Legal Malpractice is a description of a situation in which an attorney who has been hired to work for a client makes mistakes or fails to do that which the attorney should have done. Legal malpractice can occur in any setting in which an attorney has represented a client. Because attorneys represent clients in many different settings, legal malpractice cases can happen in personal injury, in car accidents, in construction accidents, in mass torts like asbestos, or mold invasion.
Legal malpractice can happen in contract cases, in the buying and selling of homes, in the buying and selling of businesses, in insurance, in workers compensation, and in discrimination cases. Legal malpractice can take place in matrimonial cases and in family law. It can, and does, happen everywhere.
If a client has been injured by the acts of an attorney, there is a remedy. That remedy is legal malpractice litigation, and we can help.
Attorneys are held to a certain standard of professional performance. In New York, this standard is the same for all attorneys, upheld by the courts. When an attorney does not fully exercise his skill in a law assignment, the attorney is thus not meeting the set standard of care and professional performance to which he is required.
In every law suit, plaintiff has to prove the “elements” of the case. In legal malpractice, the elements are: a departure from good practice by an attorney, who is representing the plaintiff who sues the attorney, that proximately causes injury, and where there are ascertainable damages.
In a Legal Malpractice case, one necessary factor is the attorney-client relationship. The plaintiff must have retained the attorney (creating the attorney-client relationship) in order to sue for legal malpractice. However, a few exceptions exist, though they are very limited. In most cases, the relationship between the attorney and the plaintiff requires that the attorney owes the plaintiff a service. To prove that malpractice occurred, it is necessary that the plaintiff provide either a written retainer showing the attorney was hired, or proof that the attorney appeared on the client's behalf or worked on the case in some way. Litigation provides proof of representation (clearly), but with representation, the indications are not so exact. Either way, the plaintiff must prove to a jury that the attorney provided representation. The correspondence between the attorney and the plaintiff may be provided as proof, as well as the litigation documents or papers authored by the attorney.
Beyond the “privity” requirement that the attorney represented the client, plaintiff in a legal malpractice case has to prove that “but for” the mistake of the attorney, there would have been a better or different outcome. This can be hard to prove, for a number of reasons. One reason may be that there is no paperwork, or the paperwork has been lost. One reason is that plaintiff was unable even to get started on a new business, and cannot prove the loss.