What Is Legal Malpractice?

Marlene Garcia

Legal malpractice occurs when an attorney fails to abide by the rules of professional conduct or ethical codes that define standards of behavior in the legal profession. A lawyer who intentionally harms a client through neglect of duty might be guilty of legal malpractice. Rules of professional conduct cover areas such as competence, diligence, conflict of interest, and fiduciary duties of attorney. Most malpractice claims must be filed within a defined period of time.

A legal malpractice expert witness may be called upon to testify regarding what constitutes legal malpractice.
A legal malpractice expert witness may be called upon to testify regarding what constitutes legal malpractice.

An attorney whose performance falls short of the accepted standards under which most lawyers operate might be guilty of legal malpractice under ineffective assistance of counsel rules. This might occur when a lawyer does not adequately research the law and apply it to his or her client’s case. An attorney’s obligation requires him or her to diligently use skill and knowledge to properly devise strategy beneficial to the client.

Legal malpractice might be alleged if a lawyer breaches the confidentiality expectation of a client. In most areas, attorneys must show loyalty to the client by not repeating anything said during consultations without permission. This professional rule allows a client to speak freely and openly with an attorney without fear. There may be exceptions to the confidentiality expectation in some regions and under certain circumstances.

Along with protecting information supplied by the client, an attorney must following the client’s wishes in most areas or face legal malpractice claims. The standard applies to a client’s desire to testify in court in his or her behalf, even if the lawyer advises against it. It also typically applies to a client’s decision to plead guilty or not guilty in a criminal case.

An attorney’s code of conduct also governs how clients’ money is handled. A lawyer has a legal obligation to manage client funds separately from personal accounts, and any violation might be cause for legal malpractice. He or she must also provide an accounting of money in the trust account to the client upon request.

Conflict of interest is another area covered by rules of professional conduct. Lawyers should not represent two people who are co-defendants in a case if a chance exists of one defendant testifying against the other. An attorney must always put the best interests of the client in the forefront and avoid representing two sides of an issue.

Lawyers who violate any of these standards not only face legal malpractice proceedings; they also risk sanctions from organizations that monitor attorneys, such as the American Bar Association in the United States. Attorneys who violate ethical rules might face discipline that includes fines, suspension from practicing law, or complete disbarment. These associations might also order attorneys to attend legal ethics refresher courses.

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