Lawyers swear an oath to protect their clients to the best of their ability, but some will inevitably breach that duty. Missed deadlines, costly admin errors, and betrayals of trust are just a few of the ways lawyers can fail to meet expected standards. But failures like these aren’t just rookie mistakes, they are forms of professional negligence that cause real damage and pave the way for legal malpractice claims.
Legal malpractice occurs when an attorney’s mistake or misconduct harms a client, their case, or their financial interests. Unfortunately, these situations are more common than many realize, and they may even go uncorrected if the client is unaware of their legal protections.
In this article, we review 10 common examples of legal malpractice claims with real-world scenarios in which clients are entitled to recover their losses through legal action. If you’ve had a similar experience, you may have grounds for a lawsuit against your attorney.
Failure to Know or Apply the Law
As one would assume, attorneys are expected to understand the law in their practice area and keep up with legal changes. Failing to know a relevant law or misapplying it is one of the most frequent forms of attorney malpractice, signaling a lawyer’s inability to meet a standard of care and provide quality legal representation. Similarly, failing to apply a law that otherwise would have benefited a client can also constitute legal malpractice.
This type of legal malpractice often originates outside of an active lawsuit, when poor legal counsel is provided.
Example: A real estate investor in California hires an attorney to assist with the purchase of a multi-unit building. Their attorney fails to inform them that, under the Subdivision Map Act, the property cannot be sold as individual condominiums without obtaining approval from the local municipality. The investor moves forward with the purchase and completes renovations, but when it’s time to cash in on their investment, they learn that the municipal government prohibits the condo sales. Thus, the investor finds themselves facing significant financial losses and legal obstacles that could have been avoided with proper legal advice.
Missed Filing Deadlines
Missing a critical filing deadline is one of the most obvious errors an attorney can make, and a classic example of legal malpractice. If a lawyer fails to file a required legal document on time, the client can lose their right to pursue the claim or face a case dismissal.
Example: The most relevant example is when a lawyer fails to file a lawsuit within the applicable statute of limitations. As a result, the courts throw out the suit, and the client loses their chance to pursue justice. This mistake, often a simple calendaring error, has led to countless legal malpractice claims and poses grave risks, especially to clients filing claims related to their physical well-being.
Inadequate Investigation or Discovery
Lawyers are expected to thoroughly investigate facts and collect sufficient evidence during the discovery phase. The outcome of this process can mean the difference between winning or losing a justified lawsuit. If an attorney performs insufficient fact-finding or fails to uncover key evidence, it can easily spell doom for a case that otherwise would have been successful.
Example: During a contract dispute, an attorney fails to interview a crucial witness or review important financial records that would have strengthened the client’s position. The lack of investigation leads to losing a case that might have been won had the lawyer uncovered all the facts.
Communication Errors, or Poor Communication with Client
Communication breakdowns are a frequent source of malpractice claims. Lawyers must keep clients informed and consult them on decisions regarding their claims. When an attorney ignores calls, fails to update the client, or withholds important information, the client may suffer from uninformed decisions or missed opportunities. Even worse, some attorneys will abandon cases altogether, halting communication and leaving their client in the dark.
Example: An attorney negotiates with the opposing party but does not tell the client about a settlement offer or court hearing. The client, left in the dark, misses the chance to accept a favorable settlement, resulting in financial harm. This failure to communicate and inform the client is a breach of the attorney’s duty of care and has cost the client their settlement.
Conflicts of Interest
A conflict of interest occurs when a lawyer’s loyalties are divided or the attorney’s personal/professional interests are counter to those of the client. This is a violation of any good lawyer’s professional ethics. Lawyers are generally prohibited from representing clients in situations that create a conflict without informed consent, and should never have a vested interest in the opposing party’s success. This can lead to biased representation and threaten the legitimacy of the lawsuit.
Example: After the Madoff scandal, attorney Helen Chaitman represented both the beneficiaries and the victims involved in the Ponzi scheme. Because the two groups had opposing financial interests, representing them simultaneously created a direct, undisclosed conflict. Stalwart Law Group opened a lawsuit to recover the $5.9 million in legal fees Chaitman charged, accusing her of legal malpractice.
Misuse of Client Funds
Attorneys have a fiduciary duty to handle client money (such as retainers or settlement funds) with the utmost care. Misappropriating client funds, whether by placing them in the lawyer’s own account or outright stealing them, is a clear instance of legal malpractice. Overbilling a client (charging them for time not spent working on the case) is another common way lawyers might slip up and find themselves being sued for legal malpractice.
Example: A lawyer managing an escrow account for a corporate deal uses some of that money to pay personal bills. When the funds should be paid out to finalize the deal, they are missing, causing the client financial loss. Misuse or mismanagement of client finances almost always leads to legal action and disciplinary consequences.
Lack of Client Consent (Unauthorized Settlements or Actions)
Major decisions in a case must be made by the client, not the attorney. If a lawyer takes such action without the client’s informed consent, the client can claim malpractice.
Example: Without asking their client, a lawyer agrees to a settlement in a civil lawsuit for an amount far below what the client could have been awarded if negotiations continued. The client is unhappy with the result, and because the attorney acted without permission, the client may sue for malpractice, alleging their rights were signed away without consent.
Failure to Follow Client Instructions
Attorneys are obligated to follow reasonable instructions from their clients regarding their representation, even if the client’s decision differs from the attorney’s advice. Ignoring a client’s direct instructions is a violation of trust and can lay the grounds for a legal malpractice suit.
Example: A company directs its lawyer to include a specific clause in a contract or to file a particular counterclaim in a lawsuit. If the attorney disagrees and omits that clause or fails to file the claim, and the omission ends up harming the client’s interests, the company could pursue a malpractice claim. Attorneys must remember that the client is ultimately in charge of key strategic choices in their case.
Strategic Errors and Poor Planning
While lawyers have leeway in making strategic decisions, a fundamentally careless strategy or poor planning that no reasonably competent lawyer would choose can be considered an actionable offense. Tactical mistakes, like failing to adequately plan a case or missing viable defenses in the courtroom, can lead to significant losses. These errors may constitute professional negligence if the mistake is deemed blatant enough that any prudent attorney would have avoided it.
Example: An attorney handling a complicated medical malpractice lawsuit decides to skip hiring a neurologist as an expert witness to save costs, but that expert testimony was essential to prove the client’s claim. The case is lost due to a lack of expert evidence.
Fraud or Dishonesty by the Attorney
This is perhaps the most unambiguous type of malpractice. Fraud, deceit, or misrepresentation will certainly substantiate a legal malpractice case against an attorney. Intentional misconduct such as this is less common than negligence, but is egregious when it occurs.
If a lawyer intentionally deceives a client or others during the legal process, they may face legal penalties, disciplinary actions by the state bar association, and even criminal charges. Additionally, if their client was harmed, they will likely face a legal malpractice lawsuit by a capable lawyer with an interest in upholding the ideals of the legal system.
Example: A corporation hires a tax lawyer to help settle a multimillion-dollar payroll-tax liability. The attorney tells the CFO he has secured a favorable installment agreement and presents forged IRS correspondence as proof. Trusting its lawyer, the company diverts cash it had reserved for the liability to other projects. Later, the IRS issues final collection notices, revealing that no agreement was ever reached. The falsified documents and statements constitute intentional fraud, warranting a legal malpractice claim and exposing the attorney to criminal charges.
Fighting All Forms of Legal Malpractice
Each of the scenarios described on this page represent disturbing yet plausible instances of legal malpractice that can arise in civil or corporate practice. Unfortunately, legal malpractice claims continue to pervade the legal system, and if you suspect that your lawyer handled your case with negligence, we encourage you to contact a specialized legal malpractice attorney to seek retribution.
While it’s important to remember that not every mistake constitutes legal malpractice, serious offenses do happen, and clients are left to deal with harmful repercussions. Because of this, Stalwart Law Group has committed itself to upholding the ethics of the legal profession by taking negligent attorneys to court in California.
For more information on legal malpractice law in California, visit our legal malpractice page.
