February 08, 2019 Practice Points

When Does a Mistake Become Legal Malpractice?

Three basic questions to consider in determining if an attorney’s mistake justifies a lawsuit.

By Michael S. LeBoff

Lawyers make mistakes. Sometimes those mistakes have consequences. Ultimately, a viable legal malpractice claim will turn on the facts of the case; but here are three basic things to consider in determining if an attorney’s mistake justifies a legal malpractice lawsuit.

  1. Was the attorney negligent? Often, clients review an attorney’s actions with the full benefit of hindsight, but to determine negligence, put yourself in the attorney’s shoes when the “mistake” happened. Decisions that were reasonable at the time may look foolhardy with the benefit of hindsight. Nor is every attorney expected to be Clarence Darrow or Perry Mason. Rather, attorneys ordinarily must act consistently with the community standard of care. In other words, not every mistake rises to a breach of the duty of care.
  2. Did the mistake cause damage? This is often where the rubber meets the road in legal malpractice cases. Even where an attorney made an obvious mistake, that mistake must have injured the client. The classic example of negligence is the attorney who did not file a lawsuit before the statute of limitations expired. Even if it was an inexcusable error, it gives rise to a viable legal malpractice claim only if the client proves to a “legal certainty” he or she would have won the case had it been filed on time. The client must also prove how much money he or she would have won and that the judgment was collectible.
  3. Were the damages significant? Legal malpractice cases are expensive because you are essentially litigating two cases: the malpractice case and the underlying matter (i.e., the case-within-the-case). In addition to legal fees, the client will almost always need an expert to establish that the attorney’s conduct fell below the standard of care. The economics, therefore, must justify the costs of pursuing further litigation.

Whether mistake rises to the level of legal malpractice will turn on a host of other considerations, but keeping these basic questions in mind is a good start in the analysis.

Michael S. LeBoff, P.C., is a partner with Klein & Wilson in Newport Beach, California.


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