The Claims That Come Up Most Often
There are a host of reasons why an attorney may be accused of legal malpractice, including professional negligence, breaching fiduciary duty, and fraud. These malpractice claims arise when one fails to offer their legal services or counsel in a professional manner, or when their actions involve statutory or ethical violations that cause harm to their clients or others.
If you think a lawyer’s mistake cost you money, a Chicago legal malpractice attorney can review what happened.
Negligence
Out of all the types of malpractice claims, professional negligence is one of the most common. When making the claim that an attorney has acted negligently, clients must first prove the alleged negligence. Some questions that might be asked include:
- Was there a duty owed by the lawyer?
- Did the lawyer breach or violate that duty?
- Did the breach cause injury or harm to the client?
- Did the breach cause monetary damages?
In addition to these questions, proving negligence will frequently require expert testimony. Our guide to proving a legal malpractice claim covers that evidence.
Fraud
Fraud claims arise when an attorney misrepresents or omits material facts from a case. A related claim is negligent misrepresentation, which is when a lawyer accidentally misspeaks and says something untrue, and the client relies on that untruth in a way that causes the client harm.
Breach of Fiduciary Duty
In the legal world, fiduciary duty refers to the duty an attorney has to act in the best interest of their client. A breach of fiduciary duty occurs when an attorney fails to remain loyal or fair towards their client. A lawyer who puts personal interests ahead of a client’s is one example.
Breach of the Attorney-Client Agreement
In a breach of contract case, you must show that your ex-lawyer breached a specific clause in your attorney-client agreement. Fraud and breach of fiduciary claims may require a showing that they are not merely repetitive to the professional negligence claim.
Missed Deadlines and Calendaring Errors
In any profession, meeting deadlines is important, but in litigation, it is absolutely critical. In the legal world, missing deadlines can mean the difference between a case making it before a judge or not. When attorneys fail to meet statutory deadlines, such as the statute of limitations, clients can permanently lose their right to file a lawsuit.
Typically, this type of legal malpractice happens more often when multiple lawyers handle a single case because lines of communication are more likely to get crossed.
It is also important to note that there are strict statutes of limitations regarding legal malpractice claims. Our article on the statute of limitations for legal malpractice claims explains that deadline.
Conflicts of Interest
One relatively common example of breach of fiduciary duty is a conflict of interest. Like any fiduciary, your attorney owes you the duty to place your interests ahead of their own and to avoid things like undisclosed and unapproved conflicts of interest.
A conflict can come from another client whose goals clash with yours, a business deal with the lawyer, or the lawyer’s own stake in the outcome. Not every overlap counts, though. Other clients in the same industry are not necessarily a conflict, and a conflict usually matters only if it harmed the representation.
Settlement Mistakes
One of the main areas where lawyers commit malpractice is in their conduct of settlement negotiations. Attorneys can end up costing their clients serious money through a lack of diligence and skill when negotiating with insurance companies.
Settling without the client’s approval is another source of claims. A client who simply regrets a settlement later is in a different position, because a disappointing deal is not always a negligent one. Our article on how legal malpractice settlement amounts are calculated explains how losses are measured.
Gaps in Legal Knowledge and Research
Many malpractice claims involve a lawyer who did not know the governing law or misapplied it. When consulting with a legal malpractice lawyer, clients rightfully expect their original attorney to have been knowledgeable in their specific practice area. Understanding and knowing how to apply the law is crucial when it comes to representing clients.
Often, this type of error occurs when an attorney attempts to handle complex cases outside their primary focus. When a lawyer takes on unfamiliar cases, they must take extra care to understand the specific statutes and procedural rules that apply. Relying on an outdated rule, or assuming a deadline is longer than it is, can be costly. Our litigation team includes attorneys with backgrounds as licensed CPAs, which helps when a claim turns on tax or accounting questions.
Communication Failures
A lawyer must notify the client of crucial developments in their case. If the lawyer fails to tell the client, and the client suffers damages, the lawyer can be liable for malpractice. Ignoring a client for extended periods of time is one version of this problem.
Communication runs both ways. If a client goes silent or holds back key facts, a written record of the lawyer’s efforts to reach them may show the problem was not the lawyer’s doing.
When a Mistake Is Not Malpractice
A lawyer’s honest mistake or a lost case is not always malpractice. An unfavorable outcome alone is not proof of negligence, as Illinois courts ask whether the choice was reasonable at the time. When an attorney makes an informed, reasonable strategic choice, Illinois law generally shields that judgment call from a malpractice claim, even if the strategy fails.
A tactical litigation decision is often protected by judgmental immunity in Illinois, but that protection is not unlimited. Where a lawyer fails to investigate, misunderstands governing law, or ignores obvious risks, the shield may not apply.
Our article on good-faith errors in judgment looks at where that line falls.
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