Legal Malpractice Questions

What is legal malpractice?
Legal malpractice is the failure of a lawyer to render competent professional service to a client. If the client is damaged as a result of the failure, he or she may have a claim against the lawyer for legal malpractice. Three areas of liability are:

• Negligence;
• Breach of fiduciary duty; and
• Breach of contract.

Negligence is the most common cause of action.

What must I prove to win a legal malpractice case?
To win a legal malpractice case, you must prove four points:

• Your attorney owed you a duty.
• Your attorney breached that duty by acting negligently, and making mistakes a reasonable attorney would not have made.
• Your attorney's behavior caused you damage. This includes proving that the results of your case would have been different (for example, you would have won the case) had the attorney acted properly.
• You suffered a financial loss because of the negligence.

Is a legal malpractice claim the same as a grievance or bar complaint?
No. A legal malpractice claim asserts that the lawyer's conduct fell below the standard of care and caused an injury to the client. A grievance or bar complaint is made to the organization (in North Carolina, the N.C. State Bar) that licenses the lawyer. The state bar can discipline an attorney up to and including disbarring him or her or suspending his or her license.

What should I do if my lawyer will not answer my telephone calls and I believe he/she is not doing any work for me?
A lawyer not communicating is the biggest complaint made to state bars. Send your attorney a note letting him/her know that you've been trying to reach the office, and would greatly appreciate a return call as well as a written update and specific responses to your questions. The letter creates a paper trail of communication with your attorney.

How can I challenge my attorney's expense report?
Attorneys are obligated to provide you with documentation of expenses incurred in your case. If you have difficulty getting this information after making a written request, you should contact the State Bar.

How do I get a new lawyer?
The attorney-client contract commonly referred as the "retainer agreement" does not prevent you from replacing your current attorney with another attorney. For many types of claims, your first attorney will receive a fee for services rendered once the case is resolved, either for the actual time put in by your attorney or the value of the attorney services to the overall result obtained. This will vary depending upon the state in which you retained your lawyer.

For more information, see our page on Legal Malpractice.