What Legal Malpractice Is… And What It’s Not

It’s a myth that only bad lawyers have malpractice claims. In fact, the American Bar Association estimates that each attorney can expect 2-3 claims in their career. But what exactly does a legal malpractice claim entail? Let’s discuss.

5 things they must prove

The claimant/plaintiff must prove the following to establish a legal malpractice claim:

  1. The existence of an attorney-client relationship;
  2. A breach of the lawyer’s duty to the client;
  3. Facts constituting the alleged negligence;
  4. The breach of duty caused the damage to the client;
  5. “But for the lawyer’s conduct, the client would have succeeded in the underlying action.” (Worsham v. Nix, 2006 PL 67, 145 P.3d 1055, 1065.)

A legal malpractice case is referred to as a “case within a case” because the determination of damages against the attorney is derived by introducing evidence establishing the value of the claim against the third-party tortfeasor, which the Plaintiff/Claimant lost due to the attorney’s negligence. (Nichols v. Morgan, 2002 OK 88, 58 P.3d 775, 780-81.)

The two most difficult hurdles in a legal malpractice claim are the causation element and the damages element. The client must demonstrate the attorney’s error was the reason he or she was unsuccessful in their legal action. Then, the client must be able to prove the amount of damages he or she could have won if it was not for the attorney’s error.

3 things that do not necessarily prove a claim

Any attorney who commits an act of negligence can be sued for legal malpractice. However, not all situations rise to a claim. Here are some of the most common examples:

  1. The client lost their lawsuit.
    A bad outcome in a legal matter is not evidence of legal malpractice in and of itself. The client must prove an error that detrimentally affected the lawsuit. Typically, a judgment call made by an attorney on an informed course of action in the lawsuit will not be considered legal malpractice.
  2. The client does not respond to calls and emails.
    While the attorney should communicate with the client in a reasonable manner, if he or she fails to provide the information and a bad outcome occurs, the attorney may not be found to have been negligent.
  3. The client discovers their attorney is friends with the opposing attorney.
    This is not a conflict of interest that the client can try to argue. This is typically styled as a violation by the attorney of the Oklahoma Rules for Professional Conduct, which does not constitute a legal malpractice claim. (5 O.S. Ch. 1, App. 3-A.)

It’s not predictable

Legal malpractice can occur in many ways across a variety of scenarios. That said, keep in mind that just because something goes wrong, it doesn’t always mean the client has a legitimate legal malpractice claim. If you are worried a certain situation might lead to a claim, don’t hesitate to reach out to us to discuss it.


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