Malpractice: It’s Not Just Losing the Case

Attorney malpractice means both professional misconduct and unreasonable lack of skill. Misconduct generally implies commission, that is, doing something unethical or illegal, including taking advantage of the emotional vulnerabilities of client going through a divorce. The bomber, as he is known, is an unethical divorce lawyer who sleeps with his clients, and it is self-evident that this is bad business. A lawyer who has a sexual relationship with a client is unethical and is at risk of civil liability for malpractice, breach of fiduciary duty, fraud, and deceit.

An unreasonable lack of skill generally implies making unacceptable mistakes in judgment or performance, such as missing a filing deadline. Legal malpractice, therefore, is a large enough term to include felonious behavior as well as incompetence. Unacceptable mistakes in judgment or performance does not mean losing a case, any more than medical malpractice means caring for a patient who subsequently dies, or generalized unhappiness with the outcome a divorce because very few people are ever happy.

Strangely, one of the most common causes of legal malpractice is completely preventable. It is a failure to make filing deadlines. No matter how solid the case, a lawyer who misses a filing deadline — for example, an appeal — has just lost it. An excuse — that the paperwork was misplaced — falls on the deaf ears of courts that are not interested in alibis. This is not to say there are not competent lawyers who appear disorganized, but it is a note of caution: A lawyer whose desk looks like a cyclone hit it may be one to avoid.

Often legal malpractice stems from violations of the canons of (legal) ethics, which is also called the Code of Professional Responsibility and are established by state supreme courts. Violations can lead to warnings, fines, suspensions and disbarment. If an attorney’s actions seem questionable, the place to begin is an inquiry at the county bar association.

Lawyers who improperly manage funds left in their trust in escrow accounts frequently find themselves cited for violations of the canons of legal ethics.

Settlements negotiated before a complete discovery of assets, marital and separate, pose a malpractice risk for divorce lawyers, particularly when he or she fails to fully investigate all marital and separate property. A lawyer who fails to inform a client of settlement offer or fails to recommend acceptance of settlement offer may also be liable for malpractice.

In general, attorney malpractice includes several identifiable elements: breach of contract, fiduciary duty or negligence. The plaintiff must prove that the lawyer failed to exercise reasonable skill and that such failure was the proximate cause of damages or loss.

Some jurisdictions require that a person intending to sue a lawyer for malpractice file an affidavit of merit from a professional legal malpractice attorney who certifies that there are at least reasons for consideration of malpractice.

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