Just like physicians, architects and all other professionals, attorneys are required to comply with “the standard of care” in the services they render to their clients. If their services fall below this standard of care, that may constitute legal malpractice. If an attorney fails to adhere to the applicable standard of care, and this failure causes the client to sustain damages, the client may be entitled to sue the lawyer for legal malpractice.
The “standard of care” applicable to an attorney refers to the manner in which most lawyers practicing in the same field would render services in the same situation. Sometimes there is only one appropriate approach to a circumstance affecting a client. In other cases, the attorney is expected to exercise judgment to select the most appropriate approach to meet the client’s needs.
It is common for one attorney to exercise judgment in selecting one approach when, in fact, a different attorney may select a different approach. The mere fact that one approach may be better does not, in and of itself, mean that one of the attorneys committed malpractice, even if the choice of approaches meant the difference between winning and losing. Like physicians, attorneys’ approaches to a particular problem may vary greatly. Furthermore, attorneys’ skills vary greatly. Thus, the line between attorney malpractice and less than excellent lawyering can be difficult to draw.
In some situations, a statute or court rule dictates what the lawyer should have done, and will serve as the standard of care. Most situations, however, require the testimony of an expert as to what should have been done, and whether the applicable standard of care has been met.
Legal malpractice is not limited to the context of litigation. There are many other kinds of services rendered by attorneys, all of which require the lawyer to perform consistent with a certain standard of care, including, for example, the drafting of wills and contracts, the conveyance of real estate or the sale of businesses.
Even where an attorney’s handling of a matter has not met the applicable standard of care, a malpractice case is not necessarily viable. In order to prevail in a malpractice case, it must be proven that the attorney’s malpractice caused the client actual damages. This is not an easy requirement to meet and, in fact, is often more difficult than proving malpractice in the first place. For example, if an attorney fails to file a lawsuit on time, thus permitting the statute of limitations to expire, the client’s lawsuit is barred. This is a common form of malpractice. However, to prevail in a malpractice case, the client must show not only that the lawyer failed to file on time, but also that the client would have prevailed in the original lawsuit had it been filed on time. If the client would not have prevailed, he or she was not damaged by the attorney’s malpractice and a malpractice case would not succeed.
Things That Are Not Malpractice
If a client has a dispute with an attorney about fees and expenses, this is not considered to be legal malpractice. Therefore, a malpractice attorney will not be interested in handling such a dispute. While the client’s dispute about the fees and expenses may be valid, most clients are better off pursuing fee arbitration, which is available through the local county Bar Association. An attorney is not required for this arbitration, although it may be advisable to hire an attorney. It is also sometimes advisable to hire an accountant.
If an attorney has violated one of the Rules of Professional Conduct, that is, has acted unethically, that is also not ordinarily considered malpractice. Violations of the Rules of Professional Conduct should be referred to the State Bar of California by filing a complaint form.