to Do If a Bankruptcy Is Denied
Upon occasion, a judge or the trustee in a bankruptcy case will move to have a particular case denied and dismissed. In...