It can be very challenging for a lay person not well-versed in the law to know -- let alone prove -- that their attorney committed legal malpractice with their civil case. When this occurs, the clients may have little proof other than a vague, unsettled feeling that justice was never served.
Of course, a feeling of discontent is insufficient evidence to warrant filing a lawsuit alleging legal malpractice. But it can be the first step in sifting through the evidence to find credible proof that your attorney was negligent in litigating your case before a judge or jury.
Allegations are not proof
It's imperative that there be trust between an attorney and client. Without trust, the whole basis of the attorney-client relationship crumbles. But winning a legal malpractice case requires a tough fight. Below are some ways in which your legal counsel could have been remiss in their duty to represent your interests before the court.
Breach of a fiduciary duty
Perhaps you had a viable personal injury case for which you retained the attorney to litigate. Somewhere in the midst of negotiations with the liable party's insurance company, your attorney dropped the ball and neglected to file a lawsuit within the time allowed by law. Your case proscribed and is no longer prosecutable.
In the above case, the attorney was negligent in not timely filing your personal injury lawsuit. They owed you the duty to provide skillful and competent representation and breached that duty. As a result, this breach caused you injury or harm that led to a financial loss.
Along with all the above, it will be necessary to prove that had your attorney competently represented you, you would have been able to prevail with your claim and won an award for damages from the jury or judge presiding over your case. This causation is typically the most challenging facet of a legal malpractice claim to prove.
The confidentiality clause
Another way that your attorney could have committed malpractice is to fail to keep your communication confidential. Suppose you shared confidential information about your case with your attorney. Your attorney then shared this information with his wife, whom you know casually through work. During a discussion with another colleague, you realize that the confidential information you shared only with your attorney is now circulating around your workplace. This could become the basis of a malpractice claim against your attorney.
What about conflicts of interest?
A conflict of interest can also be challenging to prove, especially in smaller communities where there are fewer attorneys. Those attorneys may represent many of the same clients on multiple matters and be friends with other lawyers in the area.
But suppose the attorney whom you retained for one matter uses confidential information you shared for that case to litigate another case. That could potentially be a conflict of interest if it can be proven.
Two attorneys having a friendship does not necessarily make a conflict of interest. The attorney's close relationship with someone whose interests oppose yours may create a conflict if it affects your attorney's ability to represent your interests, however.
Your attorney has the obligation to convey all settlement offers from an insurance company to you and allow you to accept or reject them. Should the attorney not do so and accept a settlement or reject it, you may be able to pursue a malpractice claim against them for breaching their fiduciary duty to you as a client.