Aggressive Advocates For Your Rights

Defending Yourself in a Legal Malpractice Claim

If you are an attorney facing a possible malpractice claim it may come in several forms. A potential plaintiff, depending on the facts of the situation, may try several different legal claims to improve the chances of success so these types of cases are not normally cut and dry.

To be successful in a claim for legal malpractice the plaintiff must show much more than he or she lost a case or didn't obtain an award as large as he or she would've liked. The plaintiff would have to prove,

  • Employment of the attorney or other some other basis for a legal duty by the attorney,

  • The attorney failed to possess and exercise the degree of knowledge, skill and care which would normally be exercised by members of the profession under the same or similar circumstances, and

  • Such negligence was the proximate cause of damage to the plaintiff.

When the issue is the handling of a civil case a legal malpractice action also requires the plaintiff to show he or she,

  • Had a viable cause of action against the defendant and that the attorney was negligent in prosecuting or defending that underlying case, and

  • Suffered a legally recognized injury because he or she would have prevailed in the underlying case but for the attorney's alleged negligence.

The lawsuit may also include a breach of contract claim. The contract would be the representation agreement between the attorney and client. Under Pennsylvania law,

  • Contracts for legal services contain an implied term that the attorney promises to render legal services in accordance with the profession at large.

  • When an attorney contracts to provide legal services there's a contractual duty by the attorney to provide those services in a way that's consistent with the profession at large.

  • A breach of contract claim can be successful if it can be proven the attorney failed to fulfill his or her contractual duty to provide the agreed upon legal services consistent with the profession at large.

An attorney could also face a common law cause of action for breach of fiduciary duty depending on the facts of the allegations. Pennsylvania common law imposes on attorneys representing clients the status of fiduciaries. They are bound by law to perform their fiduciary duties properly and failing to do so can result in a cause of action.

  • One of those duties is of undivided loyalty to the client.

  • The attorney is prohibited from engaging in conflicts of interest (including with him or herself, past or current clients), and

  • Breaching such duty is legally actionable.

You may be thinking about representing yourself in a legal malpractice case but that wouldn't be a wise decision.

  • Legal malpractice claims can become very emotional and you may be "too close" to the case to dispassionately analyze the situation, litigate the case or handle settlement negotiations.

  • One of our firm's focuses is legal malpractice cases so we probably have more experience and knowledge of this area of law than you do.

If you're an attorney who is now or may in the future be the subject of a legal malpractice claim, if you have any questions or want to explore possible representation in the matter, contact our office so we can talk about the situation and how we can help.

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