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Adams & Clark, PC
Attorneys at Law

Suite 200
520 East Portland Street
Phoenix, Arizona 85004

(602) 258-3542
(602) 258-1377 FAX


What Is Legal Malpractice?


Legal malpractice is an umbrella term to define a suit against a lawyer. Although legal malpractice is generally referred to as attorney negligence, it can occur in any area of the law and can take many forms such as simple negligence, gross negligence, negligence per se, breach of contract, breach of fiduciary duty, fraud, and violations of statutes.

Legal malpractice simply means that a lawyer has failed breached a duty owed to the plaintiff by deviating from the professional standard of care and that the plaintiff was damaged by the attorney’s representation. In other words, the lawyer has failed to do that which a lawyer of ordinary prudence would have done under the same or similar circumstances, or has done that which a lawyer of ordinary prudence would not have done under the same or similar circumstances.

Clients can be damaged by lawyers in many ways such as:

  • Neglect - missing a statute of limitation, failing to conduct and respond to discovery, failing to designate experts and/or proper witnesses;
  • Lawyer's conflict of interest-putting the lawyer's interests above a client's or putting one client's interest over another client’s interest;
  • Drafting errors in documents and/or agreements.

Common types of mistakes are:

  • Failure to know the substantive law;
  • Failure to get a client's consent or to inform the client;
  • Failure to calendar events;
  • Not knowing or observing a deadline;
  • Insufficient discovery and/or investigation.

Legal malpractice occurs through:

  • Administrative errors (among them: failure to calendar, clerical error, procrastination);
  • Substantive errors (such as: failure to know the law, conflict of interest);
  • Client relations (not following client instructions, improper withdrawal);
  • Intentional wrong doing such as libel, civil rights, fraud, theft, malicious prosecution.
The general rule is that legal malpractice cases must be brought within two years from the time the injured party knew or should have known of the legal malpractice. This means that the injured party must file suit within that time period. There are, however, some equitable remedies that may extend the time for filing suit.

Attorney Judgment Rule

Under the attorney judgment rule, an attorney is not liable for what, in hindsight, were errors in judgment where the attorney made those judgments in good faith and in the honest belief that the decisions were well founded in the law and made in the best interest of the client. In other words, while a gross error in judgment may be actionable as legal malpractice, a mere error in judgment made in good faith is not. This rule protects the attorney who acts in good faith and keeps the client informed and involved in the case, but makes what turn out in hindsight to be strategic or tactical errors in handling a case.

The Case Within a Case

In many legal malpractice actions, there may be discussion of whether the plaintiff could win the "case within a case". This discussion occurs in malpractice cases involving prior litigation, where a plaintiff claims to have either lost or to have recovered a smaller amount of damages than warranted by the facts and law, as a result of the original lawyer's malpractice.

In order for the plaintiff to establish that damages were suffered as a result of the alleged malpractice, depending upon state law, it is often necessary for the plaintiff to prove that, but for the malpractice, a favorable verdict would have been won or greater damages recovered. In essence, this is a retrial of the original litigation within the context of the malpractice action—a case within a case.

Allowable Recovery in a Legal Malpractice Case

While recovery in a legal malpractice lawsuit for the sum of the judgment entered against the client without proof of payment appears to suffice, the same is not true where the client is denied full or complete compensation. That is, the client must not merely demonstrate what the result should have been, but also must establish the amount of money that would have been collected.

Awarding damages above that which the plaintiff could have actually collected in the underlying suit would result in a “windfall” to the plaintiff. Recovery then is limited only to the extent of the solvency of the underlying person against whom the judgment would have been entered but for the attorney’s negligence. In other words, if the plaintiff could not have collected a full judgment from the defendant in the underlying case, the attorney’s negligence did not injure the client in that amount or, to say it in another way, one cannot lose what one never could have recovered. This ensures that the plaintiff is in no better position by bringing suit against the attorney than if the underlying action had been successfully prosecuted.