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When you hire a lawyer, you expect your case to be handled properly. You expect that your lawyer will file court documents on time and represent your interests. You expect that your lawyer will know the law and will work diligently on your behalf. After all, lawyers are required to perform in accordance with certain competency and ethical standards.
Most of the time, your lawyer does just that. But sometimes lawyers don’t do their job properly. They may miss an important deadline, fail to recognize an important theory or just not pay attention to your case. If your lawyer fails to perform competently and you lose a case, a business, or money as a result, you have a right to seek compensation for your loss from the lawyer. You have a right to do this regardless of whether your lawyer’s actions were willful or he or she just made a mistake.
In order to be licensed to practice law in the first place, lawyers have to graduate from law school and pass the state Bar Examination, which measures whether they have a certain minimal level knowledge of the law. But the practice of law is so specialized today that three years of law school can only teach the basic outlines of the law in the dozens of specialized areas.
Sometimes lawyers accept cases in areas they are not familiar enough with. Sometimes, lawyers do not keep up with changes in the law. Sometimes lawyers take on too much work and can’t give a case the attention it deserves. It is easy to make a mistake handling a case, and if that mistake causes a client harm, the lawyer should be responsible.
Although most lawyers carry legal malpractice insurance, Massachusetts does not require lawyers to have legal malpractice insurance, and many don’t. When hiring a lawyer, you should look them up on the website of the Board of Bar Overseers. You can find out if they have ever been subject to professional discipline for such things as ignoring their cases, using clients’ funds for their own purposes, or taking on cases that they do not have enough experience to handle. Also, you can find out if they carry malpractice insurance. Without insurance, many lawyers have arranged their affairs so they are “judgment proof” – they have no assets in their own name. You will need a lawyer experienced in malpractice cases to help you figure out if you have a claim.
To prove a legal malpractice claim, you must first show that your former lawyer failed to exercise the skill and care of the average qualified attorney. If your former lawyer represents to you that he or she is a specialist of some sort, such as an expert in divorce cases, business formation, or litigation, he or she may be held to a higher standard of care. You must also be able to prove that your lawyer’s acts or omissions caused you harm, that is, you lost something.
The fact that a lawyer lost a case does not mean that he or she committed malpractice. To win a malpractice case, the party bringing the case has to show that the lawyer failed to exercise the skill and care appropriate under the circumstances and that if the lawyer had done a competent job, he or she would have won your case.
There are also a number of common defenses raised to legal malpractice claims. Click here for a discussion of defenses arising from the attorney client relationship, the scope of the representation, factual disputes about what happened, causation, damages, and the statute of limitations.
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