Being the victim of legal malpractice can be particularly stressful. People
trust and rely on their attorneys to zealously represent them and act
in their best interests. When a lawyer fails to do so – for whatever
reason – the client feels betrayed, not just because the lawyer
did not do a good job or violated their contract. Moreover, a client who
legal malpractice may feel intimidated by having to pursue a case against a lawyer and hesitant
to immediately place their faith in another attorney to hold the first
one accountable. At Simeone & Miller, LLP, we have extensive experience
with legal malpractice cases, which is vital to successfully resolving one.
Initially, a client who feels their attorney committed malpractice should
contact a different attorney as soon as possible. That is not only to
meet the deadlines for bringing a legal malpractice case, but also because
a client has a duty to attempt to mitigate, or minimize, any damages that
the malpractice may have caused. That may require the client to continue
pursuing their case or appeal an adverse decision, even if there is little
hope of success, simply to foreclose any defense that a client could have
saved their case but failed to do so.
To prevail in a legal malpractice claim, a client must prove both the legal
malpractice case and also the “case within a case.” Specifically,
a client must first prove that the negligent attorney failed to provide
legal services that satisfied the duty of care that was owed to the client.
This can be as discrete as failing to file a case by the statute of limitations
or failing to timely submit an appeal. It can also include failing to
properly review a document or any other act by the attorney that a reasonable
attorney would have done.
However, even if the client succeeds in proving legal malpractice, they
must the prove that the malpractice caused them damage. For example, a
lawyer’s failure to file a case worth zero dollars may constitute
legal malpractice, but it does not cause a client any damages because
the client would have received nothing even if there was no malpractice.
Thus, a client must prove that the underlying case for which the attorney
was representing them would have been successful and resulted in a recovery,
had there been no negligence. That is the “case within a case,”
and it means the client must prove the underlying case to prove that it
would have resulted in damages. For example, in a case involving a motor
vehicle accident, the client must prove not only legal malpractice by
their lawyer, but also that the other driver was at fault and that they
suffered damages. Those damages would be the client’s damages for
Finally, there is a difference between a claim of legal malpractice and
a bar complaint alleging an ethical violation by the attorney. A claim
for legal malpractice alleges that the attorney did not perform their
services sufficiently, whether or not they were honest or followed the
applicable ethical rules. A bar complaint alleges that an attorney violated
his or her ethical duties, regardless of the outcome of the case. In some
instances the same conduct can constitute legal malpractice and the basis
for a bar complaint, but that is not always the case.
For example, a lawyer who accidentally fails to file a case by the statute
of limitations committed malpractice, but probably not an ethical violation.
However, an attorney who improperly uses or takes a client’s money
or property likely committed malpractice and violated his or her ethical
duties. Again, the best thing a person can do is to promptly consult with
an attorney experienced with legal malpractice cases to determine whether
to pursue a malpractice case, a bar complaint, or both.
Simeone & Miller, LLP has extensive experience with legal malpractice
cases and offers free consultations, so a client who suspects that their
attorney may have committed legal malpractice should not hesitate to