San Diego Lawyer - Legal Malpractice

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Legal malpractice is the term for negligence, breach of fiduciary duty, or breach of contract by an attorney that causes harm to his or her client. In order to rise to an actionable level of negligence, the injured party must show that the attorney's acts were not merely the result of poor strategy, but that they were the result of errors that no reasonable attorney would make. Furthermore, legal malpractice requires the showing of an injury that would not have happened had the attorney not been negligent. If the injury would have occurred despite different (non-negligent) actions by the attorney, no cause of action will be permitted. Legal malpractice can also occur when an attorney breaches a fiduciary duty to his or her client. This occurs when attorneys act in their own interest instead of to their client's, to the detriment of their client. A claim for legal malpractice may also arise when an attorney breaches the contract they sign with their client.

A common basis for a legal malpractice claim arises where an attorney misses a deadline for a filing of a paper with the court, such as a statute of limitations, and this error is related to the loss of the client's cause of action. However, a bad result, in and of itself, does not necessarily mean that the attorney has committed malpractice. Much like that old joke; "The operation was a success, but the patient died!", an attorney may do everything right but the client may not like the outcome. That is not malpractice.

An example of a malpractice claim I handled would be one that was based on an underlying medical malpractice claim. In that matter, an attorney was representing a child for a dental malpractice claim. The attorney held onto the case for a few years and decided he did not want to pursue the matter and dropped it. It was his belief that if the minor wished to pursue the matter, she would have until she was 19 years old to file suit. However, the Statute of Limitations for medical malpractice claims in California for minors is 3 years or until age of 8, whichever is longer. When the attorney dropped the case, it was already beyond the time to file a lawsuit against the offending dentist. We represented the minor against her former attorney and received a fair settlement.

Some signs of potential legal malpractice include, loss of trust in your attorney, the attorney refuses to communicate with you, the attorney is evasive about the status of your claim. If you believe you may be a victim of legal malpractice, call an attorney for a second opinion about your case.