Imagine this: you walk into your living area on a Sunday morning, eager to start your week in peace. You hold a newspaper and your coffee in each hand. As you throw your newspaper on the couch, you realize that you made a mistake. You’ve thrown your coffee. Note: This story may or may be personal. No more comments will be made.
Everyone makes mistakes, even lawyers. We’re not immune to forgetting an appointment or missing an email. Or even throwing a coffee cup on the couch. When does an act or failure to act constitute legal malpractice, though? You guessed it: It depends.
Certain mistakes may be considered legal malpractice. Some mistakes will constitute legal malpractice. This article will show you which mistakes can be considered legal malpractice, and what you should do if you believe you made a mistake.
What is legal malpractice?
Attorneys owe their clients a duty of care to use the level of skill and care that is reasonable in the circumstances. If a client believes that the attorney’s conduct was below the standard of care, and has caused them damages, they may file a claim for legal malpractice or initiate an action. It is possible that the attorney made a mistake by taking action or not.
What is required to prove legal malpractice?
Legal malpractice cannot be established by merely proving that a lawyer made an error. To succeed in a legal malpractice claim, plaintiffs must prove the following: (1) an attorney-client relation; (2) acts of negligence or breaching contract; (3) the fact that these acts caused the plaintiff’s damage; and (4) the fact that the defendant’s actions would have prevented the plaintiff from being successful. Legal malpractice elements can vary based on the nature of the underlying case or the plaintiff’s claim against the attorney. In most cases, expert testimony is required to establish whether or not the attorney violated the standard of care.
This shows that even if an attorney makes a mistake below the standard, as long as the mistake doesn’t cause harm to the client or would not have affected the outcome, it is not considered legal malpractice.
Examples of Malpractice in the Law
Legal malpractice can be a long list of mistakes. Many times, there are actions or failures which may violate the Minnesota Rules of Professional Conduct without resulting in malpractice. Each case is different.
A lawyer missing a deadline is a common cause of legal malpractice. The attorney could be held liable for malpractice if a client proves that the attorney failed to serve the answer on time and the result was a judgment in the client’s favor. An attorney who fails to appeal in a timely manner may be exposed for malpractice if a client can prove that they would have succeeded on appeal.
Lawsuits for legal malpractice are also common in situations where there is no deadline. An attorney who settles a lawsuit without the consent of the client or without explaining the settlement terms adequately may be exposed for malpractice by the client if they can prove that the case would have been won at trial.
Many examples of conduct could be the basis of a claim for legal malpractice. Each case requires an analysis of the specific facts and circumstances.
You made a mistake. Now What?
Do not panic if you believe you’ve made an error that could be considered legal malpractice. You can take a variety of steps to protect you and your client.
Take the appropriate steps to correct the error if it can be corrected. Let’s say, for example, that you mail a summons with a complaint to the other party. Later, you realize that the opposition was not served with the formal pleadings. Serve the complaint if you still have time. It is possible to rectify mistakes like this and your client won’t suffer any damages.
A mistake can be irreparable in some situations. Continue with the example of a summons and a complaint. Now you have properly served the defendant. You forget to add another defendant to the complaint, and you fail to serve the desired defendant before statute of limitations expires. What should you do?
Contact your legal malpractice insurer. Insurance companies will often provide a defense lawyer to assist you in the situation, even if the client hasn’t yet filed a claim for legal malpractice or initiated an action. A defense attorney with experience can correct mistakes before a claim has been asserted. A quick resolution is a great relief, especially when you consider the six-year limitation period for legal malpractice claims.
Do not dwell on your mistakes. As soon as possible, fix them. Communicate with your client to let him/her know about any potential issues. When in doubt, don’t hesitate to reach out.
Conclusion
Mistakes happen. It is important to know when mistakes may be considered legal malpractice. Use all the resources you can to help you if you make a mistake. This includes your legal malpractice insurance, an outside attorney, or a wet paper towel if you spilled coffee on your couch.
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