Legal fault


    Legal malpractice liability theories

    Legal malpractice is a broad term that encompasses various types of civil liability claims brought against attorneys for breaches of duty owed by attorneys to their clients and sometimes to others who cause harm. A particular conduct by a lawyer may violate the professional standard of care, disciplinary rules, civil laws and even criminal laws. Such conduct may result in damages, forfeiture of fees, disqualification and loss of license.


    Lawyers implicitly represent to clients that they possess the requisite degree of skill, learning and ability necessary to practice law and that they will exercise reasonable and ordinary care and diligence in applying their skills and knowledge of representing clients. Negligence claims are by far the most common complaints brought against lawyers. The traditional elements of any negligence claim are:

    1. the defendant owes the plaintiff a duty of care;

    2. the defendant breaches this duty of care;

    3. the breach of duty caused immediate harm to the plaintiff; and

    4. damages for such injury.

    Lawyers generally owe a duty of care only to their clients and not to third parties. The Texas Pattern Jury Charges defines professional negligence as meaning “the failure to exercise ordinary care, that is, to fail to do what a lawyer of ordinary prudence would have done in the same or similar circumstances or to do what an ordinary prudential lawyer would have done”. not to have done so in the same or similar circumstances.” Proof of the standard of care and its violation generally requires the expert testimony of a lawyer.

    Breach of fiduciary duty

    Lawyers are fiduciaries and as such owe their clients a duty of utmost loyalty and are required to disclose fully and fairly all facts material to the representation of clients. Lawyers therefore have a duty of good faith and fair dealing with their clients and all relationships between lawyers and clients must involve complete integrity and loyalty on the part of lawyers. Lawyers must put the interests of clients before the interests of lawyers or other people, including other clients. Failure to provide full disclosure amounts to concealment. Clients rightly rely on the integrity and loyalty of their lawyers.

    Lawyers’ fiduciary duties include, among other things, avoiding impermissible conflicts of interest, protecting client confidences and property, fully disclosing all material information, following client instructions, and not engage in activities that are unfavorable to customers. When a client alleges that a lawyer has breached his fiduciary duties, a presumption of injustice arises and the lawyer bears the burden of proof that the fiduciary duty has been fulfilled in complete fairness, adequacy and equity.


    Fraud consists of a misrepresentation of a material fact, known to be false or made recklessly without any knowledge of its truth, made with the intention that another party would act on the representation, on which that other party relies reasonably, thereby suffering prejudice. Lawyers can be held liable for damages for defrauding their own clients; lawyers can also be held liable for committing fraud against third parties. Fraud can also occur when a lawyer is under an obligation to disclose certain information and fails to do so, to the detriment of the client.


    Lawyers who engage in criminal association may be liable to their clients and to third parties. A civil conspiracy consists of a combination of two or more persons with a specific intent to accomplish an object or plan of action which is an unlawful purpose or a lawful purpose by unlawful means when there has been one or more acts manifestly illegal in pursuit of the object resulting in nearby damage. Thus, a lawyer can be held for conspiracy for having knowingly consented to defraud a third party. Each co-conspirator is legally responsible for all acts done by either co-conspirator in furtherance of the conspiracy.

    Misleading commercial practices

    The Texas Deceptive Trade Practices – Consumer Protection Act (DTPA) applies only to attorneys for damage claims not based on the provision of legal services whose essence is to provide advice, judgment, or opinion. The DTPA does, however, apply to misrepresentations or impermissible acts that do not qualify as advice, judgment or opinion. The benefits of pursuing a DTPA cause of action are a somewhat lower standard for proving causation of damages and the ability to recover multiplicative damages and attorneys’ fees.

    Legal remedies for malpractice


    A plaintiff in an action for negligence or breach of fiduciary duty for malpractice must prove that the attorney’s breach of duty proximately caused the plaintiff’s injury, resulting in damages. Not all acts of negligence or breaches of fiduciary duty by lawyers cause harm. The proximate cause involves predictability and factual cause. Foreseeability assumes that the lawyer should have anticipated the risk to the client by the act of negligence. The case actually requires that the negligent act or omission be a substantial factor causing the injury without which the injury would not have occurred. Proving causation in malpractice cases generally requires the testimony of expert counsel to link the breach of duty to the harm caused by it.

    The Texas Jury Pattern Charges defines proximate cause as “the cause which, in a natural and continuing sequence, produces an event, and without which that event would not have occurred. To be a proximate cause, the act or omission complained of must be such that a lawyer exercising ordinary care would have foreseen that the event, or a similar event, could reasonably result from it There may be more than one proximate cause for an event.


    The most common remedy sought by clients from their former attorneys is recovery of damages caused by the attorney’s negligence or other breach of duty. The traditional method of establishing damages when an attorney represents a client in negligence is to prove the “deal within the deal”. The plaintiff must prove that, but for the attorney’s negligence, the plaintiff would have recovered the judgment in the original case, the amount of that judgment, and that any such judgment would have been recoverable. In the case where the lawyer abused the case of a defendant, the client must prove that had it not been for the lawyer’s negligence, the client would have prevailed on a well-founded defence. The “case within a case” standard of proof, however, may not be required in breach of fiduciary duty and DTPA cases.

    In other legal malpractice cases with no underlying litigation, traditional damages rules provide that the client may recover all foreseeable damages caused by the attorney’s wrongful acts or omissions. In addition, exemplary damages may be recoverable for attorney fraud or other malicious wrongdoing.

    Forfeiture of fees

    A lawyer who commits a clear and serious breach of duty to a client may be required to forfeit some or all of the lawyer’s compensation in the case, even if the client has suffered no actual harm. due to such violation. Typically, fee forfeiture cases are based on allegations that the lawyer has committed a serious breach of fiduciary duty or fraud. In the trial of a fee forfeiture case, a jury will consider whether the attorney committed the alleged breach, and the trial judge will determine whether that breach is clear and serious and, if so, the amount of fees to be forfeited. .

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