An Overview on Legal Malpractice Law

Proving and defending a legal malpractice claim

By Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on March 1, 2023

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Clients expect their lawyers to act in their best interests, and they usually expect their lawyers to work mistake free. Unfortunately, sometimes lawyers make mistakes, and sometimes these mistakes lead to the dismissal or loss of a case. If you believe your lawyer’s actions led to your unfavorable result, you might be considering a legal malpractice lawsuit.

Clients and lawyers alike may find it beneficial to speak with a licensed attorney to understand whether the mistakes made in the case rise to the level of malpractice and what the next steps are. The following is a brief overview of the basics of proving and defending a legal malpractice claim.


Legal malpractice occurs when a layer handles a case inappropriately though negligence or an intent to harm their client. There are certain elements that must be proven, and the cases can get quite complex. Plaintiffs may want to consult with a lawyer to help them handle the details. Defendants might have a lawyer provided for them by their firm or insurance, but sometimes they must find their own. Plaintiffs and defendants may find it helpful to understand both sides of a malpractice case.

Proving a Case

To win a legal malpractice case, you must prove that your lawyer made mistakes in handling your case. However, it is not enough that you lost your case or that you wish they had done something different. A lot of your case will depend on the facts, but there are some general requirements that need to be met in every case.


When you enter an attorney-client relationship, your lawyer owes you a duty of care to competently represent your best interests. Your lawyer is not required to be perfect or even win your case. Rather, your attorney is required to represent you and handle your case according to the legal profession’s standard of care. If your attorney’s representation failed to meet the standard of care, they may have committed professional malpractice.

It’s important when evaluating negligence that you don’t rely on the benefit of hindsight, since lawyers sometimes must make decisions in the moment. The deciding factor is whether or not their professional conduct was reasonable. Often, expert testimony and state bar rules help establish the standard of care for attorneys in legal malpractice actions.

You next need to show that your lawyer’s professional negligence was the proximate cause of your harm. In other words, most jurisdiction require you to prove that you would have won your underlying case if not for your lawyer’s breach of fiduciary duty.

This can be tricky because it requires you to prove a case within a case without the benefit of the underlying case having reached judgment. This can also make your malpractice case expensive because of the necessity of hiring an expert to testify to the strength of your underlying case and the required standard of care. You will need to ensure that the recovery from your malpractice case justifies the extra expense of bringing it.

Defending a Case

If you are the defendant in a legal malpractice claim, you will want to make sure you do not do things to harm your case or bar some defenses. You will first want to look to your engagement letter where you set out the scope of your legal representation. This can form the basis of your defense if your former client is asserting you failed to do something that was outside the agreed-upon relationship.

Your strongest case will be one that weakens the elements your former client must prove, which are discussed above. The best way to do this is to prove that the underlying case would not have been successful—therefore the plaintiff did not suffer any harm.

Finally, some jurisdictions offer you the “judgmental immunity” doctrine, which protects you from liability if your mistake was based on an honest error in judgment. It is important to note that your mistake in judgment must be in regard to a debatable point of law, and the immunity does not necessarily extend to situations where you misapply settled law.

Common Questions for a Legal Malpractice Lawyer

Below are some common questions you might want to consider when meeting with a legal malpractice attorney for legal advice:

  1. What are your attorney’s fees and billing options?
  2. Do I have a good cause of action for legal malpractice?
  3. What is the difference between a malpractice claim and a bar complaint?
  4. What is the statute of limitations for malpractice claims?
  5. What compensation can I get through a legal malpractice lawsuit?

Finding the Right Attorney for Your Needs

It is important to approach the right type of attorney—someone who can help you through your entire case. To do so, you can visit the Super Lawyers directory, and use the search box to find a lawyer based on your legal issue or location.

To help you get started, you may want to consider looking for a lawyer who practices legal malpractice law.

Why Should I Talk to a Lawyer?

If you are suing your former attorney for malpractice, you might be skeptical about hiring another lawyer. However, because of the case-within-a-case nature of these claims, it is important to work with someone with the legal know-how to prove your underlying case while also proving your old lawyer should have handled it differently.

If you are a lawyer defending a malpractice claim, you may want to consider consulting with another attorney to make sure you understand your potential defenses. It can be tempting to think you know how to handle your own case, but malpractice cases are complex and you may benefit from assistance.

A lawyer will be able to anticipate potential problems with your case and advise you on how to approach them. Your lawyer will also keep track of deadlines and file all the paperwork with the necessary courts and agencies, giving you one less thing to worry about.

What do I do next?

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