About Legal Malpractice
Negligence Committed by an Attorney
Legal malpractice is an umbrella term used to define a suit against a lawyer. As one Texas court has stated, the term “legal malpractice” may “refer to any claim brought by a client against that client’s attorney, regardless of whether the claim asserts negligence, fraud, breach of fiduciary duty, breach of contract, or any other allegation.” Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 184 n.1 (Tex. App. – Houston [14th Dist. 2003], no pet.).
Although legal malpractice is generally referred to as negligence committed by an attorney, it can occur in any area of the law and can take many forms, such as simple negligence, gross negligence, breach of contract, breach of fiduciary duty, fraud, and, in Texas, violations of the Texas Deceptive Trade Practices Act.
Clients can be damaged by lawyers in many ways, such as missing a statute of limitations, failing to conduct and respond to discovery, failing to designate experts and/or proper witnesses and drafting errors in documents and/or agreements. The most common types of mistakes are:
- Failure to know the substantive law.
- Failure to get a client’s consent or to inform the client regarding material facts.
- Failure to calendar events properly.
- Not knowing or observing material deadlines.
- Insufficient discovery and/or investigation.
- Failure to properly designate experts.
- Failure to properly designate material fact witnesses.
- Failure to diligently pursue the client’s case.
Legal malpractice can also occur through intentional acts such as when the lawyer engages in conflicts of interest, such as putting the lawyer’s own interests or the interests of another person over the interest of a client. It may also occur when a lawyer intentionally over bills a client.
For more information about the prevalence of legal malpractice claims, visit our Legal Malpractice Statistics page.
Time is of the essence, meaning there is a limited amount of time for which a client must file suit on a legal malpractice claim. In Texas, the general time limit for bringing a negligence claim against a lawyer is two years from the time the injured party knew or should have known through reasonable diligence of the legal malpractice. Claims that fall under the two-year statute of limitations are negligence, misrepresentation, and violations of the Texas Deceptive Trade Practices Act. Most cases against lawyers fall under this category. Cases against lawyers for fraud, breach of fiduciary duty and breach of contract fall under a four-year statute of limitations. This means that the injured party must file suit within these time periods, or the case may be barred. There are, however, some equitable remedies that may extend the time for filing suit. Moreover, each state’s statute of limitations can vary from State to State.