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Legal Malpractice

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Attorneys are fast becoming a popular target for plaintiffs filing lawsuits that claim professional negligence. There is no specific definition for legal negligence. Usually, however, a lawyer can be accused of negligence when he or she is careless and neglects to provide a client with quality legal service.

The process for filing a lawsuit against a lawyer for negligence is not the same as filing a complaint about a lawyer with the State Bar of Florida. Much like a medical malpractice lawsuit, you have to show that the legal professional acted negligently to prove legal malpractice and that you deserve compensation.

When you send a complaint about an attorney to the State Bar of Florida, the complaint must be processed by the bar association’s grievance system. If it is deemed valid, a lawyer could face disciplinary action. There are, however, no recoverable damages with this type of complaint.

Legal malpractice usually is characterized as an action filed by a client against an attorney for professional negligence because the lawyer did not use the diligence, skill, and prudence that would normally be applied by other attorneys when performing the same professional responsibilities.

Just because a client loses a case does not make the client’s lawyer liable. To prove legal malpractice, the plaintiff must show that he or she sustained actual damage or loss because the attorney was negligent. Sheer speculation that damages or losses might have occurred because of a lawyer’s wrongful action does not make it actionable.

Here are elements of “Cause of Action Against an Attorney” for you to consider:

  • Breach of Duty
  • Duty of Care
  • Damages

Breach of Duty

An attorney will have breached his or her duty of care upon either failing to provide reasonably competent legal representation to a client or when violating one’s fiduciary obligation.

Although proving the violation of fiduciary duty or a conflict of interest may seem straightforward, proving the failure to provide reasonably competent legal representation is harder. Attorneys can be in disagreement over which course of action was more reasonable. It can also be difficult to discern whether another course of action would have rendered a different outcome for the case.

There are, of course, certain behaviors that obviously are beyond the bounds of competent legal representation. Failing to file before the deadline or allowing the statute of limitations to expire—destroying a client’s cause of action as a result—is usually grounds for a professional negligence case.

Duty of Care

A lawyer usually owes a person a duty of care once that person becomes a legal client. There are instances, however, where a person has mistakenly thought he or she hired an attorney just because they met for an initial consultation. This is not necessarily the case, which is why it is important to discuss with the lawyer—after the initial consultation—whether he or she now works for you.

An attorney owes a client a certain kind of duty that is based on two components—fiduciary and competency. The lawyer is obligated to exercise the same legal skills as any other reasonably competent lawyer. Granted, no attorney is expected to give a perfect answer to every legal question that is posed to him or her. Lawyers, however, must know how to investigate issues and be aware of their own limitations.

An attorney is a fiduciary and must treat all information having to do with a client’s representation as confidential. A lawyer must zealously represent a client’s interests. This duty includes revealing any conflicts of interest that might prevent a lawyer from properly representing the client.

Certain courts are expanding the scope of an attorney’s duty of care to include people that are not a lawyer’s legal clients. For example, the beneficiaries of a dead man’s Will might file a lawsuit against the decedent’s attorney for not properly executing or preparing the Will and rendering it invalid.


It is easy to show causation if a lawyer offers a client what is obviously incorrect legal advice or fails to meet a deadline. Causation, however, can be challenging to prove in cases where a lawyer chose to employ a specific strategy that lead to the client becoming injured.

If the client decides to sue the lawyer, the client has to show that the injury was sufficiently connected to the lawyer’s breach of duty that the breach can be cited as the proximate cause. This might require proving what other outcomes could have resulted if the lawyer had pursued a different course of legal action. Proving “what might have been” can have many variables. An attorney that is the defendant of a legal malpractice case can argue that the injury would have happened regardless of whether a different course of action was taken.

Injury resulting from an attorney’s representation is different from professional negligence. If a lawyer did not breach the duty of care, he or she will not be liable for damages regardless of whether the lawyer caused the injury.

A plaintiff that succeeds in suing a lawyer for legal malpractice is entitled to compensatory damages. In rare cases, the plaintiff might also be eligible for punitive damages.

At Halberg & Fogg PLLC, our legal malpractice attorneys know how to successfully represent clients that have been the victims of negligent lawyers. We are proud of our commitment to helping ordinary people injured by legal negligence recover their losses. If possible, we will advise a person not to appeal any decision that was lost because a lawyer made mistakes.

Contact Halberg & Fogg PLLC today!

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