Proving Legal Malpractice
By Legal Malpractice Lawyers at The Kassab Law Firm
Generally, legal malpractice consists of two parts: (1) the damages the client has suffered and (2) the wrongs the lawyer has committed. In order to obtain financial compensation, the client must prove both parts of his or her claim, that is, the client must prove both damages and wrongs. In addition, he or she must show that the lawyer’s mistakes caused their damages.
Damages: The client’s damages must be measurable and the client must have suffered some defined economic damage to have a claim against his or her lawyer. Commonly, the damages a client incurs are a result of an underlying case or transaction that has been impaired or devastated by his or her lawyer’s mistakes. Non-economic damages can occur as well, such as losing custody of one’s children.
The lawyer’s mistakes: In addition to their damages, the client must also be able to prove that the financial damages were caused by the lawyer’s malfeasance. In proving that the attorney’s malfeasance was the cause of the client’s damages, and before the client is able to get financial compensation, the client must also show one or more of a broad range of wrongs such as:
- Negligence: Generally occurs when a client hires an attorney and that attorney falls below the standard of care for attorneys practicing in the same or similar practice area, and such a failure proximately causes the client damages. Experts are generally called in to explain to the jury the professed “standard of care” or level of acceptable practice and whether the mistake that hurt the client was a deviation from that norm.
- Negligent misrepresentation: When a lawyer says something untrue by mistake as opposed to saying it deliberately and the client has relied on that untruth in a way that harmed the client.
- Breach of contract: Occurs when a lawyer fails to perform any of the terms of the contract between them and their client and that breach causes the client damage. This typically occurs when the lawyer over charges the client or charges the client an amount that was not agreed to in the original contract. In this situation, the contract could become grounds for a lawsuit. Even if there is no written contract, when a client hires a lawyer to represent him, a contract is immediately formed between the two. As a general rule, the contract determines payment for a certain scope of work. If the lawyer doesn’t perform either the oral or written terms of the contract, the lawyer has committed a wrong and breached the attorney-client contract.
- Fraud or Fraudulent Inducement – Anytime a lawyer purposely misrepresents something and the client is injured in some way because of his or her reliance on the untruth, the lawyer has committed a wrong by committing fraud on their client.
- Theft or conversion – A lawyer who bills a client for fees that were not incurred, or takes a payment of settlement that belongs to the client has committed a wrong by committing theft or conversion.
- Breach of fiduciary duty – Any time a lawyer breaches any of the various fiduciary duties owed to a client, such as putting his or her interests ahead of the client’s or putting another client’s interest ahead the client’s, the attorney has fallen below the standard of conduct for attorneys practicing law, and has committed a wrong by breaching the fiduciary duty owed to their client. There are also implied terms that govern a lawyer’s conduct such as disclosure of conflict of interest, obligation to inform the client about certain matters, confidentiality, and the obligation to obtain the client’s consent before settling a case. Again, experts are generally called in to explain to the jury the professed “standard of conduct” or level of acceptable practice and whether or not the attorney breached one of their fiduciary duties.
- Violations of the Texas Deceptive Trade Practices Act – A lawyer may be liable under the Texas Deceptive Trade Practices Act for any of the following:
- An express misrepresentation of a material fact that cannot be characterized as advice, judgment or opinion;
- A failure to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed;
- An unconscionable action or course of action that cannot be characterized as advice, judgment or opinion; or
- A breach of an express warranty that cannot be characterized as advice, judgment or opinion.
- Violations of the Texas Barratry Statute – Barratry is simply the unethical or illegal solicitation of clients. Barratry occurs when a lawyer or someone acting on behalf of a lawyer visits your home, your business, your hospital room, or the accident site or contacts you by phone to solicit legal representation. Barratry also occurs if the lawyer or someone acting on behalf of the lawyer sends you a letter soliciting legal representation within thirty days from the date of your injury or incident. Section 82.0651 of the Texas Government Code provides for civil liability for prohibited barratry. Generally, a client may bring an action to void a contract for legal services that was procured as a result of conduct violating Section 38.12(a) or (b), Penal Code, or Rule 7.03 of the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, regarding barratry by attorneys or other persons. The statute allows a prevailing client to recover, among other things all fees and expenses paid under the contract, actual damages caused by the prohibited conduct, a penalty in the amount of $10,000, and reasonable and necessary attorney’s fees.