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Legal Malpractice Attorney FAQs

What is legal malpractice?

Legal malpractice occurs when a lawyer acts in a negligent or wrongful manner while providing legal advice or representation, and thereby causes the client to suffer a loss or damages. Four elements must be shown in order to establish a legal malpractice claim: (1) that an attorney-client relationship existed between the parties; (2) that the attorney failed to act in the professional manner expected of attorneys; (3) that the attorney’s failure caused harm to the client; (4) and, the extent of the harm or loss suffered by the client must be proven. To show the extent of loss incurred by the client, it may be necessary to prove the amount of money that the client would have recovered if the attorney had not been negligent or incompetent.

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What are some particular kinds of attorney negligence?

An attorney may be liable for loss or injury sustained by a client due to the attorney’s negligence in initiating and conducting litigation; permitting a statutory time limitation to run against a client’s claim; failing to take the proper steps, or taking the wrong steps, to protect a client’s right of appeal or review; or, failing to present the proper evidence in a criminal defense matter. Actions for malpractice can also be bought against an attorney for negligence in settling or failing to settle a client’s case, in examining the title to a property, in preparing and recording legal instruments and security documents, and in handling debt collections. To determine if your former attorney could be liable to you for committing legal malpractice, please consult attorney Elliot R. Schiff at Schiff Gorman LLC.

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Can I sue my attorney for over charging me?

Yes. You should require your attorney to provide you with a written fee agreement prior to hiring the attorney. If the charges are inconsistent with your agreement, ask your lawyer for an explanation and the correction of any errors. If you are not satisfied, contact the state bar association. Some bar associations offer free arbitration services for settling attorney/client disputes. If your fee dispute is still unresolved, you may want to pursue a legal malpractice action against the attorney based upon breach of contract, fraud, or other theories of liability.

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Can an attorney be held liable for errors resulting from changes in law?

Attorneys are generally not liable if the legal advice they gave was sound at the time it was given. However, prudent attorneys should keep abreast of proposed legislation and advise their clients about impending developments in the law.

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Could an attorney be liable to a third party?

Yes. In general, an attorney can be liable for professional negligence only to clients or the intended beneficiaries of the attorney’s legal work (such as the intended beneficiaries of a will drafted by the attorney). However, an attorney could be found liable to a third party for fraud, misrepresentation, or other reckless or intentionally wrongful conduct that harms the third party. An attorney could also be liable to a third party where the attorney’s legal services aided the illegal motives or activities of a client.

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